Exhibit 10.2


 


Execution
Copy


 


Confidential
Materials omitted and filed separately with the

Securities and Exchange Commission. 
Asterisks denote omissions.


 


 


New Ticketing Solution 

Project Agreement


 


 


Transport Ticketing Authority


 


 


Keane


 


 


The Clayton Utz contact for this document is


Steven Klimt on + 61 2 9353 4000


 


 


Clayton Utz


Lawyers


Levels 22-35 
No. 1 O’Connell Street Sydney NSW 2000 Australia


PO Box H3 Australia Square Sydney NSW 1215


T + 61 2 9353 4000  F + 61 2 8220 6700


 


 


www.claytonutz.com


 


 


Our reference 133/11068/80003545


 





















 


Table
of Contents


 


	
  1.

  	
  Definitions and interpretation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Definitions

  	
   

  
	
   

  	
  1.2

  	
  Interpretation

  	
   

  
	
   

  	
  1.3

  	
  Rule of
  construction excluded

  	
   

  
	
   

  	
  1.4

  	
  Order of precedence

  	
   

  
	
   

  	
  1.5

  	
  Omissions or misdescriptions of details

  	
   

  
	
   

  	
  1.6

  	
  Practice Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Commencement Date
  requirements and Conditions precedent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Commencement Date requirements

  	
   

  
	
   

  	
  2.2

  	
  Category 2 Matters to be documented

  	
   

  
	
   

  	
  2.3

  	
  Conditions precedent

  	
   

  
	
   

  	
  2.4

  	
  Principal’s benefit and waiver

  	
   

  
	
   

  	
  2.5

  	
  Notification

  	
   

  
	
   

  	
  2.6

  	
  Time for satisfaction

  	
   

  
	
   

  	
  2.7

  	
  Failure to satisfy conditions precedent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Fundamental
  obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Obligations

  	
   

  
	
   

  	
  3.2

  	
  Due Diligence

  	
   

  
	
   

  	
  3.3

  	
  Solution compliance with laws

  	
   

  
	
   

  	
  3.4

  	
  Assistance

  	
   

  
	
   

  	
  3.5

  	
  Response
  Matrices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Approvals

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Change in Law

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Meaning

  	
   

  
	
   

  	
  5.2

  	
  Procedure

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Relationship between the Principal and
  the Contractor

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  No Partnership,
  Joint Venture or Other Fiduciary Relationship

  	
   

  
	
   

  	
  6.2

  	
  Statutory
  Functions

  	
   

  
	
   

  	
  6.3

  	
  Review by the
  Principal

  	
   

  
	
   

  	
  6.4

  	
  Reliance

  	
   

  
	
   

  	
  6.5

  	
  No
  Representations by the Principal or others

  	
   

  
	
   

  	
  6.6

  	
  Pricing Warranty

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Project
  Management

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Project Control Group

  	
   

  
	
   

  	
  7.2

  	
  Key Personnel

  	
   

  
	
   

  	
  7.3

  	
  Contractor’s
  Representative

  	
   

  
	
   

  	
  7.4

  	
  Principal’s
  Representative

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  Compliance and quality

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Industrial
  Relations

  	
   

  
	
   

  	
  8.2

  	
  Occupational
  Health, Safety and Rehabilitation

  	
   

  
	
   

  	
  8.3

  	
  Quality
  Management System

  	
   

  
	
   

  	
  8.4

  	
  Quality
  Assurance Plans

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  Access

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Access Generally

  	
   

  



 


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  9.2

  	
  Access Coordination Agreement

  	
   

  
	
   

  	
  9.3

  	
  Bus Access Plan

  	
   

  
	
   

  	
  9.4

  	
  Access to Property

  	
   

  
	
   

  	
  9.5

  	
  Conditions of Access

  	
   

  
	
   

  	
  9.6

  	
  Disruption to Bus Operators

  	
   

  
	
   

  	
  9.7

  	
  Additional Bus
  Access

  	
   

  
	
   

  	
  9.8

  	
  Access Delay
  Reporting

  	
   

  
	
   

  	
  9.9

  	
  Delay Costs

  	
   

  
	
   

  	
  9.10

  	
  Principal Access

  	
   

  
	
   

  	
  9.11

  	
  Access during NTS Solution Requirements
  Phase

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  Responsibility
  for Work

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  Contractor Responsible

  	
   

  
	
   

  	
  10.2

  	
  Work performed by third parties

  	
   

  
	
   

  	
  10.3

  	
  Key Contracts

  	
   

  
	
   

  	
  10.4

  	
  Local content

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  NTS Solution Requirements Phase

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.1

  	
  NTS Solution
  Requirements Phase

  	
   

  
	
   

  	
  11.2

  	
  NTS
  Requirements Specification Warranty

  	
   

  
	
   

  	
  11.3

  	
  Development of
  NTS Requirements Specification

  	
   

  
	
   

  	
  11.4

  	
  NTS Solution
  Requirements Phase and Capital Price

  	
   

  
	
   

  	
  11.5

  	
  Civil Works

  	
   

  
	
   

  	
  11.6

  	
  Termination

  	
   

  
	
   

  	
  11.7

  	
  Additional Matters

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  Design

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.1

  	
  Fundamental design obligation

  	
   

  
	
   

  	
  12.2

  	
  Design warranty

  	
   

  
	
   

  	
  12.3

  	
  Design
  Documents

  	
   

  
	
   

  	
  12.4

  	
  Development of Design Documents

  	
   

  
	
   

  	
  12.5

  	
  Prototype

  	
   

  
	
   

  	
  12.6

  	
  Phase reviews

  	
   

  
	
   

  	
  12.7

  	
  Design and
  Non-Compliance

  	
   

  
	
   

  	
  12.8

  	
  NTS Demonstration Suite

  	
   

  
	
   

  	
  12.9

  	
  Traceability of
  Design

  	
   

  
	
   

  	
  12.10

  	
  Proof of
  Design

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  Implementation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.1

  	
  Implementation

  	
   

  
	
   

  	
  13.2

  	
  Project Timeline

  	
   

  
	
   

  	
  13.3

  	
  Project Master Schedule

  	
   

  
	
   

  	
  13.4

  	
  Progress
  Reports

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
  Development,
  Integration and Installation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.1

  	
  Development, Integration and
  Installation of the Solution

  	
   

  
	
   

  	
  14.2

  	
  Warranties

  	
   

  
	
   

  	
  14.3

  	
  Review

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
  Testing and
  Inspection

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.1

  	
  Testing

  	
   

  
	
   

  	
  15.2

  	
  Test Plan

  	
   

  
	
   

  	
  15.3

  	
  Test Documents

  	
   

  
	
   

  	
  15.4

  	
  Testing of
  Services

  	
   

  
	
   

  	
  15.5

  	
  Conduct of
  tests

  	
   

  



 


ii





















 


	
   

  	
  15.6

  	
  Test Data and
  results

  	
   

  
	
   

  	
  15.7

  	
  Testing by the
  Principal

  	
   

  
	
   

  	
  15.8

  	
  Non-compliance
  discovered as a result of testing

  	
   

  
	
   

  	
  15.9

  	
  Inspection

  	
   

  
	
   

  	
  15.10

  	
  Acknowledgement

  	
   

  
	
   

  	
  15.11

  	
  Integrated
  Test Facility

  	
   

  
	
   

  	
  15.12

  	
  Traceability
  of Testing

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
  Hold Points

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.1

  	
  NTS User Acceptance Test Phase

  	
   

  
	
   

  	
  16.2

  	
  Pilot Trial

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  17.

  	
  Completion

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.1

  	
  Completion process

  	
   

  
	
   

  	
  17.2

  	
  Certificates

  	
   

  
	
   

  	
  17.3

  	
  Effect of Certificate

  	
   

  
	
   

  	
  17.4

  	
  Pilot Trial

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  18.

  	
  Time

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.1

  	
  Completion

  	
   

  
	
   

  	
  18.2

  	
  Delay

  	
   

  
	
   

  	
  18.3

  	
  Risks of delays

  	
   

  
	
   

  	
  18.4

  	
  Failure to Meet
  Phase Dates

  	
   

  
	
   

  	
  18.5

  	
  Liquidated Damages

  	
   

  
	
   

  	
  18.6

  	
  Prepayment of Liquidated Damages

  	
   

  
	
   

  	
  18.7

  	
  Extension of time

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  19.

  	
  Defects Liability Period

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  20.

  	
  Variations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  20.1

  	
  Variations
  proposed by the Principal

  	
   

  
	
   

  	
  20.2

  	
  Variation Response

  	
   

  
	
   

  	
  20.3

  	
  Variation Order

  	
   

  
	
   

  	
  20.4

  	
  Valuation of
  Variation

  	
   

  
	
   

  	
  20.5

  	
  Payment for
  Variations

  	
   

  
	
   

  	
  20.6

  	
  Notice of
  Variation Claim

  	
   

  
	
   

  	
  20.7

  	
  Exclusion of
  Liability

  	
   

  
	
   

  	
  20.8

  	
  Variations
  proposed by the Contractor

  	
   

  
	
   

  	
  20.9

  	
  Variations
  performed by a subcontractor

  	
   

  
	
   

  	
  20.10

  	
  Updated
  documentation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  20A

  	
  Options

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  20A.1

  	
  Nature and
  expiry of Options

  	
   

  
	
   

  	
  20A.2

  	
  Valuation of
  Option

  	
   

  
	
   

  	
  20A.3

  	
  Payment for
  Options

  	
   

  
	
   

  	
  20A.4

  	
  Exclusion of
  Liability

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  21.

  	
  Payments of Capital Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  21.1

  	
  Payment
  Obligation

  	
   

  
	
   

  	
  21.2

  	
  Payment
  Schedule

  	
   

  
	
   

  	
  21.3

  	
  Payment Claims
  and Payments

  	
   

  
	
   

  	
  21.4

  	
  Conditions
  Precedent to Entitlement to Payment

  	
   

  
	
   

  	
  21.5

  	
  Principal’s
  Discretion

  	
   

  
	
   

  	
  21.6

  	
  Capital Price Adjustments

  	
   

  



 


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  21A

  	
  Delivery
  Services

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  21A.1

  	
  Provision
  of Delivery Services

  	
   

  
	
   

  	
  21A.2

  	
  General
  Obligation

  	
   

  
	
   

  	
  21A.3

  	
  Discontinuance
  of Delivery Services

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  22.

  	
  Initial
  Services

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  22.1

  	
  Provision
  of Initial Services

  	
   

  
	
   

  	
  22.2

  	
  General
  Obligation

  	
   

  
	
   

  	
  22.3

  	
  Compliance

  	
   

  
	
   

  	
  22.4

  	
  Operating
  policy

  	
   

  
	
   

  	
  22.5

  	
  Warranties

  	
   

  
	
   

  	
  22.6

  	
  Records

  	
   

  
	
   

  	
  22.7

  	
  Extension
  of Initial Services Term

  	
   

  
	
   

  	
  22.8

  	
  Smartcard
  Issuance

  	
   

  
	
   

  	
  22.9

  	
  Initial
  Services spares inventory

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  23.

  	
  Core
  Services

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  23.1

  	
  Provision
  of Core Services

  	
   

  
	
   

  	
  23.2

  	
  General
  Obligation

  	
   

  
	
   

  	
  23.3

  	
  Compliance

  	
   

  
	
   

  	
  23.4

  	
  Operating
  Policy

  	
   

  
	
   

  	
  23.5

  	
  Warranties

  	
   

  
	
   

  	
  23.6

  	
  Records

  	
   

  
	
   

  	
  23.7

  	
  Early
  termination of Core Services

  	
   

  
	
   

  	
  23.8

  	
  Core
  Services spares inventory

  	
   

  
	
   

  	
  23.9

  	
  Vandalism

  	
   

  
	
   

  	
  23.10

  	
  Replacement and Refurbishment

  	
   

  
	
   

  	
  23.11

  	
  Versions and updates

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  24.

  	
  Documentation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  24.1

  	
  Documentation
  Requirements

  	
   

  
	
   

  	
  24.2

  	
  Warranties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  25.

  	
  Technological Developments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  26.

  	
  Option
  to extend Core Services Term

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  27.

  	
  Services
  Charges and Delivery Services Charges

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.1

  	
  Services Charges and Delivery Services
  Charges

  	
   

  
	
   

  	
  27.2

  	
  Other Fees and Charges

  	
   

  
	
   

  	
  27.3

  	
  Monthly Invoice

  	
   

  
	
   

  	
  27.4

  	
  Payment

  	
   

  
	
   

  	
  27.5

  	
  Non-Acceptance of Monthly Invoice

  	
   

  
	
   

  	
  27.6

  	
  Benchmarking Information

  	
   

  
	
   

  	
  27.7

  	
  Exit Costs

  	
   

  
	
   

  	
  27.8

  	
  Smartcard costs

  	
   

  
	
   

  	
  27.9

  	
  Banking Arrangements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  28.

  	
  Performance Requirements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  28.1

  	
  Performance
  Requirements

  	
   

  
	
   

  	
  28.2

  	
  Acts
  of Prevention and Change in Law

  	
   

  
	
   

  	
  28.3

  	
  Corrective
  Action

  	
   

  
	
   

  	
  28.4

  	
  Review
  of Performance Requirements

  	
   

  
	
   

  	
  28.5

  	
  AFC
  System performance

  	
   

  



 


iv





















 


	
  29.

  	
  Legal
  and Financial Relationships

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  29.1

  	
  Legal
  Relationships

  	
   

  
	
   

  	
  29.2

  	
  Entitlement
  to Floats

  	
   

  
	
   

  	
  29.3

  	
  Contractual relationships

  	
   

  
	
   

  	
  29.4

  	
  Payment Systems (Regulation) Act 1998 and
  Banking Act 1959

  	
   

  
	
   

  	
  29.5

  	
  Unclaimed moneys

  	
   

  
	
   

  	
  29.6

  	
  Audit
  trail

  	
   

  
	
   

  	
  29.7

  	
  Reconciliation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  30.

  	
  Intellectual Property

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  30.1

  	
  Warranty by Contractor

  	
   

  
	
   

  	
  30.2

  	
  Contractor’s Indemnity

  	
   

  
	
   

  	
  30.3

  	
  Contractor to Rectify Infringements

  	
   

  
	
   

  	
  30.4

  	
  Rights Granted to the Principal

  	
   

  
	
   

  	
  30.5

  	
  Developed Intellectual Property

  	
   

  
	
   

  	
  30.6

  	
  Escrow

  	
   

  
	
   

  	
  30.7

  	
  Moral Rights

  	
   

  
	
   

  	
  30.8

  	
  Physical Material and Software

  	
   

  
	
   

  	
  30.9

  	
  Copyright and Circuit Layout Act

  	
   

  
	
   

  	
  30.10

  	
  Third Party Software

  	
   

  
	
   

  	
  30.11

  	
  Equipment IP

  	
   

  
	
   

  	
  30.12

  	
  Perfecting licences and ownership

  	
   

  
	
   

  	
  30.13

  	
  System Data and Logo

  	
   

  
	
   

  	
  30.14

  	
  Acknowledgement

  	
   

  
	
   

  	
  30.15

  	
  Patent validity

  	
   

  
	
   

  	
  30.16

  	
  Subcontractors

  	
   

  
	
   

  	
  30.17

  	
  Assurance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31.

  	
  Commercial
  rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  32.

  	
  Ownership

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  32.1

  	
  Ownership of Solution

  	
   

  
	
   

  	
  32.2

  	
  Device and Software

  	
   

  
	
   

  	
  32.3

  	
  Indemnity

  	
   

  
	
   

  	
  32.4

  	
  No Retention of Ownership

  	
   

  
	
   

  	
  32.5

  	
  Fixtures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  32A.

  	
  Branding

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  32B.

  	
  Government Purchasing Power

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  33.

  	
  Loss
  or Damage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  33.1

  	
  Make Good

  	
   

  
	
   

  	
  33.2

  	
  Reinstatement

  	
   

  
	
   

  	
  33.3

  	
  Discrepancies

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  34.

  	
  Security Bonds

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  34.1

  	
  Provision
  of Security Bonds

  	
   

  
	
   

  	
  34.2

  	
  Replacement of Bonds

  	
   

  
	
   

  	
  34.3

  	
  Operation
  of Bond Security Account

  	
   

  
	
   

  	
  34.4

  	
  Access
  of the Principal to Security Bonds

  	
   

  
	
   

  	
  34.5

  	
  The
  Contractor not to injunct the Principal

  	
   

  
	
   

  	
  34.6

  	
  Security
  Bonds to be provided as a condition precedent

  	
   

  
	
   

  	
  34.7

  	
  Return
  of Security Bonds

  	
   

  



 


v





















 


	
   

  	
  34.8

  	
  No
  limit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  35.

  	
  Open Architecture and Changes to the
  Solution

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  36.

  	
  Insurance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  36.1

  	
  Insurances

  	
   

  
	
   

  	
  36.2

  	
  General Requirements

  	
   

  
	
   

  	
  36.3

  	
  Contents of Policy

  	
   

  
	
   

  	
  36.3A

  	
  Payment of deductibles

  	
   

  
	
   

  	
  36.4

  	
  Information

  	
   

  
	
   

  	
  36.5

  	
  Remedy of Default

  	
   

  
	
   

  	
  36.6

  	
  Enforcement

  	
   

  
	
   

  	
  36.7

  	
  Cancellation and Change

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  37.

  	
  Force
  Majeure

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  37.1

  	
  Force Majeure Notice

  	
   

  
	
   

  	
  37.2

  	
  Meeting, Application of Provisions

  	
   

  
	
   

  	
  37.3

  	
  Suspension of Obligations

  	
   

  
	
   

  	
  37.4

  	
  Duty to Remedy Force Majeure

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  38.

  	
  Solution
  security and disaster recovery

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  38.1

  	
  Security
  measures updated

  	
   

  
	
   

  	
  38.2

  	
  Security
  audit

  	
   

  
	
   

  	
  38.3

  	
  Breaches
  and threatened breaches of Solution security

  	
   

  
	
   

  	
  38.4

  	
  Business
  Continuity Plan

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  39.

  	
  Contractor’s
  Representations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  39.1

  	
  Contractor’s
  representations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  40.

  	
  Indemnity
  and liability

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  40.1

  	
  Contractor
  Indemnity

  	
   

  
	
   

  	
  40.2

  	
  Contractor Indemnity to Principal for
  Economic Loss

  	
   

  
	
   

  	
  40.3

  	
  Liability of Contractor

  	
   

  
	
   

  	
  40.4

  	
  Exclusions

  	
   

  
	
   

  	
  40.5

  	
  Liability of Principal

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  41.

  	
  Step-in
  and temporary suspension of Work

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  41.1

  	
  Principal’s right of step-in

  	
   

  
	
   

  	
  41.2

  	
  Principal’s right to temporarily suspend
  Work

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  42.

  	
  Default
  and termination

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  42.1

  	
  Events
  of Default

  	
   

  
	
   

  	
  42.2

  	
  Termination
  by the Principal

  	
   

  
	
   

  	
  42.3

  	
  Impact
  of Dispute Resolution Procedures

  	
   

  
	
   

  	
  42.4

  	
  Right
  to Damages

  	
   

  
	
   

  	
  42.5

  	
  Actions
  taken following termination

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  43.

  	
  Termination
  for the convenience of the Principal

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  43.1

  	
  Right
  to Terminate

  	
   

  
	
   

  	
  43.2

  	
  Compensation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  44.

  	
  Expiration
  of Agreement and Handover

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  44.1

  	
  Termination prior to Solution Completion
  Date

  	
   

  
	
   

  	
  44.2

  	
  Expiration

  	
   

  
	
   

  	
  44.3

  	
  Transfer

  	
   

  



 


vi





















 


	
   

  	
  44.4

  	
  Maintenance of workforce

  	
   

  
	
   

  	
  44.5

  	
  Warranty

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  45.

  	
  Assignment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  45.1

  	
  Assignment
  by the Contractor

  	
   

  
	
   

  	
  45.2

  	
  Assignment
  by the Principal

  	
   

  
	
   

  	
  45.3

  	
  Change
  in control

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  46.

  	
  Confidentiality,
  information and privacy

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  46.1

  	
  Confidential
  information

  	
   

  
	
   

  	
  46.2

  	
  Exceptions

  	
   

  
	
   

  	
  46.3

  	
  Publicity

  	
   

  
	
   

  	
  46.4

  	
  Privacy

  	
   

  
	
   

  	
  46.5

  	
  Information

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  47.

  	
  Financial
  record keeping and reporting

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  47.1

  	
  Books of Account

  	
   

  
	
   

  	
  47.2

  	
  Financial Statements

  	
   

  
	
   

  	
  47.3

  	
  Management Accounts

  	
   

  
	
   

  	
  47.4

  	
  Fixed Asset and Spares Inventory Reporting

  	
   

  
	
   

  	
  47.5

  	
  Blackout Periods

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  48.

  	
  General record keeping and reporting

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  48.1

  	
  Acknowledgement

  	
   

  
	
   

  	
  48.2

  	
  Contractor to Co-operate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  49.

  	
  Dispute Resolution Procedures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  49.1

  	
  General

  	
   

  
	
   

  	
  49.2

  	
  Dispute Panel review

  	
   

  
	
   

  	
  49.3

  	
  Project Control Group review

  	
   

  
	
   

  	
  49.4

  	
  Chief Executive Officer review

  	
   

  
	
   

  	
  49.5

  	
  Expert determination

  	
   

  
	
   

  	
  49.6

  	
  Arbitration

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  50.

  	
  Administrative
  provisions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  50.1

  	
  Notices

  	
   

  
	
   

  	
  50.2

  	
  Stamp
  duty

  	
   

  
	
   

  	
  50.3

  	
  Governing
  law

  	
   

  
	
   

  	
  50.4

  	
  Jurisdiction

  	
   

  
	
   

  	
  50.5

  	
  Waiver

  	
   

  
	
   

  	
  50.6

  	
  No limitation

  	
   

  
	
   

  	
  50.7

  	
  Consent or approval of the Principal

  	
   

  
	
   

  	
  50.8

  	
  Measurements

  	
   

  
	
   

  	
  50.9

  	
  Amendments

  	
   

  
	
   

  	
  50.10

  	
  Further
  acts and documents

  	
   

  
	
   

  	
  50.11

  	
  Counterparts

  	
   

  
	
   

  	
  50.12

  	
  Expenses

  	
   

  
	
   

  	
  50.13

  	
  Severability

  	
   

  
	
   

  	
  50.14

  	
  Entire
  agreement

  	
   

  
	
   

  	
  50.15

  	
  Representations and warranties

  	
   

  
	
   

  	
  50.16

  	
  Indemnities

  	
   

  
	
   

  	
  50.17

  	
  Hold on Trust

  	
   

  
	
   

  	
  50.18

  	
  Non-merger

  	
   

  
	
   

  	
  50.19

  	
  Set-Off

  	
   

  
	
   

  	
  50.20

  	
  Survival

  	
   

  



 


vii





















 


	
   

  	
  50.21

  	
  Goods
  and services tax

  	
   

  
	
   

  	
  50.22

  	
  Interest

  	
   

  
	
   

  	
  50.23

  	
  Marketing
  and Communications by the Principal

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1 Phases

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 2 Key Personnel

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 3 Completion Pre-Conditions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 4 Certificate of Completion

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 5 Variation Order

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 6 Acceleration Direction

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 7 Schedule of Rates and
  Prices for Variations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 8
  Payment Schedule

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 9
  Subcontractors and Suppliers

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 10 Service Charges

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 11 CPI Adjustment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 12 Invoice Substantiation
  Data and Format

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 13 Transfer Principles

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 14 Expert Deed

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 15
  Parent Company Guarantee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 16 Escrow Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 17 Access Providers and Bus
  Operators

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 18 Early Termination Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 19 Bus Access

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 20 Security Bonds

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 21 Exit Costs

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 22 Industrial Relations Plan

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 23 OH&S Plan

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 24 Access

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 25 Pro-Forma Direct Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 26 Repricing Schedule

  	
   

  



 


viii





















 


	
  Schedule 27 Deed of Assurance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 28 Business Continuity Plan

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 29 Core Services Performance
  Requirements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 30 Initial Services
  Performance Requirements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 31 Customer Performance
  Requirements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 32 Delivery Services

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 33 Capex Refresh

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 34 Options

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 35 Vandalism

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 36 Capital Price Adjustments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 37 Category 1, 2 and 3
  Matters

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 38 Design Documents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 39 Testing

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 40 Banking Arrangements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 41 Intellectual Property
  excluded from Equipment IP

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 42 Design Targets

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  List
  of Exhibits

  	
   

  



 


ix





















 


New Ticketing Solution Project Agreement made
at Melbourne on July 26, 2005


 


Parties                              Public Transport Ticketing Body trading as Transport Ticketing
Authority ABN 73 595 242 024 of Level 38, 55 Collins Street,
Melbourne, Victoria (“Principal”) 


 


Keane Australia Micropayment Consortium Pty
Ltd ACN 114 334 600 of Level 50,
Bourke Place, 600 Bourke Street, Melbourne, Victoria (“Contractor”)


 


Recitals


 


A.                 This agreement sets
out the relationship between, and the rights and obligations of, the Principal
and the Contractor for establishing a world’s best practice operating company
for a smartcard based ticketing and payment solution, in a high quality, timely
and efficient manner as described in the Requirements Document and the Solution
Documentation.


 


B.                  The smartcard based
ticketing and payment solution will meet the Principal’s objectives and
requirements including:


 


•                   high levels of performance;


 


•                   timely delivery and smooth transition;


 


•                   flexibility for the system to evolve over time;


 


•                   value for money; and


 


•                    maintaining the
Principal’s ability to develop future commercial or government applications.


 


C.                  The Principal has
selected the Contractor to design, develop, integrate, install, test and
implement the Solution and to develop, test and provide the Initial Services
and the Core Services.


 


D.                 The Principal and the
Contractor have agreed to undertake the Project on the terms and conditions set
out in this agreement.


 


The parties agree


 


1.                  Definitions and
interpretation


 


1.1                Definitions


 


In
this agreement unless the context otherwise requires:


 


“Access” means access to or use of Access Providers’ Property or Bus
Property reasonably required by the Contractor to enable it to perform its
obligations under this agreement.


 


“Acceleration Costs” means the reasonable direct incremental costs plus a margin of [**]%
incurred by the Contractor reasonably involved in accelerating Delivery to
overcome or minimise the extent and effects of some or all of a delay.


 


“Acceleration Direction” means a direction
issued by the Principal to the Contractor to accelerate Solution
implementation.


 


“Access Charges” means the access charges and training charges which have been paid
to an Access Provider by the Contractor in accordance with an Access
Coordination Agreement but


 


1





















 


does not include any part of
the access charges attributable to access required by the Contractor additional
to that set out in an Access Plan which is not Alternative Access (as that term
is defined in the relevant Access Coordination Agreement).


 


“Access Coordination Agreement” means any agreement of that or similar name, between all of the
Contractor, the Principal, and an Access Provider in relation to access and
which is expressed in its terms to be an access coordination agreement for the
purposes of this agreement.


 


“Access Delay” means a delay which will prevent the Contractor from achieving
Completion of a Phase by the relevant Phase Date caused by one or more Access
Events but only to the extent to which it is not attributable to:


 


(a)                 the Contractor failing to act in a timely and
efficient way;


 


(b)                 the Contractor failing to do all things reasonably
expected of a prudent and experienced contractor undertaking the Work; or


 


(c)                 a breach of any Project Document by the Contractor.


 


“Access Event” means an event or
circumstance which unreasonably delays or prevents the Contractor from
obtaining Access under this agreement or an Access Coordination Agreement,
including:


 


(a)                 a failure to provide, or a delay in
providing Access or Alternative Access (as that term is defined in and applies
to the Proforma Access Coordination Agreement or an Access Coordination
Agreement) in accordance with clauses 9.3(c) or 9.7(a) of this
agreement, clause 7.1(a) of the Proforma Access Coordination Agreement or
the equivalent clause of an Access Coordination Agreement; 


 


(b)                 a direction from the Principal to
amend an Access Plan or the Bus Access Plan other than a direction to amend an
Access Plan or the Bus Access Plan to reflect agreed Access or Alternative
Access (as that term is defined in an Access Coordination Agreement or the
Proforma Access Coordination Agreement);


 


(c)                 a failure to agree within a
reasonable period on, or an unreasonable delay in agreeing, an Access Plan, a
Bus Access Plan, an amendment to an Access Plan or a Bus Access Plan, or
Alternative Access (as that term is defined in an Access Coordination Agreement
or the Proforma Access Coordination Agreement); or


 


(d)                 a breach of this agreement by the
Principal or a breach of an Access Coordination Agreement by the Access
Provider.


 


“Access Plan” means each access plan for an Access Provider, as developed and
amended from time to time pursuant to this agreement or the relevant Access
Coordination Agreement. 


 


“Access Principles” means the principles and conditions of access for each Access
Provider, including those set out in Part B of Schedule 24 and those
developed in accordance with this agreement, as amended from time to time by
agreement between the Principal, the Contractor and the relevant Access
Providers.


 


“Access Providers” means the organisations listed in Parts B and C of Schedule 17,
as amended by notice in writing to the Contractor.


 


“Access Providers’ Property” means: 


 


(a)                 all property owned, leased or used by each Access
Provider (and information and drawings relating to such property including
wiring diagrams) including the rolling


 


2





















 


stock, stops, terminals, stations, vehicles, depots, interchanges,
computer systems and other facilities, systems and power supplies of each
Access Provider; and


 


(b)                 personnel involved in the operation or use of the
property referred to in paragraph (a), including the employees of the Access
Provider.


 


“Act of Prevention” means any one of:


 


(a)                 a breach of this agreement by the Principal;


 


(b)                 any other act or omission of the Principal or the
Principal’s Representative (but not an act or omission of the Principal or the
Principal’s Representative acting in good faith and in the proper exercise of a
right under this agreement or any other Project Document);


 


(c)                 a Variation Order issued by the Principal in
accordance with this agreement;


 


(d)                 the occurrence of Access Delay;


 


(e)                 industrial action, to the extent that it directly
affects the Project and the Contractor is able to demonstrate that the
industrial action directly results from an act or omission of the Principal or
of any employee of the Principal employed to work on the Project, and the act
or omission occurs while acting in that capacity.


 


“AFC Equipment” has the same meaning as the defined term “Equipment”
in the Consolidated Service Contract.


 


“AFC Software” has the same meaning as the defined term “Software”
in the Consolidated Service Contract.


 


“AFC System” has the same meaning as the defined term “AFC
System” in the Consolidated Service Contract.


 


“AFC System Compensation
Payments” has
the same meaning as the defined term “Non-Availability Payments” in the
Consolidated Service Contract.


 


“AFC System Performance Levels” means the “Approved Performance Standards” and
the “Maximum CDA Standards” each as defined in the Consolidated Service
Contract.


 


“AFC Transition Plan” has the same meaning as the defined term “Transition
Plan” in the Transition Deed.


 


“AFSL” means an Australian Financial
Services Licence as that term is defined in the Corporations Act 2001.


 


“A-IFRS” means Australian Equivalents to
International Financial Reporting Standards.


 


“A.M. Best” means the ratings agency A.M. Best Company, Inc., and its successors
and assigns.


 


“Application Management Services” means the services
specified as such in the Requirements Document.


 


“Approval” means all approvals, authorisations, permits, consents, licences,
exemptions and the like which are required to be issued by or obtained from any
Authority in connection with the Project or the performance by the Contractor
of its obligations under this agreement.


 


“APRA” means the Australian Prudential Regulation Authority.


 


3





















 


“Arbitrator” means the
person agreed and appointed by the parties to act as an arbitrator for the
purposes of and in accordance with clause 49.6.


 


“Ascom” means Ascom (Switzerland) Limited Swiss Company Number CH
035.3.000.058-6.  


 


“Australian Payments System” means the Australian payments system, including the cheque system,
direct debit schemes, direct credit schemes, BPay and debit card and credit
card schemes (including the Visa, MasterCard, American Express and Diners Club
payment schemes).


 


“Authority” means any government department, local government council,
government or statutory authority, or any other body, which has a right to
impose a requirement or whose consent is required in connection with the Work
or the performance by the Contractor of its obligations under this agreement.


 


“Bank Bill Rate” in relation to a day means:


 


(a)                 the rate (which is expressed as a yield per centum per
annum to maturity) which is the buying rate for bank accepted bills quoted at
approximately 10:10 am (Melbourne time) on page ”BBSY” of the Reuters
Monitor System on that day, having a term of 1 month; or


 


(b)                 if that rate is no longer available or if, in the
reasonable opinion of the Principal, that rate becomes an inappropriate rate to
benchmark the Overdue Rate for the purposes of this agreement or becomes
incapable of application, the Bank Bill Rate means the rate reasonably
determined by the Principal to be the appropriate equivalent rate, having
regard to prevailing market conditions.


 


“Banking Charges” means only those fees and charges set out in Part A of Schedule 40.



 


“Bill of Materials” means the specification for
materials, equipment and software which the Contractor will provide as part of
the Solution which is set out in Exhibit 2A.


 


“Bond Security Account” means an 11am call/money market
account or similar account at an Australian bank or other Australian Financial
Institution with a credit rating of no less than A- (S&P) maintained by the
Principal to which the only signatories are representatives of the Principal.


 


“Brand” means all goodwill associated with the Solution including:


 


(a)                 all registered and unregistered trade marks (other than those
trade marks of a Contractor Stakeholder or a subcontractor of the Contractor
which are used in their business generally and are applied by them to the
Devices they supply, but which do not include, directly or indirectly, any
brands which are created or developed in connection with, the Solution or any
part of the Solution);


 


(b)                 all names including business names, domain names and company
names; and


 


(c)                 all telephone numbers, email addresses and all other
addresses used by the general public, Operators and Stakeholders in relation to
the Solution to make contact using a telecommunication network.


 


“Bus Access
Plan” means the Design Document which
includes the times of access to the Bus Property to be developed by the
Contractor and approved by the Principal in accordance with this agreement and,
in particular, the Bus Access Principles.


 


4





















 


“Bus Access Principles” means the principles and conditions of access set out in Part A
of Schedule 19 as amended from time to time by agreement between the
Principal and the Contractor.


 


“Bus Access Rates” means the rates set out in the Bus Access Principles.


 


“Bus Operators” means the organisations listed in Part A
of Schedule 17 as amended by notice in writing to the Contractor.


 


“Bus Property” means: 


 


(a)                 all property owned, leased or used by each Bus Operator (and
information and drawings relating to such property including wiring diagrams)
including the rolling stock, stops, terminals, stations, vehicles, computer
systems and other facilities, systems and power supplies of each Bus Operator;
and


 


(b)                 personnel involved in the operation or use of the property
referred to in paragraph (a), including the employees of the Bus Operators, 


 


of
each Bus Operator in respect of which the Contractor reasonably requires access
in order to carry out the Work.


 


“Business Continuity Plan” means
the plan entitled “Business Continuity Plan” prepared by the Contractor in
accordance with this agreement and based on the outline set out in Schedule 28.  


 


“Business Day” means a day on which
banks are open for business in Melbourne but not a Saturday or Sunday.


 


“Business Requirements Document” means the document
entitled “Business Requirements Document” set out in the NTS Requirements
Document.


 


“Capital Price” means the amount identified as the Total Capital Price in the
Payment Schedule as varied pursuant to clause 11, clause 20 and clause
21.6, to be paid to the Contractor pursuant to clause 21.  


 


“Cardholder” means a person to whom
a Smartcard has been issued.


 


“Cardholder Support Services” means the serviced
specified as such in the Requirements Document.


 


“Cash Collection Services” means the services specified as
such in the Requirements Document.


 


“Category 1 Matters” means the matters referred to in Part A
of Schedule 37.


 


“Category 2 Matters” means the matters referred to in Part B
of Schedule 37.


 


“Category 3 Matters” means the matters referred to in Part C
of Schedule 37.


 


“Certificate of Completion” means a certificate
given by the Principal’s Representative under clause 17.2 substantially in the
form of Schedule 4.


 


“Change in Law” has the meaning given to that expression in clause 5.1.


 


“Chief Executive Officers” means the chief executive officer of the Principal and the chief
executive officer of the Contractor.  


 


5





















 


“Civil Works” means all required pre-installation civil work for the Solution on
all rail stations, superstops and bus interchanges.


 


“Chubb” means Chubb Security Australia Pty Ltd ABN 99 003 605 098.


 


“Claim” means any claim or action:


 


(a)                 under, arising out of, or in connection with this
agreement;


 


(b)                 arising out of, or in connection with the Project;


 


(c)                 otherwise at law or in equity including:


 


(i)                  by statute;


 


(ii)                 in tort for negligence or otherwise, including negligent
misrepresentation; and


 


(iii)                in restitution, including restitution based on unjust
enrichment.


 


“CMM” means the Capability Maturity Model administered by the Software
Engineering Institute of the United States of America.


 


“Code of Practice” means a code of practice defined
in, and approved under, the Information Privacy Act 2000 (Vic).


 


“Commencement Date” means the date of this
agreement.


 


“Commonwealth” means the Commonwealth
of Australia.


 


“Completion” means, in respect of a Phase, when:


 


(a)                 the Phase has been completed in accordance with this
agreement, including the Requirements Document, except for minor Defects in
that Phase:


 


(i)                  which do not prevent the
Phase from being capable of being used for its intended purpose;


 


(ii)                 in relation to which the
Contractor has reasonable grounds for not promptly rectifying them; and


 


(iii)                rectification of which will not prejudice
the convenient use of the Phase; and


 


(b)                 all conditions precedent to completion of the relevant
Phase including those set out in Schedule 3 have been satisfied in
accordance with this agreement, including the Requirements Document.


 


“Completion
Date” means, in respect of a Phase,
the actual date of Completion of the Phase as certified in a Certificate of
Completion.


 


“Configuration Data” means all data and expressions of
data that are transmitted, received or stored within or created by the Solution
that enable Devices, computers and Smartcards to function correctly as part of
the Solution or that enable applications to be loaded onto Smartcards including
system security keys.


 


6





















 


“Consolidated Service Contract” means the agreement dated 24 May 1994
between Public Transport Corporation and OLT as amended and restated by the
Deed of Amendment and Restatement and as amended by the Transition Deed.


 


“Constitution” means the replaceable rules, constitution or combination of both as
those terms are used in section 134 of the Corporations Act.


 


“Contractor’s Primary Response” means: 


 


(a)                 the documents which form Exhibit 2A to this
agreement, including the Response Matrices and the Bill of Materials;


 


(b)                 Exhibit 4 (the Phase Deliverables); and


 


(c)                 the Project Timeline.


 


“Contractor’s
Privacy Plan” means the plan provided
by the Contractor and reviewed and approved by the Principal that sets out the
privacy procedures the Contractor will adopt.


 


“Contractor’s Representative” means the person appointed by the Contractor in accordance with
clause 7.3.


 


“Contractor’s Response” means: 


 


(a)                 the Contractor’s Primary Response; and


 


(b)                 the Contractor’s Secondary Response.


 


“Contractor’s Secondary Response” means the documents which form Exhibit 2B to this agreement.


 


“Contractor Stakeholders” means:


 


(a)                 the Contractor’s Related Bodies Corporate; and


 


(b)                 the Contractor’s shareholders, Ascom, Headstrong,
G&D and ERG and their Related Bodies Corporate,


 


as at the Commencement Date and
at any time thereafter.  


 


“Controller” means, in relation to a change in control of the Contractor, the
person or body corporate to whom control will pass.


 


“Core Services” means the Core Services specified as such in the Requirements
Document, and any Variations, changes or additions to the foregoing, supplied
by the Contractor.


 


“Core Services Performance Requirements” means the performance requirements relating to Core Services
developed in accordance with this agreement and to be set out in Schedule 29.


 


“Core Services Term” means the period commencing on the Completion Date of the NTS Regional
and Metropolitan Implementation Completion Phase and, subject to earlier
expiration or termination under provisions of this agreement, ending on the
date which is the 10 year anniversary of the final day of the calendar month
immediately preceding the calendar month in which the Completion Date of the
NTS Regional and Metropolitan Implementation Completion Phase falls, as
extended or reduced pursuant to this agreement.


 


“Corporations Act” means the Corporations Act 2001 (Cth).


 


7





















 


“Customer Performance Requirements” means the performance requirements developed in accordance with
this agreement and to be set out in Schedule 31.


 


“Deed of Amendment and
Restatement”
means the deed of that name dated 21 October 2002 between Public
Transport Corporation, OLT and others.


 


“Defect” means any part of a Phase or the Solution which is not in
accordance with the requirements of this agreement, including the Requirements
Document and the Solution Documentation.


 


“Defects Liability Period” means the period 24 months from the Solution Completion Date as
extended in accordance with clause 19(e).


 


“Delay Costs” means the reasonable direct incremental costs (excluding off-site
overheads and any element of profit) incurred by the Contractor reasonably
involved with an event or circumstance delaying the Contractor in achieving
Completion of a Phase by the relevant Phase Date, plus:


 


(a)                 in relation to the first 60 days of delays in respect
of which the Contractor is granted an extension of time under clause 18.7, a
margin of [**]%;


 


(b)                 in relation to any period of delay after the first 60
days of delays in respect of which the Contractor is granted an extension of
time under clause 18.7, a margin of [**]%.


 


“Delay Security Account” means an 11 am call/money market account or similar account at an
Australian bank or other Australian Financial Institution with a credit rating
of no less than A- (S&P) maintained by the Principal to which the only
signatories are representatives of the Principal.


 


“Delivery” means the design, development, integration, installation, testing
and implementation of the Solution (but does not include the provision of the
Services).


 


“Delivery Services” means any part of the Initial Services or Core Services which are
required in order to support the Solution, or any part of the Solution which is
operating during the Delivery Services Term. 



 


“Delivery Services Charge” means the charge to be paid to the Contractor during the Delivery
Services Term in accordance with clause 27.


 


“Delivery Services Term” means the period commencing on the Commencement Date and ending on
the day prior to the Completion Date of the NTS Regional and Metropolitan
Implementation Completion Phase.


 


“Design
Documents” means the design documents
and design analysis documents prepared in accordance with this agreement,
including the Requirements Document, and include each document listed in Schedule 38
as that list is amended and finalised in accordance with clause 11.7.


 


“Developed Intellectual Property” means:


 


(a)                 all Intellectual Property in any matter developed or
created by, or on behalf of, the Contractor, a Related Body Corporate, a
Contractor Stakeholder (other than G&D) or any other subcontractor, for the
purposes of this agreement; 


 


(b)                 all manuals and documentation specifically developed
by G&D for the purposes of this agreement but not including modifications
or changes to G&D’s business processes; and


 


8





















 


(c)                 to the extent that it does not fall within (a) or
(b), the Victorian Smartcard Application,


 


but does not include, for the avoidance of
doubt, Intellectual Property, existing at the time of execution of this
agreement, of the Contractor, any Related Body Corporate, the Contractor
Stakeholders or any other subcontractor.


 


“Device” means the equipment delivered and forming part of the Solution.


 


“Device Management Services” means the services specified as
such in the Requirements Document.


 


“Direct
Agreement” means each direct
agreement entered into pursuant to clause 10.3(c).


 


“Direct Costs” means the sum of:


 


(a)                 the reasonable direct incremental costs incurred by
the Contractor for work reasonably involved in effecting: 


 


(i)                  a Variation; or


 


(ii)                 any replacement of
the components of the Solution under clause 23.10(e), 


 


(excluding any element of margin which
accrues to the Contractor, any Related Body Corporate or any consortium partner
other than pursuant to an arms length arrangement); and


 


(b)                 [**]% of the direct cost referred to in paragraph (a).


 


“Direct Savings” means the sum of:


 


(a)                 the reasonable direct cost savings to
the Contractor in respect of Device and other equipment, Software and labour
and any other work by the Contractor in carrying out a Variation which is in
whole or in part an omission or deletion of Work (excluding any element of
margin which accrues to the Contractor, any Related Body Corporate or any
consortium partner other than pursuant to an arms length arrangement); and


 


(b)                 [**]% of the direct saving referred to in paragraph (a).


 


“Dispute Panel” means a panel comprising the Principal’s Representative and the Contractor’s
Representative.


 


“Dispute Resolution Procedures” means the procedures set out in clause 49.


 


“Distribution Services” means the services specified as such in the Requirements Document.


 


“Due Diligence material” means the documents and information:


 


(a)                 contained on the on-line information site and/or in
the physical data room (including any additional materials subsequently added
to the data room, materials marked in the data room index including
supplementals and any supplementary information provided to a tenderer);


 


(b)                 provided in presentations by the Principal and any
site visits or meetings;


 


(c)                 provided through the request for information process;
or


 


9





















 


(d)                 otherwise provided by the Principal or its advisers to
a tenderer during the tender process, including written or oral communications
transmitted to tenderers.


 


“Emergency” means a circumstance where there is a risk of a potential and
immediate threat to:


 


(a)                 public interest or safety on or relating to the Work; or


 


(b)                 the structural integrity or safety of any site on which the
Work takes place or the Solution is located,


 


or
a circumstance exists where it may be necessary for the Principal to take
immediate action to discharge its statutory duties or powers.


 


“E-Purse” means an application in a Smartcard able
to store and manipulate electronic value according to a standardised set of rules comprising
the various data elements, algorithms, systems and back end operations required
to support a highly secure electronic value payment mechanism suitable for
delivery via contactless or contact technology with security suitable for
banking purposes.


 


“Equipment IP” means Intellectual Property in all
and part of:


 


(a)                 the Device;


 


(b)                 computer programs supplied as a component of, embedded in or
forming part of the Device and without which such tangible items cannot
operate, such as Software, Firmware and Software in Devices; and


 


(c)                 related operating and maintenance Software, manuals and
instructions,


 


but
excluding any Intellectual Property which is:


 


(d)                 owned by the Contractor; 


 


(e)                 owned by any Contractor Stakeholder and which is listed in Schedule 41;
and


 


(f)                  Developed Intellectual Property.


 


“Equivalent Incident Units” means the units allocated to each event of Vandalism which falls
within a Vandalism Category, as set out in the table in Schedule 35.


 


“ERG” means ERG Transit Systems Ltd ABN 51 008 895 047.


 


“Escrow Agent” means the escrow agent
nominated by the Principal by written notice to the Contractor.


 


“Escrow Agreement” means the agreement
between the Principal, the Contractor and the Escrow Agent substantially in the
form of Schedule 16.


 


“Escrow Material” means:


 


(a)                 all the source code for the Software, contained or to be
contained in the Solution other than Software contained in or used to operate
the Developed Intellectual Property or Software referred to in paragraphs (c) or
(d);


 


(b)                 except for documentation referred to in paragraphs (c) or
(d), all documentation necessary for the Principal, or that a person in the
Principal’s position would otherwise require, to modify, maintain, test,
further develop or regenerate the


 


10





















 


Software contained in
the Solution or otherwise exercise any rights or ownership given to the
Principal under clause 30 and Software tools necessary for the Principal, or
that a person in the Principal’s position would otherwise require to modify,
maintain, test, further develop or regenerate the bespoke components of the
Solution, that has not been and is not required to be provided to the Principal
other than pursuant to clause 30.6 or 30.8(a); 


 


(c)                 a complete set of Ascom’s drawings, specifications, source
code, and a listing of key third party components and suppliers, necessary to
manufacture Devices supplied by Ascom, together with source code for any
Software supplied by Ascom for the management or operation of those Devices;


 


(d)                 a complete set of Wayfarer’s drawings, specifications, source
code, and a listing of key third party components and suppliers, necessary to
manufacture Devices supplied by Wayfarer, together with source code for any
Software supplied by Wayfarer for the management or operation of those Devices;
and


 


(e)                 a complete set of drawings and specifications for the Devices
supplied by Gunnebo, necessary to manufacture those Devices,


 


irrespective
of whether or not it has been especially customised or developed for the
purposes of this agreement or developed by the Contractor but does not include
source code, documentation and Software tools referred to in paragraphs (a) and
(b) to the extent it includes Third Party Software or Equipment IP except
to the extent that the Contractor has access to and utilises source code,
documentation, and Software tools for the purpose of performing the Work and
for which the Contractor has, after using best endeavours to do so, secured the
consent of the third party for the delivery of that Third Party Software or
Equipment IP into escrow in accordance with this agreement.


 


“Event of Default” means an event of
default set out in clause 42.1.


 


“Event of
Insolvency” means, in relation to a
person, any of the following events:


 


(a)                 a receiver, manager, receiver and manager, trustee,
administrator, controller (as defined in section 9 of the Corporations
Act) or similar officer is appointed in respect of a person or any asset of a
person;


 


(b)                 a liquidator or provisional liquidator is appointed in
respect of a corporation;


 


(c)                 any application (not being an application withdrawn or
dismissed within 7 days) is made to a court for an order, or an order is made,
or a meeting is convened, or a resolution is passed, for the purpose of:


 


(i)                  appointing a person
referred to in paragraphs (a) or (b);


 


(ii)                 winding up a corporation;
or


 


(iii)                proposing or implementing a scheme of
arrangement or composition in respect of the company other than for a solvent
reconstruction of the company;


 


(d)                 a moratorium of any debts of the company or an
official assignment or a composition or an arrangement (formal or informal)
with the company’s creditors or any similar proceeding or arrangement by which
the assets of the company are subjected conditionally or unconditionally to the
control of the company’s creditors is ordered, declared or agreed to, or is
applied for and the application is not withdrawn or dismissed within 7 days;


 


11





















 


(e)                 a person becomes, admits in writing that it is, is
declared to be, or is deemed under any applicable law to be, insolvent or
unable to pay its debts;


 


(f)                  a company ceases, or threatens to cease, to carry on
its business or payment of its debts generally;


 


(g)                 any writ of execution, garnishee order, mareva
injunction or similar order, attachment, distress or other process is made,
levied, issued or enforced against or in relation to any asset of the company.


 


“Expert” means the person appointed by the parties, or an independent expert
otherwise appointed pursuant to clause 2.3(f) or clause 49.5(d), to act as
an expert for the purposes of and in accordance with clause 49.5.


 


“Expert Deed” means the deed so
entitled in the form of Schedule 14, appointing the Expert to resolve
disputes and perform such other functions specified in this agreement.


 


“Expiry Date” means the expiry date for each Option as set out in Schedule 34.


 


“Final Bus Access Plan” means the version of the Bus
Access Plan finalised in accordance with clause 12.4(k).


 


“Financial Institution” means a financial
institution satisfactory to the Principal that is and
remains the holder of a current licence issued by APRA or, if the financial
institution has not been required to obtain, and has not sought, a licence from
APRA, it has and retains a current long-term foreign currency credit rating of
at least A minus issued by S&P, or the equivalent credit rating issued by
another generally-recognised international credit rating agency.


 


“Financial
Management Services” means the services specified as such in the
Requirements Document.


 


“Firmware” means a set of coded instructions
embedded within a device or component of a device that performs functions or
provides data to enable the device to operate in a specified manner.


 


“Fit For Solution Purposes” means:


 


(a)                 the Solution meets and will continue to meet the
requirements referred to in this agreement, including the Requirements
Document, the Performance Requirements, Industry Practice and open
architecture;


 


(b)                 the Solution is fit for the purposes of use as a
Smartcard based transport ticketing system;


 


(c)                 the Solution will comply with and operate in
accordance with all relevant requirements, policies, procedures, practices and
business rules of the Principal, the Government, Governmental Agencies,
Operators and Stakeholders:


 


(i)                  which are identified
pursuant to clauses 11.1 and 11.7;


 


(ii)                 of which the Contractor
is aware or which a prudent, competent and experienced contractor should have been
aware if it had done those things which the Contractor is required to do under
clauses 11.1 and 11.7; and


 


(iii)                in the case of a Variation, which are the
subject of that Variation,


 


(“the Victorian Requirements”).


 


12





















 


(d)                 the Solution complies with World’s Best Practice:


 


(i)                  as it stands at the
Completion Date of the NTS Solution Requirements Phase; or


 


(ii)                 as it stands at the
Completion Date of the NTS Front Office Design and Hardware FAT Phase for any
changes to World’s Best Practice that are reasonably foreseeable at the
Completion Date of the NTS Solution Requirements Phase,


 


applied to meet the Victorian Requirements.


 


(e)                 the Solution is sufficiently flexible, extensible,
scaleable and upgradeable to respond to all changes to, or any further,
relevant requirements, policies, procedures, practices and business rules of
the Principal, the Government, Governmental Agencies, Operators or Stakeholders
that are reasonably foreseeable by the Contractor as at the Completion Date of
the NTS Solution Requirements Phase;


 


(f)                  the Solution is able to be upgraded to be used as a
payment system, to support a multipurpose payment instrument which can be used
for retail or other payments at the outlets or devices of several service
providers for a range of purposes that are reasonably foreseeable by the
Contractor (or that would be reasonably foreseeable to a prudent, competent and
experienced contractor) as at the Completion Date of the NTS Solution
Requirements Phase.


 


“Float” means the quantum of money represented by any unredeemed value
resident on the E-Purse.


 


“Force Majeure” means:


 


(a)                 lightning, earthquake, fire, explosion, cyclone,
riots, industry wide industrial action which is not specific to, or attributable
to the action of, the Contractor or any of its Related Bodies Corporate or
subcontractors and is not industrial action which falls within paragraph (e) of
the definition of Act of Prevention, civil commotion, natural disaster,
sabotage, act of a public enemy, act of God (excluding storm and tempest), war
(declared or undeclared), revolution, radioactive contamination, flood or an
outbreak of an infectious disease which results in the Government, a
Governmental Agency or a government having jurisdiction over the person
claiming force majeure relief, issuing a general prohibition against persons
entering the State of Victoria; and


 


(b)                 a failure by an Access Provider to provide access in
accordance with an Access Coordination Agreement where such failure is caused
by an event for which the relevant Access Provider has claimed relief under the
force majeure regime in such Access Coordination Agreement,


 


but only if the Contractor could not have
prevented the effects of the event by taking those steps which a prudent,
experienced and competent contractor or operator would have taken.


 


“G&D” means Giesecke & Devrient Australasia Pty Ltd ACN 075 066
166. 


 


“Government” means the government of the State of Victoria.


 


“Governmental Agency” means any Government or semi-Governmental entity or authority, body
politic, Government department or statutory authority of the State of Victoria.


 


13





















 


“Gunnebo” means Gunnebo Entrance Control AB, Swedish registration number
556086-5403.


 


“Headstrong” means Headstrong Australia Pty
Ltd ABN 71 061 818 906.


 


“HP” means Hewlett-Packard Australia Pty Ltd ABN 74 004 394 763.


 


“Industrial
Relations Plan” means the plan entitled “Industrial Relations Plan” prepared by the
Contractor in accordance with this agreement and based on the outline set out
in Schedule 22.  


 


“Industry Practice” means design, development, installation and operation works and practices which are carried
out:


 


(a)                 in a sound and workmanlike manner with due care and skill and
applying world’s best practice in the relevant field;


 


(b)                 with due expedition and without unreasonable or unnecessary
delay;


 


(c)                 in a manner which facilitates best practice, efficient
operation and continuous improvement; and


 


(d)                 with the use of high quality equipment and materials of
merchantable quality which are fit for their intended purpose.


 


“Initial Services” means the Initial Services
specified as such in the Requirements Document, and any Variations, changes or
additions to the foregoing, supplied by the Contractor.


 


“Initial Services Performance Requirements” means the performance
requirements relating to Initial Services developed in accordance with this
agreement and to be set out in Schedule 30.


 


“Initial Services Term” means the period commencing on the
Completion Date of the NTS Regional and Metropolitan Implementation Completion
Phase and, subject to earlier termination under provisions of this agreement,
ending on the date which is the 2 year anniversary of the final day of the calendar
month immediately preceding the calendar month in which the Completion Date of
the NTS Regional and Metropolitan Implementation Completion Phase falls, as
extended pursuant to this agreement.


 


“Integrated Test Facility” means the integrated test facility
to be developed by the Contractor in accordance with this agreement, including
the Requirements Document and the Solution Documentation, which will replicate
the various components of the Solution and will enable testing of the Solution
and Services to be carried out.


 


“Intellectual Property” includes all copyright
and analogous rights, all rights in relation to inventions (including patent
rights), plant varieties, registered and unregistered trade marks (including
service marks), registered designs confidential information (including trade
secrets and know-how), circuit layouts and all other rights throughout the
world resulting from intellectual activity in the industrial, scientific or
artistic fields.


 


“KAMCO Board of Experts” means the KAMCO Board of Experts
referred to in this agreement, which is an internal working group of the
Contractor.  For the avoidance of doubt
the parties agree that the review, approval, comment, input, decision or action
of such working group does not affect or fetter in any way any right, action or
discretion of the Principal under this agreement.


 


“Keane Inc” means Keane, Inc., US federal identification number
042437166.


 


14





















 


“Key Contract” means: 


 


(a)                 each contract entered into between the Contractor and
a party named in Schedule 9 in relation to the Project; and


 


(b)                 any other contract nominated by the Principal in accordance
with clause 10.3.


 


“Law” means:


 


(a)                 common law; and


 


(b)                 Commonwealth, Victorian or local government
legislation, regulations, by-laws and other subordinate regulations.


 


“Licensed Intellectual Property” means all Intellectual
Property comprised in:


 


(a)                 all and any part of the Solution;


 


(b)                 Software which is otherwise used or to be used by, or on behalf
of, the Contractor to interface the Initial Services or the Core Services with
the Solution; and


 


(c)                 to the extent that it is not included in (a) or (b), the
Intellectual Property comprised in the Escrow Material,


 


excluding
the Developed Intellectual Property, Third Party Software and the Equipment IP.


 


“Liquidated Damages Limitation” means $10,000,000.


 


“List of Software” means a list of each
item of Software used or to be used by the Contractor or any other entity in
performing the Work which specifies in relation to each item of Software:


 


(a)                 name and release
version of the Software;


 


(b)                 owner and
distributor of the Software and, if relevant, the licensor and the licensee of
that Software;


 


(c)                 whether the
Software is Third Party Software;


 


(d)                 the duration of
any licence and maintenance agreements; and


 


(e)                 the licence and
maintenance fees and similar fees.


 


“Monthly
Invoice” means the invoice submitted
by the Contractor pursuant to clause 27.3.


 


“Moody’s” means the ratings agency Moody’s Investors Service Pty Limited ACN
003 399 657, and its successors and assigns.


 


“Moral Rights” means any of the rights identified as moral rights in the Copyright Act 1968 (Cth) or any other
law of the Commonwealth.


 


“NTS Demonstration Suite” means the set of Devices and Software to be developed by the
Contractor in accordance with this agreement, including the Requirements
Document and the Solution Documentation and delivered to the Principal for use
as a marketing and communication tool and to provide customers with a hands-on
experience of Smartcard technology.


 


“NTS Final Back Office Release Phase” means the phase specified as such in this agreement and, in
particular, Exhibit 4.


 


15





















 


“NTS Front Office Design and Hardware FAT
Phase” means the phase specified as
such in this agreement and, in particular, Exhibit 4.


 


“NTS Front Office Implementation 1 Phase” means the phase specified as such in this agreement and, in
particular, Exhibit 4.


 


“NTS Front Office Implementation 2 Phase” means the phase specified as such in this agreement and, in
particular, Exhibit 4.


 


“NTS Front Office Software FAT and Back
Office Release 1 and 2 Phase” means
the phase specified as such in this agreement and, in particular, Exhibit 4.


 


“NTS Front Office User Acceptance Test Phase” means the phase specified as such in this agreement and, in
particular, Exhibit 4.


 


“NTS Mobilisation Phase” means the phase specified as such in this agreement and, in
particular, Exhibit 4.


 


“NTS Operational Proving Phase” means the phase specified as such in the Requirements Document.


 


“NTS Release 0 and Prototyping Phase” means the phase specified as such in this agreement and, in
particular, Exhibit 4.


 


“NTS Regional and Metropolitan Implementation
Completion Phase” means the phase
specified as such in this agreement and, in particular, Exhibit 4.


 


“NTS Requirements Document” means the documents which comprise
Exhibit 1 to this agreement, including the Business Requirements Document,
the Project Requirements Document and the Open Architecture Requirements
Document.


 


“NTS Requirements Specification” means the document prepared by the Contractor and submitted to the
Principal in accordance with this agreement, including the Requirements
Document, in which the Contractor specifies all requirements and associated
business rules of the Principal, the Operators, the Government, the
Governmental Agencies and Stakeholders in relation to the Solution.


 


“NTS Solution Requirements Payment” means $8,543,000, as referred
to in clause 11.6.


 


“NTS Solution Requirements Phase” means the phase specified as such in the Requirements Document.


 


“NTS Transition” means any activities relating to the
transition from the AFC System to the Solution but does not include any
activities relating to disengagement of the AFC System where those activities
are not required for the implementation of the Solution.


 


“NTS Transition Plan” means the transition plan, which is a Design
Document, prepared by the Contractor outlining activities to be undertaken by
the Contractor in installing and implementing the Solution.


 


“NTS User Acceptance Test Phase” means the phase specified as such in this agreement and, in
particular, Exhibit 4.


 


“OH&S Act” means the Occupational Health and Safety Act 2004 (Vic).


 


“OH&S Plan” means the plan entitled “OH&S Plan” prepared by the Contractor
in accordance with this agreement and based on the outline plan set out in Schedule 23.  


 


16





















 


“OLT” means Onelink Transit Systems Pty Limited ABN 47 059 733 443.


 


“Open Architecture Requirements Document” means the document entitled “Open Architecture Requirements
Document” set out in Exhibit 1.


 


“Open Architecture Specification” means the document based upon the Open Architecture Requirements
Document prepared by the Contractor and submitted to the Principal in
accordance with this agreement.


 


“Operational Quality Assurance Plan” means the plan entitled
“Operational Quality Assurance Plan” to be prepared by the Contractor in accordance
with this agreement, including the Requirements Document.


 


“Operational Support Services” means the services
specified as such in the Requirements Document.


 


“Operators” means the Bus Operators and the Other Operators.


 


“Option” means each of the defined work packages identified as such and set
out in Schedule 34.


 


“Option Price” means each of the prices for an Option set out in Schedule 34.


 


“Optus” means Singtel Optus Pty Limited ABN 90 052 833 208.


 


“Other Operators” means those
organisations listed in Part B of Schedule 17, as amended by notice
in writing to the Contractor.


 


“Other Services” means the services in relation to
the Solution not provided by the Contractor (either directly or through its
sub-contractors) under this agreement.


 


“Overdue Rate” means 2% per annum above the Bank
Bill Rate.


 


“Parent Company Guarantee” means the indemnity and
guarantee provided by Keane Inc in the form of Schedule 15.


 


“Payment Milestone” means the milestones described in the Payment Schedule.


 


“Payment Schedule” means the payment schedule set
out in Schedule 8.


 


“Performance
Requirements” means the levels
of performance and services the Solution and the Initial Services or Core
Services must meet, as described in the Requirements Document, the Initial
Services Performance Requirements, the Core Services Performance Requirements
and the Customer Performance Requirements.


 


“Personal Data” means data or expressions of data
in respect of a Cardholder that are generated or stored:


 


(a)                 within the Solution; or


 


(b)                 by or on behalf of the Contractor for the purpose of
complying with this agreement,


 


other
than data which is owned by third parties (except the Contractor or its Related
Body Corporate).


 


“Personal Information” means that term as
defined in the Information Privacy Act 2000 (Vic).


 


17





















 


“Phase” means any one of the
NTS Mobilisation Phase, the NTS Solution Requirements Phase,  the NTS Release 0 and Prototyping Phase, the
NTS Front Office Design and Hardware FAT Phase, the NTS Front Office Software
FAT and Back Office Release 1 and 2 Phase, the NTS Final Back Office Release
Phase, the NTS Front Office User Acceptance Test Phase, the NTS User Acceptance
Test Phase, the NTS Front Office Implementation 1 Phase, the NTS Front Office
Implementation 2 Phase, the NTS Regional and Metropolitan Implementation
Completion Phase, and the NTS Operational Proving Phase as the context requires
and “Phases” means any 2 or more of the abovenamed Phases.


 


“Phase Date” means each of the dates for completion specified in Schedule 1
applying to each Phase, as extended (if at all) under clause 18.7.


 


“Pilot Trial” means the trial of the Solution to be agreed and documented during
the NTS Solution Requirements Phase in accordance with clause 11.1(b)(vi).


 


“PMMM” means the Project Management Maturity Model administered by Project
Management Solutions, Inc.


 


“Principal’s
Representative” means the person
appointed by the Principal in accordance with clause 7.4.


 


“Privacy Obligations” means:


 


(a)                 obligations imposed on public sector agencies under
the Information Privacy Act 2000 (Vic);


 


(b)                 any privacy obligations generally imposed on
Government Agencies or contractors of Government Agencies by the Government
notified to the Contractor by the Principal from time to time prior to the
Completion Date of the NTS Solution Requirements Phase;


 


(c)                 obligations imposed on private sector organisations
not exempt from regulation by the Privacy
Act 1988 (Cth) (as amended by the Privacy
(Private Sector) Amendment Act 2000);


 


(d)                 any privacy obligations generally imposed on
non-Government entities by the Government notified to the Contractor by the
Principal from time to time prior to the Completion Date of the NTS Solution
Requirements Phase;


 


(e)                 any privacy obligation accepted by the Principal and
notified to the Contractor by the Principal from time to time prior to the
Completion Date of the NTS Solution Requirements Phase; and


 


(f)                  any privacy codes of conduct or similar instruments in
relation to privacy protection which are industry standards and applicable to
the Solution or the Initial Services or the Core Services notified to the
Contractor by the Principal from time to time prior to the Completion Date of
the NTS Solution Requirements Phase.


 


If there is or arises any inconsistency,
ambiguity or discrepancy between any of the obligations referred to in
paragraphs (a), (b), (c), (d), (e) and (f) then the following order
of precedence will apply unless the Principal gives a direction to the
contrary:


 


(a)                 paragraph (a);


 


(b)                paragraph (b);


 


(c)                 paragraph (c);


 


18





















 


(d)                paragraph (d);


 


(e)                 paragraph (e); and


 


(f)                 paragraph (f).


 


“Product” includes any instrument (whether in electronic form or not) which
gives an entitlement to a service provided by an Operator but does not include
the E-Purse.


 


“Product Management Services” means the services specified as
such in the Requirements Document.


 


“Proforma Access Coordination Agreement” means the agreement set
out in Part A of Schedule 24.


 


“Project” means the design, development, integration, installation, testing
and implementation of the Solution and the development, testing and provision
of the Initial Services and the Core Services.


 


“Project Control Group” means the project control group
established under clause 7.1.


 


“Project Director” means the person referred to in Schedule 2
that has been nominated and engaged by the Contractor in accordance with clause
7.2.


 


“Project Documents” means:


 


(a)                 this agreement, including
the Requirements Document;


 


(b)                 the Variation
Orders;


 


(c)                 the Escrow
Agreement;


 


(d)                 the Expert Deed;


 


(e)                 the Parent Company
Guarantee;


 


(f)                  the Access
Coordination Agreements;


 


(g)                 the Direct
Agreements; and


 


(h)                 the Key Contracts.


 


“Project Manager” means the person referred to in Schedule 2 that has been
nominated and engaged by the Contractor in accordance with clause 7.2.


 


“Project Master Schedule” means the detailed plan
entitled the “Project Master Schedule” which is Exhibit 3A to this document
prepared by the Contractor and based on the Project Timeline as amended from
time to time in accordance with this agreement.


 


“Project
Quality Assurance Plan” means the
plan entitled “Project Quality Assurance Plan” to be prepared by the Contractor
in accordance with this agreement, including the Requirements Document.


 


“Project Requirements Document” means the document entitled “Project Requirements Document” set out
in Exhibit 1.


 


“Project Timeline” means the document
which is Exhibit 3 to this agreement.


 


“Proof of Design” means demonstrating the
functionality of the whole or part of the Solution.


 


19





















 


“Prototype” means a simulator which
replicates the proposed system architecture of the Solution.


 


“Public Information Act” means the Public Records Act 1973 (Vic), Freedom of Information Act
1982 (Vic), Whistleblowers Protection Act 2001 (Vic), Financial Management Act
1994 (Vic), Audit Act 1994 (Vic) and Ombudsman Act 1973 (Vic).


 


“Quality Management System” means the quality management system to be implemented by the
Contractor in accordance with this agreement, including the Requirements
Document.


 


“Related Body Corporate” has the same meaning as in the
Corporations Act.


 


“Reported Vandalism” means Vandalism set out in a Monthly Invoice in accordance with
clause 23.9.


 


“Reports Data” means all data and expressions of
data comprising reports generated or prepared by or on behalf of the Contractor
for the purpose of complying with this agreement.


 


“Requirements Document” means the NTS Requirements Document
and the Contractor’s Response.


 


“Response Matrices” means those parts of the
Contractor’s Primary Response which are tables which respond to the NTS
Requirements Document and are identified as “Response Matrix”.


 


“S&P” means the ratings
agency Standard and Poor’s (Australia) Pty Limited, ACN 007 324 852, and its
successors and assigns.


 


“Security Bonds” means the
unconditional, on demand and irrevocable undertakings from a Financial
Institution in favour of the Principal in the form set out in Schedule 20,
and which specifies a location within Melbourne where demand is given and
payment made, without further confirmation from the Financial Institution.


 


“Services” means the Initial
Services, the Core Services and the Other Services and any Variations, changes
or additions to the foregoing.


 


“Services Charge” means the charge to be paid to the Contractor during the Core
Services Term and during the Initial Services Term in accordance with clause
27.


 


“Services Documentation” means the documentation referred
to in clause 24.1(a) including those parts of the Design Documents which
fall within the documentation referred to in clause 24.1(a).


 


“Smartcard” means a stored value
card issued by a card issuer on which the Victorian Smartcard Application is
resident which can be used in the Solution.


 


“Smartcard Base Management Services” means the services
specified as such in the Requirements Document.


 


“Software” means a set of coded instructions that performs functions or
provides working data or parameters to enable a device or system to operate in
a specified manner, and be loaded into a system or device dynamically by a user
and includes all Firmware and operating systems required by a system or
subsystem to perform in a specified manner.


 


“Solution” means the ticketing and payment system designed, and to be
provided by the Contractor as described in this agreement, including the
Requirements Document, including all Solution Documentation, Device, computer
software, computer hardware, Smartcards issued by or on behalf of the
Principal, technical and system architecture, the Prototype and any


 


20





















 


Variations, changes or additions to the foregoing supplied by the
Contractor (and excluding provision of the Services).


 


“Solution Completion Date” means the date specified in the
Certificate of Completion in respect of the NTS Operational Proving Phase issued
by the Principal in accordance with clause 17.2.


 


“Solution Documentation” means all drawings, plans,
manuals, Software designs, reports, computer records, specifications and any
other documents (whether in hard copy or electronic form) prepared or required
to be prepared or used or referred to by or on behalf of the Contractor in
performing the Work including the Design Documents and the Services
Documentation.


 


“Spate” means Vandalism designated as “Spate” in accordance with clause
23.9(d).


 


“Stakeholders” means all parties with an interest in the Project,
including a governmental, financial, operational, management or other interest.


 


“System Data” means all Usage Data,
Configuration Data, Reports Data and Personal Data.


 


“Tax Act” means the Income Tax
Assessment Act 1936 of Australia and associated regulations and, where
applicable, any replacement legislation including, but not limited to, the Income Tax Assessment Act 1997 of
Australia.


 


“Technical Support Services” means the services specified as
such in the Requirements Document.


 


“Term” means the period commencing on the Commencement Date and, subject
to earlier termination, expiring on the date which is the date on which the
Core Services Term expires.


 


“Territory” means:


 


(a)                 Australia and New Zealand; and


 


(b)                 outside Australia and New Zealand for the purpose of
facilitating the operation, replacement, maintenance, modification, adaption or
upgrade of the Solution in Australia or New Zealand.


 


“Test Data” means a set of test inputs, execution conditions and expected
results developed for a particular objective, such as to exercise a particular
program path or to verify compliance with a specific requirement.


 


“Test Documents” means the detailed test
plans and procedures prepared by the Contractor and submitted to the Principal
in accordance with this agreement, including the Requirements Document.


 


“Test Plan” means the plan entitled
“Test Plan” which is prepared by the Contractor in accordance with this
agreement and based on the requirements and the Test Strategy set out in Schedule 39.


 


“Test Strategy” means the strategy for testing set
out in Schedule 39.


 


“Third Party Licences” means all licences, maintenance
and similar contracts for the Third Party Software.


 


“Third Party Software” means commercial off the shelf Software and Firmware owned by any
entity other than the Contractor or its Related Body Corporate which is:


 


21





















 


(a)                 comprised in all or any part of the Solution; or


 


(b)                 otherwise used or to be used by, or on behalf of, the
Contractor in performing the Initial Services or the Core Services; or


 


(c)                 Software tools necessary for the Principal, or that a
person in the Principal’s position, would otherwise require to modify,
maintain, test, further develop or regenerate the bespoke Software contained in
the Solution or otherwise exercise any rights or ownership given to the
Principal under clause 30,


 


and is identified as such in the List of
Software and any information provided under clause 30.8(e), but excludes
the Software embodying the Equipment IP.


 


“Total Bus Access” means the total access to the Bus Property as set out in the Final
Bus Access Plan.


 


“Transfer” means, subject to clause 30.10, the transfer of: 


 


(a)                 the Solution; and 


 


(b)                 to the extent it is not part of the Solution, all
infrastructure used in the provision of the Initial Services or Core Services,
(except to the extent that it is infrastructure of an entity other than the
Contractor which is also used by that entity to provide a material level of
services not related to the Initial Services or Core Services and which the
Contractor, using reasonable endeavours, is not able to transfer),


 


including, subject to clause 30.10, the Integrated Test Facility, to the Principal or a third party
(as the case may be) in a manner which includes enabling the Principal or a
third party to:


 


(i)                  take over the operation
of the Solution and the provision of the Initial Services and Core Services as
a going concern; or


 


(ii)                 replace the Solution with
another system.


 


“Transfer Plan” means the plan entitled “Transfer Plan” to
be developed by the Contractor in accordance with this agreement and the
Transfer Principles.


 


“Transfer Principles” means the principles governing Transfer set out in Schedule 13.


 


“Transit Purposes” means all fare payment, ticketing and fare collection activities of,
or connected with, the Operators.


 


“Transition Deed” means the deed titled New Ticketing Solution
Transition Amendment Deed dated 12 May 2005 between the Principal,
OLT and others.


 


“TTA’s Privacy Management Plan and Policy” means the Principal’s
own privacy management plan and policy as notified to the Contractor by the
Principal from time to time prior to the Completion Date of the NTS Solution
Requirements Phase.


 


“Usage Data” means all data and all expressions
of that data resulting from or in respect of transactions generated or
processed by the Solution other than data which is owned by third parties
(except the Contractor or its Related Body Corporate) including, any data or
expression of data on a Smartcard that represents stored value which may be
redeemed for services provided by any Operator.


 


“Value” includes rights associated with any Product.


 


“Vandalism” means a deliberate and unauthorised third party act against a
Device which:


 


22





















 


(a)                 results in a failure of that
equipment to perform its full range of functions;


 


(b)                 defaces (by paint, scratching of
any item or substance, burning, glass breaking or the like) any part of that
Device; or


 


(c)                 results in damage to any part of
that Device;


 


but does not include:


 


(d)                 any failure or fault in the
equipment comprising the Solution related to mechanical or electronic breakdown
of a component or part that results from normal operation of the Device; 


 


(e)                 any defect, failure, fault,
defacing or damage caused by normal usage of the Device;


 


(f)                  any defect, failure,
fault, defacing or damage caused to the Device by the Contractor and its
subcontractors;


 


(g)                 any failure resulting from power
failure or communications failure of the relevant service provider; or 


 


(h)                 any defect, failure, fault,
defacing or damage caused by an act of Force Majeure.


 


“Vandalism Cap” means a total of 10,000 Equivalent Incident Units of Reported
Vandalism.


 


“Vandalism Category” means the categories of Vandalism set out in Schedule 35.


 


“Vandalism Costs” means the direct incremental costs incurred by the Contractor for
work and equipment reasonably required for the rectification, repair or
replacement (as appropriate) of a Device (excluding any element of margin which
accrues to the Contractor, any Related Body Corporate or any consortium partner
other than pursuant to an arms length arrangement).


 


“Vandalism Year” means a one year period, with the first Vandalism Year commencing
on the Completion Date for the Pilot Trial and each subsequent Vandalism Year
commencing on the annual anniversary of that date.  


 


“Variation” means an alteration or
addition to, or reduction in, the Work, the Solution or the Initial
Services or the Core Services.


 


“Variation Notice” means a notice
proposing a Variation issued by the Principal’s Representative to the
Contractor under clause 20.1(a).


 


“Variation Order” means an order in the
form set out in Schedule 5 and issued under and in accordance with
clause 20.3.


 


“Vehicle” includes coaches,
buses, trains, trams and other vehicles.


 


“Version” means a new edition of any Software which contains substantial new
functionality or incorporates substantial restructuring of the Software.


 


“Victorian Industry Participation Plan” means the plan entitled
“Victorian Industry Participation Plan”
which is Exhibit 5 to this agreement.


 


“Victorian Smartcard Application” means:


 


(a)                 the electronic records that comprise the E-Purse;


 


(b)                 the electronic records that comprise Product (if any);


 


23





















 


(c)                 the electronic records representing any entitlement to
concessionary-travel or free travel recognised by one or more of the Operators;


 


(d)                 the electronic records that define the interaction of the
medium upon which the above three electronic records are resident with any part
of the Solution; 


 


(e)                 the electronic records that contain data concerning a limited
number of the most recent previous add-value and fare payment transactions;


 


(f)                  the data formats and definitions of the electronic record
listed above;


 


(g)                 the identity uniquely associated with the electronic records
listed above;


 


(h)                 the data base schema that uniquely identifies the association
of the electronic records listed above with other data residing within any part
of the Solution;


 


(i)                  the executable components and associated descriptive
documentation by which the electronic records listed above are created, read or
modified when the medium on which the electronic records listed above resident
interacts with a Device;


 


(j)                  the executable components and associated descriptive
documentation by which the ability to create, read and modify the electronic
records listed above is implemented between the medium on which the electronic
records are resident and a device which is part of the Solution; and


 


(k)                 the Configuration Data, executable components and associated
descriptive documentation by which any interaction which creates, reads or
modifies the electronic records listed above is authenticated and kept secure.


 


“Wayfarer” means Wayfarer Transit Systems Limited English Registered No. 1232487.



 


“Work” means any work required
to be performed by the Contractor pursuant to this agreement including Delivery
and provision of the Initial Services and the Core Services.


 


“World’s Best Practice” means the highest standards and practices achieved anywhere in the
world in relation to any aspect of, or activity associated with, the Solution. 


 


1.2                Interpretation


 


In this agreement:


 


(a)                 headings are for convenience
only and do not affect interpretation;


 


and unless the context indicates a contrary
intention:


 


(b)                 an obligation or a liability
assumed by, or a right conferred on, 2 or more persons binds or benefits them
jointly and severally;


 


(c)                 “person” includes an individual,
the estate of an individual, a corporation, an authority, an association or a
joint venture (whether incorporated or unincorporated), a partnership, a trust
and Governmental Agencies;


 


(d)                 a reference to a party includes
that party’s executors, administrators, successors and permitted assigns,
including persons taking by way of novation;


 


(e)                 a reference to a document
(including this agreement) is to that document as varied, novated, ratified or
replaced from time to time;


 


24





















 


(f)                  a reference to a
statute includes its delegated legislation and a reference to a statute or
delegated legislation or a provision of either includes consolidations,
amendments, re-enactments and replacements;


 


(g)                 a word importing the singular
includes the plural (and vice versa), and a word indicating a gender includes
every other gender;


 


(h)                 a reference to a party, clause,
schedule, exhibit, attachment or annexure is a reference to a party, clause,
schedule, exhibit, attachment or annexure to or of this agreement, and a
reference to this agreement includes all recitals, schedules, exhibits,
attachments and annexures to it;


 


(i)                  if a word or phrase
is given a defined meaning, any other part of speech or grammatical form of
that word or phrase has a corresponding meaning;


 


(j)                  “includes” in any
form is not a word of limitation; and


 


(k)                 a reference to “$” or “dollar”
is to Australian currency.


 


1.3                Rule of
construction excluded


 


In the interpretation of this agreement, no rule of
construction applies to the disadvantage of one party on the basis that that
party put forward or drafted this agreement or any provision in it.


 


1.4                Order
of precedence


 


(a)                 If there is or arises any
inconsistency, ambiguity, or discrepancy between:


 


(i)                  any of:


 


A.                 clauses 1 to 50 of
this agreement;


 


B.                  the Schedules;


 


C.                  the Exhibits;


 


D.                 the Design Documents;


 


E.                  the NTS Requirements
Specification;


 


F.                  the Solution
Documentation, other than the Design Documents; and


 


G.                  a Variation Order;
or


 


(ii)                 this agreement and
any other Project Documents,


 


the following order of precedence will apply:


 


(i)                  the Variation Order;


 


(ii)                 clauses 1 to 50 of
this agreement;


 


(iii)                the Schedules (except
Schedules 22, 23, 28 and 39);


 


(iv)               the Project Timeline;


 


(v)                the NTS Requirements
Specification;


 


25





















 


(vi)               subject to the order of
precedence in clause 1.4(e), the NTS Requirements Document and the Contractor’s
Response (other than the Project Timeline);


 


(vii)              Schedules 22,
23,  28 and 39;


 


(viii)             Exhibits 3A and 5;


 


(ix)                any other Project
Document;


 


(x)                 the Design Documents,
other than the NTS Requirements Specification; and


 


(xi)                the Solution
Documentation, other than the Design Documents.


 


(b)                 With the exception of the
Contractor’s Response, and the NTS Requirements Document, if there is or arises
any inconsistency, ambiguity or discrepancy within:


 


(i)                  Variation Orders;


 


(ii)                 clauses 1 to 50 of
this agreement;


 


(iii)                the Schedules;


 


(iv)               each Exhibit;


 


(v)                the NTS Requirements
Specification;


 


(vi)               the Design Documents, other
than the NTS Requirements Specification;


 


(vii)              the Solution
Documentation, other than the Design Documents; or


 


(viii)             any other Project
Document,


 


the Contractor must notify the Principal’s
Representative, or the Principal’s Representative may notify the Contractor, in
writing within 10 Business Days of becoming aware of any such
inconsistency, ambiguity or discrepancy. 
The Principal’s Representative must determine the intention of the
parties and notify the Contractor of the resolution of the inconsistency,
ambiguity or discrepancy within 20 Business Days of the Principal’s
Representative being so notified.  No
direction by the Principal’s Representative under this clause 1.4 will
constitute a Variation.


 


(c)                 If there is or arises any
inconsistency, ambiguity or discrepancy within any of: 


 


(i)                  the Contractor’s
Primary Response; 


 


(ii)                 the Contractor’s Secondary
Response; or 


 


(iii)                the NTS Requirements
Document, 


 


the preferred standard or outcome within each
of clauses 1.4(c)(i), (ii) or (iii), as determined by the Principal’s
Representative, will prevail.


 


(d)                 If there is or arises any
inconsistency, ambiguity or discrepancy between the Contractor’s Primary
Response and the Contractor’s Secondary Response, then the Contractor’s Primary
Response will prevail.


 


26





















 


(e)                 If there is or arises any
inconsistency, ambiguity or discrepancy between the NTS Requirements Document
and the Contractor’s Response, the following order of precedence will apply:


 


(i)                  where the Response
Matrix in the column headed Minimum Requirement Compliance Level is marked “F”
then whichever of the Contractor’s Response and the NTS Requirements Document
provides the preferred standard or outcome, as determined by the Principal’s
Representative, will prevail in relation to the subject matter to which that “F”
in the Response Matrix applies;


 


(ii)                 where the Response
Matrix in the column headed Minimum Requirement Compliance Level is marked “Q”
then: 


 


A.                 to the extent that
any aspect of the subject matter to which that “Q” applies is not qualified in
the Contractor’s Response, whichever of the Contractor’s Response and the NTS
Requirements Document provides the preferred standard or outcome, as determined
by the Principal’s Representative, will prevail in relation to that subject
matter; and 


 


B.                  to the extent that
any aspect of the subject matter to which that “Q” applies is qualified in the
Contractor’s Response, subject to clause 1.4(d), the preferred standard or
outcome within the Contractor’s Response, as determined by the Principal’s
Representative, will prevail in relation to that subject matter;


 


(iii)                where the Response
Matrix in the Column headed Minimum Requirement Compliance Level is marked “X”
or blank space, then, subject to clause 1.4(d), the preferred standard or
outcome within the Contractor’s Response, as determined by the Principal’s
Representative, will prevail in relation to the subject matter to which that “X”
or blank space in the Response Matrix applies; and


 


(iv)               to the extent the
inconsistency, ambiguity or discrepancy is not dealt with under the principles
in clauses 1.4(e)(i), (ii) or (iii), the preferred standard or outcome, as
determined by the Principal’s Representative, will prevail.


 


1.5                Omissions
or misdescriptions of details


 


Omission
of details of the Work in the Project Documents or the misdescription of
details generally acknowledged to be customary and/or necessary to carry out
the Work or which the Contractor knew or reasonably should have known and
should have included in the Solution Documentation will not relieve the
Contractor from performing such omitted or misdescribed Work, and they must be
performed as if fully and correctly set forth and described in the Project
Documents, without entitlement to a Variation under this agreement.


 


1.6                Practice
Notes


 


The
Principal may from time to time issue practice notes to the Contractor in
relation to any provision of the Project Documents and may at any time vary or
revoke any such practice note.  The
parties agree that practice notes are intended to facilitate the administration
of the Project Documents but do not have contractual force and are not
contractually binding on the Principal or the Contractor.


 


27





















 


2.                  Commencement Date requirements and
Conditions precedent


 


2.1                Commencement
Date requirements


 


This
clause 2.1 records the intention of the parties that, prior to the Principal
executing and dating this agreement and each other of the Project Documents
referred to in clause 2.1 to which it is a party: 


 


(a)                 the Principal’s Representative has received all of the following
in a form and substance satisfactory to it:


 


(i)                  original counterparts of
the following Project Documents, duly executed by all parties and satisfaction
of all conditions precedent to such documents:


 


A.                 this agreement including the
Requirements Document; and


 


B.                  the Parent Company
Guarantee;


 


(ii)                 copies of the Insurance Policies
required under clause 36.1(a)(ii) and (iv), to be in place from the
Commencement Date, and a certificate from an insurance broker as to the
currency of each such policy, or, if the Contractor is bound by a duty of
confidentiality to the issuer of any such policy prohibiting disclosure of its
terms, then instead of a copy of such policy, a letter from the insurance
broker to the Principal confirming that the policy complies with clause 36 and
containing the principal terms of cover (including policy limits and key
inclusions), cross liability clauses, notice provisions, all the information
from the policy schedule and any endorsements in full, and also containing
a statement acknowledging that the Principal is relying upon those
representations;


 


(iii)                the Security Bonds required under
clause 34; and


 


(b)                 all of the Category 1 Matters have been agreed between
the Principal and the Contractor and this agreement has been amended and
updated accordingly, except for each Category 1 Matter as described in Part A of Schedule 37,
where reaching agreement on that item prior to execution of this agreement by
the Principal has been waived by the Principal, and
items the subject of such waivers are deemed to become Category 2 Matters with
effect from the date of waiver, to be dealt with under clause 2.2.


 


Upon
these conditions having been so satisfied, or so waived, the Principal is
entitled to and will execute and date this agreement and those Project
Documents referred to in this clause 2.1 to which it is a party.


 


2.2                Category
2 Matters
to be documented


 


(a)                 The Contractor and the Principal
will use all reasonable endeavours to agree, resolve or finalise the Category 2
Matters prior to the Phase Date for the NTS Mobilisation Phase:


 


(i)                  consistent with the
principles or documents set out or referred to in the Category 2 Matters in
relation to the subject matter to be agreed;


 


(ii)                 to meet the
requirements of this agreement, including the Requirements Document; 


 


28





















 


(iii)                in accordance with
this clause and the process (if any) specified or referred to in each Category
2 Matter.  


 


(b)                 In addition to any process
referred to in clause 2.2(a)(iii) the Contractor must meet with the
Principal, make available staff and carry out all other tasks reasonably
requested by the Principal as are necessary in order for the parties to agree
the Category 2 Matters prior to the Phase Date for the NTS Mobilisation Phase. 


 


(c)                 The Category 2 Matters will,
when agreed, be documented by way of amendments to this agreement.


 


(d)                 The Category 2 Matters must be
agreed by the Phase Date for the NTS Mobilisation Phase or such later date as
is agreed between the parties. 


 


(e)                 If any Category 2 Matters are
not agreed by the Phase Date for the NTS Mobilisation Phase or such later date
as is agreed by the parties then on the Phase Date for the NTS Mobilisation
Phase or such later date as has been agreed, or in the event that a later date
cannot be agreed, on the Phase Date for the NTS Mobilisation Phase, those
Category 2 Matters which have not been agreed may be referred by either party
to the Expert for determination in accordance with clause 49.5 taking into
account:


 


(i)                  the principles set
out in the relevant Category 2 Matters or in the relevant documents referred to
in the Category 2 Matters;


 


(ii)                 the requirements of
this agreement, including the Requirements Document; 


 


(iii)                the Contractor’s
warranties under this agreement, including that the Solution must be Fit For
Solution Purposes; and


 


(iv)               Industry Practice as it
applies to the relevant Category 2 Matter,


 


except that any determination of the Expert
will be final and binding on each party and clauses 49.5(l) and 49.5(m) will
not apply.


 


(f)                  The Category 2
Matters will, when agreed or determined, be documented in accordance with
clause 2.2(c) and be incorporated into the Solution or the Initial
Services or the Core Services (as the case may be), without additional cost to
the Principal and, notwithstanding any other provision of this agreement other
than clause 20A, the Contractor will not be entitled to make any Claim in
respect of such incorporation.


 


2.3                Conditions
precedent


 


The
payment of the Milestone Payment due after the Completion Date for the NTS
Mobilisation Phase is subject to the Principal’s Representative being
reasonably satisfied that the following conditions have been met:


 


(a)                 the Principal’s Representative has received all of the
following in a form and substance satisfactory to it:


 


(i)                  original counterparts of
all the following Project Documents, duly executed by all parties other than
the Principal and satisfaction of all conditions precedent to such documents:


 


29





















 


A.                 the Direct Agreements, and the Key
Contracts to which they relate, to be entered into by Ascom, ERG, Headstrong
and G&D; and


 


B.                  Deeds of Assurance
required under clause 30.17(c)(i);


 


(ii)                 original counterparts of letters of
intent signed by the Contractor and each of Wayfarer, Gunnebo, HP, Optus and
Chubb in respect of their respective entry into: 


 


A.                 a Key Contract; 


 


B.                  a Deed of Assurance (in
the case of Wayfarer and Gunnebo); and 


 


C.                  (other than Wayfarer and
Gunnebo in respect of their Key Contracts with Ascom) a direct agreement with
the Principal, and in the case of Wayfarer and Gunnebo their entry into a
direct agreement with the Contractor, as required to enable the Contractor to
comply with its obligations under clause 10.3(h);


 


(iii)                copies of all the Insurance
Policies required under clause 36.1, and not already provided on the
Commencement Date, and certificates from an insurance broker as to the currency
of each such policy, or if the Contractor is bound by a duty of confidentiality
to the issuer of any such policy prohibiting disclosure of its terms, then
instead of a copy of such policy, a letter from the insurance broker to the
Principal stating that the policy complies with clause 36 and containing the
principal terms of cover (including policy limits and key inclusions), cross
liability clauses, notice provisions, all the information from the policy schedule and
any endorsements in full, and also containing a statement acknowledging that
the Principal is relying upon those representations;


 


(b)                 the parties have:


 


(i)                  subject to clause
2.3(f), appointed an Expert on the terms of Schedule 14 with amendments in
writing as reasonably required by the Expert, or as otherwise agreed between
the parties and the Expert and the Expert Deed has been duly executed by the
Contractor and the Expert; and


 


(ii)                 appointed an Arbitrator;


 


(c)                 the Escrow Agreement has been duly executed by the
Contractor and the Escrow Agent nominated by the Principal; 


 


(d)                 the Contractor has deposited with the Escrow Agent, Escrow
Material in accordance with clause 30.6 and the terms of the Escrow Agreement; 


 


(e)                 the Principal has issued a Certificate of Completion in
respect of the NTS Mobilisation Phase;


 


(f)                  in the case where an Expert has not been appointed at the
time a party wishes to refer a Category 2 Matter for determination under clause
2.2(e), the Principal will request the Australian Commercial Disputes Centre
(ACDC) to nominate an Expert within 5 Business Days, following which the
Principal will as soon as is reasonably practicable execute and procure
execution by the nominated Expert of an Expert


 


30





















 


Deed. 
The Expert Deed will be on the terms of Schedule 14 with such
amendments to those terms as may be reasonably required by the nominated Expert
and so as to reflect that the Expert Deed will terminate immediately after the
determination by the Expert of any Category 2 Matter or Category 3 Matter which
is referred to the Expert.  The
Contractor must within 2 Business Days after receipt from the Principal duly
execute the Expert Deed; and


 


(g)                 all of the Category 2 Matters have been agreed between the
Principal and the Contractor or determined by the Expert (as the case may be)
and this agreement has been amended and updated accordingly.


 


2.4                Principal’s
benefit and waiver


 


(a)                 Each of the conditions precedent set out in clauses 2.3(a) to
2.3(e) is for the sole benefit of the Principal and may only be waived, or
deferred, in writing by the Principal’s Representative (in its absolute
discretion).


 


(b)                 The requirement in clause 2.3(g) that a Category 2
Matter be agreed as a condition precedent to payment of the Milestone Payment
due after the Completion Date of the NTS Mobilisation Phase may be waived by
the Principal, and if the Principal gives such a waiver, the Category 2 Matter
the subject of the waiver will be deemed to become a Category 3 Matter with
effect from the date of waiver.


 


2.5                Notification


 


The
Contractor must notify the Principal’s Representative in writing as and when it
considers that each condition precedent in clause 2.3 has been satisfied.


 


2.6                Time
for satisfaction


 


The
Contractor must take all reasonable steps to satisfy the conditions precedent
in clause 2.3 by: 


 


(a)                 for the conditions precedent set out in each of clauses 2.3(a) to
2.3(e), the Phase Date for the NTS Mobilisation Phase or such later date as the
Principal’s Representative may otherwise (in its absolute discretion) notify to
the Contractor in writing;


 


(b)                 for the condition precedent set out in clause 2.3(g),
the relevant date in accordance with clause 2.2(d) or such later date
by which the Expert has made determinations on all matters referred to the
Expert under clause 2.2(e).


 


2.7                Failure
to satisfy conditions precedent


 


If
the conditions precedent in clause 2.3 are not satisfied or waived by the
relevant date under clause 2.6, then:


 


(a)                 the Principal may at its option terminate this agreement;


 


(b)                 in the case of termination for failure to satisfy the
conditions precedent set out in clauses 2.3(a) to 2.3(e) the
Contractor will indemnify the Principal against all costs, expenses, losses,
damages, claims or liabilities suffered or incurred by the Principal arising
out of or in connection with:


 


(i)                  the failure of the
conditions precedent to be so satisfied or waived; or


 


(ii)                 the Project or this agreement; and


 


31





















 


(c)                 the Contractor will not be entitled to bring any Claim
against the Principal arising out of or in connection with:


 


(i)                  the failure of the
conditions precedent to be so satisfied; and


 


(ii)                 the Project or this agreement.


 


3.                  Fundamental obligations


 


3.1                Obligations


 


The
Contractor must design, develop, integrate, install, test and implement the
Solution, conduct other testing and develop, test and provide the Initial
Services and the Core Services in accordance with, and in compliance with, the
following:


 


(a)                 this agreement, including the Requirements Document;


 


(b)                 the Solution Documentation, including the NTS Requirements
Specification;


 


(c)                 the other Project Documents; and


 


(d)                 all Approvals, all laws and all applicable requirements of
any Authority.


 


3.2                Due
Diligence


 


The Contractor warrants that prior to the
date of this agreement:


 


(a)                 it has done everything that
would be expected of a contractor with expertise in this area in assessing the
scope of the Work and the risks which it is assuming under this agreement;


 


(b)                 without limiting paragraph (a) it
has:


 


(i)                  examined the
property to which it requires access to carry out the Work and has satisfied
itself fully as to the conditions and access which may affect its performance
of the Work;


 


(ii)                 informed itself
completely of the nature of the Work and materials necessary for the Work;


 


(iii)                informed itself of all
regulatory requirements of the Government and any Authority in relation to the
Work generally;


 


(iv)               checked and carefully
considered the Due Diligence material;


 


(v)                checked and carefully
considered the NTS Requirements Document; and


 


(c)                 obtained all appropriate
professional and technical advice on all matters and circumstances in respect
of the matters referred to in this clause 3.2.


 


3.3                Solution
compliance with laws


 


(a)                 The Contractor must:


 


(i)                  design the Solution to
operate; and 


 


(ii)                 ensure the Solution operates, 


 


32





















 


in
compliance with all Approvals, all requirements of any Authority and all laws
and industry codes, including all applicable banking, funds transfer, deposit
holding, privacy and related laws, regulations and directives, from time to
time applicable to the operation of the Solution.


 


(b)                 If the Contractor must obtain an AFSL in order to comply
with this agreement, the obtaining of an AFSL will be considered a Variation
and clause 20 will apply, except that the maximum value of that Variation,
calculated in accordance with clause 20.4, for which the Principal will be
liable to the Contractor is $500,000.


 


3.4                Assistance



 


The
Contractor must provide all reasonable assistance to enable the Principal, the
Bus Operators and the Access Providers to comply with all Approvals,
requirements of any Authority and all laws and industry codes, including all
banking, funds transfer, deposit holding, privacy and related laws, regulations
and directives, from time to time applicable to the Principal, the Bus
Operators or the Access Providers in relation to any matter dealt with in or
connected with this agreement.  The cost
to the Contractor of providing such assistance will be relevant to, and will be
taken into account in, determining whether it is reasonable in a particular
instance for the Contractor to provide assistance under this clause.


 


3.5                Response Matrices


 


Where
a Response Matrix in the column headed Minimum Requirement Compliance Level is
marked:


 


(a)                 “F” the Contractor agrees to fully comply with all aspects
of the subject matter in the NTS Requirements Document and the Contractor’s
Response to which the “F” applies and agrees that the price of this compliance
is included within the Capital Price, Services Charge or Delivery Services
Charge; or


 


(b)                 “Q” the Contractor:


 


(i)                  to the extent that
compliance with any aspect of the subject matter to which that “Q” applies is
not qualified in the Contractor’s Response, agrees to fully comply with those
aspects of the subject matter in the NTS Requirements Document and the
Contractor’s Response and agrees that the price of this compliance is included
within the Capital Price, Services Charge or Delivery Services Charge; and


 


(ii)                 to the extent that compliance with
any aspect of the subject matter to which that “Q” relates is qualified in the
Contractor’s Response, agrees to fully comply with those aspects of the subject
matter in the Contractor’s Response and agrees that the price of this compliance
is included within the Capital Price, Services Charge or Delivery Services
Charge; or


 


(c)                 “X”
or is left blank the Contractor agrees to comply with all aspects of the
subject matter in the Contractor’s Response to which that “X” or blank space applies.


 


4.                  Approvals


 


(a)                 The Contractor must obtain all Approvals required in
connection with the Work and the Solution.


 


33





















 


(b)                 Prior to beginning any Phase for which any Approval referred
to in clause 4(a) is required, the Contractor must furnish the
Principal with fully executed copies of all Approvals required for such Phase.


 


5.                  Change in Law


 


5.1                Meaning


 


A change in law means:


 


(a)                 a change in an existing Law of
the State of Victoria or the Commonwealth of Australia;


 


(b)                 a new Law of the State of
Victoria or the Commonwealth of Australia; or


 


(c)                 any change in the interpretation
or application of any Law of the State of Victoria or the Commonwealth of
Australia resulting from a decision of a Governmental Agency (but not any other
change in the way a Law is interpreted),


 


which:


 


(d)                 takes effect after the date of
this agreement, which either:


 


(i)                  applies solely to
the Contractor; or


 


(ii)                 is directed
specifically or exclusively at the Project;


 


and which:


 


(iii)                has a material effect
on the Contractor carrying out the Work; and


 


(iv)               results in an increase
or decrease in the Contractor’s costs of carrying out the Work, 


 


or


 


(e)                 takes effect after the Solution
Completion Date; and


 


(i)                  is directed specifically
or exclusively at the micropayment, automated fare collection or non-cash
payment facility industries; and


 


(ii)                 when aggregated with
any previous changes in law referred to in clause 5.1(e)(i) in a year in
respect of which the Contractor could not claim compensation or adjustment as a
consequence of the operation of clause 5.2(c), would involve a net increase in
the costs of carrying out the Work in the aggregate of more than $[**] for each
year (a year being each successive 12 month period calculated from the
Commencement Date), 


 


and with which
the Contractor is legally obliged or required by the Principal to comply and
for the avoidance of doubt, excludes a change in an existing Law or a new Law
in respect of:


 


(f)                  income tax on taxable
income (as that term is used in the Tax Act) or which is related to the
calculation of taxable income; or


 


(g)                 any tax, levy, impost,
deduction, charge, duty or withholding tax which is levied or imposed by a
Governmental Agency, including any income, capital gains, withholding, stamp
and transaction tax, duty or charge, together with interest,


 


34





















 


penalties,
charges, fees, or other amounts (if any) imposed or made in respect of those
matters (“Change in Law”).


 


5.2                Procedure


 


(a)                 If there is a Change in Law and
either party wishes clause 5.2(b) to
apply, then that party must within 20 Business Days of
the Change in Law, give a written notice to the other party stating that clause
5.2(b) applies and containing:


 


(i)                  details of the
Change in Law; and


 


(ii)                 that party’s estimate of the increase or decrease (as the case may be) in the
Contractor’s costs of carrying out the Work in compliance with the Change in
Law including sufficient information to support the estimate.


 


(b)                 Subject to clause 5.2(c), the
Principal and the Contractor will meet within 20 Business Days of a notice
being given under clause 5.2(a) and will negotiate in good faith and
endeavour to agree to any increase or decrease (as the case may be) in the Contractor’s
costs of carrying out the Work in compliance with the Change in Law and where
the parties agree the amount of the increase or decrease in costs referred to
in clause 5.2(a)(ii):


 


(i)                  for operating costs
the relevant component or components of the Service Charges payable by the
Principal to the Contractor under this agreement:


 


A.                 in the case of a
decrease in costs, will be decreased; and


 


B.                  in the case of an
increase in costs, will be increased; and


 


(ii)                 for the costs of
capital expenditure, at the option of the Principal:


 


A.                 in the case of a
decrease, the agreed amount will be either deducted from the relevant component
or components of the amounts payable under this agreement (the Capital Price or
the Service Charges) or be a debt due and payable by the Contractor to the
Principal within 30 days of demand by the Principal; 


 


B.                  in the case of an
increase, the amount will be payable by lump sum after completion of the work
the subject of the capital expenditure or by increasing the Capital Price or
the Service Charges (as relevant); and


 


C.                  where compliance
with the Change in Law necessitates a Variation, the value of that Variation,
and payment for it, will be dealt with under clause 20.


 


(c)                 The Contractor cannot claim
compensation or adjustment under clause 5.2(b) unless and until the
aggregate net increase in the costs of carrying out the Work in respect of one
or more Changes in Law occurring in a year exceeds $[**] for each year (a year
being each successive 12 month period calculated from the Commencement Date).


 


(d)                 If no agreement is reached
within 30 Business Days (or such other period that the Principal and the
Contractor agree upon) of a notice being given under clause 5.2(a):


 


35





















 


(i)                  in the case of a
decrease in the Contractor’s costs of carrying out the Work in compliance with
the Change in Law, the Principal’s Representative will determine and advise the
Contractor of the amount of the decrease and that amount will then be payable
in the manner described in clause 5.2(b); and


 


(ii)                 in the case of an
increase in the Contractor’s costs of carrying out the Work in compliance with
the Change in Law, the Principal’s Representative will reasonably determine and
advise the Contractor of the amount of the increased costs as they are actually
incurred and, subject to the Contractor having taken all reasonable steps to
mitigate those increased costs, the relevant component or components of the
amounts payable by the Principal to the Contractor under this agreement will
then be increased by that amount or otherwise payable in the manner described
in clause 5.2(b).


 


(e)                 If the Contractor disputes a
determination by the Principal’s Representative under clause 5.2(d), it must
within 5 Business Days of receipt of notice of that determination give the
Principal’s Representative notice of the dispute and if the matter is not
resolved within 20 Business Days of that notice by the Principal’s
Representative, the dispute will be determined by the Expert in accordance with
clause 49.5.


 


(f)                  The Contractor must
comply with any Change in Law.


 


6.                  Relationship between
the Principal and the Contractor


 


6.1                No Partnership, Joint
Venture or Other Fiduciary Relationship


 


Nothing in, or contemplated by, the Project Documents
will be construed or interpreted as constituting a relationship between the
Principal and the Operators on the one hand and the Contractor on the other hand as that of partners, joint venturers,
fiduciaries, employer and employee, principal and agent or any other fiduciary
relationship.


 


6.2                Statutory Functions


 


(a)                 This agreement will not in any
way unlawfully restrict or affect the unfettered discretion of the Principal,
the Government, the Governmental Agencies or any Operator to exercise any of
its functions and powers under any legislation.


 


(b)                 Anything which the
Principal, the Government, the Governmental Agencies or any Operator does,
fails to do or purports to do pursuant to its functions and powers under
legislation will be deemed not to be or cause an act or omission by the
Principal under this agreement and will not entitle the
Contractor
to make any Claim against the Principal under this agreement apart from a claim
for breach of this agreement.


 


(c)                 Despite clauses 6.2(a) and
(b), the Principal is not relieved from any Claim that the Contractor may have
against the Principal for it exercising any of its functions or powers under
any legislation in a manner:


 


(i)                  contrary to an express
obligation of the Principal under this agreement; or


 


(ii)                 inconsistent with, or that deprives
the Contractor of, an express right or entitlement of the Contractor under this
agreement,


 


36





















 


and
the existence of such obligation, right or entitlement and the existence and
amount of such Claim is to be assessed assuming clauses 6.2(a) and (b) do
not apply.


 


6.3                Review by the
Principal


 


Notwithstanding any other provision of this
agreement:


 


(a)                 any review or approval of,
comment upon or input into, by the Principal, any of the Principal’s advisers,
any Access Provider or any Access Provider’s advisers, any Bus Operator or any
Bus Operator’s advisers or any Stakeholder of any material, documents or other
information prepared or provided by the Contractor under or
in connection with this agreement;


 


(b)                 any inspection or testing by the
Principal of the Solution; or


 


(c)                 any information set out in any Schedule or
Exhibit,


 


will not relieve the Contractor of its responsibility for such material, document or
information or of its obligations or liabilities under this agreement.  A failure by the Principal or any of the
Principal’s advisers to notify the Contractor of any defect in or concern
associated with any such material, document or information or following any
such inspection will not relieve the Contractor of its liabilities, or
constitute a waiver of any of the Principal’s rights, under this agreement,
including the Requirements Document and the NTS Requirements Specification.


 


6.4                Reliance


 


The Contractor acknowledges and warrants that
it is aware that the Principal has relied upon the warranties contained in this
agreement in entering into this agreement.


 


6.5                No Representations by
the Principal or others


 


The Contractor acknowledges:


 


(a)                 that none of the Principal, the
Government, the Governmental Agencies or any of the Access Providers, the Bus
Operators or Stakeholders have made or make any representation, assumed or
assume any duty of care or made or make any warranty:


 


(i)                  in respect of
potential use of the Solution;


 


(ii)                 as to the accuracy,
completeness, suitability or efficacy of any information or data supplied or
made available to the Contractor; and


 


(iii)                that all relevant
information or data in the Principal’s possession relating to the Operators has
been provided to the Contractor;


 


(b)                 that to the extent permitted by
law, the Principal, the Government, the Government Agencies, the Access
Providers, the Bus Operators and the Stakeholders are not liable and the
Contractor will have no rights whatsoever to bring any action against the
Principal (at law, in equity or otherwise) for any costs, losses, expenses,
liabilities, payments, outgoings or damages the Contractor suffers or incurs
arising out of or in connection with any matter referred to in clause 6.5(a);


 


(c)                 and confirms that prior to
entering into this agreement, it carried out all investigations and
examinations necessary to ascertain the risks associated with the Project;


 


37





















 


(d)                 and confirms that it did not
rely upon any representation, information or data made available, or provided
to it, by the Principal, the Government, the Governmental Agencies, the Access
Providers, the Bus Operators or any Stakeholder in entering into this
agreement; and


 


(e)                 and warrants that it
does not rely on any representation or warranty made by or on behalf of the
Principal, the Access Providers or the Bus Operators which is not set out in
this agreement.


 


6.6                Pricing
Warranty


 


The
Contractor warrants, for the benefit of the Principal, that as at the date of
this agreement the pricing under this agreement, including the pricing of
components of the Solution, is the same or lower than pricing offered by the
Contractor for similar products or services anywhere in the world when
determined on a like for like basis and taking into account the supply of the
Solution and the Services in Australia.


 


7.                  Project Management


 


7.1                Project
Control Group


 


(a)                 The Principal and the Contractor will, within 1 Business Day
of the Commencement Date, establish a Project Control Group consisting of:


 


(i)                  the Project Director and
the Principal’s Representative;


 


(ii)                 2 persons from each party holding
senior positions; and


 


(iii)                such other members as the parties
may from time to time agree.


 


The
persons referred to in clause 7.1(a)(ii) may appoint delegates to
attend Project Control Group meetings in their absence and to otherwise
discharge their responsibilities in relation to the Project Control Group.


 


(b)                 The objectives of the Project Control Group will be to
monitor and review the progress of the Project (and the monthly progress
reports provided by the Contractor under clause 13.4), to assist in delivery
and operation and to consider matters referred to the Project Control Group by
either party.


 


(c)                 The Project Control Group will meet:


 


(i)                  for the first time on
the first Tuesday after the Commencement Date;


 


(ii)                 every four weeks thereafter on a
Tuesday until the Solution Completion Date, unless otherwise agreed;


 


(iii)                as required by the Principal to
review a monthly progress report provided by the Contractor under clause 13.4;


 


(iv)               as required under clause 49.3;
and


 


(v)                after the Solution Completion Date,
as requested by either party.


 


(d)                 The Principal’s Representative will convene meetings of the
Project Control Group, prepare the minutes of all meetings and distribute the
minutes signed by the Project Director and the Principal’s Representative to
members of the Project Control


 


38





















 


Group. 
The Principal’s Representative will appoint a member of the Project
Control Group to chair each meeting.


 


(e)                 The Principal has the right to invite representatives of
Operators and Stakeholders to attend and participate in any meeting of the
Project Control Group.


 


(f)                  The Principal’s Representative may request the Contractor to
procure the attendance of representatives of any subcontractor, supplier or
consultant of the Contractor at any meeting of the Project Control Group and
the Contractor must comply with any such request at the Contractor’s cost.


 


(g)                 Meetings of the Project Control Group must be held at
convenient venues in Melbourne, unless otherwise agreed.


 


(h)                 Decisions of the Project Control Group will not be binding
on the Principal and the Contractor unless they are in writing and signed by
the Project Director and the Principal’s Representative.


 


7.2                Key
Personnel


 


(a)                 The Contractor undertakes to the Principal that during the
Term it will:


 


(i)                  engage on a full time
basis those people specified in Part A of Schedule 2 in the roles
specified in Part A of Schedule 2 and for the period specified in Part A
of Schedule 2.


 


(ii)                 only engage other people in the
roles specified in Part A of Schedule 2 with the prior written
approval of the Principal;


 


(iii)                not replace the people specified in
Part A of Schedule 2 (or approved by the Principal pursuant to clause
7.2(a)(ii)) without the approval of the Principal unless that person ceases to
be employed by the Contractor, any Related Body Corporate or any subcontractor,
in which case that person must be replaced with a person of at least equivalent
ability, expertise and experience who meets the relevant minimum qualifications
set out in Part B of Schedule 2 and is approved in writing by the
Principal, with any such changeover handled to ensure the continuity of the
Project;


 


(iv)               not terminate the employment of the
people specified in Part A of Schedule 2 (or approved by the
Principal pursuant to clause 7.2(a)(ii)) without the prior written approval of
the Principal;


 


(v)                if the Principal determines that
the Contractor’s Representative is not performing its role adequately or is
engaging or has engaged in improper conduct, the Contractor will within 20
Business Days of receiving written notice from the Principal’s Representative
procure the removal of that person from the job and ensure that the person is
not re-employed in any job which is part of the Project without the prior
written approval of the Principal;


 


(vi)               if the Principal determines any personnel
engaged by the Contractor or any subcontractor in the Project are not
performing their role adequately or are engaging or have engaged in improper
conduct, the Contractor will within 20 Business Days of receiving written
notice from the Principal’s Representative procure the removal of that person
from the job and ensure that that person is not re-employed in any job which is


 


39





















 


part
of the Project without the prior written approval of the Principal; and


 


(vii)              indemnify the Principal in relation
to any and all claims, demands or proceedings made or instituted by any
personnel engaged by the Contractor or any subcontractor, including any claims
for remuneration, accrued entitlements, termination entitlements (howsoever
described and including any severance or redundancy entitlements), unfair
dismissal claims or equal opportunity claims.


 


(b)                 The Contractor warrants that those people specified in Part A
of Schedule 2 in the roles specified in Part A of Schedule 2,
and any person subsequently appointed in any of the roles specified in Part A
of Schedule 2, meet the relevant minimum qualifications set out in Part B
of Schedule 2.


 


(c)                 The Contractor is bound by any
act or omission of the Project Director and the Project Manager named in Part A of Schedule 2 and any direction, notice, or
instruction given to the Project Director and the Project Manager will be
deemed to be a direction, notice, or instruction to the Contractor.


 


7.3                Contractor’s
Representative


 


(a)                 The Contractor must within 5
Business Days of the Commencement Date give notice in writing to the Principal’s
Representative of the person that will act as a representative of and be
authorised to act on behalf of it in discharging its functions under this
agreement.


 


(b)                 The Contractor must obtain the
Principal’s prior written approval to any appointment made under clause 7.3(a),
such approval not to be unreasonably withheld or delayed.


 


(c)                 The Contractor may by notice in
writing to the Principal’s Representative substitute a person appointed under
clause 7.3(a) with another person, provided the Contractor has
obtained the prior written approval of the Principal, which must not be
unreasonably withheld or delayed.


 


(d)                 The Contractor is bound by any act
or omission of the person appointed under this clause 7.3 and any
direction, notice, or instruction given to the person appointed under this
clause 7.3 will be deemed to be a direction, notice, or instruction to the
Contractor.


 


7.4                Principal’s Representative


 


(a)                 The Principal:


 


(i)                  will appoint a
person to be the Principal’s Representative for the purposes of this agreement;


 


(ii)                 may at any time
replace the Principal’s Representative, in which event the Principal must
appoint another person as the Principal’s Representative; and


 


(iii)                will give written
notice of all appointments made under clauses 7.4(a)(i) and 7.4(a)(ii) to
the Contractor.


 


40





















 


(b)                 The Principal’s Representative
may:


 


(i)                  by written notice to
the Contractor appoint persons to exercise any of the Principal’s
Representative’s functions under this agreement;


 


(ii)                 not appoint more than
one person to exercise the same function under this agreement; and


 


(iii)                revoke any appointment
made under clause 7.4(b)(i) by notice in writing to the Contractor.


 


(c)                 The Principal’s Representative
may continue to exercise a function under this agreement despite appointing
another person to exercise the function under clause 7.4(b).


 


(d)                 The Principal and the Contractor
acknowledge and agree that the Principal’s Representative and any appointee of
the Principal’s Representative act at all times as agents of the Principal and
are subject to the directions of the Principal and will act solely in the
interests of the Principal.


 


(e)                 The Contractor must comply with
any direction by the Principal’s Representative given or purported to be given
under a provision of this agreement.


 


(f)                  Where there is any
inconsistency, ambiguity or uncertainty between:


 


(i)                  a direction of the
Principal’s Representative and a direction of an appointee of the Principal’s
Representative; or


 


(ii)                 directions of 2
appointees of the Principal’s Representative,


 


the Contractor must advise the Principal’s
Representative in writing of such inconsistency, ambiguity or uncertainty.  Within 10 Business Days of receiving notice
of the inconsistency, ambiguity or uncertainty, the Principal’s Representative
must notify the Contractor in writing which direction to follow and the
Contractor must comply with that notice.


 


8.                  Compliance and quality


 


8.1                Industrial Relations


 


(a)                 The Contractor must ensure that
it carries out its obligations under this agreement, so as to minimise
industrial relations disputes.


 


(b)                 The Contractor must ensure that
at all times it complies with any and all employment and industrial relations
obligations to its employees and contractors, including without limitation, any
obligations arising under the Workplace Relations Act 1996 (Cth).


 


(c)                 The Industrial Relations Plan must
take into account all relevant industrial relations policies and arrangements
including those of the Contractor, its subcontractors, any person who
undertakes work in relation to the Solution and the Operators.


 


(d)                 Without limiting the operation
of clauses 8.1(a) and 8.1(b), the Contractor must comply with the
obligations in the Industrial Relations Plan and must regularly update the
Industrial Relations Plan so that it remains in compliance with any and all
employment and industrial relations obligations, including without limitation,
any obligations arising under the Workplace Relations Act 1996 (Cth).


 


41





















 


(e)                 The Contractor must prepare and
submit to the Principal for its approval an updated Industrial Relations Plan
at the same time that it provides the Principal with its detailed financial
forecasts under clause 47.2(b)(i)B.  The
Principal may, within 10 Business Days receipt of an updated Industrial
Relations Plan, advise the Contractor whether or not it considers such plan to
be in accordance with this agreement, including the Requirements Document and
the Solution Documentation or reject it and provide its comments (if any).  If an updated Industrial Relations Plan is
rejected, the Contractor must promptly, and in any event within 5 Business
Days, submit to the Principal a redraft of the plan.  The Contractor must take into account any
comments of the Principal in finalising an updated Industrial Relations Plan.


 


(f)                  Except as expressly
provided in this agreement, no additional costs and no extensions of time will
be granted to the Contractor by the Principal as a result of costs incurred as
a result of delays resulting from industrial action.


 


(g)                 Subject to clause 18.5(d) (to
the extent that the industrial relations dispute or industrial action has
caused delays the subject of that clause) and to clause 40.2, the Contractor
must indemnify the Principal against any loss, cost, damage, liabilities,
payments, outgoings or expense suffered or incurred as a result of any
industrial relations dispute or industrial action which arises as a result of:


 


(i)                  breach of this
agreement by the Contractor; or


 


(ii)                 an act or omission of
the Contractor and such industrial relations dispute or industrial action is
one which could have been prevented by the Contractor taking those steps which
a prudent, experienced and competent contractor would have taken in the
circumstances.


 


8.2                Occupational Health,
Safety and Rehabilitation


 


(a)                 The Contractor must:


 


(i)                  carry out the Work
in a safe manner with the intent that no damage is caused to any person or
property;


 


(ii)                 carry out the Work in
accordance with applicable occupational health and safety obligations,
including obligations under the OH&S Act and associated regulations to the
extent that such legislation and regulations are applicable from time to time;


 


(iii)                without limiting
clauses 8.2(a)(i) and (ii), carry out the Work in accordance with the
OH&S Plan and regularly update the OH&S Plan so that it remains in
compliance with applicable occupational health and safety obligations,
including obligations under the OH&S Act and associated regulations to the
extent that such legislation and regulations are applicable from time to time;


 


(iv)               identify any land or
improvements which may be affected by the carrying out of the Work; and


 


(v)                give to the Principal
regular detailed proposals for ensuring that no damage is caused to any person
or property in carrying out the Work.


 


(b)                 The Contractor must prepare and
submit to the Principal for its approval an updated OH&S Plan at the same
time that it provides the Principal with its detailed financial forecasts under
clause 47.2(b)(i)B.  The Principal may,
within 10 Business Days of receipt of an updated OH&S Plan, advise the Contractor
whether or not it considers


 


42





















 


such
plan to be in accordance with this agreement, including the Requirements
Document and the Solution Documentation, or reject it and provide its comments
(if any).  If an updated OH&S Plan is
rejected, the Contractor must promptly, and in any event within 5 Business
Days, submit to the Principal a redraft of the plan.  The Contractor must take into account any
comments of the Principal in finalising an updated OH&S Plan.


 


(c)                 Without derogating
from or limiting the Contractor’s control of the Project and the sites at which
the Work is performed, where the Contractor is in default of its obligations
under clause 8.2(a), the Principal may take whatever action it reasonably
considers necessary (at the Contractor’s cost) to protect any person or
property, including any part of the Solution, which the Contractor fails to
take.  Any costs incurred by the
Principal in taking such action will be a debt immediately due and payable by
the Contractor to the Principal.


 


(d)                 The Contractor will
ensure that, in relation to any subcontractor or any other entity that performs
any Work or any entity that supplies products (including Devices) to the
Contractor in relation to the Work (“Relevant
Entity”), any subcontract or supply contract between the Contractor
and a Relevant Entity must contain applicable provisions corresponding to
clause 8.2(a)(i) to (iv) and which require such Relevant Entity to do
everything necessary to enable the Contractor to comply with clause 8.2(a)(v),
and the Contractor must procure that any subcontract or supply contract of a
Relevant Entity to which it is not a party contains provisions corresponding to
clause 8.2(a)(i) to (iv) and which require the relevant subcontractor
or supplier to do everything necessary to enable the Relevant Entity to itself
do everything necessary to enable the Contractor to comply with clause
8.2(a)(v).


 


8.3                Quality Management
System


 


(a)                 The Contractor must prior to the
Completion of the NTS Solution Requirements Phase provide to the
Principal a certificate from a JAS/ANZ Accredited
Certification Agency that the Quality Management System developed by the
Contractor is in accordance with, and will enable the Contractor to comply
with, the standards set out in ISO 9001:2000, including with respect to the
Delivery of the Solution and the provision of the Initial Services and the Core
Services.


 


(b)                 The Contractor must implement
and comply with the Quality Management System in carrying out the Work under
this agreement.


 


(c)                 The Contractor must throughout
the Term update and maintain the Quality Management System in accordance with
ISO 9001:2000 (or any replacement standard), the Project Quality Assurance Plan
and the Operational Quality Assurance Plan (whichever is applicable).


 


(d)                 The Contractor must throughout
the Term provide the Principal with the results of all internal CMM and PMMM
activities and audits that relate to the Project.


 


8.4                Quality Assurance
Plans


 


(a)                 The Contractor must deliver to
the Principal:


 


(i)                  prior to the
Completion of the NTS
Solution Requirements Phase, the Project Quality Assurance Plan; and


 


43





















 


(ii)                 20 Business Days
prior to commencement of the NTS Regional and Metropolitan Implementation
Completion Phase, the Operational Quality Assurance Plan.


 


(b)                 The Contractor must ensure that
the Project Quality Assurance Plan and the Operational Quality Assurance Plan
are and remain in accordance with ISO 9001:2000 and AS/NZS 9004.5:1995:
Guidelines for Quality Assurance Plans and
that the Solution is delivered and the Initial Services and the Core Services
are provided in accordance with the respective plans.


 


(c)                 The Contractor must prepare and
submit to the Principal for its approval an updated Project Quality Assurance
Plan and an updated Operational Quality Assurance Plan at the same time that it
provides the Principal with its detailed financial forecasts under clause
47.2(b)(i)B.  The Principal may, within
10 Business Days of receipt of an updated Project Quality Assurance Plan or
Operational Quality Assurance Plan, advise the Contractor whether or not it
considers such plans to be in accordance with this agreement, including the
Requirements Document, or reject them and provide its comments (if any).  If an updated Project Quality Assurance Plan
or Operational Quality Assurance Plan is rejected, the Contractor must
promptly, and in any event within 5 Business Days, submit to the Principal a
redraft of the plan(s).  The Contractor
must take into account any comments of the Principal in finalising any updated
Project Quality Assurance Plan or Operational Quality Assurance Plan.


 


(d)                 The Contractor must within 6
months of the Commencement Date and at twelve monthly intervals afterwards:


 


(i)                  have its compliance
with the Project Quality Assurance Plan audited at its cost by an independent
auditor who holds current CMMI or ISO certification and who is acceptable to
the Principal;


 


(ii)                 permit
representatives of the Principal to be present during such audit; and


 


(iii)                deliver 2 copies of
such audit to the Principal’s Representative within 5 Business Days of its
completion.


 


(e)                 The Contractor must from the
commencement of the Core Services Term until the end of the Term:


 


(i)                  have its compliance
with the Operational Quality Assurance Plan audited at intervals not exceeding
12 months at its cost by an independent auditor who holds current CMMI or ISO
certification and who is acceptable to the Principal;


 


(ii)                 permit representatives
of the Principal to be present during such audit; and


 


(iii)                deliver 2 copies of
such audit to the Principal’s Representative within 5 Business Days of its
completion.


 


(f)                  The Principal will
have the right at any time to audit at its own cost:


 


(i)                  the Contractor’s
compliance with the Project Quality Assurance Plan, the Operational Quality
Assurance Plan, ISO 9001:2000 (or any replacement standard) and any other
standards specified in this agreement, including the Requirements Document and
the Solution Documentation;


 


44





















 


(ii)                 the compliance by the
Contractor’s subcontractors and their subcontractors with their respective
quality assurance plans which have been prepared to enable the Contractor to
comply with clause 8.4(b); and


 


(iii)                the Contractor’s and
its respective subcontractors’ compliance with this agreement, including the
Requirements Document and the Design Documents and the Solution Documentation.


 


(g)                 If the audit performed by the
Principal referred to in clause 8.4(f) reveals that:


 


(i)                  the Contractor is
not complying with the Project Quality Assurance Plan, the Operational Quality
Assurance Plan, ISO 9001:2000 (or any replacement standard) or any other
standards specified in this agreement, including the Requirements Document and
the Solution Documentation;


 


(ii)                 any subcontractor or
their subcontractors are not complying with their respective quality assurance
plans referred to in clause 8.4(f)(ii); or


 


(iii)                the Contractor or its
subcontractors are not complying with this agreement, including the
Requirements Document and the Design Documents and the Solution Documentation,


 


the Contractor must:


 


(iv)               reimburse the Principal
for its reasonable costs of carrying out such an audit; and


 


(v)                prepare and submit to
the Principal a corrective action plan to address any non-compliances with the
Project Quality Assurance Plan, the Operational Quality Assurance Plan, ISO
9001:2000 (or any replacement standard) or any other standards specified in
this agreement, including the Requirements Document and the Solution
Documentation (including any non-compliances by the Contractor’s subcontractors
with their respective quality assurance plans and the standards referred to in
this clause), within 5 Business Days of the Contractor receiving notice from
the Principal of the non-compliances discovered by the audit referred to in
clause 8.4(f).


 


(h)                 The Contractor will not be
relieved of any liability under this agreement as a result of:


 


(i)                  compliance with the
quality assurance requirements under this agreement; or


 


(ii)                 anything which the
Principal does or does not do with respect to the quality assurance
requirements under this agreement, including auditing the Contractor’s
compliance with those requirements under clause 8.4(f).


 


(i)                  Within 10 Business
Days of receipt of a corrective action plan from the Contractor under clause
8.4(g)(v), the Principal’s Representative may give notice to the Contractor
that the whole or part of the corrective action plan does not address the
concerns of the Principal with respect to the non-compliances and direct the
Contractor to resubmit a revised corrective action plan under clause 8.4(g)(v) which
addresses the Principal’s concerns, within 5 Business Days.


 


45





















 


(j)                  The Contractor must
proceed to implement and carry out any corrective action plan or part of any
corrective action plan which has not been rejected by the Principal under
clause 8.4(i).


 


9.                  Access


 


9.1                Access
Generally


 


(a)                 The parties acknowledge the
importance of Access to the Contractor’s ability to perform its obligations
under this agreement. Accordingly:


 


(i)                  the Principal agrees to
use its best endeavours to facilitate the provision of Access to the Contractor
in a timely manner to enable the Contractor to meet the Project Timetable. In
this regard, the Principal will act reasonably and fairly in good faith having
regard to the interests of the Principal, the Project, the Access Providers,
the Bus Operators and the Contractor; 


 


(ii)                 the Contractor agrees to use its
best endeavours to cooperate with Access Providers and Bus Operators in
installing Devices in a way which reasonably minimises adverse impacts to
Access Providers; 


 


(iii)                the Principal shall use its best
endeavours to ensure that Access Providers and Bus Operators agree to use their
best endeavours to cooperate with the Contractor in allowing the Contractor to
have Access in a way which reasonably minimises adverse impacts to the
Contractor; and


 


(iv)               the Principal shall use best
endeavours to facilitate the provision of Access to the Contractor from
additional persons to the extent that access to their property is required for
the Contractor to perform the Work including, where appropriate, updating Schedule 17
to include such persons as Access Providers or Bus Operators.


 


(b)                 The Contractor will co-ordinate
and manage all Access it requires to carry out the Work, including access
granted under an Access Coordination Agreement.


 


(c)                 The Contractor will
develop each Access Plan in accordance with the Solution Documentation and the
Project Documents.


 


9.2                Access
Coordination Agreement


 


(a)                 The Contractor and the Principal will use their best
endeavours to amend the Access Principles and enter into an Access Coordination
Agreement with each Access Provider which incorporates and complies with the
relevant Access Principles by the
Completion of the NTS Solution Requirements Phase, or such other date as the parties agree.


 


(b)                 If the intention of the parties set out in clause 9.2(a) is
not realised, in respect of each Access Provider that has not entered into an
Access Coordination Agreement, the Proforma Access Agreement will apply in
relation to the Principal and the Contractor on the basis that the Principal undertakes
all obligations and has all rights of the Access Provider under that Proforma
Access Agreement.


 


(c)                 The Contractor will comply with its obligations in each
Access Coordination Agreement.  


 


46





















 


(d)                 If the Contractor does not enter into any Access
Coordination Agreement or the Access Principles are not amended to the
Contractor’s satisfaction by the date which is 3 months after the date of this
agreement the Principal may convene a meeting between the Contractor and the
Access Provider.  The Contractor must
attend the meeting and negotiate and participate in good faith in the
resolution of any issues raised.  The
Principal must use all reasonable endeavours to ensure that the Access Provider
agrees to also negotiate and participate in good faith in the resolution of any
issues raised.


 


(e)                 The Contractor must include
details of any Access Charges which it has paid to an Access Provider in the
first or second Monthly Invoice the Contractor issues after the Contractor
makes payment to the relevant Access Provider (whether or not the Contractor
has performed any Services or Delivery Services for the relevant month).  As part of the Monthly Invoice, the
Contractor will also provide to the Principal:


 


(i)                  a copy of the
monthly invoice, and any related information, received by the Contractor from
an Access Provider;


 


(ii)                 identification of
those parts of the amounts in the monthly invoice referred to in clause 9.2(e)(i) which
are and are not part of the Access Charge;


 


(iii)                evidence of payment of
the amount set out in an invoice received by the Contractor from an Access
Provider; and


 


(iv)               information to
substantiate that the access charges claimed in the Monthly Invoice are Access
Charges.


 


(f)                  Where the Contractor
has included details of the Access Charges in a Monthly Invoice and complied
with the requirements set out in clause 9.2(e), the Principal will be liable to
pay those Access Charges in accordance with clause 27.4, subject to any rights
of the Principal under clause 27.5.


 


(g)                 The Contractor may seek the
agreement by any Access Provider to reciprocal indemnities with a view to
incorporating any such agreement in an Access Coordination Agreement, but the
Contractor may not rely on the failure to achieve any agreement on such
indemnities as a reason for not entering into an Access Coordination Agreement,
and the Contractor must use its best endeavours in accordance with clause 9.2(a) and
must negotiate and participate in good faith in accordance with clause 9.2(d),
notwithstanding that a relevant Access Provider has not agreed to reciprocal
indemnities with the Contractor.


 


9.3                Bus
Access Plan


 


(a)                 The Contractor must develop the Bus Access Plan in
accordance with this agreement, including the Requirements Document, the
Project Timeline, clause 12 and the Bus Access Principles.


 


(b)                 The Principal may, at any time, direct the Contractor to
amend the Bus Access Plan to:


 


(i)                  reflect access rights,
including conditions of access, procured for the Contractor by the Principal;
or


 


(ii)                 comply with the Bus Access
Principles and this agreement,


 


47





















 


provided
that such amendment cannot reduce the Total Bus Access.


 


(c)                 Subject to safety and security requirements, the Principal
will procure for the Contractor access, in accordance with the Bus Access Plan,
to the Bus Property.


 


(d)                 Without limiting clause 9.3(a), if the Contractor is unable,
having taken all reasonable steps, to finalise the development of the Bus
Access Plan as a result of the failure of any Bus Operator or Bus Operators to
cooperate, and such cooperation is required by the Bus Access Principles, the
Contractor may request the Principal, by written notice, to assist the
Contractor in obtaining the relevant cooperation of the relevant Bus Operator
or Bus Operators to the Bus Access Plan, and the Principal will use its best
endeavours to do so.


 


9.4                Access
to Property


 


(a)                 The Contractor acknowledges and
warrants that prior to entering into this agreement, it carried out all
investigations and examinations necessary in respect of the adequacy of the
Access Providers Property and Bus Property and it is satisfied that the Access
Providers Property and Bus Property is adequate and sufficient for the Project
and for it to carry out the Work and satisfy its obligations under this
agreement, including the Requirements Document and the Solution Documentation.


 


(b)                 The Principal makes
no representation or warranty to the Contractor as to the adequacy or
sufficiency of each Access Provider’s Property or each Bus Property.


 


9.5                Conditions
of Access


 


(a)                 The rights of access to be procured pursuant to clause 9.3(c) are
for the purpose only of carrying out the Work and the Contractor will obtain no
legal estate or other interest in the Bus Property.


 


(b)                 The Contractor will comply with the Bus Access Principles
and the Bus Access Plan at all times.


 


9.6                Disruption
to Bus Operators


 


(a)                 If any part of the Work will or might reasonably be expected
to interrupt or cause any other disruption of or disturbance to the conduct of
a Bus Operator’s or any third party’s business, then the Contractor must,
except in an Emergency, give reasonable notice (with a target of giving at
least 30 Business Days notice) to the Principal and the Bus Operator or third
party, as the case may be, of the details of the part of the Work and of its
proposals for reducing the likely interruption, disruption or disturbance, and
will not commence the carrying out of that part of the Work without first obtaining
the Principal’s and the relevant Bus Operator’s or third party’s approval to it
and its timing (which Principal’s approval shall not be unreasonably withheld
or delayed).


 


(b)                 The Contractor must:


 


(i)                  carry out the Work so as
to co-ordinate with the other operations of the Principal or Bus Operators on
the Bus Property, and as far as reasonably practicable avoid inconvenience or
disruption to those operations;


 


(ii)                 at all times co-operate with and
not interfere with or obstruct any other contractor engaged by the Principal or
the Bus Operators to perform other works on or in the vicinity of the Bus
Property; and


 


48





















 


(iii)                comply with all rules or
requirements reasonably imposed by the Principal or any Bus Operators whilst on
Bus Property including any occupational health and safety rules. 


 


(c)                 The Principal must use all reasonable endeavours to ensure
that Bus Operators in accordance with the Bus Access Plan agree to:


 


(i)                  co-ordinate with the
activities of the Contractor, and as far as reasonably practicable avoid
inconvenience or disruption to those activities; and


 


(ii)                 at all times co-operate with and
not interfere with or obstruct the Contractor.


 


9.7                Additional Bus Access


 


(a)                 If, during Delivery, the
Contractor requires Access to Bus Property to carry out the Work, and does not
have sufficient rights of Access under clause 9.3, the Principal will, at
the Contractor’s cost, use reasonable endeavours to procure such Access for the
Contractor.


 


(b)                 If procurement of additional
Access by the Principal in accordance with clause 9.7(a) represents
access in excess of the Total Bus Access the Contractor will be liable for the
cost of the additional Access, calculated on the basis of the Bus Access Rates.
 The amount will be a debt immediately
due and payable by the Contractor to the Principal.


 


9.8                Access Delay Reporting


 


(a)                 The Principal and the Contractor
recognise the importance of early identification of the occurrence of Access
Events to allow the Principal and the Contractor to take steps to mitigate the
effect of such Access Events upon the ability of the Contractor to achieve
Completion of a Phase by the relevant Phase Date. Accordingly the Contractor
shall, during the relevant Phase, meet with the Principal on a weekly basis to
discuss Access Events, and at those meetings provide weekly reports on:


 


(i)                  the occurrence of all
relevant Access Events and the impact of those Access Events on the Project
Master Schedule and the critical path for achieving Completion of the
relevant Phase;


 


(ii)                 the steps taken or proposed to be
taken by the Contractor to mitigate the effect of those Access Events and the
costs incurred or likely to be incurred by the Contractor in taking those
steps;


 


(iii)                the likelihood of the occurrence of
an Access Delay as a result of the relevant Access Events, and the ability for
any Acceleration Direction to overcome the Access Delay.


 


(b)                 The Principal:


 


(i)                  may at any time give the
Contractor an Acceleration Direction requiring the Contractor to accelerate
Delivery by taking those reasonable measures which are necessary to overcome or
minimise the extent and effects of some or all Access Events including, if
required, in order to achieve Completion of a Phase by the relevant Phase Date;
and


 


(ii)                 will pay the Contractor
Acceleration Costs for complying with an Acceleration Direction, which will be
payable at the next Payment


 


49





















 


Milestone
to which the Work the subject of the Acceleration Direction relates.


 


9.9                Delay Costs


 


(a)                 Subject to clauses 9.9(b) and
18.7, any Claim by the Contractor for Access Delay must be made as soon as
practicable after the Contractor considers that the occurrence of one or more
Access Events is likely to cause an Access Delay having regard to the Project
Master Schedule and must be limited to Delay Costs.  For the avoidance of doubt Delay Costs are
only payable to the extent the event delaying the Contractor in achieving
Completion of a Phase by the relevant Phase Date is not attributable to:


 


(i)                  the Contractor
failing to act in a timely and efficient way;


 


(ii)                 the Contractor
failing to do all things reasonably expected of a prudent and experienced
contractor undertaking the Work; or


 


(iii)                a breach of any
Project Document by the Contractor.


 


In these circumstances Delay Costs will be
adjusted accordingly.


 


(b)                 The Contractor must use all
reasonable endeavours (including making any reasonable expenditure of funds) to
avoid and mitigate the effect of any Access Event including:


 


(i)                  complying with the
notice obligation in clause 9.6;


 


(ii)                 complying with any
clause in an Access Coordination Agreement under which the Contractor has an
obligation to give notice prior to access;


 


(iii)                rearranging and
rescheduling installation activities to the extent reasonably possible to
accommodate failures or delays in obtaining required access and amending the
Project Master Schedule in accordance with clause 13.3;


 


(iv)               incurring any
reasonable expense up to the amount of the Delay Costs which would otherwise be
claimed under clause 9.9(a), and any such expense may be included as part
of the claim for Delay Costs under clause 9.9(a);


 


(v)                notifying the
Principal’s Representative as soon as the Contractor knows or ought reasonably
to have known that the Principal will not be able to comply with
clause 9.3(c); 


 


(vi)               taking
all reasonable steps to assist the Principal to comply with clause 9.3(c) and
to avoid or minimise the consequence of the Principal failing to comply with
clause 9.3(c);


 


(vii)              notifying
an Access Provider as soon as the Contractor knows or ought reasonably to have
known that that Access Provider will not be able to comply with the relevant
Access Coordination Agreement; and


 


(viii)             taking all reasonable steps
to assist the Access Providers to comply with the Access Coordination
Agreements to avoid or minimise the consequence of any non-compliance.


 


50





















 


(c)                 The Principal shall pay to the
Contractor Delay Costs which are the subject of a Claim properly made under
clause 9.9(a) .  Delay Costs payable
by the Principal to the Contractor under this clause 9.9(c) will be paid
at the time that payment is due in respect of the Phase in which the Delay
Costs are incurred.  


 


(d)                 The Contractor will not be
entitled to make a claim for Delay Costs under this clause 9.9 or be entitled
to an extension of time under clause 18.7 for an Access Delay attributable to
an Access Event in relation to which the Contractor has been given an
Acceleration Direction and where such Acceleration Direction has been able to
be performed by the Contractor.


 


9.10             Principal
Access


 


(a)                 The Contractor will procure for the Principal and its
employees and agents full access to any site where Work is being carried out,
at all times during the Term.  The
Principal agrees that any person accessing any such site must comply with the
Contractor’s normal safety and security procedures and must not unduly
interfere with the performance of work being undertaken on the site.  To the extent possible, reasonable advance
notice will be given of the Principal’s intention to access a site.


 


(b)                 The Contractor agrees that, at all times, the Principal or
any person authorised by it will:


 


(i)                  subject to normal safety
and security constraints as notified by the Contractor, have the right of
access during business hours or on reasonable notice to:


 


A.                 all of the Contractor’s design
offices involved in the design of the Solution;


 


B.                  the sites where the Work
is being carried out; and


 


C.                  all other areas relevant
to the Work; and


 


(ii)                 be entitled to exercise this right
of access for the purposes of:


 


A.                 observing the Work and monitoring
compliance by the Contractor with its obligations under this agreement,
including the Requirements Document;


 


B.                  undertaking progress
inspections of the Solution by the Principal; and


 


C.                  any other reason
relating to the Solution or this agreement.


 


9.11             Access
during NTS Solution Requirements Phase


 


(a)                 Promptly after the Commencement
Date, the Contractor and the Principal will commence, and will each use all
reasonable endeavours to finalise an access regime for the NTS Solution
Requirements Phase, which contains reasonably acceptable access requirements in
relation to each Access Provider and the Bus Operators, and which will deal
with:


 


(i)                  the details of the
people, equipment, data and sites to which access is reasonably required by the
Contractor (“Sites”);


 


(ii)                 the total amount of
access to each Site which is reasonably required; and


 


51





















 


(iii)                proposed dates and
times for access to each Site,


 


for the Contractor to carry out the
obligations set out in clauses 11.1(a) and 11.1(b), taking into
account any relevant information provided to the Contractor about limitations
in relation to access to any Site.


 


(b)                 Subject to safety and security
requirements in relation to the Sites, the Principal will use all reasonable
endeavours to arrange for the Contractor the access required, in accordance
with the access arrangements agreed under clause 9.11(a).


 


10.                Responsibility for Work


 


10.1             Contractor
Responsible


 


The
Contractor will be responsible for:


 


(a)                 carrying out the Work and implementing the Solution in
accordance with the Project Documents;


 


(b)                 the professional quality, technical adequacy and accuracy,
timely completion, and coordination of all plans, designs, drawings,
specifications, reports or other documents or services prepared or performed
under this agreement;


 


(c)                 ensuring that, except where a higher standard is specified
in this agreement, the Work conforms to Industry Practices applicable to the
types of services and work carried out; and


 


(d)                 ensuring that upon the Solution Completion Date, the
Solution will perform in accordance with this agreement, including the
Requirements Document and the Project Documents and Solution Documentation.


 


10.2             Work
performed by third parties


 


(a)                 Subject to this clause 10, the
Contractor may permit any entity in Part A of Schedule 9 to perform
part of the Work and any entity in Part B of Schedule 9 to supply
products (including Devices) to the Contractor in relation to the Work.


 


(b)                 The Contractor must not permit:


 


(i)                  any part of the Work
to be performed by:


 


A.                 a subcontractor or
any person (other than itself or an entity in Part A of Schedule 9)
where the value of that Work exceeds $[**]; or


 


B.                  any person other
than itself where that Work is to be performed on any Access Providers’ Property
or Bus Property;


 


(ii)                 any supply of
products (including Devices) to the Contractor in relation to the Work to be
made by any person (other than itself or an entity in Part B of Schedule 9)
where the total consideration for that supply exceeds, or is likely to exceed,
$[**],


 


unless:


 


52





















 


(iii)                in the case of clause
10.2(b)(i), it has made prior application in writing to the Principal’s
Representative:


 


A.                 giving full
particulars of the part of the Work it wishes to subcontract or have performed
by an entity other than itself, the proposed subcontract and the proposed
subcontractor; and


 


B.                  including, in the
case of a subcontract for design work, providing a copy of the professional
indemnity insurance policy held by the proposed design subcontractor or a
certificate of currency for such policy if the proposed design subcontractor is
bound by a duty of confidentiality to the issuer of the policy, prohibiting
disclosure of its terms, such policy being in compliance with clause 36
and a letter to the Principal from the insurance broker of the proposed design
subcontractor confirming that the policy conforms with the requirements of this
agreement and containing a statement acknowledging that the Principal is
relying on the representation, if it is prohibited from providing a copy of the
policy; and


 


(iv)               in the case of clause
10.2(b)(ii), it has made prior application in writing to the Principal’s
Representative giving full particulars of the products to be supplied, the
proposed supply contract and the proposed supplier; and


 


(v)                the Principal’s
Representative has not rejected the subcontractor or supplier within 20
Business Days of receipt of the information referred to in clause 10.2(b)(iii) or
10.2(b)(iv), such rejection not to be unreasonable.


 


(c)                 The Contractor will ensure that,
in relation to any subcontractor or any other entity that performs any Work or
any entity that supplies products (including Devices) to the Contractor in
relation to the Work (“Relevant Entity”):


 


(i)                  the Relevant Entity
is a reputable entity which:


 


A.                 has sufficient
experience, expertise and ability to perform its obligations to the standards
required by this agreement, including the Requirements Document and the
Solution Documentation, and that it has experience and expertise in
successfully designing, developing, integrating, installing, testing,
implementing and providing similar Solutions or providing similar services or
in providing products relating to similar Solutions;


 


B.                  has in place
arrangements for ensuring the availability of the appropriate skills and
resources to perform its obligations to the standards required by this
agreement, including the Requirements Document and the Solution Documentation;
and


 


C.                  is of sufficiently
high financial and commercial standing to perform its obligations to the
standards required by this agreement, including the Requirements Document and
the Solution Documentation; 


 


53





















 


(ii)                 it has carried out
such probity and criminal history investigations to report on the character,
honesty and integrity of the Relevant Entity and persons associated with the
Relevant Entity as are reasonable in the circumstances to ensure that the
Relevant Entity is fit and proper for its continued involvement in the Work or
in supplying products (including Devices) in relation to the Work;


 


(iii)                the Principal’s
Representative is provided with written details of the Relevant Entity and the
terms and conditions of the contract with the Relevant Entity prior to the
Contractor entering into that contract; and


 


(iv)               any subcontract or
supply contract between the Contractor and a Relevant Entity must contain
provisions corresponding to this clause 10.2 and the Contractor must
procure that any subcontract or supply contract with a Relevant Entity to which
it is not a party contains provisions corresponding to this clause 10.2.


 


(d)                 The Contractor must procure for
the Principal the right to carry out criminal history investigations in
relation to any person associated with a Relevant Entity.


 


(e)                 Where, as a result of carrying
out a criminal history investigation, the Principal is of the view that a
Relevant Entity or any person associated with a Relevant Entity should not be
involved in the Work or the supply of products (including Devices) in relation
to the Work, the Principal may give notice to the Contractor requiring it to
ensure that the Relevant Entity or person associated with the Relevant Entity
is no longer involved in the Work or the supply of products (including Devices)
in relation to the Work and the Contractor must comply with any such notice as
soon as possible and, in any event, within 5 Business Days of receiving such
notice.


 


(f)                  The Contractor must
not terminate its contract with any Relevant Entity unless another person, in
respect of which clauses 10.2(b) and (c) has been complied with,
is appointed to perform the obligations which were performed by that Relevant
Entity.


 


(g)                 Despite the
provisions of this clause and notwithstanding any subcontract or supply
contract or approval to subcontract any part of the Work or enter into any
supply contract in relation to the Work, the Contractor remains bound by the
Contractor’s obligations under this agreement to perform the Work in accordance
with this agreement, including the Requirements Document and the Solution
Documentation, and will be liable for all acts, omissions and defaults of its
subcontractors or suppliers relating to, or in any way connected with, the
Work.


 


10.3             Key
Contracts


 


(a)                 Where a proposed subcontract or
supply contract to be entered into by the Contractor or one of its
subcontractors, or an existing subcontract already entered into by the
Contractor or one of its subcontractors:


 


(i)                  is for a total value
of $[**] or more for the duration of the Term; or


 


(ii)                 is, in the Principal’s
opinion, of significance in relation to the Work; and


 


(iii)                in the case of both
paragraphs (i) and (ii) is for the supply of services or products
solely for the purposes of the Project or the undertaking of all or part of the
Work,


 


54





















 


the Principal’s Representative may nominate
the subcontract or proposed subcontract or supply contract or proposed supply
contract as a Key Contract by notifying the Contractor in writing.


 


(b)                 Where the Principal nominates a
proposed subcontract or proposed supply contract as a Key Contract, the
Contractor must not, and must procure that its subcontractors and suppliers do
not, enter into that Key Contract unless and until the Principal has entered
into a Direct Agreement in accordance with clause 10.3(c).  The Contractor will not be in breach of, or
required to comply with, this clause if:


 


(i)                  it notifies the
Principal prior to entering into a Key Contract and the Principal notifies the
Contractor that a Direct Agreement is not required in respect of that Key
Contract; or


 


(ii)                 clause 10.3(e) applies.


 


(c)                 The Contractor must enter into,
and must procure that its subcontractors or suppliers enter into, a Direct
Agreement with the Principal:


 


(i)                  on terms acceptable
to the Principal; and


 


(ii)                 substantially in the
form set out in Schedule 25,


 


in respect of any Key Contract nominated by
the Principal under clause 10.3(a) and must procure that all other parties
to the Key Contract enter into that Direct Agreement.  The Contractor’s obligations under this
clause 10.3(c) will only apply in respect of each Key Contract to which
Wayfarer and Gunnebo are party to the extent required pursuant to clause
10.3(h).


 


(d)                 The Contractor must comply, and
must do all reasonable things necessary to ensure its subcontractors and
suppliers comply, with the terms of any Direct Agreement.


 


(e)                 The Contractor and its
subcontractors and suppliers may enter into a subcontract for a term of 3
months or less if the Contractor reasonably considers that the contract is
necessary to deal with an Emergency and will not be required to comply with
this clause 10.3 in those circumstances.


 


(f)                  If the Contractor or
one of its subcontractors or one of its suppliers has entered into a
subcontract in breach of clause 10.3(b), the Contractor must, and must procure
that each of its subcontractors and suppliers, use their reasonable endeavours
to procure that all other parties to the Key Contract enter into a Direct
Agreement in accordance with clause 10.3(c), including incurring any
expenses up to [**]% of the amount to be paid under the subcontract.


 


(g)                 Without limiting the Contractor’s
obligations under clause 10.2 and this clause 10.3, the Contractor must, prior
to the Phase Date for the NTS Solution Requirements Phase, deliver to the
Principal’s Representative original counterparts of the following Project
Documents, in a form and substance satisfactory to the Principal’s Representative,
duly executed by all parties other than the Principal and satisfaction of all
conditions precedent to such documents:


 


(i)                  the Key Contracts
entered into by Wayfarer, Gunnebo, HP, Optus and Chubb pursuant to the letters
of intent required to be provided in accordance with clause 2.3(a)(ii);


 


55





















 


(ii)                 the Direct Agreements
entered into by HP, Optus and Chubb pursuant to the letters of intent required
to be provided in accordance with clause 2.3(a)(ii);


 


(iii)                the direct agreements
with the Contractor entered into by Wayfarer and Gunnebo pursuant to the
letters of intent required to be provided in accordance with clause 2.3(a)(ii);
and


 


(iv)               Deeds of Assurance
required under clause 30.17(c)(ii).


 


(h)                 The Contractor must, with effect
from the date on which Ascom enters into subcontracts with Wayfarer and
Gunnebo, enter into a valid enforceable direct agreement with each of Wayfarer
and Gunnebo.  The Contractor will ensure
that Ascom is a party to each such direct agreement, and that the terms of such
direct agreements include a right for the Contractor to require each of
Wayfarer and Gunnebo to accept a novation of the relevant subcontract from
Ascom to the Contractor at any time during the term of the relevant
subcontract.  In the event that the
Contractor exercises its rights under any such direct agreement to take a
novation of the relevant subcontract from Ascom, the new subcontract thereby
created between the Contractor and Wayfarer or Gunnebo (as applicable) will be
a Key Contract for the purposes of this agreement, and in respect of each such
Key Contract, the obligations of the Contractor under clause 10.3(c) will
then apply.


 


(i)                  The Principal
confirms that as at the Commencement Date, it has nominated as Key Contracts:


 


(i)                  the contracts
between the Contractor and each of Ascom, ERG, Headstrong, G&D, HP, Chubb
and Optus; and


 


(ii)                 the subcontracts
between Ascom and each of Wayfarer and Gunnebo,


 


in each case being in connection with the
Project or the undertaking of the Work, the Initial Services or the Core
Services.


 


10.4             Local
content


 


The
Contractor must comply with the Victorian Industry Participation Plan.


 


11.                NTS Solution
Requirements Phase


 


11.1             NTS Solution
Requirements Phase


 


(a)                 The Contractor must carry out
the NTS Solution Requirements Phase in accordance with this agreement,
including the Requirements Document.


 


(b)                 Without limiting clause 11.1(a),
prior to the Phase Date for the NTS Solution Requirements Phase, the Contractor
must:


 


(i)                  identify all of the
outcomes, requirements, policies, procedures, practices and business rules of
the Principal, the Operators, the Government, the Governmental Agencies and
Stakeholders in relation to the Project and the Solution and document them in
the NTS Requirements Specification;


 


(ii)                 develop and document
the NTS Requirements Specification in accordance with this agreement including
clause 11.2 and the Requirements Document;


 


56





















 


(iii)                without limiting clause 11.1(b)(ii):


 


A.                 determine all
business processes and data requirements;


 


B.                  determine all
business rules;


 


C.                  document the Civil
Works;


 


D.                 prepare a
customisation document describing the extent of work the Contractor must
undertake to its existing equipment and system in order to meet the Principal’s
requirements; and


 


E.                  provide objective
traceability from the NTS Requirements Specification to each parent document
item (including the NTS Requirements Document and the Contractor’s Response).


 


(iv)               deliver possession of
all of the NTS Requirements Specification to the Principal;


 


(v)                ensure that all plans,
designs, drawings, specifications, reports or other documents or services or
work prepared or performed during the delivery of NTS Solution Requirements
Phase:


 


A.                 are of professional
quality;


 


B.                  are technically
adequate and accurate; and


 


C.                  will be completed
and coordinated in a timely manner;


 


(vi)               document the Principal’s
requirements in relation to the Pilot Trial, including:


 


A.                 the location of the
Pilot Trial;


 


B.                  the period of
duration of the Pilot Trial including the date for Completion of the Pilot
Trial, which the Contractor must incorporate into the Project Master Schedule;


 


C.                  the devices,
functionality and business rules of the Solution to be used during the
Pilot Trial;


 


D.                 the conditions which
must be met for the successful completion of the Pilot Trial; and


 


E.                  any other aspect of
the Pilot Trial agreed between the parties.


 


11.2             NTS Requirements
Specification Warranty


 


The Contractor warrants that the NTS
Requirements Specification will identify and contain all of the requirements of
the Government, Governmental Agencies, the Principal, the Operators and
Stakeholders in relation to the Project and the Solution:


 


(a)                 which are identified pursuant to
clauses 11.1 and 11.7; and


 


(b)                 of which the Contractor is aware
or which a prudent, competent and experienced contractor should have been aware
if it had done those things which the Contractor is required to do under
clauses 11.1 and 11.7.


 


57





















 


11.3             Development of NTS
Requirements Specification


 


(a)                 The Contractor must prepare and
submit to the Principal for its approval drafts of each part of the NTS
Requirements Specification, prepared on the basis of: 


 


(i)                  any outlines
contained in the Contractor’s Response; and 


 


(ii)                 in accordance with,
and at the times specified in, this agreement, including the Requirements
Document and the Project Master Schedule.


 


(b)                 The Principal may, within 10
Business Days of receipt of a draft of any part of the NTS Requirements
Specification, advise the Contractor whether or not it considers that draft to
be in accordance with this agreement, including the Requirements Document, or
reject it and provide its comments (if any) to the Contractor.  If that draft is rejected, the Contractor
must promptly, and in any event within 5 Business Days, submit to the Principal
a redraft of that part of the NTS Requirements Specification and such redraft
will be dealt with by the Principal as if it were submitted under
clause 11.3(a).


 


(c)                 The Contractor must prepare and
submit to the Principal for its approval a final version of each part of the
NTS Requirements Specification prepared on the basis of the draft submitted under
clause 11.3(a) and in accordance with, and at the times specified in,
this agreement, including the Requirements Document and the Project Master
Schedule.


 


(d)                 The Principal may, within 10
Business Days of receipt of the final version of a part of the NTS Requirements
Specification, advise the Contractor whether or not it considers such final
version to be in accordance with this agreement, including the Requirements
Document, or reject it and provide its comments (if any) to the Contractor.  If the final version of part of the NTS
Requirements Specification is rejected, the Contractor must promptly, and in
any event within 5 Business Days, submit to the Principal a redraft of that
part of the NTS Requirements Specification and such draft will be dealt with by
the Principal as if it were submitted under clause 11.3(c).


 


(e)                 The Contractor must finalise the
NTS Requirements Specification taking into account the comments of the
Principal and in accordance with the requirements set out in this agreement, including
the Requirements Document, as a condition precedent to Completion of the NTS
Solution Requirements Phase.


 


(f)                  The Principal’s
receipt, review or approval of, or any comment, representation or statement
(whether verbal or in writing) in relation to the NTS Requirements
Specification or any part thereof will not relieve the Contractor of its
responsibility for any errors, omissions or departures from, or failures to
comply with, this clause 11 or the other requirements of this agreement and
will not affect the rights or obligations of the Principal under this
agreement, including its payment obligations under clause 21.


 


(g)                 If the Contractor reasonably
believes the Principal is being unreasonable in any review of, comment on or
other action undertaken under clauses 11.3(b) or 11.3(d) in relation
to the NTS Requirements Specification it must give written notice to the
Principal’s Representative.  If the
matter is not resolved within 10 Business Days of the receipt of such notice,
the dispute will be referred to the Dispute Resolution Procedures.


 


58





















 


11.4             NTS Solution
Requirements Phase and Capital Price


 


(a)                 The Contractor will incorporate
the outcomes, requirements, policies, procedures, practices and business rules identified
pursuant to clauses 11.1(a), (b) and 11.7 into the Solution or the Initial
Services or the Core Services (as the case may be), and in the case of the
Category 3 Matters agreed or determined pursuant to clause 11.7 will document
those matters in accordance with clause 11.7(c), without additional cost to the
Principal and, notwithstanding any other provision of this agreement other than
clause 20A, will not be entitled to make any Claim in respect of such
incorporation.


 


(b)                 As a condition precedent to
Completion of the NTS Solution Requirements Phase, the Contractor must give the
Principal a document which sets out:


 


(i)                  any proposed
reduction in the Capital Price or the Services Charge or both in respect of the
items of the Work or other matters set out in Schedule 26 and the basis of
calculation of the reduction individually itemised for each item of the Work or
other matter set out in Schedule 26; or


 


(ii)                 if the Contractor
does not propose a reduction in the Capital Price and the Services Charge
reasons for this individually itemised for each item of the Work or other
matter set out in Schedule 26.


 


(c)                 The parties will, within 20
Business Days of Completion of the NTS Solution Requirements Phase, use
reasonable endeavours to agree upon a reduction in the Capital Price and the
Services Charge in respect of the items of Work or other matters set out in Schedule 26
and the Capital Price and the Services Charge will be varied in accordance with
any such agreement.


 


11.5             Civil Works


 


The Contractor:


 


(a)                 will conduct a tender process to
obtain 3 separate quotes from experienced and capable contractors agreed
to by the Principal (but failing agreement, as nominated by the Principal) to
carry out the Civil Works documented by the Contractor pursuant to
clause 11.1(b)(iii)C within 2 months of Completion of the NTS
Solution Requirements Phase or any other period reasonably nominated by the
Principal;


 


(b)                 will be responsible for
selecting a preferred subcontractor from this tender process but must permit
the Principal’s Representative to review all materials that are submitted in
the tender process and provide any other information that the Principal
reasonably requires;


 


(c)                 must demonstrate to the
reasonable satisfaction of the Principal that the preferred subcontractor is
the best choice having regard to:


 


(i)                  the price quoted in
the pre-existing market conditions;


 


(ii)                 the experience and
capability of that subcontractor; and


 


(iii)                the ability of the
Contractor to carry out the Work if it subcontracts the Civil Works to the
subcontractor;


 


(d)                 must carry out the Civil Works
by entering into a subcontracting agreement with the preferred subcontractor on
terms reasonably agreeable to the Principal and the


 


59





















 


Contractor.  Under such an arrangement, the Principal
must, within 20 Business Days of a written notice from the Contractor:


 


(i)                  setting out an
amount which it has paid to the preferred subcontractor pursuant to the
subcontract, together with a copy of the relevant invoice from the
subcontractor and such other information reasonably required by the Principal
in relation to such payment; and


 


(ii)                 setting out full
details of the Contractor’s direct costs of administering such a subcontract,
including such further information substantiating those details as is
reasonably required by the Principal,


 


reimburse the Contractor for the amount set
out in the notice in relation to the payment made to the subcontractor and pay
to the Contractor the direct costs set out in the notice plus a [**]% margin on
those direct costs of administration, except that where the Principal disputes
any amount set out in the notice from the Contractor:


 


(iii)                the Principal must pay
any undisputed amounts within 20 Business Days of receipt of the notice from
the Contractor; and


 


(iv)               the Principal may
dispute the notice received from the Contractor in accordance with the process
set out in clause 27.5 as if references to Monthly Invoices in that clause were
references to the written notice received by the Contractor. 


 


11.6             Termination


 


(a)                 As a condition precedent to
Completion of the NTS Solution Requirements Phase, the Contractor must provide
to the Principal:


 


(i)                  a notice setting out
that part of the Work the Contractor proposes to carry out in the 40 Business
Days beginning on the Completion Date for the NTS Solution Requirements Phase
and the cost, representing part of the Capital Price, of such work (the “Clause 11 Termination Amount”); and


 


(ii)                 the daily amount of Delay
Costs which will be incurred each day by the Contractor if it does not perform
that part of the Work set out in the notice provided by the Contractor under
clause 11.6(a)(i) for the 40 Business Days beginning on the
Completion Date for the NTS Solution Requirements Phase (the “Daily Cost”).


 


(b)                 The Contractor must not, without
the written approval of the Principal’s Representative under
clause 11.6(c), undertake any further Work prior to the date which is 40
Business Days after the Completion Date for the NTS Solution Requirements
Phase.


 


(c)                 The Principal may give a notice
to the Contractor to commence all or any part of the Work set out in the notice
provided by the Contractor under clause 11.6(a)(i) in respect of the
NTS Release 0 and Prototyping Phase or any other Phase at any time between the
Completion Date for the NTS Solution Requirements Phase and the date which is
40 Business Days after the Completion Date for the NTS Solution Requirements
Phase.


 


(d)                 Despite any other provision of
this agreement, the Principal may at its absolute discretion, terminate this
agreement by giving written notice to the Contractor in the period commencing
on the Phase Date for the NTS Solution Requirements Phase


 


60





















 


and
ending on the date which is 40 Business Days after the Completion Date of the
NTS Solution Requirements Phase.


 


(e)                 If the Principal terminates this
agreement pursuant to clause 11.6(d) prior to the Completion Date for the
NTS Solution Requirements Phase:


 


(i)                  the Contractor must,
within 5 Business Days of the date of termination, give the Principal the NTS
Requirements Specification and any other documents specified in clause 11.1(b) and
11.7, to the extent that they are in existence as at the date of termination;  


 


(ii)                 the Expert must
determine the value of all Work actually performed by the Contractor up to the
date of termination provided that the value of the Work performed prior to the
Completion Date of the NTS Solution Requirements Phase cannot exceed the NTS
Solution Requirements Payment;


 


(iii)                if the Principal has
received all documents referred to in clause 11.6(e)(i) in a fit and
proper state consistent with quality guidelines and with content as expected of
a reasonable contractor, the Principal must pay the Contractor the amount
determined by the Expert under clause 11.6(e)(ii) within 5 Business Days
of the Expert’s determination; and


 


(iv)               notwithstanding any
other provision of this agreement, the Contractor will be entitled to have the
Escrow Material returned to it.


 


(f)                  If the Principal
terminates this agreement pursuant to clause 11.6(d) after the Completion
Date of the NTS Solution Requirements Phase the Principal will pay to the
Contractor: 


 


(i)                  the NTS Solution
Requirements Payment; and


 


(ii)                 if the Principal
gives a notice under clause 11.6(c) and the Contractor has commenced
the work set out in the notice provided by the Contractor under
clause 11.6(a)(i), the whole or the part of the Clause 11 Termination
Amount representing the Work set out in the notice provided by the Contractor
under clause 11.6(a)(i) which has been carried out by the Contractor.


 


(g)                 If the Principal:


 


(i)                  does not give a
notice under clause 11.6(c) or gives a notice under clause 11.6(c) on
a day after the Completion Date for the NTS Solution Requirements Phase; and


 


(ii)                 does not terminate
this agreement under clause 11.6(d),


 


the Contractor will be entitled to claim an
extension of time in accordance with clause 18.7 and the Principal will
pay the Contractor the Daily Cost for each day for which the Contractor is not
authorised to undertake any further Work under clause 11.6(c) in the
period between the Completion Date for the NTS Solution Requirements Phase and
the day 40 Business Days after that day.


 


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11.7             Additional Matters


 


(a)                 Without limiting
clause 11.1(a), and in addition to the matters set out in
clause 11.1(b), prior to the Phase Date for the NTS Solution Requirements
Phase, the Contractor must: 


 


(i)                  document in the NTS
Requirements Specification the Principal’s requirements with respect to the
Category 3 Matters; and


 


(ii)                 in respect of matters
deemed to become Category 3 Matters under clause 2.4(b), use all reasonable
endeavours to agree those matters and document them by way of amendments to
this agreement, 


 


in each case:


 


(iii)                consistent with the
principles or documents set out or referred to in the Category 3 Matters
in relation to the subject matter to be agreed;


 


(iv)               to meet the requirements
of this agreement, including the Requirements Document; and


 


(v)                in accordance with the
process (if any) specified or referred to in each Category 3 Matter.


 


(b)                 In addition to any process
referred to in clause 11.7(a) the Contractor must meet with the Principal,
make available staff and carry out all other tasks reasonably requested by the
Principal as are necessary in order for the parties to agree the Category 3
Matters prior to the Phase Date for the NTS Solution Requirements Phase.


 


(c)                 Where necessary, Category 3
Matters will also be documented by way of appropriate amendments to this
agreement.


 


(d)                 If any Category 3 Matters are
not agreed by: 


 


(i)                  the Phase Date for
the NTS Solution Requirements Phase; or 


 


(ii)                 such later date as is
agreed by the parties; or


 


(iii)                in the case of any of
the OH&S Plan, the Industrial Relations Plan or the Business Continuity
Plan, such earlier date at which the parties have been unable to finalise the
relevant plan in accordance with the applicable completion process referred to
in Schedule 37 in relation to those plans,


 


then on the Phase Date for the NTS Solution
Requirements Phase or such earlier date in the case of the OH&S Plan, the
Industrial Relations Plan or the Business Continuity Plan (as the case may be) or
such later date as has been agreed, or in the event that a later date cannot be
agreed, on the Phase Date for the NTS Solution Requirements Phase, those
Category 3 Matters which have not been agreed may be referred by either party
to the Expert for determination in accordance with clause 49.5 taking into
account:


 


(iv)               the principles set out
in the relevant Category 3 Matters or in the relevant documents referred to in
the Category 3 Matters;


 


(v)                the requirements of
this agreement, including the Requirements Document;


 


62





















 


(vi)               the Contractor’s
warranties under this agreement, including that the Solution must be Fit For
Solution Purposes; and


 


(vii)              Industry Practice as it
applies to the relevant Category 3 Matter,


 


except that any determination of the Expert
will be final and binding on each party and clauses 49.5(l) and 49.5(m) will
not apply.


 


12.                Design


 


12.1             Fundamental
design obligation


 


The
Contractor must design the Solution in accordance with:


 


(a)                 the Project Documents including this agreement and the
Requirements Document;


 


(b)                 the Solution
Documentation including the NTS Requirements Specification;


 


(c)                 the Project Timeline; and


 


(d)                 Industry Practice.


 


12.2             Design
warranty


 


The
Contractor warrants that:


 


(a)                 it has checked and carefully considered the NTS Requirements
Document and that the NTS Requirements Document is proper, adequate and fit for
its purpose;


 


(b)                 it has checked and carefully considered the Contractor’s
Response and considers the Contractor’s Response is proper, adequate and fit
for its purpose;


 


(c)                 the design of the Solution will be completed in accordance
with this agreement and that:


 


(i)                  such design will be
fit for its intended purpose;


 


(ii)                 development,
integration, installation and implementation in accordance with such design
will accord with the standards required by the NTS Requirements Specification
and this agreement, including the Requirements Document; and


 


(iii)                if the Solution is
developed, installed, integrated, implemented, operated and maintained in
accordance with such designs the Solution will be Fit For Solution Purposes;


 


(d)                 the design and development of
the Initial Services and the Core Services will be undertaken in accordance
with the requirements of the NTS Requirements Specification and this agreement,
including the Requirements Document, and will enable the Initial Services and
the Core Services to be provided in accordance with this agreement, including
the Requirements Document;


 


(e)                 no representation or warranty
has been given or is given by or on behalf of the Principal or anyone for whom
the Principal is responsible, including any Governmental Agency, Access
Provider, Bus Operator or Stakeholder, as to:


 


(i)                  the suitability,
completeness or efficacy of any information or data supplied or made available
by any of them, including information or data


 


63





















 


forming part of this agreement, including the
Requirements Document; or


 


(ii)                 any other drawings,
plans, design specifications, reports or other information or data which relate
directly or indirectly to the Solution; 


 


(f)                  it has made its own
review and evaluation of the suitability and accuracy of the information or
data referred to in this clause without reliance on the Principal.


 


12.3             Design Documents


 


The Contractor must prepare the Design
Documents in accordance with this agreement, including the Requirements
Document.


 


12.4             Development of Design Documents


 


(a)                 The Contractor must complete the
design of the Solution and the design and development of the Initial Services
and the Core Services in accordance with the NTS Requirements Specification and
this agreement, including the Requirements Document, by preparing the Solution
Documentation including the preparation and finalisation of the Design
Documents.


 


(b)                 The Design Documents must comply
with this agreement, including the Requirements Document.


 


(c)                 The Contractor must include in
each Design Document an acknowledgment that the design of the Solution and the
design of the Initial Services and the Core Services is solely the
responsibility of the Contractor and that the Contractor is responsible for any
errors, omissions or departures from, or failures to comply with, the
Requirements Document or the other requirements of this agreement.


 


(d)                 The final and all drafts of the
Design Documents will be prepared:


 


(i)                  in accordance with
Industry Practice;


 


(ii)                 in accordance with
this agreement, including the Requirements Document, the Project Timeline and the Project Master Schedule; and


 


(iii)                in a manner and at a
rate which will give the Principal’s Representative a reasonable opportunity to
progressively review and comment on them without delaying the progress of the
Delivery.


 


(e)                 The Contractor must prepare and
submit to the Principal for its approval an outline of each of the Design
Documents as required by, and at the times specified in, this agreement,
including the Requirements Document and the Project Master Schedule.  The NTS Requirements Specification will be
developed in accordance with clause 11.3 and not clauses 12.4(e) to
(q).  For the purposes of clauses
12.4(f), (h) and (j), the reference to the “Required Response Time” will
mean:


 


(i)                  where the relevant
Design Document must be referred by the Contractor to Ascom to enable the
Contractor to redraft it, 7 Business Days; and


 


(ii)                 in all other cases, 5
Business Days.


 


(f)                  The Principal may,
within 10 Business Days of receipt of the outline of each of the Design
Documents, advise the Contractor whether or not it considers such plan to be in
accordance with this agreement, including the Requirements Document, or reject
it and provide its comments (if any) to the Contractor.  If the outline of a


 


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Design
Document is rejected, the Contractor must promptly, and in any event within the
Required Response Time, submit to the Principal a redraft of the outline of the
Design Document and such redraft will be dealt with by the Principal as if it
were submitted under clause 12.4(e).


 


(g)                 The Contractor must prepare and
submit to the Principal for its approval a draft of each of the Design
Documents, prepared on the basis of the outline submitted under clause 12.4(e) and
in accordance with, and at the times specified in, this agreement, including
the Requirements Document and the Project Master Schedule.


 


(h)                 The Principal may, within 10
Business Days of receipt of the draft of each of the Design Documents, advise
the Contractor whether or not it considers such draft to be in accordance with
this agreement, including the Requirements Document, or reject it and provide
its comments (if any) to the Contractor. 
If a draft of a Design Document is rejected, the Contractor must
promptly, and in any event within the Required Response Time, submit to the
Principal a redraft of the Design Document and such redraft will be dealt with
by the Principal as if it were submitted under clause 12.4(g).


 


(i)                  The Contractor must
prepare and submit to the Principal for its approval final versions of each of
the Design Documents prepared on the basis of the draft submitted under clause
12.4(g) and in accordance with, and at the times specified in, this
agreement, including the Requirements Document and the Project Master Schedule.


 


(j)                  The Principal may,
within 10 Business Days of receipt of the final version of each of the Design
Documents, advise the Contractor whether or not it considers such final version
to be in accordance with this agreement, including the Requirements Document,
or reject it and provide its comments (if any) to the Contractor.  If a final version of a Design Document is
rejected, the Contractor must promptly, and in any event within the Required
Response Time, submit to the Principal a redraft of the final version of the
Design Document and such redraft will be dealt with by the Principal as if it
were submitted under clause 12.4(i).


 


(k)                 The Contractor must finalise all
Design Documents taking into account the comments of the Principal in
accordance with the requirements set out in this agreement, including the
Requirements Document, as a condition precedent to Completion of the relevant
Phase.


 


(l)                  At any time during
the process set out in clauses 12.4(a) to 12.4(k) the Principal may:


 


(i)                  require the
Contractor to participate in a design meeting, including making a presentation
to the Principal; or


 


(ii)                 require the
Contractor to participate in the process set out in clause 12.7.


 


(m)                The Principal’s receipt, review
or approval of, or any comment, representation or statement (whether verbal or
in writing) in relation to the Design Documents or any part thereof will not
relieve the Contractor of its responsibility for any errors, omissions or
departures from, or failures to comply with, the NTS Requirements Specification
or the other requirements of this agreement and will not affect the rights or
obligations of the Principal under this agreement, including its payment
obligations under clause 21.


 


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(n)                 Notwithstanding any other
provision of this clause 12.4, the Contractor:


 


(i)                  must submit the
Solution Documentation to the Principal’s Representative in accordance with the
documentation program referred to in clause 12.4(d) (and there must be no
unsatisfied or unresolved notice from the Principal’s Representative under
clause 12.4(o)) before commencing building of any part of the Solution to which
it relates; and


 


(ii)                 will not be entitled
to any extension of time under clause 18.7 if the Contractor submits the Solution
Documentation in a manner or at a time (including in a quantity) which prevents
the Principal’s Representative from reviewing it in the time allowed under this
clause 12.4.


 


(o)                 If, at any time, in the
Principal’s opinion, the Contractor is not undertaking the design of the
Solution or design and development of the Initial Services and the Core
Services in accordance with the Project Master Schedule, the Principal’s
Representative may give written notice to the Contractor requiring the
Contractor to submit to the Principal’s Representative within 5 Business Days
of such notice a plan and program for corrective action to correct the matter
the subject of the notice under this clause 12.4(o).  The Principal’s Representative may give
notice to the Contractor that the corrective action plan does not
satisfactorily address the concerns of the Principal, in which case, the
Contractor must amend the corrective action plan.  The Contractor must carry out the corrective
action plan in a manner to ensure that it complies with the Project Master
Schedule.


 


(p)                 If the Contractor reasonably
believes the Principal is being unreasonable in any review of, comment on or
other action undertaken under clauses 12.4(f), 12.4(h), 12.4(j), 12.4(l) or
12.4(o) in relation to a Design Document it must give written notice to the
Principal’s Representative.  If the
matter is not resolved within 10 Business Days of the receipt of such notice,
the dispute will be referred to the Dispute Resolution Procedures.


 


(q)                 Where there is an outline or
draft of a Design Document set out in a schedule to this agreement or in
the Contractor’s Response, the Contractor will, subject to clause 12.4(r),
further develop such Design Documents in accordance with this clause 12.4 based
on such outline or draft of the relevant Design Document.


 


(r)                  The NTS Requirements
Specification will be developed in accordance with clause 11.3 and not
clauses 12.4(e) to 12.4(q).  If
any other clause or schedule in this agreement outlines a process for the
development and review of a specific Design Document, to the extent that there
is an inconsistency with the process in this clause 12.4, the specified Design
Document will be developed and reviewed in accordance with such other clause or
schedule.


 


12.5             Prototype


 


The Contractor must develop, install and
deliver the Prototype in accordance with this agreement, including the
Requirements Document at a premises nominated by the Principal.


 


12.6             Phase reviews


 


(a)                 The Contractor must conduct
phase reviews at the completion of each Phase including in accordance with this
agreement, including the Requirements Document and the Solution Documentation.


 


(b)                 The Contractor must give the
Principal’s Representative 5 Business Days prior notice of any phase
review.


 


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(c)                 The Principal has the right to
be present when any phase review is being conducted.


 


12.7             Design and
Non-Compliance


 


(a)                 If, at any time prior to the
Solution Completion Date, the Solution Documentation is incomplete,
inadequate or does not comply with this agreement, including the Requirements
Document, the Principal’s Representative may give a notice to the Contractor
which:


 


(i)                  specifies the parts
of the Solution
Documentation which are incomplete, inadequate or do
not comply with this agreement, including the Requirements Document; and


 


(ii)                 either:


 


A.                 provides its
comments, if any, in relation to the relevant Solution Documentation;


 


B.                  requires the
Contractor to participate in a design meeting; or


 


C.                  recommends the
Contractor amend the Solution Documentation to correct such incompleteness,
inadequacy or non-compliance.


 


(b)                 If the Principal’s
Representative gives a notice under clause 12.7(a)(ii)C and the Contractor does
not give a notice in accordance with clause 12.7(d), the Contractor must amend
the Solution Documentation and resubmit the relevant Solution
Documentation to
the Principal’s Representative within 10 Business Days (or such other period
agreed by the parties) after receipt of a notice from the Principal’s
Representative.  Clause 12.7(a) will
apply in respect of the resubmitted Solution Documentation,
except that if the resubmitted Solution Documentation does not comply with this
agreement, including the Requirements Document, the Principal’s Representative
may in addition to its rights under clause 12.7(a), also give a notice to the
Contractor that clause 12.7(c) is to apply.


 


(c)                 Where this clause 12.7(c) applies
and the Contractor has not given a notice in accordance with clause 12.7(d),
the Principal may make a determination on any or all of:


 


(i)                  the resulting
diminution in the value of the Solution having regard to factors such as (but
not limited to) loss of functionality and life cycle costs;


 


(ii)                 the value of the
Work, based on the rates and prices set out in Schedule 7, that the
Contractor will no longer be carrying out; and/or


 


(iii)                the cost to the
Principal of taking the necessary action to remedy the non-compliance,


 


to determine a fair and reasonable recompense
to the Principal for the Contractor not remedying such non-compliance.  After this determination is made the greater
of the amounts determined by the Principal under clauses 12.7(c)(i), 12.7(c)(ii) or
12.7(c)(iii) will be a debt due and payable by the Contractor to the
Principal within 30 days.


 


(d)                 If the Contractor disagrees with
any notice made by the Principal’s Representative under clauses 12.7(a) or
12.7(c) it must, within 5 Business Days of receipt of such a


 


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notice,
give written notice to the Principal’s Representative.  If the matter is not resolved within
10 Business Days of the receipt of such notice the dispute will be
referred to the Expert.


 


(e)                 The Principal will not be bound
to review or comment upon the Solution Documentation or to check the Solution Documentation for errors, omissions or
compliance with the requirements of this agreement, including the Requirements
Document.  The Principal’s receipt,
review or approval of, or any comment, representation or statement (whether
verbal or in writing) in relation to the Solution
Documentation,
will not relieve the Contractor from responsibility for any errors, omissions
or departures from, or failures to comply with, the NTS Requirements
Specification, or other requirements of this agreement and will not affect the
rights or obligations of the Principal under this agreement, including its
payment obligations under clause 21.


 


12.8             NTS
Demonstration Suite


 


(a)                 The Contractor must develop the
NTS Demonstration Suite in accordance with this agreement, including the
Requirements Document.


 


(b)                 The Contractor agrees to deliver
to the Principal:


 


(i)                  on 1 August 2005,
all Devices and Software forming part of the NTS Demonstration Suite as it
then exists, whether or not in final form, including all documentation required
to operate the NTS Demonstration Suite and associated business rules;


 


(ii)                 during the course of
2006, Software and Devices updates to the NTS Demonstration Suite as they
become available, in a form satisfactory to the Contractor, to improve the
functionality and level of representation of the final form of the Solution,
including an update to the documentation required to operate the NTS
Demonstration Suite and associated business rules; and


 


(iii)                by not later than 31 December 2006
(or such other date agreed between the parties), all Devices and Software
comprising the final form of the NTS Demonstration Suite, including all
documentation required to operate the NTS Demonstration Suite and a
complete set of associated business rules.


 


(c)                 The Contractor must install the
NTS Demonstration Suite in accordance with this agreement, including the
Requirements Document and the Solution Documentation, at either the Principal’s
premises or another premise to be advised by the Principal.  The Contractor must provide the Principal
with sufficient resources to assist with the operation and maintenance of the
NTS Demonstration Suite, including personnel trained in the installation and
operation of the NTS Demonstration Suite and copies of any documentation
and other manuals required to relocate, install, operate and maintain the NTS
Demonstration Suite.


 


(d)                 The Contractor must maintain the
NTS Demonstration Suite in accordance with this agreement, including the
Requirements Document and the Solution Documentation, until it is replaced or
such time as the Principal determines that it is no longer required.


 


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12.9             Traceability of Design


 


The Contractor will provide objective traceability
from each requirement in the Requirements Document or the NTS Requirements
Specification to relevant parts of the Design Documents, including:


 


(a)                 ensuring that each relevant
Design Document includes cross-references to all applicable requirements in the
Requirements Document or the NTS Requirements Specification;


 


(b)                 preparing, updating and
maintaining a log which records where in the Design Documents each requirement
in the Requirements Document or the NTS Requirements Specification is dealt
with;


 


(c)                 providing the Principal with a
copy of the current version of the log referred to in clause 12.9(b):


 


(i)                  on each occasion
that an outline of a Design Document is submitted to the Principal under

clause 12.4(e); and


 


(ii)                 upon request by the
Principal.


 


12.10           Proof of Design


 


(a)                 The Contractor must conduct
Proof of Design in accordance with this agreement, including the Requirements
Document, and the Solution Documentation at the times required by this
agreement, including the Requirements Document and the Solution Documentation,
and at such other times as are reasonably required by the Principal.


 


(b)                 The Contractor must document
each Proof of Design it conducts in accordance with clause 12.10(a) and
provide such documentation to the Principal within 5 Business Days of
conducting the Proof of Design.


 


(c)                 The Principal may, within
10 Business Days of receiving a documented Proof of Design notify the
Contractor that in its opinion the Contractor has not satisfactorily
demonstrated the functionality of the Solution or part of the Solution the
subject of the Proof of Design and specify a time within which the Proof of
Design must be conducted again.  The
notice must provide the Contractor with particulars and may also specify
remedial action the Contractor must take prior to conducting the Proof of
Design again.


 


(d)                 The Contractor must comply with
any notification given to it pursuant to clause 12.10(c).


 


13.                Implementation


 


13.1             Implementation


 


The
Contractor must implement the Solution in accordance with the NTS Requirements
Specification and this agreement, including the Requirements Document and
Project Timeline.


 


13.2             Project
Timeline


 


(a)                 The Contractor must amend the Project Timeline to take into
account an extension of time granted in accordance with clause 18.7.


 


69





















 


(b)                 If an extension of time is granted under clause 18.7, the
Contractor must promptly deliver to the Principal’s Representative an amended
Project Timeline for the Principal’s approval and the Principal must accept it
if the amendment reflects that extension of time granted by the Principal under
clause 18.7.


 


(c)                 The Principal’s Representative will notify the Contractor
within 5 Business Days of receipt of the amended Project Timeline if the
Principal does not agree with the amendments and the Contractor must amend the
Project Timeline accordingly.


 


13.3             Project
Master Schedule


 


(a)                 The Contractor must implement the Solution in accordance
with the Project Master Schedule, which must comply with the Project Timeline
and the Phase Dates,
including any updates or modifications to it.


 


(b)                 The Contractor must:


 


(i)                  monthly;


 


(ii)                 as a precondition to
the Completion of a Phase; and


 


(iii)                whenever there is a
significant change in the progress of the Work,


 


submit to the Principal’s Representative
updates of the Project Master Schedule which must nonetheless comply with
the Project Timeline and the Phase Dates.


 


(c)                 The Principal’s Representative
may review any such updated Project Master Schedule and if the Principal’s
Representative reasonably considers that the Project Master Schedule does
not comply with the Project Timeline, the Phase Dates or this agreement, the
Principal’s Representative may request the Contractor to modify the Project Master
Schedule and the Contractor must modify the Project Master Schedule in
accordance with the Principal’s Representative’s request.


 


(d)                 Any review of or comments upon
or request to modify a Project Master Schedule under clause 13.3(c) by
the Principal will not:


 


(i)                  relieve the
Contractor from or alter its liabilities or obligations under this agreement,
including the Requirements Documents, in particular (without limitation) the
obligation to achieve Completion of a Phase by the relevant Phase Date;


 


(ii)                 evidence or
constitute an extension of time or a direction by the Principal to accelerate,
disrupt, prolong or vary any, or all, of the Work; or


 


(iii)                affect the time for
performance of the Principal’s obligations under this agreement, including the
Requirements Document including oblige the Principal to do anything earlier
than is necessary to enable the Contractor to achieve Completion of a Phase by
the relevant Phase Date.


 


13.4             Progress Reports


 


The
Contractor must, within 2 Business Days after the end of each calendar month,
submit to the Principal’s Representative a monthly progress report in
accordance with this agreement, including the Requirements Document, which
provides such information that the Principal may from time to time request in
order to fully inform the Principal about the progress of Delivery.


 


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14.                Development, Integration and Installation


 


14.1             Development,
Integration and Installation of the Solution


 


The
Contractor must develop, integrate and install the Solution:


 


(a)                 in accordance with Industry Practice;


 


(b)                 in accordance with the Solution Documentation (including the
NTS Requirements Specification) and the Project Documents including this
agreement and the Requirements Document; and


 


(c)                 so that it is Fit For Solution Purposes.


 


14.2             Warranties


 


The
Contractor warrants that:


 


(a)                 it will develop, integrate, install and implement the
Solution in accordance with Industry Practice and this agreement, including the
Requirements Document and the Solution Documentation; and


 


(b)                 the Solution will, when developed, integrated, installed and
implemented:


 


(i)                  be Fit For Solution
Purposes;


 


(ii)                 comply with all requirements of the
NTS Requirements Specification and this agreement,
including the Requirements Document and the Solution Documentation;


 


(iii)                without limiting
clauses 14.2(b)(i) or (ii):


 


A.                 enable the Contractor at all times
during the Initial Services Term to provide the Initial Services so that the
Initial Services comply with this agreement, including the Requirements
Document and the Solution Documentation; and


 


B.                  enable the Contractor at
all times during the Core Services Term to provide the Core Services so that
the Core Services comply with this agreement, including the Requirements
Document and the Solution Documentation; and


 


C.                  enable the provision of
the Other Services; and


 


(iv)               permit the Contractor to comply
with its obligations under clause 44.


 


14.3             Review


 


(a)                 Without limiting the Principal’s rights under any other
clause in this agreement, the Principal may review the development, integration
and installation of the Solution to determine whether the obligations of the
Contractor as to development, integrating and installing of the Solution are
being complied with and in particular whether the Solution is being developed,
integrated and installed in accordance with this agreement, including the Requirements Document and the Solution
Documentation, including in a time which is in accordance with the Project
Timeline and Project Master Schedule.


 


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(b)                 If the Principal believes that the Contractor is not
developing, integrating and installing the Solution in accordance with this agreement including
the Requirements Document and the Solution Documentation, the Principal’s Representative may give a written notice
to the Contractor in which it specifies the areas of non-compliance.


 


(c)                 Unless the Contractor gives a notice in accordance with
clause 14.3(h), the Contractor must develop and submit to the Principal’s
Representative within 10 Business Days after receipt of a notice from the
Principal’s Representative under clauses 14.3(b) or (d), as the case may
be, a plan and program for corrective action to correct the matters the subject
of the notice under clauses 14.3(b) or (d).


 


(d)                 Within 10 Business Days of receipt of the corrective action
plan from the Contractor, the Principal’s Representative may give notice to the
Contractor that the whole or part of the corrective action plan does not
satisfactorily address the concerns of the Principal and subject to clause 14.3(h) direct
the Contractor to resubmit a revised corrective action plan under clause 14.3(c) (save
that the reference to 10 Business Days in clause 14.3(c) will be read as a
reference to 2 Business Days) which addresses the Principal’s concerns.  If the resubmitted corrective action plan
does not satisfactorily address the concerns of the Principal, the Principal
may either:


 


(i)                  direct the Contractor to
resubmit a further revised corrective action plan under

clause 14.3(c) which addresses the Principal’s concerns; or


 


(ii)                 direct that clause 14.3(g) will
apply.


 


(e)                 The Contractor must proceed to implement and carry out any
corrective action plan or part of any corrective action plan which has not been
rejected by the Principal under clause 14.3(d).


 


(f)                  If the Contractor fails to implement and carry out the whole
or part of the corrective action plan in a manner or within a time reasonably
satisfactory to the Principal, the Principal’s Representative may give written
notice to the Contractor that either:


 


(i)                  the Contractor must
comply with the corrective action plan within a specified period of time; or


 


(ii)                 clause 14.3(g) will
apply.


 


(g)                 Where this clause 14.3(g) applies, the Principal may
make a determination on any or all of:


 


(i)                  the resulting diminution
in the value of the Solution having regard to factors such as (but not limited
to) loss of functionality and life cycle costs;


 


(ii)                 the value of the work, based on the
rates and prices set out in Schedule 7, that the Contractor will no longer
be carrying out; and/or


 


(iii)                the cost to the Principal of taking
the necessary action to remedy the non-compliance,


 


to
determine a fair and reasonable recompense to the Principal for the Contractor
not remedying such non-compliance.  After
this determination is made the greater of the amounts determined by the
Principal under clauses 14.3(g)(i), (ii) or (iii) will be a debt due
and payable by the Contractor to the Principal within 30 days.


 


72





















 


(h)                 If the Contractor disagrees with any notice issued by the
Principal’s Representative under clause 14.3(b), 14.3(d) or 14.3(f) it
must within 5 Business Days of receipt of such a notice give a written notice
to the Principal’s Representative.  If
the matter is not resolved within 10 Business Days of receipt of that notice by
the Principal’s Representative the dispute will be referred to the Expert.


 


15.                Testing and Inspection


 


15.1             Testing


 


(a)                 The Contractor must develop test
plans and testing procedures and conduct testing, (including the tests
identified in accordance with clause 11.7), in accordance with the Solution
Documentation (including the NTS Requirements
Specification), this
agreement (including the Requirements Document) and the Test Plan.


 


(b)                 The Contractor must give the
Principal’s Representative 5 Business Days prior notice of any testing
conducted.


 


(c)                 The Principal has the right to
be present when any testing is being conducted.


 


15.2             Test Plan


 


(a)                 At any stage prior to the
Solution Completion Date the Principal can require modifications, additions or
variations to the Test Plan if it is not adequate to meet the objectives or
strategies for testing set out in this agreement, including the Requirements
Document and the Solution Documentation. 
The Contractor must amend the Test Plan in accordance with any such
modifications, additions or variations unless it is manifestly unreasonable to
do so and any such amended Test Plan must be approved by the Principal.


 


(b)                 Any dispute in relation to a
modification, addition or variation to the Test Plan submitted by the
Contractor to the Principal’s Representative for approval or to an approved
Test Plan is to be determined in accordance with the Dispute Resolution
Procedures.


 


15.3             Test Documents


 


(a)                 The Contractor must prepare and
submit to the Principal’s Representative a Test Document for each test to be
performed in accordance with this agreement, including the Requirements
Document and the Solution Documentation and complying with the objectives and
strategies for testing set out in this agreement and in particular the Test
Plan, the relevant Design Documents and the Requirements Document.  The Test Document must be submitted to the
Principal’s Representative by the time provided for in the Project Master
Schedule.


 


(b)                 The Principal’s Representative
must within 20 Business Days of submission of each Test Document pursuant to
clause 15.3(a), or such longer period as the Principal determines is reasonably
appropriate in the circumstances, review that Test Document and, at its
discretion, may propose modifications, additions or variations.  The Contractor must accept any such modifications,
additions or variations unless they are inconsistent with the objectives or
strategies for testing set out in this agreement, including the Requirements
Document and the Solution Documentation, or are unreasonable.


 


(c)                 At any stage prior to the
Solution Completion Date, the Principal can require modifications, additions or
variations to a Test Document if the Test Document is


 


73





















 


not
adequate to meet the objectives or strategies for testing set out in this
agreement, including the Requirements Document and the Test Plan.  The Contractor must amend that Test Document
in accordance with any such modifications, additions or variations unless it is
unreasonable to do so and any such amended Test Document must be approved by
the Principal.


 


(d)                 Any dispute in relation to a
modification, addition or variation to a Test Document for a particular test to
be performed submitted by the Contractor to the Principal’s Representative for
approval or to an approved Test Document for a particular test to be performed
is to be determined by the Expert in accordance with clause 49.5.


 


15.4             Testing of Services


 


The Contractor must include in its Test Plan
and Test Documents for each test to be performed, the testing interface with
the Other Services and the Initial Services and the Core Services in such a way
as to ensure the Services comply with the Solution Documentation and this
agreement, including the Requirements Document.


 


15.5             Conduct of tests


 


The Contractor must conduct testing and
inspection in accordance with this agreement, including the Requirements
Document and the Test Plan and Test Documents.


 


15.6             Test Data and results


 


All Test Data and results must be submitted
by the Contractor to the Principal’s Representative within 5 Business Days
after the relevant testing is completed.


 


15.7             Testing by the
Principal


 


(a)                 The Principal may itself conduct
testing in accordance with the Test Plan at the times provided for in the
Project Master Schedule.


 


(b)                 At any time prior to the
Solution Completion Date, the Principal may itself conduct such additional
testing as it determines is necessary to verify that the Solution operates in
accordance with this agreement, including the Requirements Document and the
Solution Documentation.  The Principal
will use reasonable endeavours to conduct such testing in such a manner and at
such times so as to not unduly interfere with the performance of the Work.


 


(c)                 The Contractor, at no charge to
the Principal, must render such assistance to the Principal as the Principal requires
in order to perform any testing conducted by the Principal in accordance with
clause 15.7(a) and the Contractor will not be entitled to any costs or
extensions of time in connection with the testing carried out by the Principal
in accordance with clause 15.7(a).


 


(d)                 The Contractor must render such
assistance to the Principal as the Principal requires in order to perform any
testing conducted by the Principal in accordance with clause 15.7(b) and,
subject to clause 15.7(e), such assistance shall be a Variation in respect of
which the Principal will issue a Variation Order under clause 20.3,
notwithstanding that the value of the Variation may not at that time have been
agreed.  


 


(e)                 The Contractor will not be
entitled to any costs or extensions of time in connection with testing carried
out by the Principal under clause 15.7(b) where:


 


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(i)                  a non-compliance or
defect is discovered as a result of the Principal’s testing provided that the
exact nature of such non-compliance or defect was not known by the Principal
prior to the Principal conducting the relevant testing; or


 


(ii)                 the relevant testing
is otherwise required to be carried out by the Contractor under this agreement.


 


(f)                  The Principal shall pay
to the Contractor Delay Costs to the extent to which testing which is conducted
under clause 15.7(b) entitles the Contractor to an extension of time under
clause 18.7.  Subject to clause 15.7(d) the
Principal shall not be liable for any other costs incurred by the Contractor as
a result of such testing.  Delay Costs
payable by the Principal to the Contractor under this clause 15.7(f) will
be paid at the time that payment is due in respect of the Phase to which the
extension of time relates.


 


15.8             Non-compliance
discovered as a result of testing


 


(a)                 If, as a result of any testing,
any part of the Solution does not meet the acceptance test results set out in a
Test Document or does not or will not comply with any of the requirements of
this agreement, including the Requirements Document and the Solution Documentation, the Principal’s Representative
may, within 20 Business Days (or such other period of not less than 5 Business
Days set out in the Test Plan) of receipt of the test results, give a notice to
the Contractor which specifies the extent of non-compliance, and:


 


(i)                  requires the
Contractor to take all action that is necessary to ensure compliance.  The Principal’s Representative may, at its
discretion, specify some or all of the modifications, changes, additions or
corrections the Contractor must make or any other action the Contractor must
take; or


 


(ii)                 specifies the extent
of non-compliance that the Principal accepts and requires the Contractor to
take all action that is necessary to ensure compliance other than to the extent
of the non-compliance that is accepted. 
The Principal’s Representative may, at its discretion, specify some or
all of the modifications, changes, additions or corrections the Contractor must
make or any other action the Contractor must take.


 


(b)                 If the Principal’s
Representative gives a notice under clauses 15.8(a)(i) or 15.8(a)(ii) and
the Contractor does not give a notice in accordance with clause 15.8(d), the
Contractor must commence undertaking the specified action within 10 Business
Days after receipt of a notice from the Principal’s Representative.  Once that action is taken all relevant
testing must again be conducted in accordance with this agreement, except that
if at the conclusion of the testing all relevant non-compliances have not been
remedied (including non-compliance that the Principal accepts specified in a
notice under clause 15.8(a)(ii)), the Principal’s Representative may in
addition to its rights under clause 15.8(a), also give a notice to the
Contractor that the Principal accepts the non-compliance.


 


(c)                 If the Principal’s
Representative gives a notice under clauses 15.8(a)(ii) or 15.8(b) and
the Contractor does not give a notice in accordance with clause 15.8(d), the
Principal may make a determination on any or all of:


 


(i)                  the resulting
diminution in the value of the Solution having regard to factors such as (but
not limited to) loss of functionality and life cycle costs;


 


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(ii)                 the value of the
work, based on the rates and prices set out in Schedule 7, that the
Contractor will no longer be carrying out; and/or


 


(iii)                the cost to the
Principal of taking the necessary action to remedy the non-compliance,


 


to determine a fair and reasonable recompense
to the Principal for the Contractor not remedying such non-compliance.  After this determination is made the greater
of the amounts determined by the Principal under clauses 15.8(c)(i), (ii) or
(iii) will be a debt due and payable by the Contractor to the Principal
within 30 days.


 


(d)                 If the Contractor disagrees with
any notice issued by the Principal’s Representative under clause 15.8(a), it
must, within 5 Business Days of receipt of such a notice, give written notice
to the Principal’s Representative.  If
the matter is not resolved within 10 Business Days of the receipt of that
notice by the Principal’s Representative, the dispute will be referred to the
Expert for determination in accordance with clause 49.5.


 


(e)                 The Contractor is responsible
for any delays caused as a result of any steps taken under this clause 15.8.


 


15.9             Inspection


 


The Principal may at any time inspect any of
the Work after giving the Contractor reasonable prior notice, being at least 24
hours.  Any inspection of the Work
carried out on the premises of subcontractors will be with the prior agreement
of the Contractor.


 


15.10           Acknowledgement


 


The Contractor acknowledges that the
Principal owes no duty to the Contractor to:


 


(a)                 carry out any testing under
clause 15.7 or otherwise;


 


(b)                 inspect the Work; or


 


(c)                 review the Work for errors,
omissions or compliance with the requirements of this agreement, including the
Requirements Document and the Solution Documentation, if it does conduct
inspection or testing.


 


15.11           Integrated Test
Facility


 


(a)                 The Contractor must develop an
Integrated Test Facility in Melbourne in accordance with this agreement,
including the Requirements Document and the Solution Documentation.


 


(b)                 The Contractor must, prior to
the Completion Date of the NTS Front Office Design and Hardware FAT Phase,
commence the installation of the Integrated Test Facility at a premises
nominated by the Principal in accordance with this agreement, including the
Requirements Document and the Solution Documentation.


 


(c)                 The Contractor must use the
Integrated Test Facility to carry out testing under this agreement including:


 


(i)                  all subsystem
testing, system integration testing and user acceptance testing; and


 


(ii)                 to test any
Variations and other changes or modifications to the Solution or the Services,
prior to their release.


 


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(d)                 The Contractor must:


 


(i)                  throughout the Term,
maintain the Integrated Test Facility, including all Device, Software and
documentation required to operate the test facility in accordance with this
agreement, including the Requirements Document and the Solution Documentation;
and


 


(ii)                 ensure that at all
times throughout the Term there is sufficient available personnel with adequate
training and experience in the operation of the Integrated Test Facility and
testing generally to conduct the testing required under this agreement,
including the Requirements Document and the Solution Documentation.


 


15.12           Traceability of
Testing


 


The Contractor will provide objective traceability
from each requirement in the Requirements Document or the Solution
Documentation (as the case may be) to relevant parts of the Test Documents,
including:


 


(a)                 ensuring that each relevant Test
Document includes cross-references to all applicable:


 


(i)                  design elements in
the Design Documents; and


 


(ii)                 requirements in the
Requirements Document or the Solution Documentation;


 


(b)                 preparing, updating and
maintaining a log which records where in the Test Document each requirement in
the Requirements Document or the Solution Documentation is dealt with;


 


(c)                 providing the Principal with a
copy of the current version of the log referred to in clause 15.12(b):


 


(i)                  whenever a
modification, addition or variation is made to a Test Document under clause 15.3;
and


 


(ii)                 upon request by the
Principal.


 


16.                Hold Points


 


16.1             NTS
User Acceptance Test Phase


 


The
Contractor must not, without the prior written approval of the Principal’s
Representative, commence the further installation and implementation of any Device
which may affect the public other than the installation or implementation of
any Devices which was scheduled to be completed prior to the date for
completion of the NTS User Acceptance Test Phase, as set out in the Project
Master Schedule, until after the Principal’s Representative issues the
Certificate of Completion for the NTS User Acceptance Test Phase.


 


16.2             Pilot
Trial


 


The
Contractor must not, without the prior written approval of the Principal’s
Representative, commence any further installation and implementation of any
Device which may affect the public other than the installation or
implementation of any Devices which was scheduled to be completed prior to the
date for completion of the Pilot Trial, as set out in the Project Master


 


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Schedule,
until after the Principal’s Representative issues the Certificate of Completion
for the Pilot Trial.


 


17.                Completion


 


17.1             Completion
process


 


(a)                 The Contractor must give the
Principal’s Representative at least 20 Business Days written notice of the date
upon which it expects Completion of a Phase to take place.  When the Contractor reasonably considers that
such Completion has occurred the Contractor must give a second written notice
to the Principal’s Representative.  The
second written notice must set out each condition precedent to completion of
the relevant Phase, including those set out in Schedule 3, and confirm the
completion and/or satisfaction of each such condition precedent.


 


(b)                 After receipt of the second
notice under clause 17.1(a) the Principal’s Representative must either:


 


(i)                  within 10 Business
Days commence inspecting the relevant Phase with the Contractor and within
20 Business Days after completion of such inspection the Principal’s Representative
must determine whether Completion has occurred and either issue:


 


A.                 if Completion has
occurred, a Certificate of Completion under clause 17.2; or


 


B.                  if Completion has
not occurred, a notice of work remaining to be performed to achieve Completion;
or


 


(ii)                 within 10 Business
Days issue to the Contractor a written notice that the Phase is so far from
Completion that it is not practicable to issue a notice under clause 17.1(b)(i) and
requiring the Contractor to continue with the execution of the Phase.


 


(c)                 If the Contractor does not issue
a notice under clause 17.1(e):


 


(i)                  immediately upon
receipt of a notice given under clause 17.1(b)(i)B, the Contractor must perform
the work specified in that notice; and


 


(ii)                 the Contractor must
give a notice to the Principal’s Representative when it has completed the list
of work in the Principal’s Representative’s notice under clause 17.1(b)(i)B.


 


(d)                 Clauses 17.1(b) and 17.1(c)(i) will
apply in respect of the Contractor’s notice under clause 17.1(c)(ii) in
the same way as if it were the original second notice under clause
17.1(a).  Without limiting this clause
17.1(d), the Principal’s Representative will, in making its determination on
whether Completion has occurred:


 


(i)                  not be restricted by
a list which it previously provided to the Contractor under clause 17.1(b)(i)B;
and


 


(ii)                 be entitled to raise
any other items of work as a ground for determining that Completion has not
occurred.


 


(e)                 If the Contractor disagrees with
a notice by the Principal’s Representative under clause 17.1(b), it must within
10 Business Days of receipt of such a notice, give written notice to the
Principal’s Representative.  If the
matter is not resolved within


 


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20
Business Days of receipt of that notice by the Principal’s Representative, the
dispute will be referred to the Expert for determination in accordance with
clause 49.5.


 


17.2             Certificates


 


Subject to clause 17.1, where Completion has
occurred, the Principal’s Representative must issue to the Contractor a
Certificate of Completion within the time required by clause 17.1 certifying
that Completion of the Phase has taken place and the date this occurred.


 


17.3             Effect
of Certificate


 


Any
Certificate of Completion issued under this clause 17 is not an approval by the
Principal of the Contractor’s performance of its obligations under this agreement or that all or any part of the Solution or the Works is in
accordance with this agreement.


 


17.4             Pilot
Trial


 


Clause
17.1 to 17.3 will apply in relation to the Pilot Trial as if it were a Phase,
with the conditions precedent referred to in clause 17.1 being the conditions
which must be met for completion, referred to in clause 11.1(b)(vi)D and
documented in accordance with that clause 11.1(b)(vi).


 


18.                Time


 


18.1             Completion


 


The
Contractor must:


 


(a)                 promptly start to perform the Work from the Commencement
Date;


 


(b)                 furnish sufficient resources to ensure the Delivery takes
place in accordance with the Project Timeline and the Project Master Schedule;


 


(c)                 expeditiously and diligently
program the Work to achieve Completion of each Phase on or before its
respective Phase Date;


 


(d)                 implement the Solution and commence provision of the Initial
Services and Core Services in accordance with the Project Timeline and the
Project Master Schedule; and


 


(e)                 achieve Completion of each Phase
on or before its respective Phase Date.


 


18.2             Delay


 


If
the Contractor falls behind or becomes aware of
any matter which will, or is likely to, cause it to fall behind, in:


 


(a)                 the Delivery specified in the Project Timeline and the
Project Master Schedule;


 


(b)                 achieving Completion of any Phase on or before its
respective Phase Date,


 


the
Contractor must:


 


(i)                  except to the extent notified to the Principal under clause 9.8,
immediately give the Principal’s Representative written notice setting out:


 


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A.                 detailed particulars
of the delay;


 


B.                  the corrective action which the Contractor proposes to take to
overcome the effects of the delay; and


 


(ii)                 take such steps as may be necessary
to improve its progress so that performance of the Work accords with the
approved Project Timeline and Project Master Schedule,


 


and
the Principal may require rescheduling of the Project Timeline and Project
Master Schedule as it sees fit without waiving any rights that the
Principal has against the Contractor because the Contractor has fallen behind
in the performance of the Work as indicated in the Project Timeline and Project
Master Schedule.


 


18.3             Risks
of delays


 


Except
as otherwise provided in this agreement, the Contractor will
bear the risk of all delays to Delivery and all costs, losses, liabilities, expenses, payments, outgoings and damages arising from such
delay.


 


18.4             Failure to Meet Phase
Dates


 


If Completion of a Phase does not occur by
the relevant Phase Date, the Contractor will provide the Principal’s
Representative with written details of its proposed program of work to complete
the Phase and thereafter diligently carry out such program to ensure that the
Phase is completed as soon as possible.


 


18.5             Liquidated
Damages


 


(a)                 The Contractor acknowledges and agrees that time is of the
essence to its obligation to perform the Work and that it may be liable for
liquidated damages for delay in accordance with this clause 18.5.


 


(b)                 Subject to clauses 18.5(d) and
18.5(f), if the Completion of the NTS Operational Proving Phase does not occur
prior to the Phase Date for the NTS Operational Proving Phase, the Contractor
must pay to the Principal by way of liquidated damages $50,000 per day (or part
thereof) in the period:


 


(i)                  commencing on the
Phase Date for the NTS Operational Proving Phase; and


 


(ii)                 ending on the earlier
of:


 


A.                 the Solution
Completion Date; or


 


B.                  the date of termination
of this agreement.


 


(c)                 For the purposes of this
agreement, the parties:


 


(i)                  agree that the
liquidated damages provided for in this clause 18.5 constitute a reasonable and
good faith pre-estimate of the anticipated or actual losses, liabilities,
costs, expenses, payments, outgoings or damage which will be incurred by the
Principal as a result of the Completion of the NTS Operational Proving Phase
not occurring on or before the relevant Phase Date for the NTS Operational
Proving Phase;


 


(ii)                 desire to avoid the
difficulties of proof of damages in connection with such failure and agree that
the liquidated damages payable by the


 


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Contractor in accordance with this clause
18.5 are reasonable and are not intended as a penalty; and


 


(iii)                agree that the amount of liquidated damages payable by the
Contractor under this clause 18.5 will be a debt immediately due and payable by
the Contractor to the Principal.


 


(d)                 The Contractor’s liability to pay liquidated damages to the
Principal under clause 18.5(b) is limited to, and in no event shall
exceed, an amount equal to the Liquidated Damages Limitation.


 


(e)                 Until this agreement is terminated by the Principal in
accordance with clause 42.2, the liability of the Contractor to pay the
Principal liquidated damages under clause 18.5(b) will be the sole and
exclusive remedy of the Principal to damages or to any other claim for the
payment of money in relation to or arising out of or in connection with delay
by the Contractor in achieving:


 


(i)                  Completion of the NTS
Operational Proving Phase by the Phase Date for the NTS Operational Proving
Phase; and


 


(ii)                 Completion of any other Phase by
the relevant Phase Date,


 


but
this does not limit any other right or action the Principal may have whether
under this agreement or at Law, arising out of or in connection with that
delay.


 


(f)                  The Contractor will not be liable for liquidated damages in
relation to a Phase under this clause 18.5 to the extent that for any day
on or after the Phase Date for such Phase the Contractor is delayed by being
unable to obtain access to Access Providers’ Property in any period between the
time the Contractor first requires Alternative Access (as that term is defined
in the relevant Access Coordination Agreement) and being provided with such
Alternative Access.


 


18.6             Prepayment
of Liquidated Damages


 


(a)                 The parties acknowledge that in the event the Contractor
fails to achieve Completion of any Phase prior to the NTS Operational Proving
Phase by the relevant Phase Date for that Phase, it is reasonable to assume
that Completion of the NTS Operational Proving Phase will be delayed by the
number of days between the relevant Phase Date and the Completion Date for that
Phase.


 


(b)                 If the Completion of a Phase
(other than the NTS Operational Proving Phase) does not occur prior to the
Phase Date for that Phase, the Contractor must pay to the Principal on account
of the liquidated damages which the Principal reasonably expects will become
payable under clause 18.5, an amount calculated in accordance with the
following formula:


 


Amount
Payable = (DL × $50,000) – PLD


 


Where:


 


DL                is the number of days from the
relevant Phase Date to the Completion Date for that Phase.


 


PLD              is the amount (if any) already held
on account by the Principal as a result of payments previously made by the
Contractor under this clause in


 


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relation to a failure to Complete a previous
Phase by its Phase Date.


 


Where
the result of the application of the formula is a negative number, then such
amount shall be refunded by the Principal to the Contractor.


 


(c)                 Any payments required to be made under clause 18.6(b) (including
any refunds by the Principal to the Contractor) must be made on the Completion
Date for the relevant Phase.


 


(d)                 All payments made by the Contractor to the Principal under
clause 18.6(b) and all deductions from the Security Bonds for amounts
payable under clause 18.6(b) will be:


 


(i)                  deposited by the
Principal into the Delay Security Account and held by the Principal on account
pending Completion of the NTS Operational Proving Phase; and


 


(ii)                 either:


 


A.                 paid to the Principal and deducted
from the amount for which the Contractor is liable to the Principal under
clause 18.5; or


 


B.                  refunded to the
Contractor to the extent to which the amount held on account exceeds the amount
for which the Contractor is liable to the Principal under clause 18.5.


 


(e)                 Any interest earned on money deposited into the Delay
Security Account until the earlier of:


 


(i)                  the day on which the
amount the Contractor is liable to the Principal under clause 18.5 equals the
amount in the Delay Security Account; or


 


(ii)                 the Completion Date for the NTS
Operational Proving Phase,


 


will
be paid to the Contractor by the Principal as part of the payment due for the
Completion of the NTS Operational Proving Phase.


 


18.7             Extension
of time


 


(a)                 The Contractor may claim an extension of time to a Phase
Date if Completion of the Phase is or is likely to be delayed by:


 


(i)                  an Act of Prevention,
including Access Delays;


 


(ii)                 a Force Majeure event;


 


(iii)                a Change in Law;


 


(iv)               any testing conducted by or on
behalf of the Principal pursuant to clause 15.7(b) which:


 


A.                 does not reveal a non-compliance or
defect, the exact nature of which was not known by the Principal prior to the
Principal conducting the relevant testing; and


 


B.                  is not testing which is
otherwise to be carried out by the Contractor under this agreement;


 


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(v)                an Emergency which occurs prior to
the Completion Date of the NTS Regional and Metropolitan Implementation
Completion Phase and is not caused by the Contractor, where the Principal has: 


 


A.                 exercised its rights under clause
41.1(a); or


 


B.                  exercised its rights
under clause 41.2(a); or


 


(vi)               each day for which the Contractor
is not authorised to undertake any further work in the period between the
Completion Date for the NTS Solution Requirements Phase and the day 40 Business
Days after that day.


 


(b)                 In order to claim an extension of time to a Phase Date:


 


(i)                  the Contractor must
submit a written notice to the Principal’s Representative:


 


A.                 in the case of Access Delay, as soon
as practicable after the Contractor reasonably considers that the occurrence of
one or more Access Events is likely to cause the Access Delay having regard to
the Project Master Schedule; or


 


B.                  in any case, within 10
Business Days of the commencement of the delay; and


 


which
gives detailed particulars of the delay (to the extent then known to the
Contractor having made all reasonable enquiries or which the Contractor, having
made all reasonable enquiries, should reasonably have known by that time) and the
effect this will have on the Project Timeline and Project Master Schedule and
(if possible) states the number of days extension of time claimed;


 


(ii)                 the Contractor must have complied
with all of its obligations under this agreement or the relevant Project
Document which concern the cause of the delay;


 


(iii)                the Contractor must have taken all
reasonable steps both to prevent the cause of the delay and to avoid or
minimise the consequences of the delay;


 


(iv)               the Contractor must
have complied with all reasonable instructions of the Principal’s
Representative with respect to the delay including the steps available to
overcome or minimise the effect of the Act of Prevention, Force Majeure event
or Change in Law;


 


(v)                Completion of the Phase must have
actually been delayed by one of the matters described in clause 18.7(a) in
a manner which:


 


A.                 will prevent the Contractor from
achieving Completion of a Phase by the Phase Date; or


 


B.                  if the delay occurs
after the relevant Phase Date, will delay the Contractor in achieving
Completion,


 


and where
the cause of the delay is the occurrence of Access Delay, the delay must be in
relation to a critical path and the Contractor must have


 


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provided a
draft of the relevant Access Plan or Bus Access Plan to overcome the effect of
the delay.


 


(vi)               where the cause of the delay is a
Variation ordered by the Principal the Contractor has complied with any
Acceleration Direction issued; and


 


(vii)              where the delay is caused by a
Force Majeure event, the event, when aggregated with all other delays caused by
Force Majeure events, has caused or will cause a delay of a minimum of 14 days
and any extension will be calculated from the expiry of those 14 days.


 


(c)                 Where the conditions in clause 18.7(b) have been
satisfied, the relevant Phase Date will be extended by a period reasonably
determined by the Principal’s Representative and notified to the Contractor
within 10 Business Days of the later of the Contractor’s notice under clause 18.7(b) and
the end of the effects of the delay but that period will be reduced to the
extent that the Contractor caused or contributed to the delay.


 


(d)                 Whether or not the Contractor has made, or is entitled to
make, a claim for an extension of time under this clause 18.7, the
Principal’s Representative may, in the Principal’s Representative’s absolute
discretion at any time and from time to time by written notice to the
Contractor, unilaterally extend a Phase Date.


 


(e)                 Any delay or failure by the Principal to grant an extension
of time claimed will not cause a Phase Date to be set at large.


 


(f)                  If the Contractor does not agree with the extension of time
granted (if any) by the Principal under this clause 18.7, the Contractor
may refer the dispute to the Expert for determination in accordance with
clause 49.5.


 


19.                Defects Liability
Period


 


If at any time during a Defects Liability
Period there are any Defects in a Phase, or the Solution, then:


 


(a)                 the Principal’s Representative
may issue an instruction to the Contractor during the Defects Liability Period
which must state in what respect there are Defects in the Phase, or the
Solution and may state a reasonable time within which the Contractor must
complete the making good of those Defects;


 


(b)                 the Contractor must promptly
make good such Defects by appropriate rectification work and must complete such
work within any time stipulated in such instruction;


 


(c)                 such making good by the
Contractor will be at no cost to the Principal whether or not such Defects are
due to materials and/or workmanship not being in accordance with this
agreement;


 


(d)                 if any Defect is not made good
within a reasonable time the Principal may have the Defect made good by others
at the expense of the Contractor; and


 


(e)                 the Principal may by
notice in writing to the Contractor fix a second defects liability period in
respect of the work constituting the making good of a Defect required under the
provisions of this clause, which will be effective for a period commencing on
the completion of such making good and not exceeding 24 months and thereupon
the Defects Liability Period in respect of that work constituting the making
good of the Defect will be extended so that it will expire at the end of such
second defects liability period.


 


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20.                Variations


 


20.1             Variations proposed by
the Principal


 


(a)                 The Principal’s Representative
may, by issuing a Variation Notice, request the Contractor to provide it with:


 


(i)                  a quote for the
costs or savings calculated in accordance with clause 20.4(a) of;


 


(ii)                 applicable details of
costs of any Work or Device replaced or no longer required as a consequence of;


 


(iii)                a quote for the
increase or decrease in the Services Charge (including any impact on the
Performance Requirements which will affect the level of the Services Charge)
arising from;


 


(iv)               the likely amount of
delay or advance to achieving Completion of a Phase caused by;


 


(v)                the time frame within
which work will be carried out in relation to;


 


(vi)               proposed design
information and any other information the Principal’s Representative requires
in relation to; and


 


(vii)              details of the work and
activities it proposes to carry out for;


 


a proposed Variation.


 


(b)                 Within 5 Business Days of receipt of a Variation Notice, the
Contractor must provide the Principal’s Representative with an estimate of the
likely value of the Variation (taking into account clause 20.4(a)) and the
likely reasonable direct incremental costs of providing a Variation Response
under clause 20.2(a) (the “Rough Order
of Magnitude Estimate”).


 


(c)                 Within 5 Business Days of receipt of the Rough Order of
Magnitude Estimate, the Principal’s Representative must:


 


(i)                  confirm the Variation
Notice;


 


(ii)                 withdraw the Variation Notice;


 


(iii)                notify the Contractor that it does
or does not agree with the Rough Order of Magnitude Estimate; or


 


(iv)               withdraw the Variation Notice and
notify the Contractor that:


 


A.                 it requires the Contractor to
conduct a tender process under clause 20.9(a) to obtain quotes with
respect to the proposed Variation the subject of the Variation Notice; or


 


B.                  the Principal proposes
to conduct a tender process itself under clause 20.9(c) to obtain quotes
with respect to the proposed Variation the subject of the Variation Notice.


 


If
the Principal’s Representative does not withdraw or confirm the Variation
Notice within the time required by this clause 20.1(c), it will be deemed to
have withdrawn the Variation Notice unless otherwise agreed between the
parties.


 


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(d)                 The Principal will be
responsible for the Contractor’s reasonable direct incremental costs of
responding to a Variation Notice under clauses 20.1(a), as notified under
clause 20.1(b) and providing a Variation Response under clause 20.2(a) where
these costs exceed $50,000 or where a number of Variation Notices deal with the
same subject matter in substance, the aggregate of these costs exceeds $50,000.


 


20.2             Variation
Response


 


(a)                 Within 10 Business Days (or such
longer period as is agreed) of confirmation of a Variation Notice under clause
20.1(c)(i) or completion of a tender process under clause 20.9 the
Contractor must provide the Principal’s Representative with a Variation
Response containing:


 


(i)                  a quote of costs or
savings calculated in accordance with:


 


A.                 clause 20.4(a); or


 


B.                  where a tender
process has been conducted in accordance with clause 20.9, the quote obtained,


 


substantiated by detailed particulars
(including design information), and any other information requested by the
Variation Notice;


 


(ii)                 the time frame within
which the proposed Variation will be carried out including the procurement lead
times for each item of equipment to be supplied as part of that proposed
Variation, which will not exceed any applicable maximum procurement lead times
set out in Part 7 of Schedule 7;


 


(iii)                where the Contractor
considers that the Variation may result in a delay to achieving Completion of a
Phase by its Phase Date for which the Contractor would be entitled to an
extension of time under clause 18.7, details (including substantiation)
of:


 


A.                 the period by which
the Variation will delay it in achieving Completion of the relevant Phase
beyond the Phase Date;


 


B.                  its estimate of the
Acceleration Costs on the basis that it is required to overcome all of the
delay; and


 


C.                  its estimate of the
Delay Costs arising out of or in connection with the Variation to the relevant
Phase; 


 


(iv)               applicable details of
costs or savings of any work or Device replaced or no longer required as a
consequence of the Variation;


 


(v)                details of the effect
(if any) which the proposed Variation will have on:


 


A.                 farebox revenue;


 


B.                  the Operators and
Stakeholders;


 


C.                  the Operators’
customers;


 


D.                 the functional
integrity of the Solution including what impact the Variation will have on the
Principal’s ability to exploit the Solution for commercial purposes as
envisaged by clause 31;


 


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E.                  the residual value
of the Solution;


 


F.                  the warranties given
by the Contractor under this agreement; and


 


G.                  any other matters
which the Contractor considers of importance in the context of the Project;


 


(vi)               a written statement
stating that the proposed Variation:


 


A.                 will not adversely
affect the Contractor’s ability to meet its obligations under this agreement or
the Performance Requirements;


 


B.                  will not adversely
affect the functional integrity of any of the elements of the Solution; and


 


C.                  will not adversely
affect the quality standards required under this agreement,


 


other than as specified by the Contractor in
accordance with clause 20.2(a)(v);


 


(vii)              except where a tender
process has been conducted in accordance with clause 20.9, a written statement that the quote for the cost of the proposed
Variation is no less competitive than a quote the Contractor would give to
another person for an equivalent variation to be performed by the Contractor
under contract in similar circumstances in the international market; and


 


(viii)             any other information and
supporting documentation which the Principal reasonably requires.


 


(b)                 Upon receipt of the Variation
Response under clause 20.2(a) the Principal may:


 


(i)                  request the
Contractor to:


 


A.                 consider ways of
overcoming or minimising the effect of the proposed Variation on all or any of
the matters set out in clause 20.2(a)(v); and


 


B.                  provide the
Principal with a revised quote for the cost of the proposed Variation which
takes into account the cost of taking action to overcome or minimise the effect
of the proposed Variation on all or any of the matters set out in clause
20.2(a)(v); or


 


(ii)                 if a tender process
has not already been conducted, request the Contractor to conduct a tender
process under clause 20.9(a) to obtain quotes with respect to the proposed
Variation and to submit a revised quote; or


 


(iii)                conduct a tender
process itself under clause 20.9(c) to obtain quotes with respect to the
proposed Variation.


 


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20.3             Variation Order


 


(a)                 The Principal may require the
Contractor to carry out a Variation by issuing a Variation Order.  The Variation Order must specify the
conditions which must be complied with in order for there to be completion of
the Variation.


 


(b)                 The Principal may, together with
the Variation Order, give the Contractor an Acceleration Direction requiring
the Contractor to accelerate Delivery by taking those reasonable measures which
are necessary to overcome or minimise the extent and effects of some or all of
the delay including, if required, in order to achieve Completion of a Phase by
the relevant Phase Date.


 


(c)                 The Contractor must carry out a
Variation directed in accordance with clause 20.3(a) whether or not the
value of the Variation (including the Delay Costs or Acceleration Costs (if
any)) or an extension of time (if any) has been agreed or determined in
accordance with clause 20.4(a) or clause 18.7 respectively.


 


(d)                 The Contractor must not begin
work and will not have any entitlement to make any Claim against the Principal
in respect of a Variation until the Principal’s Representative issues the
Contractor with a Variation Order in accordance with clause 20.3(a).


 


20.4             Valuation of Variation


 


(a)                 A Variation will be valued on
the basis of the sum of:


 


(i)                  if the value of the
Variation is agreed in writing, then on that basis;


 


(ii)                 if the Principal’s
Representative determines at its discretion that:


 


A.                 Schedule 7 is to
apply, the cost of the work, Services, Device and other equipment to be added,
omitted or deleted as a result of the Variation as determined by the Principal’s
Representative on the basis of the schedule of prices and the rates which
appear in Schedule 7; or


 


B.                  Schedule 7 is
not to apply, the Direct Costs or Direct Savings of the Variation.  If the Contractor and the Principal are
unable to agree on this amount, it will be as determined under the Dispute
Resolution Procedures where a notice under

clause 20.4(c) is given; or


 


(iii)                either:


 


A.                 where the Principal’s
Representative gives the Contractor an Acceleration Direction under clause 20.3(b) the
Acceleration Costs incurred by the Contractor in complying with the
Acceleration Direction, as determined by the Principal or as determined under
the Dispute Resolution Procedures where a notice under clause 20.4(c) is
given; or


 


B.                  where the Principal’s
Representative does not give the Contractor an Acceleration Direction under
clause 20.3(b) and the Contractor is actually delayed by the Variation in
achieving Completion of a Phase and is entitled to an extension of time under
clause 18.7, the Delay Costs.


 


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(b)                 Any claim for an extension of
time by the Contractor as a result of the Variation will be determined in
accordance with clause 18.7.


 


(c)                 Where Schedule 7 is not
used for valuing a Variation and the Principal’s Representative and the
Contractor are unable to agree upon the Direct Costs or Direct Savings and
Delay Costs relating to the Variation within 5 Business Days of receipt of
a Variation Response under clause 20.2(a) either party may give written
notice to the other requiring the dispute to be referred to the Dispute
Resolution Procedures.


 


(d)                 Where the Principal’s
Representative makes a determination under clause 20.4(a) as to
whether Schedule 7 should or should not apply, the determination will be
conclusive and binding on the Contractor in the absence of a manifest error by
the Principal.


 


(e)                 If the application of Schedule 7
is the subject of a dispute, the actual rates and prices set out in Schedule 7
can not be altered by the Expert.


 


20.5             Payment for Variations


 


(a)                 The Principal must pay the
Contractor the value as determined under clause 20.4(a), or clause 20.9 (where
a tender process has been conducted), of a Variation directed in accordance
with clause 20.3(a):


 


(i)                  if the payment terms
are agreed in writing, then on that basis; or


 


(ii)                 if payment terms are
not agreed then:


 


A.                 prior to the Solution
Completion Date, at the time that payment is due in respect of the Payment
Milestone to which the Variation relates;


 


B.                  after the Solution
Completion Date, at the time of payment of the next Monthly Invoice;


 


C.                  in the case of a
Variation to the Initial Services and the Core Services, by an increase or
decrease in the Services Charge paid each month after commencement of the
Variation,


 


after completion of the Variation in
accordance with the Variation Order to the reasonable satisfaction of the
Principal.


 


(b)                 If the effect of a Variation is
to reduce the costs of the Project, the Direct Savings will be deducted from
the amount payable in respect of the Variation and if no amount is payable in
respect of the Variation or the Direct Savings exceed the amount payable in
respect of the Variation, then such amount will be a debt due and payable by
the Contractor to the Principal on the date of, and will be deducted from:


 


(i)                  in respect of a
Variation directed prior to the Solution Completion Date, the next Payment
Milestone to which the Variation relates; and


 


(ii)                 in respect of a
Variation directed after the Solution Completion Date, the next Monthly Invoice
or Monthly Invoices to which the Variation relates.


 


(c)                 If the value of the Variation or
any of the Direct Costs, Delay Costs or Acceleration Costs (if any) in relation
to a Variation have not been determined in accordance


 


89





















 


with
clause 20.4(a) or 20.9 at the time payment is due, the Principal will upon
that date pay such amount as it considers represents the value of the
Variation, the Direct Costs, Delay Costs or Acceleration Costs (if any) payable
by virtue of 20.4(a) in relation to the Variation, pending determination
of the value of the Variation or the Direct Costs, Delay Costs or Acceleration
Costs in accordance with this agreement.


 


(d)                 To the extent that the amount
paid by the Principal under clause 20.5(c) exceeds the amount to
which the Contractor is entitled to as determined under clause 20.4(a) or
20.9 the Contractor must repay the excess to the Principal as a debt due and
payable by the Contractor to the Principal within 30 days after the date
of the determination.


 


20.6             Notice of Variation
Claim


 


(a)                 As a condition precedent to the
Contractor making a Claim against the Principal arising out of or in connection
with any notice, direction or instruction which the Principal’s Representative
gives or purports to give under this agreement, whether written or oral, other
than a Variation Order (for the purpose of this clause only referred to as a “direction”), the Contractor must prior to
complying with the direction, and in any case within 20 Business Days of
receipt by the Contractor of the direction, give written notice to the
Principal’s Representative setting out:


 


(i)                  details of the
direction;


 


(ii)                 that compliance with
the direction is considered to involve a Variation; and


 


(iii)                an estimate of the
likely time and costs of carrying out the direction.


 


(b)                 Within 10 Business Days of
receiving a notice from the Contractor under clause 20.6(a), the Principal
must either:


 


(i)                  issue a Variation
Order;


 


(ii)                 issue a Variation
Notice;


 


(iii)                instruct the
Contractor to comply with the direction on the basis that the direction does
not constitute a Variation; or


 


(iv)               withdraw or revoke the
direction.


 


(c)                 If the Principal does not give
an instruction under clause 20.6(b)(i), 20.6(b)(ii) or 20.6(b)(iii) within
the time required under clause 20.6(b), the direction the subject of the
Contractor’s notice under clause 20.6(a) will be deemed to have been
revoked and the
Contractor must notify the Principal’s Representative within 5 Business Days of
a deemed revocation of a direction pursuant to this clause.


 


(d)                 If the Contractor has given
notice under clause 20.6(a) and the Principal has given an instruction
under

clause 20.6(b)(iii), the Contractor may refer the matter to the Dispute
Resolution Procedures.  If instructed to
commence by the Principal, the Contractor must carry out any direction given by
the Principal under

clause 20.6(b)(iii) whether or not the Contractor has referred the matter
to the Dispute Resolution Procedures.


 


(e)                 If the Contractor fails to
comply with clauses 20.6(a) or 20.6(d) in relation to a direction the
Principal will not be liable upon any Claim by the Contractor arising out of or
in connection with the direction.


 


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20.7             Exclusion of Liability


 


Except where and as expressly provided for
under this clause 20, the Principal will not (insofar as it is possible to
exclude such liability) be liable to the Contractor or any subcontractor,
whether for costs, losses, expenses, damages, liabilities, payments, outgoings,
extensions of time or otherwise upon any claim arising out of or in connection
with any Variation, Variation Notice, Variation Order, Acceleration Direction
or any delay arising out of or in connection with any Variation.


 


20.8             Variations proposed by
the Contractor


 


(a)                 The Contractor may propose a
Variation by giving written notice to the Principal’s Representative with
details of the proposed Variation.


 


(b)                 On receiving a notice under
clause 20.8(a), the Principal’s Representative may give written notice to the
Contractor requiring it to give the Principal’s Representative:


 


(i)                  details of:


 


A.                 the proposed
Variation (including any relevant design information) and any information it
would be required to provide to the Principal, if it were required to prepare a
Variation Response under clause 20.2(a);


 


B.                  the reason for the
proposed Variation;


 


C.                  the effect of the
proposed Variation on the Delivery and the Project Timeline and Project Master
Schedule;


 


D.                 the effect of the
proposed Variation on achieving Completion of a Phase by the relevant Phase
Date;


 


E.                  the effect (if any)
of the proposed Variation on the provision of the Services;


 


F.                  the cost effect of
the proposed Variation including any Direct Savings arising from the Variation,
calculated in accordance with clause 20.4(a);


 


(ii)                 a written statement
stating that the proposed Variation:


 


A.                 will not adversely
affect the Contractor’s ability to meet its obligations under this agreement or
the Performance Requirements;


 


B.                  will not adversely
affect the functional integrity of any of the elements of the Solution; and


 


C.                  will not adversely
affect the quality standards required under this agreement; and


 


(iii)                any other information
and supporting documentation the Principal’s Representative reasonably
requires.


 


(c)                 The Principal’s Representative:


 


(i)                  may give a written
direction to the Contractor: 


 


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A.                 approving any Variation
the Contractor proposes by issuing a Variation Order; or


 


B.                  rejecting any
Variation the Contractor proposes.


 


(ii)                 will be under no
obligation to approve any such Variation for the convenience of, or to assist,
the Contractor; and


 


(iii)                may notify the Contractor that:


 


A.                 it requires the Contractor to
conduct a tender process under clause 20.9(a) to obtain quotes with
respect to the proposed Variation; or


 


B.                  it proposes to conduct a tender process itself under clause 20.9(c) to
obtain quotes with respect to the proposed Variation.


 


(d)                 If:


 


(i)                  the Principal’s
Representative gives a direction approving the Variation under clause
20.8(c)(i);


 


(ii)                 following a tender
process conducted in accordance with clause 20.9 the Principal approves the
Variation,


 


the Contractor must perform its obligations
under this agreement in accordance with the approved Variation.


 


(e)                 With respect to any Variation
approved by the Principal under clause 20.8(c)(i) or following a tender
process conducted under clause 20.9, [**]% of the Direct Savings notified by
the Contractor under clause 20.8(b)(i)F will be a debt immediately due and
payable from the Contractor to the Principal within 30 days of:


 


(i)                  the date of the
Principal’s Representative’s direction under clause 20.8(c)(i) (or from
such other date as may be agreed between the parties prior to the Principal’s
Representative’s direction under clause 20.8(c)(i)); or,


 


(ii)                 where following a
tender process conducted under clause 20.9, the date of approval of the
Variation.


 


(f)                  The Contractor will:


 


(i)                  bear all costs:


 


A.                 associated with
proposing a Variation under clause 20.8(a);


 


B.                  associated with
providing details under clause 20.8(b); and


 


C.                  associated with
carrying out the proposed Variation where it is approved by the Principal’s
Representative unless otherwise specified in the Variation notice given by the
Contractor and approved by the Principal; and


 


(ii)                 unless otherwise
agreed, not be entitled to make any Claim against the Principal arising out of
or in connection with the Variation.


 


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20.9             Variations performed
by a subcontractor


 


(a)                 The Principal may require the
Contractor to conduct a tender process to obtain up to 3 separate quotes from
experienced and capable contractors agreed by the Principal and the Contractor
(but failing agreement, as nominated by the Principal) to carry out work
required for a proposed Variation the subject of a Variation Notice under
clause 20.1(a) or a Variation Response under clause 20.2(a) or
proposed by the Contractor under clause 20.8(a).


 


(b)                 If the Principal requires the
Contractor to conduct a tender process under clause 20.9(a):


 


(i)                  the Contractor must
complete the tender process within 2
months or any period otherwise reasonably nominated by the Principal;


 


(ii)                 the Contractor will
be responsible for selecting a subcontractor from this process, but must permit
the Principal’s Representative to review all materials that are submitted in
the tender process and provide any other information that the Principal
reasonably requires; and


 


(iii)                the Contractor must
demonstrate to the reasonable satisfaction of the Principal that the
subcontractor it intends to select is the best choice having regard to:


 


A.                 the price quoted in
the prevailing market conditions;


 


B.                  the experience and
capability of that subcontractor; and


 


C.                  the ability of the
Contractor to carry out the Variation in the manner required by this agreement
if it subcontracts the Variation to that subcontractor.


 


(c)                 The Principal reserves the right
to conduct a tender process at any time to obtain quotes with respect to any
Variation proposed by either party.  If
the Principal, through a tender process, selects a party other than the Contractor
to perform a Variation, the Contractor agrees to enter into a subcontracting
agreement with that party on reasonable terms agreeable to the Principal and
the Contractor.  Under this arrangement,
the Principal must pay the Contractor the direct costs of administering such a
contract plus a margin of [**]% on those direct costs of administration.


 


20.10           Updated documentation


 


The Contractor must provide to the Principal’s
Representative promptly following implementation of a Variation copies of all
documentation used to implement the Variation. 
The Contractor must amend, and deliver to the Principal’s
Representative, the Solution Documentation and Services Documentation to
reflect any changes resulting from a Variation.


 


20A              Options


 


20A.1          Nature and expiry of
Options


 


(a)                 The Principal may
require the Contractor to carry out an Option by issuing a written order at any
time up to the Expiry Date for that Option and the Contractor shall not be
entitled to any extension of time as a result of carrying out an Option under
this clause 20A.1.


 


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(b)                 If the Principal
requires an Option to be carried out after its Expiry Date the Contractor shall
carry out the work as a Variation in accordance with clause 20 and clauses
20A.2, 20A.3 and 20A.4 shall not apply.


 


20A.2          Valuation of Option


 


(a)                 The cost of an Option
carried out pursuant to a notice issued by the Principal under clause 20A.1(a) shall
be the corresponding Option Price to that Option set out in Schedule 34.


 


(b)                 (i)                 The Contractor shall not be
entitled to any costs in relation to an Option carried out pursuant to a notice
issued by the Principal under clause 20A.1(a) apart from the Option Price
for that Option calculated in accordance with this clause 20A.2.


 


(ii)                 Without derogating from clause 20A.2(b)(i), the Option Price is
deemed to cover:


 


A                  all labour,
materials, on and off-site overheads and profit required to perform all work
the subject of the Option and comply with the Contractor’s obligations under
this agreement; and


 


B.                  all costs and
expenses which will be incurred by the Contractor arising out of or in
connection with the Option delaying the Contractor.


 


20A.3          Payment for Options


 


(a)                 The Principal shall
pay the Contractor the Option Price of an Option carried out pursuant to a notice
issued by the Principal under clause 20A.1(a) at the time that payment is
due in respect of the Phase to which the Option relates. 


 


(b)                 If the effect of an
Option carried out pursuant to a notice issued by the Principal under clause
20A.1(a) is to reduce the cost of the Project, the relevant components of
the amounts payable by the Principal to the Contractor under this agreement
will be decreased.


 


20A.4          Exclusion of Liability


 


Except where and as expressly provided for
under this clause 20A, the Principal will not (insofar as it is possible to
exclude such liability) be liable to the Contractor, whether for costs, losses,
expenses, damages, liabilities, payments, outgoings, extensions of time or
otherwise upon any Claim arising out of the execution or carrying out of any
Option pursuant to a notice by the Principal under clause 20A.1(a) or any
delay arising out of or in connection with such Option.


 


21.                Payments of Capital
Price


 


21.1             Payment Obligation


 


Subject to the terms of this agreement and any
right of set-off which the Principal may have, the Principal must pay to the
Contractor the Capital Price in accordance with the Payment Schedule.


 


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21.2             Payment Schedule


 


(a)                 The Payment Schedule sets out
(among other things):


 


(i)                  the Payment
Milestones, being those parts of the Work which must be completed before the
Contractor may claim payments;


 


(ii)                 the payment, if any,
the Contractor may claim under clause 21.3 upon Completion of a Payment Milestone.


 


(b)                 Schedule 12 sets out the
format of, and the information and data that the Contractor must include in,
any payment claim made by the Contractor under clause 21.3 to substantiate its
payment claim.


 


21.3             Payment Claims and
Payments


 


(a)                 The Contractor is entitled to
give to the Principal’s Representative a payment claim in respect of a Payment
Milestone on the date which is 5 Business Days after the date on which a
Certificate of Completion has been issued in respect of each of the Phases in
the Payment Milestone.


 


(b)                 A payment claim must be in
accordance with the Payment Schedule and must:


 


(i)                  identify the Payment
Milestone to which the payment claim relates;


 


(ii)                 identify the Work
which was carried out in relation to each of the Phases relevant to the Payment
Milestone;


 


(iii)                identify the amount of
payment the Contractor is claiming in respect of the Work carried out in
relation to the Payment Milestone; and


 


(iv)               be in the format
required and include all the information and data specified in Schedule 12.


 


(c)                 The Principal’s Representative
must give to the Contractor (with a copy to the Principal) a payment notice
within 10 Business Days after the Principal’s Representative receives a payment
claim.  The payment notice must include
the details set out in clause 21.3(d).


 


(d)                 The payment notice issued under
clause 21.3(c) must state:


 


(i)                  the amount (if any)
which the Principal’s Representative believes to be then payable by the
Principal to the Contractor on account of the Capital Price and otherwise under
this agreement, and which the Principal proposes to pay to the Contractor in
respect of the Payment Milestone; and


 


(ii)                 if the amount in
paragraph (i) is less than the amount claimed in the payment claim:


 


A.                 the reason why the
amount in paragraph (i) is less than the amount claimed in the payment
claim; and


 


B.                  if the reason for
the difference is that the Principal has retained, deducted, withheld or
set-off payment for any reason, the reason for the retention, deduction,
withholding or setting-off.


 


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(e)                 The issue of a payment notice by
the Principal’s Representative does not constitute approval of any Work nor
will it be taken as an admission or evidence that the part of the Work covered
by the payment notice has been satisfactorily carried out in accordance with
this agreement.


 


(f)                  Where the payment
notice refers to an amount that constitutes consideration for a taxable supply
in respect of which a recipient created tax invoice can be issued by the
Principal pursuant to clause 50.21, the payment notice will, provided that
it satisfies the requirements of the GST law, also constitute a recipient
created tax invoice for GST purposes.


 


(g)                 The Principal’s Representative
may, in any payment notice to the Contractor correct any error or omission in
any previous payment notice or payment issued by the Principal’s
Representative.


 


(h)                 Within 15 Business Days of the
Principal’s Representative giving the payment notice to the Contractor under
clause 21.3(c), the Principal will, subject to the Payment Schedule, pay
to the Contractor the amount due to the Contractor, as shown in the payment
notice.


 


21.4             Conditions Precedent
to Entitlement to Payment


 


If, at the time the Contractor purports to
submit a payment claim under clause 21.3(a), the Contractor has not:


 


(a)                 provided the Principal’s
Representative with the Security Bonds required under clause 34;


 


(b)                 effected and maintained the
insurances required by clause 36 and (if requested) provided evidence of
this to the Principal’s Representative;


 


(c)                 provided all information
required to be submitted with the payment claim in accordance with Schedule 12;


 


(d)                 fulfilled all conditions
precedent to payment; or


 


(e)                 complied with its obligations
under clauses 20 (to the extent that the payment relates to a Variation) and
47,


 


then:


 


(f)                  the Contractor will
not be entitled to submit a payment claim under clause 21.3(a) in respect
of payment of;


 


(g)                 the Principal’s Representative
will not be obliged to include in any payment notice under clause 21.3(c); and


 


(h)                 the Principal will not be
obliged to pay,


 


any amount included in the payment notice
until the Contractor has rectified the circumstances referred to in paragraphs (a) to
(e) above.


 


21.5             Principal’s Discretion


 


(a)                 Subject to clause 21.5(b), the
Principal may, but is not obliged to, in its absolute discretion, make a
payment or a part payment in respect of a Phase under this clause, irrespective
of whether:


 


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(i)                  the Contractor has
achieved Completion of the Phase; or


 


(ii)                 the conditions
precedent to payment have been satisfied by the Contractor,


 


in accordance with this clause 21.


 


(b)                 No payment or part
payment made by the Principal to the Contractor pursuant to clause 21.5(a) will
constitute an approval by the Principal of the Contractor’s performance of its
obligations under this agreement or that all or any part of the relevant Phase
or the Solution is in accordance with this agreement, including that Completion
has occurred in respect of the relevant Phase.


 


21.6             Capital
Price Adjustments


 


(a)                 The column headed “Expected
Quantity” in Schedule 36 sets out the expected quantity of certain Devices
required to be provided by the Contractor as part of the Solution (“the Expected Quantity”).


 


(b)                 The column headed “Minimum
Quantity” in Schedule 36 sets out the quantity of certain Devices required
to be provided by the Contractor as part of the Solution under this agreement
which the Principal has indicated it will require as a minimum (“the Minimum Quantity”).


 


(c)                 Within 40 Business Days of the
Completion Date of the NTS Solution Requirements Phase, the Principal will
provide the Contractor with a written notice setting out the quantities
required by the Principal of the Devices of the types set out in Schedule 36
(“the Actual Quantity”).


 


(d)                 The Contractor must design,
develop, integrate, install, test and implement the Solution to include the
Actual Quantity of the relevant Devices and must deliver the Actual Quantity of
the relevant Devices as part of the performance of its obligations under this
agreement.


 


(e)                 Where the Actual Quantity is:


 


(i)                  greater than the
Expected Quantity, the Capital Price will be increased by an amount equal to
the difference between the Actual Quantity and the Expected Quantity multiplied
by the relevant unit cost for the relevant Devices set out in Schedule 36;


 


(ii)                 less than the
Expected Quantity, but greater than the Minimum Quantity, the Capital Price
will be reduced by an amount equal to the difference between the Expected
Quantity and the Actual Quantity multiplied by the relevant unit cost for the
relevant Devices set out in Schedule 36; or


 


(iii)                less than the Minimum
Quantity, the Capital Price will be reduced by an amount equal to the
difference between the Expected Quantity and the Minimum Quantity multiplied by
the relevant unit cost for the relevant Devices set out in Schedule 36.


 


(f)                  Any increase or
decrease in the Capital Price as a result of the operation of this clause 21.6
will be effected by adjusting the payment due in respect of the Payment
Milestone or Payment Milestones to which the increase or decrease relates. 


 


(g)                 In the event that the difference
between the Expected Quantity and the Actual Quantity for any of the Devices
set out in Schedule 36 is more than [**]% of the


 


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Expected
Quantity, the parties agree to negotiate in good faith to agree adjustments to
the Services Charges to reflect any consequential change in the level of the
Initial Services or Core Services arising from the change in the quantity of
the Devices to be provided as part of the Solution. 


 


(h)                 In the event that the Actual
Quantity is less than the Minimum Quantity, the parties agree to negotiate in
good faith to agree adjustments to the Performance Requirements for the
availability of Fare Payment Devices to reflect the change in the quantity of
such Devices to be provided as part of the Solution.


 


21A              Delivery Services


 


21A.1          Provision of Delivery Services


 


Subject
to clause 21A.3, the Contractor must provide the Delivery Services in
accordance with this agreement, including the Requirements Document, the
Solution Documentation and the Project Documents throughout the Delivery
Services Term. 


 


21A.2          General Obligation


 


(a)                 The Contractor must provide the Delivery Services during the
Delivery Services Term in accordance with the following:


 


(i)                  this agreement,
including the Requirements Document and the Solution Documentation;


 


(ii)                 all Approvals, all Laws and all
applicable requirements of any Authority;


 


(iii)                any conditions imposed by the
insurance policies effected and maintained in accordance with this agreement; and


 


(iv)               the Project Documents.


 


(b)                 Without limiting the generality of clause 21A.2(a), the
Contractor must provide any part of the:


 


(i)                  Distribution Services;


 


(ii)                 Cash Collection Services;


 


(iii)                Cardholder Support Services;


 


(iv)               Smartcard Base Management Services;


 


(v)                Application Management Services;


 


(vi)               Product Management Services;


 


(vii)              Device Management Services;


 


(viii)             Financial Management Services;


 


(ix)                Operational Support Services; and


 


(x)                 Technical Support Services,


 


which
are required at any time during the Delivery Services Term to support the
Solution or any part of the Solution which is operating at that time.


 


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21A.3          Discontinuance of Delivery Services


 


If Completion of the NTS Regional
and Metropolitan Implementation Completion Phase has not been achieved within 3
months of the Phase Date for the NTS Regional and Metropolitan Implementation
Completion Phase , the Principal may provide the Contractor with
written notice to cease provision of the Delivery Services and, in the event
that the Principal provides such notice, the Contractor must cease provision of
the Delivery Services within 30 days of receiving that notice.  In the event that the Principal provides a
written notice in accordance with this clause, the Principal may cease payment
of the Delivery Services Charge from the date of that notice and will have no
further obligation to pay the Contractor the Delivery Services Charge from that
time.


 


22.                Initial Services


 


22.1             Provision
of Initial Services


 


The
Contractor will provide the Initial Services in accordance with this agreement,
including the Requirements Document, the Initial Services Performance
Requirements, the Solution Documentation and the Project Documents throughout
the Initial Services Term.


 


22.2             General
Obligation


 


(a)                 The Contractor must provide the Initial Services during the
Initial Services Term in accordance with the following:


 


(i)                  the Initial Services
Performance Requirements;


 


(ii)                 this agreement, including the
Requirements Document;


 


(iii)                the Solution Documentation, including
the NTS Requirements Specification;


 


(iv)               all Approvals, all Laws and all
applicable requirements of any Authority;


 


(v)                any conditions imposed by the
insurance policies effected and maintained in accordance with this agreement; and


 


(vi)               the Project Documents.


 


(b)                 Without limiting the generality of clause 22.2(a), the
Contractor must provide:


 


(i)                  Distribution Services;


 


(ii)                 Cash Collection Services; and


 


(iii)                Cardholder Support Services.


 


in
accordance with this agreement.


 


22.3             Compliance


 


Subject
to clause 5, in providing the Initial Services, the Contractor must comply with
all applicable banking, funds transfer, deposit holding, privacy and related
laws, regulations, directives, industry codes, and Solution rules from
time to time applicable to the provision of the Initial Services, including the
Privacy Obligations.


 


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22.4             Operating
policy


 


All
policy decisions regarding the Initial Services will rest with the
Principal.  Such matters as the stations
or facilities to be serviced, hours of service, levels of service, public and
media information, and interfacing with the public at large will be determined
as provided in the Project Documents or as otherwise directed by the Principal.


 


22.5             Warranties


 


The
Contractor warrants that:


 


(a)                 it has carefully checked this agreement and in particular the Requirements Document and they are
fit for the purpose of enabling the Contractor to provide the Initial Services
and to perform the Initial Services in accordance with the Performance
Requirements; and


 


(b)                 the Initial Services will:


 


(i)                  be fit and adequate for
the purposes for which they are intended;


 


(ii)                 comply with the Project Documents,
including all requirements set out in the Project Documents; and


 


(iii)                permit the Contractor to comply
with its obligations under clause 44.


 


22.6             Records


 


The
Contractor must:


 


(a)                 keep detailed records and reports of the Initial Services
provided in accordance with this agreement including the Requirements Document and the Solution
Documentation;


 


(b)                 permit the Principal to inspect and copy such records and
reports during normal business hours on reasonable notice; and


 


(c)                 if requested to by the Principal, provide copies of such
records and reports to the Principal.


 


22.7             Extension
of Initial Services Term


 


(a)                 The Principal may, in its absolute discretion, elect to
extend the Initial Services Term for a period of at least 6 months, up to a
maximum of 3 years, for any or all of the Initial Services.


 


(b)                 If the Principal elects to extend the Initial Services Term
in accordance with this clause 22.7, it must give written notice of such
election to the Contractor no less than 3 months prior to the expiry of the
Initial Services Term, setting out the period of extension and the Initial
Services to be extended.


 


(c)                 If the Principal has elected to extend the Initial Services
Term under this clause for a period of less than 3 years, it may at any time
during an extension (including any subsequent extension under this clause
22.7(c)), elect to increase the period of the extension for a further period up
to the maximum of 3 years, provided that it gives written notice of such
election to the Contractor no less than 3 months prior to the expiry of the
extension previously notified to the Contractor.


 


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(d)                 If the Principal elects to extend the Initial Services Term
in accordance with this clause 22.7, the Contractor and the Principal will be
bound by the terms of this agreement in relation to the Initial Services for
the extended period.


 


22.8             Smartcard
Issuance


 


(a)                 The Initial Services include the Contractor using its best
efforts to ensure that there is a legally binding and enforceable contract
between the Principal and each Cardholder in relation to the Smartcard and its
use, in a form approved by the Principal.


 


(b)                 The Contractor, its subcontractors, agents and consultants
cannot, without the prior written approval of the Principal, enter into a
contract with, or cause any contract to be entered into by, a Cardholder in
relation to the Smartcard and its use other than a contract referred to in
clause 22.8(a).


 


22.9             Initial
Services spares inventory


 


(a)                 During the Initial Services Term, the Contractor must
maintain spare parts and replacement parts required for the provision of the
Initial Services at a location in Melbourne (“spares
inventory”) in accordance with this agreement, including the
Requirements Document and the Solution Documentation.


 


(b)                 The Principal will own the spares inventory.


 


(c)                 If at the expiration or earlier termination of the Initial
Services Term, the spares inventory is not at the levels required by this
agreement, including the Requirements Document and the Solution Documentation,
the Contractor must either:


 


(i)                  restock the spares
inventory to the levels required at no expense to the Principal; or


 


(ii)                 pay to the Principal an amount
equal to the cost of restocking the spares inventory to the levels required,


 


within
10 Business Days of the expiration or earlier termination of the Initial
Services Term.


 


(d)                 Upon commencement of the Initial Services Term and on the
same date in each subsequent month which corresponds to that date, the
Contractor must provide a list of the spares inventory to the Principal.


 


23.                Core Services


 


23.1             Provision
of Core Services


 


The
Contractor will provide the Core Services in accordance with this agreement,
including the Requirements Document, the Core Services Performance
Requirements, the Solution Documentation and the Project Documents throughout
the Core Services Term.


 


23.2             General
Obligation


 


(a)                 The Contractor must provide the Core Services during the
Core Services Term in accordance with the following:


 


(i)                  the Core Services
Performance Requirements;


 


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(ii)                 this agreement, including the
Requirements Document;


 


(iii)                the Solution Documentation,
including the NTS Requirements Specification;


 


(iv)               subject to clause 5, all Approvals,
all Laws and all applicable requirements of any Authority;


 


(v)                any conditions imposed by the
insurance policies effected and maintained in accordance with this agreement;
and


 


(vi)               the Project Documents.


 


(b)                 Without limiting the generality of clause 23.2(a), the
Contractor must provide:


 


(i)                  Smartcard Base
Management Services;


 


(ii)                 Application Management Services;


 


(iii)                Product Management Services;


 


(iv)               Device Management Services;


 


(v)                Financial Management Services;


 


(vi)               Operational Support Services; and


 


(vii)              Technical Support Services,


 


in
accordance with this agreement.


 


23.3             Compliance


 


Subject
to clause 5, in providing the Core Services, the Contractor must comply with
all applicable banking, funds transfer, deposit holding, privacy and related
laws, regulations, directives, industry codes, and Solution rules from
time to time applicable to the provision of the Core Services, including the
Privacy Obligations.


 


23.4             Operating
Policy


 


All
policy decisions regarding the Core Services will rest with the Principal.  Such matters as the stations or facilities to
be serviced, hours of service, levels of service, public and media information,
and interfacing with the public at large will be determined as provided in the
Project Documents or as otherwise directed by the Principal.


 


23.5             Warranties


 


The
Contractor warrants that:


 


(a)                 it has carefully checked this agreement and in particular
the Requirements Document and they are fit for the purpose of enabling the
Contractor to provide the Core Services and to perform the Core Services in
accordance with the Performance Requirements; and


 


(b)                 the Core Services will:


 


(i)                  be fit and adequate for
the purposes for which they are intended; 


 


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(ii)                 comply with the Project Documents,
including all requirements set out in the Project Documents; and


 


(iii)                permit the Contractor to comply
with its obligations under clause 44.


 


23.6             Records


 


The
Contractor must:


 


(a)                 keep detailed records and reports of the Core Services
provided in accordance with this agreement including the Requirements Document and the Solution
Documentation;


 


(b)                 permit the Principal to inspect and copy such records and
reports during normal business hours on reasonable notice; and


 


(c)                 if requested to by the Principal, provide copies of such
records and reports to the Principal.


 


23.7             Early
termination of Core Services


 


(a)                 At least six months prior to the 5 year anniversary of the
commencement of the Core Services Term the Principal may notify the Contractor
that the Core Services Term will expire either on the 5 year anniversary of the
commencement of the Core Services Term or six months after that date and the
Core Services Term will be deemed to expire on the date specified in the
notice.


 


(b)                 If the Principal has extended the Initial Services Term
under clause 22.7 and at the date of the notice given by the Principal under
clause 23.7(a), the Initial Services are being provided by the Contractor under
this agreement, the Principal may also notify the Contractor in that notice
that the Initial Services Term will expire either on the 5 year anniversary of
commencement of the Core Services Term or six months after that date and the
Initial Services Term will be deemed to expire on the date specified in the
notice.


 


(c)                 The Contractor acknowledges that in considering whether to
issue a notice under this clause 23.7, the Principal may carry out any process,
including conducting a tender process and/or inviting the Contractor to re-tender
for the provision of the Services.


 


23.8             Core
Services spares inventory


 


(a)                 During the Core Services Term, the Contractor must maintain
spare parts and replacement parts required for the provision of the Core
Services at a location in Melbourne (“spares
inventory”) in accordance with this agreement, including the
Requirements Document and the Solution Documentation.


 


(b)                 The Principal will own the spares inventory.


 


(c)                 If at the expiration or earlier termination of the Core
Services Term, the spares inventory is not at the levels required by this agreement,
including the Requirements Document and the Solution Documentation, the
Contractor must either:


 


(i)                  restock the spares
inventory to the levels required at no expense to the Contractor; or


 


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(ii)                 pay to the Principal an amount
equal to the cost of restocking the spares inventory to the levels required,


 


within
10 Business Days of the expiration or earlier termination of the Core Services
Term.


 


(d)                 Upon commencement of the Core Services Term and on the same
date in each subsequent month which corresponds to that date, the Contractor
must provide a list of the spares inventory to the Principal.


 


23.9             Vandalism


 


(a)                 The Contractor must notify the
Principal, as soon as reasonably practicable after it becomes aware and in each
Monthly Invoice, of any act of Vandalism and, in relation to each act of
Vandalism: 


 


(i)                  the Device affected;


 


(ii)                 the Vandalism
Category into which the Vandalism falls;


 


(iii)                the Vandalism Costs;


 


(iv)               information and documents
to substantiate the Vandalism Costs; and


 


(v)                the Equivalent
Incident Units,


 


and the total Equivalent Incident Units for
the relevant month.  


 


(b)                 Each of the Operators and the
Principal may notify the Contractor of any item of equipment which it believes
has been damaged as a result of Vandalism. 


 


(c)                 Subject to clause 23.9(e),
during the Core Services Term as
part of the Device Management Services the Contractor must, in respect of any
Device which has been damaged as a result of Vandalism:


 


(i)                  inspect the Device;
and


 


(ii)                 repair, rectify or
replace the Device (as appropriate),


 


at the Contractor’s cost.


 


(d)                 The parties acknowledge that
there may occur: 


 


(i)                  within the twelve
month period commencing on the Completion Date for the NTS Regional and
Metropolitan Implementation Completion Phase, a concentrated attack on the
Solution which involves a significant number of incidents of the same or
similar type which could not reasonably have been foreseen as at the
commencement of that twelve month period by the Contractor as acts of
Vandalism; or 


 


(ii)                 a significant
increase in multiple occurrences of any one Vandalism Category which causes a
significant down time of all or any part of the Solution.  


 


If the Contractor reasonably considers that
such acts of Vandalism have occurred, it will refer the specified acts to the
Principal.  If the Principal agrees that
such acts of Vandalism have occurred such acts of Vandalism will be designated “Spate”.  If the Principal does not agree that such
acts of Vandalism have occurred, the Contractor


 


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may refer the matter to the Expert to make a
determination as to whether such acts of Vandalism have occurred.  If the Expert determines that such acts of
Vandalism have occurred such acts of Vandalism will be designated as “Spate”.


 


(e)                 Subject to clause 23.9(f), the
Principal will pay:


 


(i)                  the Vandalism Costs
in relation to any Device damaged by Spate; and


 


(ii)                 half of the Vandalism
Costs in relation to any Device damaged by Vandalism which occurs after the
Vandalism Cap is reached in any Vandalism Year. 


 


(f)                  The Principal will
not be liable to pay any Vandalism Costs:


 


(i)                  under clause
23.9(e)(i), for an amount exceeding $[**] in relation to any one Device unless the
Principal approves the Vandalism Costs before they are incurred;


 


(ii)                 under clause
23.9(e)(ii), for an amount exceeding $[**] in relation to any one Device unless
the Principal approves the Vandalism Costs before they are incurred; and


 


(iii)                if the Contractor has
not provided information to substantiate such Vandalism Costs in accordance
with clause 23.9(a)(iv) or as reasonably requested by the Principal. 


 


(g)                 The parties may, at any time,
agree to amend Schedule 35 by adding a new Vandalism Category and the
corresponding Equivalent Incident Units for that new category.


 


23.10           Replacement and
Refurbishment


 


(a)                 Except as otherwise provided in
this agreement, as part of the provision of the Device Management Services the
Contractor is responsible for replacing Devices as required in order to ensure
that: 


 


(i)                  the Contractor
continues to meet its obligations; and 


 


(ii)                 the Solution
continues to operate, 


 


in accordance with this agreement, including
the Requirements Document and the Performance Requirements.


 


(b)                 The Contractor must at least one
month prior to the commencement of each of the periods specified in Schedule 33,
provide the Principal with a detailed written proposal for a program of
replacement of Devices for the relevant period (the “Period Replacement Program”) based upon the replacement
program set out in Schedule 33 for the relevant period and the Contractor’s
obligations under this agreement.  


 


(c)                 The Principal and the Contractor
must use all reasonable endeavours to agree the Period Replacement Program
submitted under clause 23.10(b) within 20 Business Days of the proposal or such longer period as is agreed
between the parties based upon:


 


(i)                  the program for the
relevant period set out in Schedule 33, and in particular, the cost of the
Period Replacement Program cannot exceed the Total Cost for the period set out
in Schedule 33; and


 


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(ii)                 the Contractor’s
obligations under this agreement.


 


(d)                 In the event that the parties
cannot agree the Period Replacement Program within 20 Business Days of a
proposal under clause 23.10(b) or such longer period as is agreed between
the parties, the Period Replacement Program will be as reasonably determined by
the Principal based upon the program set out in Schedule 33 for the
relevant period and in light of the Contractor’s obligations under this
agreement.


 


(e)                 Without derogating from:


 


(i)                  the Contractor’s
obligations referred to in clause 23.10(a); or


 


(ii)                 the Contractor’s
obligation to provide the Core Services, 


 


the Contractor must replace the components of
the Solution in accordance with the Period Replacement Program agreed under
clause 23.10(c) or as determined under clause 23.10(d).  


 


(f)                  Where the Contractor
replaces a component of the Solution under clause 23.10(e), the Principal must
pay the Contractor the lower of: 


 


(i)                  the price for that
component specified in Schedule 33; or 


 


(ii)                 the Direct Costs of
replacing that component,


 


in accordance with this clause
and clauses 27.4 and 27.5.  


 


(g)                 The Contractor is entitled to
make a claim for an amount payable under clause 23.10(f) for a component
replaced in accordance with clause 23.10(e) in the first Monthly Invoice
that the Contractor issues after the date on which the component is replaced.  The Monthly Invoice must include details of:


 


(i)                  the specific
component replaced (including the type of component and its location);


 


(ii)                 the component which
was installed as a replacement; 


 


(iii)                the date and time that
the replacement took place; 


 


(iv)               the price of the
replacement, in accordance with Schedule 33; and


 


(v)                the Direct Costs of
replacing the component, including full details of all costs of any equipment,
materials and labour costs associated with the replacement.


 


Notwithstanding any other provision of this
agreement, the Principal is not obliged to pay the Contractor for any amount
claimed under this clause 23.10 unless the Monthly Invoice complies with this
clause 23.10(g).


 


(h)                 Either party may, at any time
during the Term, give the other party written notice of the details of a
proposed amendment to Schedule 33. 
That notice must:


 


(i)                  provide full details
of the proposed amendment, including, where applicable, details of any
components listed in Schedule 33 which the party believes do not need to
be replaced and the reason why they do not need to be replaced;


 


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(ii)                 provide details of
any components which the party believes should now be replaced and the reason
why they need to be replaced;


 


(iii)                for any components
which the party is now proposing be replaced, provide details of the cost per
component for that replacement; and


 


(iv)               provide details of the
overall change to the price of the replacement program set out in Schedule 33
arising from the proposed amendment, subject to the limitation that the overall
cost cannot exceed the maximum refresh amount set out in Schedule 33.


 


(i)                  The parties agree to
negotiate in good faith to agree any amendment to Schedule 33 proposed pursuant
to a notice given under clause 23.10(h).  



 


23.11           Versions and updates


 


The Contractor must as part of the Core
Services provide Software support in respect of the Solution including:


 


(a)                 ensuring that all improvements,
modifications, fixes, updates, additions to or alterations to Software that is
part of the Solution created by or on behalf of, or endorsed or authorised by,
the owner of that Software, other than new Versions of Software, are
incorporated into the Solution;


 


(b)                 ensuring that all Third Party
Software that is part of the Solution is supported by its supplier;


 


(c)                 if any Third Party Software that
is part of the Solution becomes more than two Versions behind the current
Version of that Third Party Software, the Contractor must notify the Principal
within 10 Business Days of that fact happening and provide the Principal with
the Contractor’s recommendation as to whether the current Version should be
incorporated into the Solution;


 


(d)                 without derogating from clause
23.11(b), incorporating, at the Principal’s request and cost, the current
Version of Third Party Software into the Solution.  For the avoidance of doubt, any request made
by the Principal under this clause 23.11(d) will be at the Principal’s
discretion, notwithstanding any recommendation made by the Contractor under
clause 23.11(c); and


 


(e)                 supplying all necessary
improvements, modifications, fixes, updates, additions or alterations to the
Software to enable it to operate on the current Version of any platform on
which it operates.


 


24.                Documentation


 


24.1             Documentation
Requirements


 


(a)                 The Contractor must accurately clearly and concisely
document all business and other processes, including properly documented
operating manuals, in relation to the Initial Services and the Core Services.


 


(b)                 The Contractor must, to the extent that such documentation
has not already been provided, provide the relevant Services Documentation to
the Principal’s Representative prior to commencing to provide the Services to
which that Services Documentation relates.


 


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(c)                 The Contractor must provide amended Services Documentation
to the Principal’s Representative at 6 monthly intervals after commencing to
provide the Services to which that Services Documentation relates or within 20
Business Days of a significant change to business rules or business or
other processes in relation to the Initial Services and the Core Services
(whichever occurs first).


 


(d)                 The Contractor must to the extent that such documentation
has not already been provided, by the Solution Completion Date, provide to the
Principal’s Representative any documentation apart from source code (which is
to be provided in escrow under clause 30.6) which
the Principal or any third party nominated by the Principal might reasonably
need to operate the Solution and provide the Initial Services and the Core
Services.


 


(e)                 Within 20 Business Days of any significant change to the
Solution after the Solution Completion Date, the Contractor must, to the extent
that such documentation has not already been provided, provide to the Principal’s
Representative all relevant Solution Documentation amended to reflect all
changes to the Solution since the documentation was last provided to the
Principal’s Representative.


 


24.2             Warranties


 


The
Contractor warrants that:


 


(a)                 the Solution Documentation will sufficiently, adequately and
accurately document the Solution, the operation of the Solution and how to
interface with the Solution;


 


(b)                 the Solution Documentation will be sufficient, adequate and
accurate so as to enable the Principal or a third party to operate and maintain
the Solution;


 


(c)                 the Solution Documentation will be fit for its purpose; and


 


(d)                 if the Solution is developed, integrated, installed,
implemented, operated and maintained in accordance with the Solution
Documentation, the Solution will be Fit For Solution Purposes.


 


25.                Technological
Developments


 


(a)                 If during the Term the
Contractor becomes aware of:


 


(i)                  any significant
technological development; or


 


(ii)                 any means of
providing the Initial Services and the Core Services at a reduced cost or to a
higher standard whether through technological innovation, a reduction in third
party price or otherwise,


 


the Contractor must notify the Principal’s
Representative within 30 Business Days of becoming aware, giving full details
and its anticipated benefits.


 


(b)                 The Principal may, at any time
during the Term, notify the Contractor of any significant technological
development or any means, of which the Principal is aware, of providing the
Initial Services and the Core Services at a reduced cost or to a higher
standard whether through technological innovation, a reduction in third party
price or otherwise.


 


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(c)                 The Principal may:


 


(i)                  following notification
by the Contractor under clause 25(a) of any technological development or
any proposed means of providing the Initial Services
and the Core Services
at a reduced cost or to a higher standard; or


 


(ii)                 where the Principal has notified
the Contractor under clause 25(b) of any technological development or any
proposed means of providing the Initial Services and
the Core Services
at a reduced cost or to a higher standard,


 


require
the Contractor to utilise the technological development or improved means of
providing the Initial Services and the Core Services as notified under this
clause 25.  The parties agree to meet and
negotiate in good faith and cooperatively to implement any technological developments
or improved means of providing the Initial
Services and the Core Services, including the sharing of any costs savings arising from
any new developments notified to the other party under this clause 25.


 


26.                Option to extend Core Services Term


 


(a)                 The Principal may elect to
extend the Core Services Term for a period of up to 2 years, or such other
periods agreed by the parties.


 


(b)                 If the Principal elects to
extend the Core Services Term in accordance with this clause 26, it must give
written notice of such election to the Contractor no less than 3 months prior
to the expiry of the Core Services Term.


 


(c)                 If the Principal elects to
extend the Term in accordance with this clause 26, the Contractor and the
Principal agree to be bound by the terms and conditions of this agreement for
the extended period, except that in the event that an extension under clause 26(a) is
for a period longer than 2 years, the Services Charge for the first 2 years
will be calculated in accordance with Schedule 10, and the parties agree
to negotiate in good faith to agree the Services Charge that will apply during
the period after the first 2 years of the extension.


 


(d)                 The Principal may terminate the
Core Services at any time during an extended period under this clause by giving
at least 3 months written notice to the Contractor.


 


27.                Services Charges and Delivery Services
Charges


 


27.1             Services Charges and
Delivery Services Charges


 


Subject to the other provisions of this
agreement, the Principal will:


 


(a)                 during the Delivery Services
Term, pay to the Contractor the charges calculated in accordance with Schedule 32
in consideration of the Contractor providing the Delivery Services; 


 


(b)                 during the Core Services Term,
pay to the Contractor the charges calculated in accordance with Schedule 10,
in consideration of the Contractor providing the Core Services; and


 


(c)                 during the Initial Services
Term, pay to the Contractor the charges calculated in accordance with Schedule 10,
in consideration of the Contractor providing the Initial Services,


 


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as adjusted in accordance with the other
provisions of this agreement, including as adjusted in accordance with a
Variation Order made under clause 20 and in accordance with the provisions
of this clause 27 and clause 28.2 where relevant.


 


27.2             Other Fees and Charges


 


The Contractor and its servants and agents
must not, without the prior written approval of the Principal, impose fees and
charges or conditions of use in connection with the issuing of Smartcards, the
use of Smartcards or other provision of the Services or Delivery Services upon:


 


(a)                 the Principal;


 


(b)                 any Operator; or


 


(c)                 any Cardholder.


 


27.3             Monthly Invoice


 


(a)                 During the Delivery Services
Term and the Core Services Term, the Contractor must submit to the Principal’s
Representative a Monthly Invoice within 10 Business Days of the end of each
month.


 


(b)                 Each Monthly Invoice must set
out full details of the calculation of the Delivery Services Charge or Services
Charge (as applicable), including full details of any adjustments under this
agreement and the invoice substantiation data required under Schedule 12
and in the format set out in Schedule 12 or as otherwise reasonably
required by the Principal to verify the calculation of the Delivery Services
Charge or Services Charge. 
Notwithstanding any other provision in this agreement (including
clause 27.4), the Principal is not required to pay a Monthly Invoice
unless the Monthly Invoice complies with this clause 27.3(b).


 


(c)                 The Monthly Invoice must be a
valid tax invoice for GST purposes. However, if the Principal has notified the
Contractor under clause 50.21(e) that the Principal will issue recipient
created tax invoices for taxable supplies to which the Monthly Invoice relates,
the Monthly Invoice must not be a tax invoice and a statement must be included
in the Monthly Invoice to that effect.


 


27.4             Payment


 


(a)                 If the Principal does not
dispute any aspect of a Monthly Invoice in accordance with clause 27.5, it must
within 20 Business Days after receipt of the Monthly Invoice pay to the
Contractor the amount set out in the Monthly Invoice.


 


(b)                 If the Principal disputes any
aspect of a Monthly Invoice in accordance with clause 27.5, it must within 20
Business Days after receipt of the Monthly Invoice pay to the Contractor all
undisputed amounts in respect of that Monthly Invoice.


 


27.5             Non-Acceptance of
Monthly Invoice


 


(a)                 If the Principal disputes any
aspect of a Monthly Invoice, it must within 10 Business Days after receipt of
the Monthly Invoice notify the Contractor in writing of:


 


(i)                  any amount in the
Monthly Invoice which it disputes and, to the extent that it is able to
calculate them, details of the adjustments it requires; and


 


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(ii)                 such further
information as it reasonably requires to determine the amounts of the
adjustments it requires.


 


(b)                 Within 5 Business Days after
receipt of the notification under clause 27.5(a), the Contractor must:


 


(i)                  resubmit the Monthly
Invoice, amended to reflect:


 


A.                 any of the
adjustments notified by the Principal with which it agrees;


 


B.                  where the Principal
was unable to specify the adjustment required for an amount, any adjustment
which the Contractor believes the Principal is entitled to in relation to a
disputed amount;


 


(ii)                 provide the Principal
with any information requested in accordance with clause 27.5(a)(ii); and


 


(iii)                provide the Principal
with written reasons of why it believes any of the disputed amounts are
correct.


 


(c)                 If the Principal does not
dispute any aspect of the amended Monthly Invoice provided under clause
27.5(b)(i), it must within 10 Business Days after receipt of the amended
Monthly Invoice, pay to the Contractor such amount owing under the amended
Monthly Invoice that has not otherwise been paid in accordance with clause
27.4(b).


 


(d)                 If within 25 Business Days after
receipt by the Contractor of the notice from the Principal pursuant to clause
27.5(a) the parties have not agreed the amounts in dispute in respect of
the Monthly Invoice, the matter must be resolved in accordance with the Dispute
Resolution Procedures.


 


27.6             Benchmarking
Information


 


(a)                 On the 4th anniversary and 9th
anniversary of the commencement of the Core Services Term, the Contractor must
provide the Principal with a written report detailing all costs incurred by any
person involved in the provision of the Core Services and written supporting
documentation in relation to those costs.


 


(b)                 The Contractor must, upon
request by the Principal, provide the Principal with copies of all records,
reports and other information reasonably required by the Principal in order to
verify the costs incurred in providing the Core Services.


 


(c)                 The Contractor agrees to
negotiate with the Principal in good faith to agree to amendments to the
Services Charges if the Principal, after reviewing any report provided under
clause 27.6(a), reasonably believes the Services Charges exceed the prevailing
market costs for the provision of the services comparable in nature and size to
the Core Services.


 


27.7             Exit Costs


 


(a)                 In respect of the Initial
Services, the Principal must upon the expiry of the Initial Services Term of
each Initial Service pay to the Contractor exit costs in respect of the
relevant Initial Service in accordance with Part A of Schedule 21.


 


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(b)                 In respect of the Core Services,
the Principal must:


 


(i)                  upon expiry of the
Core Services Term; or


 


(ii)                 upon termination of
the Core Services under clause 26(d),


 


pay to the Contractor exit costs calculated
in accordance with Part B of Schedule 21.


 


27.8             Smartcard costs


 


(a)                 The Contractor must acquire
Smartcards for supply under this agreement for the lowest price reasonably
obtainable for the supply of smartcards to or in Australia at the time of
acquisition.


 


(b)                 The Contractor must, at the
request of the Principal, provide the Principal with such written evidence as
the Principal reasonably requires of the prices obtainable for smartcards
identical to or similar to Smartcards that are supplied by the Contractor under
this agreement.


 


(c)                 The Services Charge will be
adjusted so that the amount payable for the supply of Smartcards included in
the Services Charge cannot exceed the lesser of:


 


(i)                  the applicable amount
set out in Schedule 10; and


 


(ii)                 the price paid by the
Contractor for the Smartcards plus a margin of [**]%.


 


27.9             Banking Arrangements


 


(a)                 The Contractor must do all
things reasonably necessary to ensure that the Solution interfaces with the
Australian Payments System in accordance with all relevant industry standards.


 


(b)                 The Contractor must at its own
cost provide all assistance reasonably required by the Principal to choose the
provider of the transactional banking services and relevant deposit accounts
which will be required in relation to the Solution. 


 


(c)                 The Principal will consult with
the Contractor in relation to its choice of the provider of the transactional
banking services and relevant deposit accounts which will be required in relation
to the Solution.


 


(d)                 The Contractor must do all
things necessary to interface the Solution with the provider chosen by the
Principal pursuant to clause 27.9(b), including entering into any agreements
the Principal reasonably requires it to enter into.


 


(e)                 The Contractor is responsible
and liable for all costs relating to the services and activities set out in Part B
of Schedule 40.


 


(f)                  The Banking Charges
will be payable by the Principal.  To the
extent that the Banking Charges are for any reason charged directly to the
Contractor rather than the Principal, the Contractor must pay the Banking
Charges on behalf of the Principal.  


 


(g)                 In the event that there are any
fees or charges or other costs associated with the transactional banking
services and relevant deposit accounts which will be required in relation to
the Solution that are:


 


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(i)                  not Banking Charges;
and


 


(ii)                 not costs relating to
the services and activities set out in Part B of Schedule 40,


 


the Principal and the Contractor must
negotiate in good faith to agree which party should be responsible and liable
for those fees, charges or other costs. 


 


(h)                 The Contractor must:


 


(i)                  design the Solution
to operate; and


 


(ii)                 provide the Initial Services
and Core Services so that the Solution operates;


 


in a manner that allows the Principal to
comply with any rules and regulations of payment schemes within the
Australian Payments System which may apply to the Principal. 


 


(i)                  The Contractor must:


 


(i)                  design the Solution
to operate; and


 


(ii)                 provide the Initial
Services and Core Services so that the Solution operates,


 


in a manner that minimises, in the context of
the Principal’s requirements, the propensity and extent of any chargebacks to
the Principal in relation to its activities as a merchant in any payment
schemes within the Australian Payments System. 


 


(j)                  The Contractor must
include details of any Banking Charges which it has paid under clause 27.9(f) in
the first Monthly Invoice the Contractor issues after it makes payment to the
relevant financial institution(s) for the Banking Charges.  


 


(k)                 The Contractor must provide all
relevant information, data and other supporting information reasonably
requested by the Principal in relation to any Banking Charges included in a
Monthly Invoice.


 


(l)                  Where the Contractor
has included details of the Banking Charges which it has paid on behalf of the
Principal under clause 27.9(f) in a Monthly Invoice, the Principal will be
liable to pay those Banking Charges in accordance with clause 27.4, subject to
any rights of the Principal under clause 27.5.


 


(m)                The Contractor must keep any
financial institution relationships, agreements, accounts and charges operated
by it and related to the Contractor’s dealings with the Principal separate from
all other dealings the Contractor has with any financial institutions.  


 


(n)                 The Contractor agrees to submit
to periodic audits by the Principal in relation to its obligations under this
clause.


 


28.                Performance Requirements


 


28.1             Performance
Requirements


 


(a)                 From the date on which the Contractor first commences
providing the Delivery Services the Contractor must, to the extent they are
applicable to the Delivery


 


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Services, measure and report on the
Performance Requirements in accordance with this agreement, including the
Requirements Document and the Solution Documentation.


 


(b)                 Throughout the Core Services Term, the Contractor must
measure and report on the applicable Performance Requirements in accordance
with this agreement, including the Requirements Document and the Solution
Documentation.


 


(c)                 The Contractor must ensure that, at all times during the
Core Services Term:


 


(i)                  the Solution achieves
the Performance Requirements;


 


(ii)                 each Device achieves the
Performance Requirements specified for the relevant Device; and


 


(iii)                the Initial Services and the Core
Services are delivered by the Contractor in a manner which achieves the
Performance Requirements.


 


28.2             Acts
of Prevention and Change in Law


 


(a)                 If the Contractor seeks an allowance in respect of an Act of
Prevention or a Change in Law, which the Contractor considers will or is likely
to affect its ability to achieve a Performance Requirement, the Contractor must
submit a written notice to the Principal’s Representative:


 


(i)                  as soon as possible, and
in any event not later than: 


 


A.                 in the case of an Act of
Prevention, 10 Business Days after the commencement of such an Act of
Prevention; and 


 


B.                  in the case of a Change
in Law, not later than 20 Business Days after the occurrence of such a Change
in Law; and


 


(ii)                 which gives detailed particulars of
the Act of Prevention or Change in Law and the effect this will have on the
Contractor’s ability to meet the Performance Requirements.


 


(b)                 Subject to clause 28.2(c), if the Principal’s Representative
receives a notice in accordance with clause 28.2(a), the Principal’s
Representative will:


 


(i)                  determine a reasonable
allowance to be taken into account in measuring the Contractor’s performance
against the Performance Requirements for the purposes of this clause 28.2 as a
result of the occurrence of the Act of Prevention or Change in Law.  If the Contractor disagrees with any
determination made by the Principal’s Representative it must, within 5 Business
Days of receipt of such a notice, give written notice to the Principal’s
Representative.  If the matter is not
resolved within 10 Business Days of the receipt of such notice, the dispute
will be referred to the Expert; or


 


(ii)                 where the Act of Prevention or
Change in Law is or necessitates a Variation Order in respect of which the
allowance has been agreed to by the Contractor and the Principal’s
Representative under clause 20, then make that allowance.


 


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(c)                 It is a condition precedent to the Contractor’s entitlement
to the determination of an allowance under

28.2(b) that:


 


(i)                  the Contractor must
have given the notice and information required by clause 28.2(a);


 


(ii)                 the cause of the
Contractor being prevented from achieving the relevant Performance Requirements
must have been an Act of Prevention or Change in Law;


 


(iii)                the Contractor must
have actually been prevented from achieving the relevant Performance
Requirements by the Act of Prevention or Change in Law;


 


(iv)               the Contractor must
have taken all possible steps to overcome or minimise the effect of the Act of
Prevention or
Change in Law including taking all such positive steps
to reschedule, reprogram, expedite and adjust activities, sequences and the
performance of the Initial
Services and the Core Services and deploying all such additional resources in
the performance of the Initial Services and the Core Services as may be
required to ensure that the relevant Performance Requirements are achieved; and


 


(v)                the Contractor must
have complied with all instructions of the Principal’s Representative with
respect to the Act of Prevention or Change in Law including the steps
available to overcome or minimise the effect of the Act of Prevention or Change in Law.


 


(d)                 Other than as expressly provided
in clauses 28.2(a) to (c) and clause 37, the Contractor:


 


(i)                  bears the risk of
all delays, disruptions, events or circumstances affecting the Initial Services
and the Core Services which could prevent it from achieving any Performance
Requirements; and


 


(ii)                 will remain obliged
to achieve the Performance Requirements notwithstanding any such delay,
disruption, event or circumstance.


 


(e)                 Whether or not the
Contractor has given, or would be required to give, a notice under clause
28.2(a), the Principal’s Representative may, in its absolute discretion at any
time and from time to time by providing written notice to the Contractor
determine an allowance to be taken into account in measuring the Contractor’s
performance against the Performance Requirements.


 


28.3             Corrective
Action


 


Where
the Contractor fails to comply with its obligations under clause 28.1, the
Contractor must promptly provide to the Principal for its approval, a written
corrective action plan providing details of how it intends to rectify such
failures in the future.  If in the
Principal’s opinion the corrective action plan does not satisfactorily address
the failure, the Principal may require the Contractor to provide a further more
detailed plan.  The Contractor must
promptly implement any such corrective action plan which is approved by the
Principal.


 


28.4             Review
of Performance Requirements


 


(a)                 The Principal reserves the right to review the Performance
Requirements at any time to ensure that they provide a representative model of
the intended overall


 


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performance of the Solution and the Initial Services and
the Core Services.  The Principal must allow the Contractor to
participate in the review.


 


(b)                 If consequent upon a review under clause 28.4(a), the
Principal considers that the Performance Requirements need to be changed to
provide a representative model of the measurement of the intended overall
performance of the Solution and the Initial Services and the Core Services,
the Principal must give written notice to the Contractor of the details of the
proposed amendment and the outcome of the review relevant to the proposed
amendment.  The Contractor agrees to negotiate
with the Principal to agree the proposed amendment or such other change as will
ensure that the data gathering and measurement of KPIs, benchmarks, benchmark
values and the performance standards provide a representative model of the
intended overall performance of the Solution and the Initial Services and the Core Services without making a Variation.


 


(c)                 If the parties do not agree on the proposed amendment or
other change within 20 Business Days of receipt of the notice by the
Contractor, the Principal or Contractor may refer the dispute or difference to
the Dispute Resolution Procedures to determine the proposed amendment or such
other change as will ensure that the data gathering and measurement of KPIs,
benchmarks, benchmark values and the performance standards provide a
representative model of the intended overall performance of the Solution and
the Initial
Services and the Core Services without making a
Variation.


 


28.5             AFC
System performance


 


(a)                 The
Principal and the Contractor acknowledge that:


 


(i)                  the Contractor is responsible for NTS
Transition and for managing the NTS Transition Plan under this agreement; and


 


(ii)                 OLT is responsible for managing the AFC
Transition Plan under the Transition Deed.


 


(b)                 OLT has
obligations under the Consolidated Service Contract in relation to the
performance levels of the AFC System.  In
particular, OLT must meet or exceed the AFC System Performance Levels and is
liable to pay the AFC System Compensation Payments if the AFC System
Performance Levels are not met or exceeded.


 


(c)                 The
Principal has advised the Contractor that OLT has agreed to facilitate NTS
Transition by complying with OLT’s obligations under the Transition Deed which
include:


 


(i)                  allowing the Principal and the Contractor to
use or modify the AFC Equipment or AFC Software; and


 


(ii)                 to enter into and comply with the AFC
Transition Plan.


 


(d)                 During
the NTS Solution Requirements Phase, the Contractor will develop the NTS
Transition Plan in accordance with clause 12.4. 
The NTS Transition Plan will include:


 


(i)                  full details of all transition requirements and
cooperation reasonably required to be provided by OLT for NTS Transition and
required to be incorporated in the AFC Transition Plan;


 


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(ii)                 the timetable for the undertaking of activities
under the NTS Transition Plan;


 


(iii)                the Principal’s requirements and the Contractor’s
approach to installation and implementation of the Solution during the NTS
Transition Plan; and


 


(iv)               analysis of reasonably known likely impacts of
the activities to be undertaken as part of NTS Transition, upon the AFC System.



 


(e)                 The
Contractor must assist the Principal to review, finalise and agree on the
requirements and cooperation referred to in clause 28.5(d)(i) to be
included in the AFC Transition Plan.  The
Principal is not obliged to agree on such requirements and cooperation, and
accordingly has the discretion to reject the NTS Transition Plan under clause
12.4, to the extent that the Principal is unable to procure OLT to agree to
provide such requirements and cooperation.


 


(f)                  The
Principal will procure OLT to undertake an analysis of reasonably known likely
impacts of the activities to be undertaken as part of NTS Transition, upon the
AFC System.  A copy of the analysis will
be provided to the Contractor.


 


(g)                 The
Principal agrees that a failure by OLT to comply with the AFC Transition Plan
will be deemed to be the occurrence of an Access Event.


 


(h)                 If the
Contractor is or becomes aware, or ought reasonably to be aware, that any part
of NTS
Transition has or may have any adverse or negative impact on the AFC System or
on OLT meeting or exceeding the AFC System Performance Levels, the Contractor
must provide the Principal with details, either in the impact analysis forming
part of the NTS Transition Plan or by separate notice, of the relevant
activities or actions to be undertaken by the Contractor and the nature of the
potential adverse or negative impact to the AFC System or the AFC System
Performance Levels (as the case may be) and must not implement that part of NTS
Transition except with the prior approval of the Principal.  If the impact is set out in the impact
analysis forming part of the NTS Transition Plan, the finalisation of the NTS
Transition Plan in accordance with clause 12.4 to the satisfaction of the
Principal is deemed to constitute the prior approval of the Principal.


 


(i)                  The
Contractor:


 


(i)                  will carry out NTS Transition, other than that
part of NTS Transition specifically approved by the Principal under
clause 28.5(g), so as not to have any adverse or negative impact on the
AFC System;


 


(ii)                 will carry out NTS Transition so as to minimise
any adverse or negative impact on OLT meeting or exceeding the AFC System
Performance Levels; and


 


(iii)                will not use or modify any AFC Equipment or AFC
Software in revenue service other than in accordance with the NTS Transition
Plan.


 


(j)                  If as a
result of NTS Transition, OLT is entitled under clause 17 of the
Transition Deed to exclude any adverse or negative impact on the AFC System or
AFC System Performance Levels:


 


(i)                  the Principal will give the Contractor written
notice of the amount of the reduction in the AFC System Compensation Payments
reasonably determined by the Principal to be a result of NTS Transition and
which would have been payable by OLT if clause 17 of the Transition Deed


 


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had not applied, to the extent
that it is not attributable to a failure by OLT to comply with the AFC
Transition Plan (“Reduction Amount”);


 


(ii)                 subject to any obligations in relation to
confidentiality, if requested by the Contractor, the Principal will give the
Contractor all information reasonably required by the Contractor to verity the
Principal’s calculation of the Reduction Amount;


 


(iii)                subject to clause 28.5(k), the Contractor must
pay the Principal the Reduction Amount; and


 


(iv)               subject to clause 28.5(k), the Reduction Amount
is a debt due and payable by the Contractor to the Principal within 20 Business
Days of the notice given by the Principal under clause 28.5(j)(i).


 


(k)                 The
Reduction Amount in each month, shall not exceed $[**].


 


29.                Legal and Financial Relationships


 


29.1             Legal
Relationships


 


(a)                 A Cardholder will be entitled to use value loaded onto the
Victorian Smartcard Application as redemption for services provided by the
Operators in accordance with this agreement, including the Requirements
Document and any Solution Documentation, but will not have any interest in
money represented by value loaded by that Cardholder onto the Victorian
Smartcard Application.


 


(b)                 A Cardholder will not be entitled to redeem value loaded
onto the Victorian Smartcard Application for cash unless the Cardholder also
forfeits his or her Smartcard and any account associated with that Smartcard is
closed. 


 


29.2             Entitlement
to Floats


 


The
Principal will own the Float.  The Float
must be held in a bank account owned by the Principal.


 


29.3             Contractual
relationships


 


The Contractor must ensure that all
contractual relationships in relation to the Solution reflect this clause 29.


 


29.4             Payment Systems
(Regulation) Act 1998 and Banking Act 1959


 


(a)                 The Contractor agrees:


 


(i)                  subject to clause 5,
to ensure that the Solution complies with the Payment Systems (Regulation) Act 1998 (Cth) and the Banking Act
1959 (Cth);


 


(ii)                 subject to clause 5,
to comply with the terms of the Payment
Systems (Regulation) Act 1998 (Cth) and the Banking Act 1959 (Cth) as
they apply to the Contractor, and the operation of the Solution;


 


(iii)                subject to clause 5,
to comply with any requirements which are required in order for the Principal
or the Operators to comply with the Payment Systems (Regulation) Act 1998 (Cth)
and the Banking Act 1959 (Cth);


 


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(iv)               to provide all
reasonable assistance to enable the Principal and the Operators to comply with
the Payment Systems (Regulation) Act 1998
(Cth) and the Banking Act 1959 (Cth).


 


(b)                 Without derogating from clause
29.4(a), the parties agree and acknowledge that to the extent that the Solution
is a purchased payment facility for the purpose of the Payment Systems
(Regulation) Act 1998 (Cth), the Principal is the holder of stored value and
that the Principal can assign, novate or otherwise transfer the benefit of all
or any of its obligations as the holder of stored value or its rights or
obligations as the holder of stored value in accordance with clause 45.2.


 


29.5             Unclaimed moneys


 


If any stored value on a Victorian Smartcard
Application is subject to the Unclaimed
Moneys Act 1962 (Vic) as amended by the Unclaimed Moneys (Amendment) Act
2004 (Vic), the Contractor agrees to:


 


(a)                 comply with that Act and any regulations made pursuant to it,
including:


 


(i)                  entering all
unclaimed moneys in a register kept at the Contractor’s principal office or
place of business in Victoria in the prescribed form;


 


(ii)                 where applicable,
advertising entries in the register in the Government gazette at the times and
in the manner determined by the registrar of unclaimed moneys; and


 


(iii)                paying any unclaimed
money to the registrar of unclaimed moneys to be placed in the consolidated
fund; 


 


(b)                 design the Solution to operate
and ensure the Solution operates in compliance with that Act and in a manner
which allows the Principal and the Operators to comply with their obligations
(if any) under that Act;


 


(c)                 provide all reasonable
assistance to enable the Principal and the Operators to comply with their
obligations (if any) under that Act.


 


29.6             Audit
trail


 


In
addition to meeting the requirements imposed by this agreement including the
Requirements Document, the Contractor must implement and maintain appropriate
system capabilities to log and preserve an audit trail for all material events
occurring as part of transactions involving Cardholders.  The Contractor will provide a record of those
audit events relating to the Initial Services and Core Services to the
Principal’s Representative in a mutually agreed format on a monthly basis.


 


29.7             Reconciliation


 


To the extent that during the Core Services
Term there are reconciliation discrepancies in the Solution:


 


(a)                 resulting in a loss of cash or
value; or


 


(b)                 caused by a failure by the
Contractor to comply with the Solution Documentation, and 


 


excluding reconciliation discrepancies
arising as a result of services not provided by the Contractor or a person
providing services on behalf of the Contractor, the Contractor:


 


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(c)                 is liable to pay to the
Principal any shortfall resulting from those reconciliation discrepancies,
subject to its liability for such shortfall in any month not exceeding $[**]
per month; and


 


(d)                 to the extent that payments
under paragraph (c) are made, will not be further liable for any service
charge adjustments for failure to meet the Performance Requirements in respect
of such reconciliation discrepancies.


 


30.                Intellectual Property


 


30.1             Warranty by Contractor


 


The Contractor represents and warrants that:


 


(a)                 it has all appropriate licences
of or title to all Intellectual Property that is required by it for the purpose
of its obligations under this agreement;


 


(b)                 any other entity that performs
obligations under this agreement on behalf of the Contractor has all
appropriate licences of or title to all Intellectual Property that is required
for that purpose;


 


(c)                 the Developed Intellectual
Property, the Licensed Intellectual Property, the Intellectual Property in the
Third Party Software and the Equipment IP are all the Intellectual Property
that is required to design, develop, integrate, install, test, implement,
operate, replace, maintain, refurbish, extend, upgrade or modify the Solution,
or any part of it, at any time;


 


(d)                 it has authority to grant,
assign or licence (as the case may be) all Intellectual Property rights granted
to the Principal under this agreement;


 


(e)                 every item of the Software used
or to be used in the Solution is contained in the List of Software or later
identified in accordance with clause 30.8(e); and


 


(f)                  it has the authority
to undertake the obligations concerning the Third Party Software and Equipment
IP contained in clauses 30.10 and 30.11.


 


30.2             Contractor’s Indemnity


 


(a)                 Subject to clause 30.2(f), the
Contractor will indemnify the Principal and the Operators and anyone receiving
a right through the Principal to exercise any Intellectual Property assigned,
granted or licensed to the Principal under this agreement and any of their
officers, employees, agents and contractors against:


 


(i)                  all claims which may
be brought or made against either or both of the Principal and any Operator by
any person in respect of:


 


A.                 any alleged
infringement of Intellectual Property by the Contractor, its subcontractors or
any of their officers, employees, agents, contractors, sub-licensees, or assignees
or any Related Body Corporate in the course of, or incidental to performing any
obligations under this agreement or in the course of, or incidental to,
exercising the Intellectual Property the subject of the licences granted under
clause 30.5(c) ;


 


B.                  any alleged
infringement of Intellectual Property by the use by the Principal or any
Operator of any Intellectual Property that is assigned or licensed to the
Principal under clauses 30.4


 


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or 30.5 of this agreement except to the
extent that the claim arises out of any modification (other than the act itself
of modifying) to the Intellectual Property without the prior written consent of
the Contractor (such consent not to be unreasonably withheld or delayed); and


 


(ii)                 any costs, expenses,
or damages (including legal fees on an indemnity basis) that may be suffered or
incurred by the Principal or any Operator in connection with any such claim,


 


except to the extent that such claim is
caused by a breach of this agreement by the Principal.


 


(b)                 The Contractor is not liable to
indemnify the parties indemnified as provided in this clause 30.2 to the extent
that the claim, costs, expenses or damages results from any actions taken,
defended or compromised by a party indemnified after having become aware of the
claim.


 


(c)                 A party indemnified must, as
soon as is reasonably practicable after it becomes aware of a claim:


 


(i)                  notify the
Contractor in writing of the alleged infringement;


 


(ii)                 give the Contractor at
the time of notification the option to conduct the defence of the claim; and


 


(iii)                provide the Contractor
(at the Contractor’s expense) with reasonable assistance in conducting the
defence of such claim.


 


(d)                 Clause 30.2(b) and clause
30.2(c)(ii) do not apply where:


 


(i)                  interlocutory
proceedings are commenced against a party indemnified on an urgent basis;


 


(ii)                 the party indemnified
reasonably considers that there is insufficient time to notify the Contractor
and for the Contractor to commence defence of such proceedings on behalf of the
party indemnified;


 


(iii)                the party indemnified
initially defends such proceedings; and


 


(iv)               as soon as practicable
after the commencement of the proceedings gives the Contractor the option to
conduct the defence of such proceedings.


 


(e)                 Clause 30.2(c)(ii) does not
apply to claims which would or may prevent the continued operation of the
Solution and the party indemnified:


 


(i)                  to the extent
reasonably practicable, consults in good faith with the Contractor with respect
to such claims; and


 


(ii)                 does not in the
course of defending or compromising such claims make admissions which may
materially affect the validity of the Licensed Intellectual Property without
the written consent of the Contractor (such consent not to be unreasonably
withheld).


 


(f)                  To the extent that
the indemnity in clause 30.2(a) applies to claims, costs, expenses or
damages for patent infringement claims, that indemnity is limited to claims,
costs, expenses or damages for patent infringements by the Principal,
contractors of the Principal providing services to the Principal, or by
Governmental Agencies


 


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receiving
a right through the Principal to exercise any Intellectual Property assigned,
granted or licensed to the Principal under this agreement, to the extent the
claims relate to:


 


(i)                  automated fare
collection;


 


(ii)                 micropayment
processing; or


 


(iii)                business processes
used at any time by the Contractor in carrying out the Work.


 


30.3             Contractor to Rectify
Infringements


 


Notwithstanding clauses 30.1 and 30.2, if as
a result of any alleged infringement or threatened infringement of Intellectual
Property rights the Principal, Operator, Contractor, or any other entity
performing Work is stopped (whether by court order or otherwise) from
exercising Intellectual Property it had been exercising or was proposing to
exercise to perform the Work, the Contractor, at the Contractor’s sole cost and
expense must:


 


(a)                 secure for the Principal the
right to continue exercising such Intellectual Property; or


 


(b)                 replace such Intellectual
Property with non-infringing Intellectual Property; or


 


(c)                 modify any materials, Device or
other equipment, Software or processes so that they become non- infringing or
remove any materials, Device or other equipment, Software or processes that are
infringing and refund sums paid for them without prejudice to any other rights
of the Principal.


 


If the amount of time necessary to proceed
with one of these options is deemed excessive by the Principal, the Principal
may direct the Contractor to select another option and the Contractor must
comply with that direction.


 


30.4             Rights Granted to the
Principal


 


(a)                 The Contractor grants to the
Principal a permanent, irrevocable, royalty-free, non-exclusive licence to
exercise the Licensed Intellectual Property. 
The Principal may exercise: 


 


(i)                  in the Territory,
the Licensed Intellectual Property including that part of the Licensed
Intellectual Property which is Intellectual Property in the Solution
Documentation;


 


(ii)                 anywhere outside the
Territory, that part of the Licensed Intellectual Property which is
Intellectual Property in the Solution Documentation, provided that such
exercise is not, at the time of such exercise, to the competitive detriment of
the Contractor or for the purpose of commercialising such Intellectual
Property.


 


(b)                 The licence granted in clause
30.4(a):


 


(i)                  arises in respect
of: 


 


A.                 each component of the
Licensed Intellectual Property upon payment by the Principal of the amount
payable at the end of the Phase which payment includes that component; and


 


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B.                  the Licensed
Intellectual Property, to the extent that it has not already arisen under
30.4(b)(i)A, upon payment by the Principal of the amount payable at the end of
the NTS Operational Proving Phase, 


 


however if the Principal makes the payment
referred to in clause 30.5(b), that licence arises in respect of all the
Licensed Intellectual Property which:


 


1)                  subsists in the
Solution;


 


2)                  comprises the Escrow
Material; and


 


3)                  is Software which is
used by, or on behalf of, the Contractor to interface the Initial Services or
the Core Services with the Solution,


 


as it stands at that date (provided that, for
the avoidance of doubt, the release of such Escrow Material will remain
governed by clause 30.6);


 


(ii)                 may be sub-licensed,
provided that the Principal shall be liable to the Contractor for all acts or
omissions of the sub-licensee in relation to the Licensed Intellectual Property
as if they were acts or omissions of the Principal; and


 


(iii)                will survive expiry of
this agreement and termination of this agreement on any basis.


 


30.5             Developed Intellectual
Property


 


(a)                 All Developed Intellectual
Property will be owned by the Principal.  The ownership of: 


 


(i)                  [**]% of each
component of the Developed Intellectual Property vests in the Principal on the
date of payment by the Principal of the amount payable at the end of the Phase
in which that part of the Solution in which the relevant component of the
Developed Intellectual Property subsists has been created; and


 


(ii)                 [**]% of the
Developed Intellectual Property to the extent that it has not already vested
under clause 30.5(a)(i) vests in the Principal on the date of payment by
the Principal of the amount payable at the end of the NTS Operational Proving
Phase.


 


(b)                 In relation to any Developed
Intellectual Property partially owned by the Principal under clause 30.5(a), at
any time prior to the date of payment by the Principal of the amount payable at
the end of the NTS Operational Proving Phase, the Principal may make a payment
of the lesser of: 


 


(i)                  [**]% of the value
of the components of that Developed Intellectual Property; and


 


(ii)                 $[**],


 


in which case the remaining
[**]% of that Developed Intellectual Property vests in the Principal.


 


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(c)                 The Principal grants to the
Contractor and its sub-contractors a non-exclusive, royalty free licence during
the Term to exercise such of the Intellectual Property referred to in clauses
30.5(a), 30.13(a) and 30.14 as the Contractor and its sub-contractors
reasonably requires to perform its obligations under this agreement.


 


(d)                 The Principal grants to the
Contractor a licence to exercise the Developed Intellectual Property outside
the Territory (“the Contractor Licence”)
on the following terms:


 


(i)                  the Contractor
Licence is exclusive;


 


(ii)                 the Contractor
Licence is permanent and irrevocable;


 


(iii)                during the Term, the
Contractor must pay the Principal $[**] each time:


 


A.                 all or any part of
the Developed Intellectual Property or Licensed Intellectual Property is
installed outside the Territory other than on a development environment;  or


 


B.                  the Contractor or
any of its Related Bodies Corporate supplies the whole or a substantial part of
a transit ticketing system or micro payments system outside the Territory of
the same or similar nature to the Solution;


 


(iv)               the Principal may,
through an independent auditor reasonably acceptable to the Contractor, audit
the records of the Contractor to ascertain if the Contractor has complied with
its obligations under paragraphs (iii) and (vi);


 


(v)                the Contractor must
notify the Principal if any claim is or is likely to be brought against it, its
subcontractors or any of their officers, employees, agents, contractors, sub-licensees
or assignees or any Related Body Corporate in the course of, or incidental to,
exercising the Intellectual Property the subject of the Contractor Licence; 


 


(vi)               the Contractor Licence
may be sublicensed to any entity the Contractor thinks appropriate with whom
the Contractor enters into a valid enforceable agreement which requires the
sublicensee to take reasonable security precautions to prevent unauthorised copying,
use or disclosure of the Intellectual Property being sublicensed; and


 


(vii)              except where a
sub-licence is granted to a sub-contractor of the Contractor to undertake work
for or provide services to the Contractor, the Contractor shall give the Principal
notice of the fact of entering into a sublicense, the identity and contact
details of the sublicensee and the purpose of the sublicense as soon as is
reasonably practical after the sublicense is entered into.


 


(e)                 During the Term, the Contractor
must supply Software upgrades and enhancements, incorporating all improvements
and functionality developed by or on behalf of the Contractor or its Related
Bodies Corporate for systems outside the Territory and relevant to the
Solution, to the Principal free of charge.


 


(f)                  The Contractor must,
in consultation with the Principal, take such reasonable steps as the Principal
reasonably requests in order to confirm or monitor the Principal’s ownership of
the Developed Intellectual Property.


 


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(g)                 The Contractor will indemnify
the Principal against all claims which may be brought or made against the
Principal by any person in respect of:


 


(i)                  any alleged
infringement of Intellectual Property arising out of any exercise by the
Contractor of the Contractor Licence; and


 


(ii)                 any costs, expenses
or damages (including legal fees on an indemnity basis) that may be suffered or
incurred by the Principal in connection with any such claim,


 


except to the extent that such claim is
caused by a breach of this agreement by the Principal.


 


30.6             Escrow


 


(a)                 The Contractor must prior to the
payment of the Milestone Payment due after the Completion Date for the NTS
Mobilisation Phase, and at all times thereafter, maintain a copy of the Escrow
Material for the current or proposed configuration of the Solution, and its
immediately preceding version, in escrow with the Escrow Agent on the terms of
the Escrow Agreement.  For the purposes
of this sub-clause, version means a new edition of the Software which contains
substantial new functionality or incorporates substantial internal
restructuring of the Software or any other improvement, modification, fixed,
update, additional alteration to Software.


 


(b)                 Subject to paragraph (e) the
Principal will be entitled, at no cost to the Principal, to be provided with
the Escrow Material (except the material referred to in paragraphs (c), (d) or
(e) of the definition of Escrow Material) at any time if any of the
following events occur:


 


(i)                  the Principal
terminates this agreement as provided in clause 42;


 


(ii)                 the Term expires
(after all and any extensions pursuant to clause 26);


 


(iii)                the Principal gives
the Contractor a written request for Escrow Material in accordance with clause
30.6(d); or


 


(iv)               the Principal
terminates this agreement as provided in clause 43 after the payment by the
Principal of the amount due under this agreement as a consequence of the
Principal issuing a Certificate of Completion in respect of the NTS Operational
Proving Phase.


 


Where a written request is made under clause
30.6(b)(iii), the Principal is only entitled to be provided with that part of
the Escrow Material which is the subject of the written request.  


 


(c)                 Subject to paragraph (e), if any
or all of the Devices supplied by Ascom are no longer manufactured by or on
behalf of Ascom and: 


 


(i)                  such event occurs
after the term of this agreement; or


 


(ii)                 if such event occurs
during the term of this agreement, the Contractor commits an Event of Default
in failing to support, maintain or supply those Devices in accordance with this
agreement, 


 


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the Principal will be entitled upon giving
written notice to the Contractor, at no cost to the Principal to be provided
with that part of the material referred to in paragraph (c) of the
definition of Escrow Material.


 


(ca)                Subject to paragraph
(e), if any or all of the Devices supplied by Wayfarer are no longer
manufactured by or on behalf of Wayfarer and:


 


(i)                  such event occurs after
the term of this agreement; or


 


(ii)                 if such event occurs
during the term of this agreement, the Contractor commits an Event of Default
in failing to support, maintain or supply those Devices in accordance with this
agreement, 


 


the Principal will be entitled upon giving
written notice to the Contractor, at no cost to the Principal to be provided
with that part of the material referred to in paragraph (d) of the
definition of Escrow Material.


 


(cb)                Subject to paragraph (e) if
any or all of the Devices supplied by Gunnebo are no longer manufactured by or
on behalf of Gunnebo and:


 


(i)                  such event occurs
after the term of this agreement; or


 


(ii)                 if such event occurs
during the term of this agreement, the Contractor commits an Event of Default
in failing to support, maintain or supply those Devices in accordance with this
agreement, 


 


the Principal will be entitled upon giving
written notice to the Contractor, at no cost to the Principal to be provided
with that part of the material referred to in paragraph (e) of the
definition of Escrow Material.


 


(d)                 A written request under clause
30.6(b)(iii) must only be made where the Principal has a reasonable need
for the Escrow Material and must be limited to that part of the Escrow Material
for which the Principal has a reasonable need.


 


(e)                 The Principal will be entitled once every 12 months (at its cost) to have an
auditor review, analyse and conduct tests in relation to materials maintained
in escrow with the Escrow Agent for the purposes of:


 


(i)                  verifying that the
Contractor is complying with clause 30.6(a); and


 


(ii)                 to review the quality
of the material in escrow to ensure there has been no degradation to the
material in escrow.


 


(f)                  The Contractor must, within 10 Business Days of receipt of a written notice from
the Principal specifying that an audit pursuant to clause 30.6(e) has
determined that the Contractor is not complying with clause 30.6(a) or
there has been degradation to the material in escrow, remedy such
non-compliance or replace such material as the case may be.


 


(g)                 Notwithstanding any other
provision of this agreement: 


 


(i)                  the Contractor is
not required to deposit and maintain in escrow any material that it has already
given to the Principal on a permanent basis; and


 


(ii)                 if the Principal has
terminated this agreement under clause 43 prior to the Solution Completion
Date, the Principal is not entitled to make a written request under clause
30.6(b)(iii) unless the request is for that part


 


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of the Escrow Material that relates to a part
of the Solution which the Principal owns.


 


30.7             Moral Rights


 


The Contractor must indemnify those
indemnified against all Claims which arise in relation to an infringement of
Moral Rights resulting from the use, operation, maintenance or modification of
the Solution or any part of it.  Those
indemnified for the purpose of this clause 30.7 are the Principal, anyone
receiving a right through the Principal to exercise any Intellectual Property
assigned, granted or licensed to the Principal under this agreement and any of
their officers, employees, agents and contractors.


 


30.8             Physical Material and
Software


 


(a)                 The Contractor must deliver,
from time to time, during the Term and upon termination or expiry of this
agreement, such physical media embodying the:


 


(i)                  Developed
Intellectual Property;


 


(ii)                 Licensed Intellectual
Property; and


 


(iii)                Third Party Software
and Equipment IP which the Contractor or any Related Body Corporate owns or has
appropriate rights to provide,


 


as the Principal reasonably requests to
enable it to fully exercise its ownership and rights under this agreement.  The following provisions of this clause 30.8
do not limit the generality of this clause 30.8(a).


 


(b)                 The Contractor must, to the
extent that it has not already been provided, create and deliver to the
Principal prior to the Solution Completion Date one copy of the object code for
the Solution (excluding the object code in respect of any Third Party Software)
and one copy of the source code for the Developed Intellectual Property.


 


(c)                 Within 2 Business Days of any
change to the object code for the Solution (excluding the object code in
respect of any Third Party Software) or the source code for the Developed
Intellectual Property, the Contractor must deliver a copy of it to the
Principal.


 


(d)                 Immediately after execution of
this agreement, the Contractor must deliver the List of Software to the
Principal.


 


(e)                 Within 5 Business Days of the
use by the Contractor, a Related Body Corporate or any of its subcontractors of
any Software which is not specified on the List of Software, the Contractor
must provide the Principal with the following information:


 


(i)                  name of the
Software;


 


(ii)                 owner of the
Software;


 


(iii)                details of the basis
upon which the Contractor, a Related Body Corporate or any of its
subcontractors has the use of that Software;


 


(iv)               confirmation that the
Software is the subject of the warranty in clause 30.1.


 


(f)                  The obligations in
this clause 30.8 do not derogate from any other obligations the Contractor has
under this agreement.


 


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(g)                 As a condition precedent to
Completion of each Phase the Contractor must provide a list which specifies: 


 


(i)                  the licences for
which payment is included in the payment due at the Completion of the Phase;
and


 


(ii)                 the Developed
Intellectual Property that will vest in the Principal when the payment due upon
completion of that Phase is made.


 


30.9             Copyright and Circuit
Layout Act


 


Notwithstanding any other provision of this
agreement, this agreement does not exclude or limit, or have the effect of
excluding or limiting, the operation of subsection 47B(3) or sections
47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth) or Part II, Division
3 of the Circuit Layout Act 1989 (Cth).


 


30.10           Third Party Software


 


(a)                 If required by the Principal,
the Contractor must sublicense or assign the Contractor’s rights under, or
cause a novation of the Contractor’s rights and obligations under, or assist
the Principal to obtain direct rights to, Third Party Licences to the
Principal:


 


(i)                  on termination or
expiry of this agreement for whatever reason;


 


(ii)                 at the Principal’s
request during the Term; or


 


(iii)                after the Term.


 


This clause will be of no application to the
extent that it affects Third Party Software that is required by the Contractor
to perform its obligations under this agreement and the Principal is unable to
obtain for the Contractor necessary rights to continue to use such Third Party
Software.


 


(b)                 In respect of any such
sub-licence, assignment, novation or any such direct rights:


 


(i)                  each Party will bear
its own costs of effecting the assignment or novation or obtaining direct
rights, except for any fee charged by a relevant Third Party (not being the
Contractor or a Related Body Corporate of the Contractor) which shall be paid
by the Principal; 


 


(ii)                 the Principal will pay all costs and expenses referable to any period after the date of
their assignment or novation;


 


(iii)                without derogating from
clause 30.1, the Contractor must do all acts and things reasonably requested by
the Principal to enable the Principal to:


 


A.                 obtain copies of, and
otherwise be appraised of all the terms of, and communications and information
concerning, the Third Party Licences and their performance;


 


B.                  exercise and enforce
all rights and perform all obligations under the Third Party Licences as if
named as the Contractor; and


 


C.                  obtain such
sub-licence, assignment, novation or direct rights on the same or substantially
similar terms (including the remaining duration of any term) as the Contractor
has


 


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acquired for itself as enables it to fulfil
its obligations under the agreement; and


 


(iv)               on and from the date of
the assignment or novation of such Third Party Licences, the Principal must:


 


A.                 assume all
obligations of the Contactor under such Third Party Licences; and


 


B.                  indemnify the
Contractor against all claims in respect of such Third Party Licences which
arise on or from the date of assignment or novation of such Third Party
Licences.


 


30.11           Equipment IP


 


The parties agree that ownership of the
Equipment IP does not vest in the Principal pursuant to clause 32.  The Contractor must ensure, however, that at
the time ownership of tangible items (including computer hardware) forming part
of the Solution vests in the Principal pursuant to clause 32, the Principal has
such perpetual, royalty free transferable licences of the Equipment IP as will
enable the Principal to fully and effectively use and deal with the tangible
items as owner of the tangible items, and to permit others to use those
tangible items (including computer hardware) under contract with the Principal.


 


30.12           Perfecting licences
and ownership


 


(a)                 Without limiting any other
provision of this agreement, including clause 30.17, the Contractor must
do all things necessary to perfect the licences and ownership granted to the
Principal in this clause 30 and otherwise to give effect to the Contractor’s
obligations regarding Third Party Software and Equipment IP under this clause
30.


 


(b)                 The Contractor irrevocably
appoints the Principal, or such other person as the Principal nominates from
time to time, as the Contractor’s attorney to do such acts and things, in the
Contractor’s name, as the Principal reasonably requires in order to exercise
the rights under this clause.


 


30.13           System Data and Logo


 


(a)                 Notwithstanding any other
provision of this agreement, the Contractor agrees and acknowledges that the
Principal owns or, where appropriate, holds the lawful registration of:


 


(i)                  the Brand;


 


(ii)                 the Open Architecture
Specification;


 


(iii)                the Solution
Documentation (other than the Open Architecture Specification) except to the
extent of Intellectual Property in such Solution Documentation which is not
Developed Intellectual Property;


 


(iv)               the work referred to in
clause 35(h), and the System Data;


 


(v)                all modifications to
the Open Architecture Requirements Document (irrespective of whether such
modifications were made by the Contractor, its agents, subcontractors or
consultants);


 


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(vi)               all system and
component interfaces developed by the Contractor, its Related Bodies Corporate
or its agents, subcontractors or consultants,


 


including all Intellectual Property in these
matters.


 


This ownership vests in the Principal upon
payment by the Principal of the amount payable at the end of the Phase in which
that matter is required to be delivered pursuant to this agreement or upon the
creation of the matter (whichever is the later).


 


(b)                 The Contractor must ensure that
all of its contractual relationships reflect clause 30.13(a).


 


30.14           Acknowledgement


 


(a)                 The Contractor acknowledges that
the Contractor, its Related Bodies Corporate, its subcontractors, agents and
consultants do not own any Intellectual Property in the NTS Requirements
Document and can only exercise such Intellectual Property to the extent
permitted or authorised under this agreement.


 


(b)                 The Contractor acknowledges that the Principal, or any party
authorised by the Principal, may publish the Open Architecture Requirements
Document, or the Open Architecture Specification, as varied, updated or
modified.


 


30.15           Patent validity


 


If any component of any Intellectual Property
which is licensed or assigned under this agreement expires through the
effluxion of time or is or becomes invalid, then, without limiting the
Principal’s rights in respect of that expiry or invalidity, that component
will, to that extent only, be deemed to be excluded from the Intellectual
Property licensed or assigned under this agreement and this agreement will
otherwise continue in full force and effect.


 


30.16           Subcontractors


 


The Contractor must ensure that all of its
contracts in relation to this agreement reflect the rights and obligations set
out in this clause 30 and must make such contracts available to the
Principal for inspection upon request.


 


30.17           Assurance


 


(a)                 Subject to 30.17(c), the
Contractor will use reasonable endeavours to procure that if any circumstances
occur whereby the direct or indirect relationship between the Contractor and
the owner of any Licensed Intellectual Property, Third Party Software or
Equipment IP not owned by the Contractor concerning the Licensed Intellectual
Property, Third Party Software or Equipment IP changes or is likely to change,
then:


 


(i)                  the owner of the
Licensed Intellectual Property, Third Party Software or Equipment IP (as
applicable) and the Contractor will immediately notify the Principal in
writing, which notice must describe, with a reasonable level of detail, the
nature of those circumstances and their effect or likely effect on the
Principal;


 


(ii)                 notwithstanding those
circumstances, the owner of the Licensed Intellectual Property, Third Party
Software or Equipment IP (as applicable) permits the Principal to continue
exercising its rights to the Licensed Intellectual Property, the Intellectual
Property in all or any part


 


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of the Third Party Software or Equipment IP
(as applicable) as if such circumstances do not occur, or as the case requires,
had not occurred; and


 


(iii)                the owner of the
Licensed Intellectual Property, Third Party Software or Equipment IP (as
applicable) and the Contractor will do all such acts and things as the
Principal reasonably requests in order to give effect to this clause 30.17.


 


(b)                 Circumstances referred to in
clause 30.17(a) include termination of any licensing arrangement or
circumstances involving an inability to pay debts.


 


(c)                 To give full effect to this
clause, the Contractor will ensure that: 


 


(i)                  each of Headstrong,
ERG, Ascom and G&D enter into
a Deed of Assurance in the form of Schedule 27 in relation to any Licensed
Intellectual Property, Third Party Software and Equipment IP owned by
Headstrong, ERG, Ascom and G&D (as applicable) as a condition precedent to
the payment of the Milestone Payment due after the Completion Date for the NTS
Mobilisation Phase; and


 


(ii)                 each of Wayfarer and
Gunnebo enter into a Deed of Assurance in the form of Schedule 27 in
relation to any Licensed Intellectual Property, Third Party Software and
Equipment IP owned by Wayfarer and Gunnebo (as applicable) at the same time
that each of them enters into a Key Contract.


 


31.                Commercial rights


 


(a)                 The
Contractor acknowledges that the Principal has all rights and benefits it
requires in order to exploit the Solution for commercial purposes.


 


(b)                 The Contractor agrees and
acknowledges that, in the absence of any express agreement with the Principal
to the contrary, it has no rights to exploit the Solution for commercial
purposes.


 


(c)                 For
the purposes of this clause 31, commercial purposes includes:


 


(i)                  any use,
modification or extension or proposed use, modification or extension of the
Solution or any part of it, including any Device or otherwise, for purposes
other than Transit Purposes;


 


(ii)                 use, modification or
extension or proposed use, modification or extension of the Victorian Smartcard
Application or any part of it other than in accordance with this agreement;


 


(iii)                use of Smartcards
issued in accordance with this agreement for purposes other than Transit
Purposes;


 


(iv)               branding or proposed
branding of Smartcards and the Victorian Smartcard Application;


 


(v)                advertising or
proposed advertising on Smartcards, the Victorian Smartcard Application and
Devices;


 


(vi)               the involvement or
proposed involvement of Smartcards or the Victorian Smartcard Application in a
loyalty or marketing scheme;


 


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(vii)              use of information,
including trend and Personal Data, derived from the Solution; and


 


(viii)             any other use or
exploitation of any part of the Solution that the Principal owns,


 


but does not include any exercise of the Licensed
Intellectual Property outside the Territory.


 


32.                Ownership


 


32.1             Ownership of Solution


 


Subject to clause 30, ownership of that part
of the Solution which is the subject of a Completion Certificate will vest in
the Principal free of encumbrances upon payment by the Principal for the
relevant Phase.  Ownership of the
Solution vests in the Principal free of encumbrances upon the payment in
accordance with clause 21.3 of the payment due after Completion of the NTS
Regional and Metropolitan Implementation Completion Phase.


 


32.2             Device and Software


 


Subject to clause 30, if the Contractor
replaces any material, Device, or Software when carrying out its obligations
under this agreement, ownership of the replacement material, Device or Software
will vest in the Principal.


 


32.3             Indemnity


 


The Contractor must indemnify the Principal
against all costs, losses, liabilities, damages, expenses, payments, or
outgoings the Principal may suffer or incur arising out of or in connection
with a failure by the Contractor to ensure that the Principal has unencumbered
ownership as required by this clause.


 


32.4             No Retention of
Ownership


 


The Contractor must ensure that
any sub-contracts or supply contracts relating to the Solution do not include
any retention of ownership clauses or any clauses under which the
sub-contractor or supplier retains any security or other interest in any item
which will become part of the Solution which would prevent ownership of those
items passing to the Principal in accordance with clause 32.1.


 


32.5             Fixtures


 


Nothing in this clause imposes an additional
obligation on the Contractor to ensure that any part of the Solution (including
any material, Device or Software replaced in the Solution) which is attached to
or installed on any property in undertaking the Work in accordance with the
Contractor’s obligations under this agreement does not become a fixture on such
property.


 


32A.             Branding


 


Certain materials, equipment and Software to
be incorporated in the Work have been specified in the Contractor’s Response by
reference to trade names or the names of manufacturers and relevant catalogue
information.  The Contractor, in
implementing the Solution, will provide all materials, equipment and software
in accordance with the specification for those materials, equipment and
Software in the Contractor’s Response, and will not change those materials,
equipment or Software without the approval of the Principal which will not be
unreasonably withheld if the Contractor has demonstrated to the reasonable
satisfaction of the Principal that:


 


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(a)                 the relevant materials,
equipment or Software (as the case may be) is or are obsolete or superseded;
and


 


(b)                 the alternative materials,
equipment or Software (as the case may be) is or are of at least the same
quality or performance.


 


32B.             Government Purchasing
Power


 


(a)                 The Principal may, by giving
written notice to the Contractor, seek the Contractor’s agreement to enable the
Principal to itself purchase any material, item of equipment or commercial off
the shelf Software which is included in the Contractor’s Response as part of
the Solution from alternative suppliers to those being used by the Contractor
and, where applicable, provide those materials, items of equipment or
commercial off the shelf Software to the Contractor, where it is able to
purchase the same materials, equipment or commercial off the shelf Software at
a lower price than the cost for those items specified in the Contractor’s
Response.


 


(b)                 If the Principal and the
Contractor agree, where the Principal purchases any material, equipment or
commercial off the shelf Software under clause 32B(a), the Capital Price will
be reduced by the amount the Contractor has specified for that material, item
of equipment or commercial off the shelf Software in the Contractor’s
Response.  The reduction in the Capital
Price will be effected by deducting the relevant amount from:


 


(i)                  the Payment
Milestone to which delivery of the relevant material, equipment or commercial
off the shelf Software relates; or


 


(ii)                 where delivery of the
material, equipment or commercial off the shelf Software relates to more than
one Payment Milestone or it is unclear to which Payment Milestone the delivery
relates, the next Payment Milestone occurring after the relevant notice given
under clause 32B(a).


 


33.                Loss or Damage


 


33.1             Make Good


 


Except as otherwise provided in this
agreement including clause 23.9:


 


(a)                 the Contractor must promptly
make good any loss or damage to the Solution (including damage to associated or
proximate Device or other equipment, vehicles and vessels); and


 


(b)                 if, as the result of any Work,
damage is caused to the property of the Principal, a Bus Operator or an Access
Provider the Contractor must promptly make good such loss or damage,


 


during the Term.


 


33.2             Reinstatement


 


If any part of the Solution for which the
Contractor is responsible is damaged or destroyed the Contractor must (without
limiting its obligations under this clause):


 


(a)                 subject to allowing reasonable
time for inspection by insurers, take immediate steps to clear any debris and
begin initial repair work and commence the prompt repair or replacement of the
damage so that:


 


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(i)                  it complies with the
Solution
Documentation and this agreement, including the
Requirements Document; and


 


(ii)                 there is minimal
disruption to the Solution such that, to the greatest extent possible, the
Contractor continues to comply with its obligations under the Project
Documents;


 


(b)                 manage all repair and
replacement activities subject to the direction of the Principal and so as to
minimise the impact on Delivery, the provision of the Initial Services and the
Core Services or the Solution; and


 


(c)                 subject to clause 36.3(c), apply
all insurance proceeds in the repair or reinstatement of the Solution,


 


unless the Principal determines that there is
no repair and replacement activities to be undertaken, in which case the
Contractor must pay the Principal the amount which it would have incurred in
carrying out any repair and replacement activities.


 


33.3             Discrepancies


 


The Contractor is responsible for all
discrepancies that result from fraud, misrepresentation, criminal or other
wrongful act, theft or default by the Contractor, its officers, employees,
subcontractors or agents or any Related Body Corporate and will indemnify the
Principal against any liability, cost, charge, expense or damages it suffers or
incurs as a result of such fraud, misrepresentation, criminal or other wrongful
act, theft or default.


 


34.                Security Bonds


 


34.1             Provision
of Security Bonds


 


The
Contractor must, on the date of this agreement, provide to the Principal, for
the purposes of ensuring the due and proper performance of its obligations
under this agreement, Security Bonds with an expiry date no earlier than 3
years from the date of this agreement in a form and substance satisfactory to
the Principal for the following amounts:


 


(a)                 for the amount of $30,000,000 (“Bond 1”); and


 


(b)                 for the amount of $15,000,000 (“Bond 2”).


 


34.2             Replacement of Bonds


 


(a)                 Subject to the release of the
Security Bonds under clause 34.7, the Contractor must, at least 1 month prior
to the anniversary date of this agreement each year, provide the Principal:


 


(i)                  with respect to Bond
1 either:


 


A.                 an extension
certificate for the current Security Bond for a further period of no less than
3 years from the relevant anniversary of this agreement; or


 


B.                  a replacement
Security Bond in a form and substance satisfactory to the Principal for the
total amount of Bond 1, less any proceeds of Bond 1 demanded and received by
the Principal prior to that time, with an expiry date no earlier than 3 years
from the relevant anniversary of the date of this agreement; and


 


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(ii)                 with respect to Bond
2 either:


 


A.                 an extension
certificate for the current Security Bond for a further period of no less than
3 years from the relevant anniversary of this agreement; or


 


B.                  a replacement
Security Bond in a form and substance satisfactory to the Principal for the
total amount of Bond 2, less any proceeds of Bond 2 demanded and received by
the Principal prior to that time, with an expiry date no earlier than 3 years
from the relevant anniversary of the date of this agreement.


 


(b)                 If the Principal does not
receive the extension certificates or replacement Security Bonds required under
clause 34.2(a) at least 1 month prior to the anniversary of the date of
this agreement each year, the Principal is entitled to demand and receive the
proceeds of the current Security Bonds and deposit those proceeds in the Bond
Security Account.


 


(c)                 If the Contractor provides the
Principal with a replacement bond in accordance with clause 34.2(a)(i)B or
clause 34.2(a)(ii)B, the Principal and the Contractor shall exchange the
relevant existing bond held by the Principal for the replacement bond.


 


34.3             Operation
of Bond Security Account


 


(a)                 Any interest earned on money in
the Bond Security Account will be paid to the Principal.


 


(b)                 If the Principal deposits money
into the Bond Security Account under this clause and the Contractor
subsequently provides Security Bonds satisfying the requirements of this
clause, the Principal will release the money in the Bond Security Account to
the Contractor.


 


(c)                 On the later of:


 


(i)                  the day 1 month
after the end of the Defects Liability Period; and


 


(ii)                 the day 1 month after the payment by the Contractor of all
liquidated damages and all other money owing to the Principal under this agreement,


 


the Principal shall release any money in the
Bond Security Account which exceeds the total amount for Bond 2, to the
Contractor.  On the date 12 months after
the expiration of the Term or earlier termination of this agreement and due
compliance by the Contractor of all of its obligations to the Principal, the
Principal shall release the money in the Bond Security Account to the
Contractor.


 


34.4             Access
of the Principal to Security Bonds


 


Without
in any way limiting the Principal’s rights to demand, receive, or use the
proceeds of the Security Bonds, the Principal will be entitled to demand,
receive, and use the proceeds of the Security Bonds or use any money deposited
into the Bond Security Account whenever it asserts a right to the payment of
moneys by the Contractor under, arising out of or in connection with this
agreement or otherwise at Law relating to the Solution.


 


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34.5             The
Contractor not to injunct the Principal


 


The
Contractor must not take any steps to injunct or otherwise restrain:


 


(a)                 any issuer of a Security Bond from paying the Principal
pursuant to a Security Bond;


 


(b)                 the Principal from taking any steps for the purpose of
making a demand under the Security Bonds or receiving payment under the
Security Bonds; or


 


(c)                 the Principal using the money received under the Security
Bonds.


 


34.6             Security
Bonds to be provided as a condition precedent


 


The
Contractor will provide the Security Bonds to the Principal under clause 34.1
as a condition precedent to this agreement.


 


34.7             Return
of Security Bonds


 


The
Principal will release the Security Bonds to the Contractor as follows:


 


(a)                 on the later of:


 


(i)                  the day 1 month after
the expiration of the Defects Liability Period; and


 


(ii)                 the day 1 month after the payment
by the Contractor of all liquidated damages and all other money owing to the
Principal under this agreement,


 


the
Principal must release the balance of Bond 1 then held to the Contractor;


 


(b)                 on the date 12 months after the expiration of the Term
or earlier termination of this agreement and due compliance by the Contractor
of all of its obligations to the Principal, the Principal must release the
balance of Bond 2 then held to the Contractor.


 


34.8             No
limit


 


In
no event will the existence of the Security Bonds or the stated amount of them
be construed to limit the amount of damages payable by the Contractor under or
in accordance with this agreement.


 


35.                Open Architecture and
Changes to the Solution


 


(a)                 The Contractor acknowledges that
the Principal, the Operators or any of them may use parties other than the
Contractor to vary, extend or modify the Solution including to provide
additional equipment, work and Software in respect of the Solution.


 


(b)                 The Principal must notify the Contractor
before the Principal, the Operators or any of them use a party other than the
Contractor to vary, extend or modify the Solution including to provide
additional equipment, work and Software in respect of the Solution.  The notice must specify with reasonable
detail the proposal for using such a third party and the scope of the proposed
variation, extension or modification of the Solution (a “Proposal”).  


 


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(c)                 The Contractor may, not later
than 2 Business Days after receipt of a notice from the Principal under

clause 35(b) request in writing to the Principal’s Representative such
additional information in relation to the Proposal as the Contractor reasonably
requires to undertake an analysis of the likely impact of the Proposal on the
Solution, the Initial Services and the Core Services (an “Impact Analysis”).


 


(d)                 Within 5 Business Days (or such
longer period as may be agreed between the parties) of receipt of a notice from
the Principal under clause 35(b) or the date on which the Principal
provides the additional information requested by the Contractor under clause
35(c), the Contractor must provide the Principal’s Representative with a
written response to the Principal’s notice (a “Response”).  The Response must set out the results of the
Impact Analysis, the extent (if any) to which, in the Contractor’s reasonable
opinion, the Contractor’s performance and service obligations and warranties
under this agreement would need to be varied as a consequence of the Proposal
and the Contractor’s conclusions, including reasons, in relation to the
feasibility of the Proposal.  The
Response may be disclosed by the Principal to the Operators or any of them
which are relevant to the Proposal.


 


(e)                 The Principal will act
reasonably and take the Response into account in deciding whether or not to
proceed to implement (or to amend and implement) the Proposal to which the
Response relates, or, in the case of a Proposal for the Operators or any of
them to use a party other than the Contractor to vary, extend or modify the
Solution, the Principal will provide a copy of the Response to the relevant
Operator or Operators.


 


(f)                  If the Principal, the
Operators or any of them decide to proceed with implementation (or the amendment
and implementation) of a Proposal, the Principal must notify the Contractor
before the Principal, the Operators or any of them use the relevant third
party.  The notice must specify the
extent (if any) to which the Contractor’s performance and service obligations
and warranties under this agreement are to be varied as a consequence of using
such third party.  The Principal must
take into account the Response and act reasonably in determining the content of
the notice.  For the avoidance of doubt,
if the Contractor considers that the Principal has not acted reasonably in
determining the content of such notice, it may refer this matter to the Expert
for determination in accordance with clause 49.5.


 


(g)                 If the Contractor accepts the
variation to the Contractor’s performance and service obligations and
warranties specified in the notice given under clause 35(f), the performance
and service obligations and warranties are varied as set out in the
notice.  If the Contractor does not
accept the variation to the Contractor’s performance and service obligations
and warranties specified in the notice given under clause 35(f), the Contractor
must perform the variation, extension or modification on substantially the same
terms that the party other than the Contractor was proposing and the Contractor’s
performance and service obligations and warranties under this agreement will be
varied as determined by the Expert under clause 49.5, or in the case of clauses
49.5(l) or (m), by the Arbitrator.


 


(h)                 The Contractor agrees that any
interface work required by the Principal to be undertaken by the Contractor in
order to integrate any new or additional equipment, works or Software supplied
by a party other than the Contractor into the Solution (other than interface
work which is included in the Initial Services or Core Services) will be
performed by the Contractor as a Variation in accordance with clause 20.


 


(i)                  Any Initial Services
or Core Services which the Principal requires the Contractor to provide in
respect of any variation, extension or modification to the Solution carried


 


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out
by a party other than the Contractor (other than such services which are
included within the Initial Services or Core Services) will be a Variation in
accordance with clause 20.


 


(j)                  The Contractor must:


 


(i)                  subject to the other
terms of this agreement, not make (or permit to be made) any changes to the
Solution or the Initial Services and Core Services without the Principal’s
prior written approval; and


 


(ii)                 notify the Principal of any change
made to the Solution.


 


36.                Insurance


 


36.1             Insurances


 


(a)                 The Contractor will, at its own
cost, and by no later than the date the Principal issues a Certificate of
Completion in respect of the NTS Mobilisation Phase or, in the case of the
insurances described in

clause 36.1(a)(ii) and (iv), by the Commencement Date, effect and
maintain the following insurances:


 


(i)                  insurance policy or
policies providing cover for:


 


A.                 physical loss,
destruction or damage to all property identifiable as forming or to form part
of the Work or the Solution for a sum insured of not less than $[**];


 


B.                  physical loss,
destruction or damage occurring in transit (including marine transit, if
applicable) to any relevant item intended to be employed in or in connection
with the Work or the Solution, from the time at which the risk in respect of
such items passes from the manufacturer or vendor to the Contractor, for a sum
insured of not less than the value of the property;


 


C.                  loss of cash in
transit within Australia, including loss due to theft, from the date on which
the Contractor commences providing the Cash Collection Services;


 


D.                 consequential loss
(business interruption) in respect of additional expenditure/increased costs of
working, claims preparation costs and loss of turnover/output arising out of
physical loss, destruction or damage to the property identified in clause
36.1(a)(i)A, for a sum insured of not less than $[**];


 


(ii)                 public and products
liability, indemnifying all third party claims in respect of:


 


A.                 loss, destruction or
damage to real or personal property, including property of the Principal, and
including ensuing loss of use of that property (legal liability only); and


 


B.                  personal injury,
disease or death of any person,


 


arising out of or in connection with the Work
or the Solution including arising out of or in connection with rail risks, both
for a sum insured of not less than $[**] for any one claim and in the aggregate
(public


 


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liability) and for all claims in the
aggregate, any one period of insurance (product liability);


 


(iii)                current motor vehicle
registration insurance in respect of all vehicles of the Contractor used in
connection with the Work or the Solution;


 


(iv)               professional indemnity
insurance for itself and its employees against civil liability arising out of
or in connection with the Work or the Solution, for a sum insured of not less
than $[**] million for any one claim and in the aggregate;


 


(v)                employer’s liability
and workers’ compensation insurance against any liability which may arise at
common law or by virtue of any relevant workers’ compensation or employers’
liability legislation, whenever and to the extent required by law;


 


(vi)               key person insurance
providing cover for loss resulting from death or disability of key personnel
involved in management of the Work or the Solution and the costs of acquiring a
suitable replacement;


 


(vii)              fidelity guarantee and
computer crime insurance for a sum insured of not less than $[**] million
for any one claim to enable the Contractor to fulfil its obligations under
clause 33.3; and


 


(viii)             other insurances which
the Principal reasonably requires as agreed in writing prior to the
Commencement Date.


 


(b)                 In addition to the insurances
referred to in clause 36.1(a), the Contractor will effect and maintain all
insurances in a manner and to such extent which is reasonable and customary for
a prudent business enterprise engaged in similar Work or providing similar
services.


 


(c)                 The Contractor must maintain the
insurances referred to in clauses 36.1(a) and 36.1(b) until:


 


(i)                  in the case of the
insurance required under clause 36.1(a)(i)C until the expiry of the
Initial Services Term or the earlier termination of the Initial Services;


 


(ii)                 in the case of the
required professional indemnity insurance, 7 years from the expiry of the Term
or earlier termination of this agreement; and


 


(iii)                in the case of the
other insurances, until the expiry of the Term or earlier termination of this
agreement.


 


36.2             General Requirements


 


(a)                 All insurance which the
Contractor is required to effect under this agreement:


 


(i)                  must be effected
with insurers with an S & P or Moodys or A.M. Best rating of no
less than A minus (or the equivalent) and otherwise be approved by the
Principal; and


 


(ii)                 must be on the terms
required by clause 36.3 and otherwise as approved by the Principal.


 


(b)                 The Contractor must:


 


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(i)                  punctually pay all
premiums, commissions, stamp duties, charges, taxes and other expenses
necessary for effecting and maintaining in force each such insurance policy
required by this agreement;


 


(ii)                 pursue any insurance
claim in relation to the Project expeditiously;


 


(iii)                not do anything or
permit anything to be done which may prejudice any insurance policy required by
this agreement or omit to do anything where such omission may prejudice any
such insurance policy;


 


(iv)               notify the Principal of
any fact or circumstance or change in circumstances which may prejudice any
such insurance policy;


 


(v)                provide any
information requested by the insurer in relation to any such insurance policy;


 


(vi)               notify the relevant
insurer of any enhancement in the value of the property required to be insured
under clause 36.1(a)(i)A which increase the value of that property; and


 


(vii)              comply at all times with
the terms and conditions of each such insurance policy including, without
limitation, the provisions relating to disclosure, notification and claims
co-operation.


 


(c)                 The Contractor may arrange such
other insurance as it may reasonably require.


 


(d)                 In the case of the insurances
specified in clause 36.1(a)(iv), the Contractor will use its best endeavours to
ensure that any subcontractors and consultants whom it may engage in their
professional capacity have professional indemnity insurance on similar terms
appropriate to the responsibilities undertaken.


 


(e)                 In the case of the insurances
specified in clause 36.1(a)(v), the Contractor will ensure that each of its
subcontractors and consultants who are themselves employers will effect such
insurance as required by law.


 


36.3             Contents of Policy


 


Insurances which the Contractor is required
to effect under this agreement must contain terms such that:


 


(a)                 subject to clause 36.3A, no
policy has a deductible greater than $[**];


 


(b)                 in the case of the insurances
specified in clauses 36.1(a)(i), 36.1(a)(ii), 36.1(a)(vi) and
36.1(a)(viii), the insurances must insure the Contractor, the Principal, the
Government and the Governmental Agencies to the extent of their insurable
interest according to the Project Documents, for their respective rights,
interests and liabilities, in the totality of the subject matter of the
insurance;


 


(c)                 in the case of the insurances
specified in clause 36.1(a)(i) and to the extent that the insurer agrees
to do so:


 


(i)                  proceeds of any
payment in respect of such insurance are to be paid to the Principal or to such
account as the Principal may require; and


 


(ii)                 the Principal will
then make these proceeds available to the Contractor in order that it be able
to meet its contractual obligations under clause 33.2(c),


 


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provided that if the Contractor directly
receives any proceeds from the insurances specified in

clause 36.1(a)(i) it will pay all such proceeds to the Principal or to
such account as the Principal may require and paragraph (ii) of this
clause 36.3 will then apply.


 


(d)                 the case of the insurances
specified in clause 36.1(a)(ii), there is a cross liability clause for the
purposes of which the insurer accepts the term “insured” as applying to each of
the persons comprising the insured as if a separate policy of insurance had
been issued to each of them (subject always to the limit of the policy not
being increased as a result);


 


(e)                 in the case of all insurances
required by this agreement, the insurer:


 


(i)                  will not impute to a
named party or loss payee knowledge or intention or a state of mind of the
policy holder or of any other named party or loss payee;


 


(ii)                 acknowledges that the
insured parties’ and loss payees’ interest is in the entire assets and
undertaking of the Work and the Solution and waives any rights of subrogation
it may have against them; 


 


(f)                 in the case of all insurances
required by this agreement, no reduction in limits or scope of coverage
affecting the Work or the Solution will be made in any such policy during the
period of insurance; and


 


(g)                 in the case of all insurances
required by this agreement, the policy is subject to and governed by the laws
of the place where the insurance claim arises and is brought.


 


36.3A          Payment of deductibles


 


The Principal acknowledges that some
insurance policies required to be effected by the Contractor under this
clause 36 will have deductibles greater than $[**] but not more than
US$[**] (or such other amount notified to the Principal in accordance with this
clause).  Where the Government or
Governmental Agencies having an insurable interest according to the Project
Documents (in this paragraph the “Other Insured Parties”)
or the Principal under the insurances required to be effected and maintained
under this clause 36 has paid or incurred, or is required to pay or incur, any
deductible in respect of a claim made or to be made or which, but for the size
of the deductible, would have been made under an insurance policy which is
required to be effected by the Contractor under this clause 36 and such deductible
is greater than $[**], or where the Principal or any Other Insured Party could,
but for the size of the applicable deductible have made a claim under such an
insurance policy, [**] under and in accordance with clause 12 of the Parent
Company Guarantee [**] by the Principal or any Other Insured Party [**].  The Principal will [**].  If the deductible under the Keane Inc. global
insurance policy is proposed to be increased above US$[**] at any time during
which the Contractor’s obligations to effect and maintain insurance under this
clause 36 are being met under the Keane Inc. global insurance policy, the
Contractor will give written notice to the Principal of any such increase in
the deductible taking effect.


 


36.4             Information


 


(a)                 Except to the extent it may be
prevented by commercial confidentiality obligations owed towards its insurer,
the Contractor must give the Principal certified copies of all:


 


(i)                  policies or, if the
Contractor is bound by a duty of confidentiality to the issuer of any such
policy prohibiting disclosure of its terms, then instead of a copy of such
policy, a letter from the insurance broker to the


 


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Principal stating that the policy conforms
with the requirements of this agreement, and containing a statement
acknowledging that the Principal is relying upon that representation;


 


(ii)                 renewal certificates;
and


 


(iii)                endorsement slips,


 


as soon as it receives them from the insurer.


 


(b)                 The Contractor must, upon
request, provide to the Principal:


 


(i)                  copies of receipts
for payment of premiums for any insurance policy required by this agreement;


 


(ii)                 certificates of
currency in respect of each insurance policy required by this agreement;


 


(iii)                such other details as
to each such insurance policy as the Principal may reasonably require.


 


(c)                 The Contractor must notify the
Principal, immediately upon the occurrence of an event which would or may
entitle the Contractor to make a claim under any insurance policy (other than
the professional indemnity insurance policy), and promptly do anything
necessary in respect of such a claim including, without limitation, notifying
the insurer.


 


36.5             Remedy of Default


 


If any default is made by the Contractor in
effecting or maintaining an insurance policy required by this agreement in
accordance with this agreement or if any such insurance policy becomes void or
voidable, the Principal may (but is not obliged to) effect or maintain said
insurance policy at the cost of the Contractor.


 


36.6             Enforcement


 


The Contractor will do all things reasonably
necessary and provide all documents, evidence and information necessary to
enable the Principal to collect or recover any moneys due or to become due to
the Principal in respect of any insurance policy required by this agreement.


 


36.7             Cancellation and
Change


 


(a)                 Without prejudice to the
requirements of this clause, the Contractor will not cause or take any steps to
bring about the lapse, cancellation, material change or reduction of any
insurance policy required by this agreement.


 


(b)                 Without limiting its obligations
under this agreement, the Contractor will immediately notify the Principal of
any lapse, cancellation, material change or reduction of any insurance policy
required by this agreement and will provide to the Principal promptly upon
receipt a copy of all notices it receives from any insurer relating to any
proposed lapse, cancellation, material change or reduction of any such
insurance policy.


 


(c)                 The Contractor will immediately
notify the Principal in the event that a risk covered by any of the insurances
required by this agreement becomes an uninsurable risk.


 


(d)                 Provided that the Contractor has
given the Principal notice in accordance with clause 36.7(b) or (c) as
applicable, the Contractor will not be in breach of its


 


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obligations
to effect and maintain the insurances required under this clause 36 to the
extent that, and for so long as it has demonstrated to the satisfaction of the
Principal that insurance cover for a risk required to be so maintained is not
available to:


 


(i)                  the Contractor; or


 


(ii)                 if the Contractor is
at the relevant time meeting its obligations under this clause 36 under the
Keane Inc. global policy, Keane Inc.,


 


on commercially reasonable terms in the
international insurance market place from insurers meeting the requirements of
clause 36.2(a)(i).  If the Contractor has
obtained any relief from its insurance obligations pursuant to this clause
36.7(d), the Contractor must, at the same time that it provides the Principal
with its detailed financial forecasts under clause 47.2(b)(i)B, give to the
Principal written confirmation that the relevant insurance cover remains
unavailable as described in this clause 36.7(d).


 


37.                Force Majeure


 


37.1             Force Majeure Notice


 


(a)                 If the Contractor alleges or
wishes to claim that Force Majeure has occurred the Contractor must give the
Principal prompt written notice of the Force Majeure once it becomes aware of
the same and the obligations affected together with full particulars of all
relevant matters including:


 


(i)                  details of the Force
Majeure;


 


(ii)                 details of the
obligations affected;


 


(iii)                details of the action
that the Contractor has taken and/or proposes to take to remedy the situation;


 


(iv)               an estimate of the time
during which the Contractor will be unable to carry out its obligations due to
the Force Majeure;


 


(v)                an estimate of the
costs that the Contractor will incur to remedy the situation; and


 


(vi)               details of all
insurance moneys upon which the Contractor will be able to rely in making good
damage caused by the Force Majeure.


 


(b)                 After giving notice under clause
37.1(a) the Contractor must continue to provide to the Principal all
relevant information pertaining to the Force Majeure.


 


37.2             Meeting, Application
of Provisions


 


The parties must meet within 5 Business Days
of service of a notice of a Force Majeure event to determine:


 


(a)                 if the Force Majeure is covered
by insurance;


 


(b)                 the estimated length of time for
which the Force Majeure will continue; and


 


(c)                 a plan of action to remedy (if
possible) the effects of the Force Majeure.


 


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37.3             Suspension of
Obligations


 


(a)                 If a Force Majeure occurs each party’s obligations under this agreement (other than under this
clause 37) which are affected by the Force Majeure will be suspended but only
to the extent and for so long as such obligations are affected by the Force
Majeure.


 


(b)                 If a Force Majeure occurs and a
notice under clause 37.1(a) is issued, no party will be in default
of its obligations under this agreement in so far as the failure or delay in
the observance or performance of those obligations by that party is caused by the Force Majeure specified in the Force Majeure
notice.


 


(c)                 Upon the Principal or the
Contractor (as the case may be) becoming able to recommence performing its obligations
which were suspended under clause 37.3(a), the Principal or the Contractor (as
the case may be) must recommence the performance of those obligations.


 


37.4             Duty to Remedy Force
Majeure


 


(a)                 Where there is a remedy, the
Contractor must use its reasonable endeavours to remedy the effects of a Force
Majeure promptly, including making any reasonable expenditure of funds which
may mitigate or avoid the effect of the Force Majeure.


 


(b)                 Where a Force Majeure has
resulted in damage to the Solution, the Contractor must:


 


(i)                  promptly
reconstruct, rectify or replace that part of the Solution which has been
damaged; and


 


(ii)                 apply
any insurance proceeds in fulfilment of its obligations under clause 37.4(b)(i) and,
if it fails to do so, account to the Principal for any insurance proceeds.


 


38.                Solution security and disaster recovery


 


38.1             Security
measures updated


 


The
Contractor must update its security procedures and must procure that the
parties with whom the Principal has Direct Agreements update their security
procedures as technology and security threats evolve to provide commercially
reasonable security capabilities at all times in accordance with Industry
Practice and this agreement, including the Requirements Document and the Solution Documentation.


 


38.2             Security
audit


 


(a)                 The Contractor will have its security procedures and
physical facilities audited, and must procure that the parties with whom the
Principal has Direct Agreements have their security procedures and physical
facilities audited, on an annual basis by a qualified, nationally recognised
firm and the Contractor must take such action as is reasonable to comply with
any exceptions or discrepancies discovered by any audit.


 


(b)                 The Contractor must:


 


(i)                  provide the Principal
with a copy of any such audits within 5 Business Days of it becoming available;


 


(ii)                 prepare a corrective action plan to
deal with any exceptions or discrepancies discovered as a result of the audit
and provide the Principal


 


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with
a copy of that plan within 2 Business Days of provision of the audit under
clause 38.2(b)(i);


 


(iii)                confirm promptly and in any event
within 3 months that it has performed all work disclosed by the audit and the
corrective action plan as required to be performed.


 


38.3             Breaches
and threatened breaches of Solution security


 


The
Contractor must:


 


(a)                 report:


 


(i)                  any attempted or
threatened breach of Solution security; and


 


(ii)                 any attempted or threatened
unauthorised access to the Solution,


 


to
the Principal as soon as practicable and in any event within 48 hours of
becoming aware of the attempted or threatened breach or unauthorised access;


 


(b)                 report:


 


(i)                  any breach of Solution
security; and


 


(ii)                 any unauthorised access to the
Solution,


 


to
the Principal as soon as practicable and in any event within 12 hours of
becoming aware of the relevant breach or unauthorised access;


 


(c)                 where there has been a breach of Solution security or
unauthorised access to the Solution, prepare a corrective action plan to
address the breach or unauthorised access or both and provide the plan to the
Principal within 24 hours of the breach or unauthorised access;


 


(d)                 within 5 Business Days receipt of the corrective action plan
from the Contractor, the Principal’s Representative may give notice to the
Contractor that the whole or part of the corrective action plan does not
address the concerns of the Principal with respect to the security breach and
direct the Contractor to resubmit a revised corrective action plan under clause
38.3(c) which addresses the Principal’s concerns, within 1 Business Day;


 


(e)                 proceed to implement and carry out any corrective action
plan or part of any corrective action plan which has not been rejected by the
Principal under clause 38.3(d) and take such steps as may reasonably be
requested by the Principal to prevent further breaches or unauthorised access.


 


38.4             Business
Continuity Plan


 


(a)                 The Contractor must comply with any obligations set out in
the Business Continuity Plan, which plan must be consistent with any business
continuity plan of the Principal and reasonably acceptable to the Principal.


 


(b)                 The Contractor must prepare and submit to the Principal for
its approval an updated Business Continuity Plan at the same time that it
provides the Principal with its detailed financial forecasts under
clause 47.2(b)(i)B and at any time if requested to do so by the Principal.  The Principal may within 10 Business Days of receipt of an
updated Business Continuity Plan, advise the Contractor whether or not it
considers such plan to be in accordance with this agreement, including the
Requirements


 


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Document
and the Solution Documentation, or reject it and provide its comments (if
any).  If a Business Continuity Plan is
rejected, the Contractor must promptly,
and in any event within 5 Business Days, submit to the Principal a redraft
of the plan.  The Contractor must take
into account any comments of the Principal in finalising the Business
Continuity Plan.


 


(c)                 The Contractor must set up and have rendered operational a
facility located in a geographically diverse area that is capable of
replicating that part of the Solution that is used for the processing of
aggregated data.  The Business Continuity
Plan must include a complete and periodic test program for the alternate
facility.


 


(d)                 Any agreement with a third party for disaster recovery or
backup services will be subject to approval by the Principal, and must require
the third party service provider to take reasonable steps to maintain the
confidentiality of all Software and data.


 


(e)                 The Contractor must use its best endeavours to assist the
Principal if the Principal needs to implement its own Business Continuity Plan.


 


39.                Contractor’s Representations


 


39.1             Contractor’s
representations


 


The
Contractor makes the following continuing representations and warranties for
the benefit of the Principal:


 


(a)                 it is duly incorporated and is validly existing under the
laws of its jurisdiction of incorporation and it has the requisite power to own
its properties and assets and to carry on its business as now conducted or
proposed to be conducted;


 


(b)                 it has produced its Constitution and any relevant
shareholder agreements to the Principal at the date of this agreement, signed
by its solicitors for the purposes of identifying that it is the Contractor’s
Constitution including all resolutions affecting it;


 


(c)                 it has in full force and effect
all authorisations necessary to enter into and perform its obligations under
the Project Documents.  It has complied
with each of them and paid all applicable fees in respect of them;


 


(d)                 it has power to enter into and
perform its obligations under the Project Documents, to carry out the
transactions which those documents contemplate will be carried out by the
Contractor and to carry on its business, and the entry into of each such
document is a proper exercise of power;


 


(e)                 the execution, delivery and
performance of the Project Documents and the transactions under each of them do
not:


 


(i)                  violate in any
respect a provision of its Constitution or any Law or official directive which
is binding on it;


 


(ii)                 violate in any
respect a provision of any other document or agreement to which it is a party;
or


 


(iii)                cause a limitation on
its powers or the powers of its directors or other officers to be exceeded;


 


(f)                 its obligations under the Project Documents are legal, valid
and binding and are


 


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enforceable against it and in accordance with
its terms subject to the availability of equitable remedies and, to the extent
applicable, laws relating to the enforcement of creditor’s rights;


 


(g)                 it has carefully reviewed and understands all of the
requirements of the Project Documents, and has determined that it is fully able
to conduct, perform, and complete the requirements of the Project Documents
within the specified timeframe and that it is fully able to perform the Work in
accordance with the Project Documents;


 


(h)                 it has reviewed the requirements for the format and detail
of records to be maintained at all times pursuant to this agreement and that it
has instituted or will institute the preparation and maintenance of such
records;


 


(i)                  it does not enter into any of the Project Documents in the
capacity of trustee of a trust or settlement and will not act at any time
during the Term as trustee of a trust or settlement;


 


(j)                  it will not engage in any conduct which is misleading or
deceptive or likely to mislead or deceive;


 


(k)                 it has or will obtain all required Approvals, licences,
professional ability, skills, capacity and financial resources, and has
available or will obtain the necessary Device and other equipment, materials,
tools and facilities to perform its obligations in accordance with the
requirements contained in the Project Documents;


 


(l)                  each representation and warranty made by it in any Project
Document is true, complete, accurate and correct;


 


(m)               all information, representations and other matters of fact
communicated in writing to the Principal or its agents or employees in
connection with the Contractor’s response to the request for tender in respect
of the Project or in the course of subsequent negotiations in respect of this
agreement were and remain true, complete, accurate and correct in all respects;


 


(n)                 it has not withheld from the Principal any document,
information or other fact material to the decision of the Principal to enter
into any Project Document to which it is party;


 


(o)                 all personnel performing Work will have the necessary
licences, certifications, credentials and expertise and must otherwise be fully
qualified to perform the Work to which they are assigned;


 


(p)                 no litigation, arbitration, tax
claim, dispute or administrative or other proceeding (which has not been
disclosed to the Principal in writing prior to the date of this agreement) has
been commenced or, to its knowledge, threatened against it or any Related Body
Corporate which is likely to have a material adverse effect upon it or its
ability to perform its financial or other obligations under the Project
Documents, in particular there is no outstanding product liability or workers’
compensation claim;


 


(q)                 it will carry out the Work in a
manner so that it, as far as reasonably practicable, avoids inconvenience or
disruption to the business of any Access Provider or any third party;


 


(r)                  it will immediately
notify the Principal of the occurrence of, or the pending or threatened
occurrence of, any event of which it is aware that may cause or


 


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constitute
a breach of any of the representations, warranties or covenants contained or
made in connection with any Project Document, including without limitation, any
event that may result in a material adverse change in the business of the
Contractor or may affect the financial viability of the Contractor’s business;


 


(s)                 all financial projections and
information in relation to the financial position and prospects of the
Contractor and the financial capability of the Contractor to fund its
commitments under this agreement, given before or after the Commencement Date,
have been or will be given after diligent inquiry and investigation on the part
of the Contractor and there has been no material adverse change in the
financial position or prospects of the Contractor after the date to which the
relevant financial projections and information relate;


 


(t)                  (i)                  its most recent
consolidated and unconsolidated audited (if the requirement for auditing is
applicable) accounts give a true and fair view of its and its Related Bodies
Corporate state of affairs as at the date to which they relate and the results
of its and its Related Bodies Corporate operations for the accounting period
ended on such date;


 


(ii)                 there has been no
material change in its or its Related Bodies Corporate state of affairs since
such date;


 


(iii)                in respect of the
Contractor, such accounts have been prepared in accordance with the Corporations Act and generally
accepted Australian accounting principles and practices consistently applied,
and in respect of all other relevant entities, such accounts have been prepared
in accordance with generally accepted accounting principles and practices
consistently applied in the country of origin or incorporation of the relevant
entity, except to the extent of departures from such principles and practices
disclosed in such accounts; and


 


(iv)               there is no financial
indebtedness or any other contingent liability which is not disclosed in such
accounts;


 


(u)                 it has not engaged in any
uncompetitive behaviour or other practice which has denied or may deny
legitimate business opportunities to other tenderers or other participants in
the tender process, including but not limited to:


 


(i)                  the payment of
unsuccessful tender fees; or


 


(ii)                 the
payment to any third party of money, incentives or other concessions contingent
upon the success of the tender which do not relate to the provision of bona
fide services relevant to the object of the tender;


 


(v)                 it: 


 


(i)                  is not directly or
indirectly involved in and does not conduct any business or activity, other
than the Project;


 


(ii)                 does not engage any employee in any
activity or business which it may not be involved in or conduct under paragraph
(i); and


 


(iii)                does not have any subsidiary as
that term is defined in the Corporations Act, 


 


and will not do so without the prior written approval of the Principal
(which approval the Principal may withhold in its absolute discretion).  


 


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(w)                it is not in default of its obligations under this
agreement;


 


(x)                 all copies or originals of
documents or instruments provided to the Principal under or in connection with
any Project Document (including its latest audited accounts and all
authorisations) are or will be, at the date of this agreement or of their later
provision, originals or true copies of the documents or instruments which they
purport or have been represented to be. 
Where applicable, those documents are in full force and effect;


 


(y)                 there are no documents or
agreements in existence at the date of this agreement and there will not be any
documents or agreements in the future which have not been or will not be
disclosed to the Principal which are material in the context of the Project
Documents or the Project or which have the effect of varying any Project
Document and, in respect of Project Documents to which the Principal is not a
party, performance of which would have a material adverse effect on the
Project;


 


(z)                 neither it nor any of
its assets enjoys any immunity from set-off, suit or execution; and


 


(aa)              it is responsible for any consequences arising from the
structure adopted by the Contractor, including any tax, financial or other
consequences.


 


40.                Indemnity and liability


 


40.1             Contractor
Indemnity


 


Subject to clause 40.3(b), the
Contractor indemnifies and keeps indemnified on demand and by way of continuing
indemnity, defends, and saves harmless the Principal, the Government,
Governmental Agencies, the Bus Operators and the Access Providers, including
the Operators, their members, directors, officers, employees, agents and
subcontractors (each an “Indemnified Party”) from and against all liabilities,
damages, losses, penalties, demands, suits, costs, payments, outgoings,
expenses (including reasonable solicitor’s fees and expenses) and proceedings
of any nature whatsoever for:


 


(a)                 loss of or damage to property;
and


 


(b)                 claims by any person in respect
of personal injury or death,


 


to the extent to which they arise out of or
as a consequence of:


 


(c)                 the Contractor’s performance of
the Work;


 


(d)                 a breach of this agreement or
any Project Document by or on behalf of the Contractor;


 


(e)                 any negligent, wilful or
fraudulent act or omission by or on behalf of the Contractor;


 


(f)                 a breach of a representation or
warranty given by the Contractor under this agreement; or


 


(g)                 any other act or omission by or
on behalf of the Contractor in relation to the Work,


 


except to the extent that such loss, damage,
injury or death is attributable to the negligent or wilful act or omission of
the Indemnified Party, the failure of the Indemnified Party to take reasonable
steps to mitigate loss or damage suffered, or the breach by the Principal of
its obligations under this agreement.  In
the event such loss, damage, injury or death results from


 


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the joint or concurrent act or omission of
the parties, the Contractor will be liable under this indemnity in proportion
to its relative degree of fault.  


 


40.2             Contractor Indemnity
to Principal for Economic Loss


 


Subject to clauses 40.3(a) and
40.4(b), the Contractor indemnifies and keeps indemnified on demand and by way
of continuing indemnity, defends, and saves harmless the Principal from and
against:


 


(a)                 direct economic loss (being
economic loss that directly and naturally flows in the normal course of events
from the occurrence of the relevant event) suffered by the Principal; and


 


(b)                 the loss of any fees or payments
payable by third parties to the Principal during the Term for: 


 


(i)                  Smartcard based
transport ticketing services in Victoria; and


 


(ii)                 services provided by
the Principal by use of the Solution (“Third Party Solution Services”), provided that the Contractor:


 


A.                 has been given
reasonable prior written notice of the proposed supply of the Third Party
Solution Services by the Principal to the relevant third party;


 


B.                 any work necessary to
change, extend or modify the Solution (“Extended Solution”) to
enable it to be used by the Principal for the supply of the Third Party
Solution Services by the Principal to the relevant third party has been
undertaken accordance with clauses 20 or 35 and the Contractor has agreed that
this indemnity is not affected; and


 


C.                 continues to provide,
in accordance with this agreement, the Core Services and other services
necessary for the operation, support and development of the Extended Solution,


 


to the extent to which such losses arise as a
consequence of:


 


(c)                 a breach of this agreement or
any Project Document by or on behalf of the Contractor;


 


(d)                 any negligent, wilful or
fraudulent act or omission by or on behalf of the Contractor; or


 


(e)                 a breach of a representation or
warranty given by the Contractor under this agreement,


 


except to the extent that such losses are
attributable to:


 


(i)                  the negligent or
wilful act or omission of the Principal;


 


(ii)                 the failure of the
Principal to take reasonable steps to mitigate loss or damage suffered; or 


 


(iii)                the breach by the
Principal of its obligations under this agreement.  


 


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In the event that any such loss results from
the joint or concurrent act or omission of the parties, the Contractor will be
liable under this indemnity in proportion to its relative degree of fault.  


 


40.3             Liability of
Contractor


 


(a)                 To the maximum extent permitted
by law, the total liability of the Contractor to the Principal or the
Government or any Governmental Agency arising under, out of, or in connection
with this agreement or any Project Document, or for any act or omission of the
Contractor, its Related Bodies Corporate or its sub-contractors under this
agreement or any Project Document, whether such liability arises under
contract, tort (including negligence) or for any other cause of action, will
not exceed $[**]
dollars).  This clause 40.3 does not
apply to the indemnity in clause 40.1.


 


(b)                 Subject to clauses 40.3(d) and
29.7, but notwithstanding any other provision of this agreement, to the maximum
extent permitted by law, the Contractor excludes all liability to the Principal
and each other Indemnified Party (whether by way of indemnity, damages or
otherwise) in respect of: 


 


(i)                  any Indirect or
Consequential Loss incurred or sustained by the Principal or any other person,
arising under, out of, or in connection with this agreement or any Project
Document, or for any act or omission of the Contractor, its Related Bodies
Corporate or its sub-contractors under this agreement or any Project Document;
or


 


(ii)                 loss of farebox
revenue (being any revenue or money, including fares and transfer, zone and
park and ride receipts, paid or payable by transport passengers, also known as “passenger
revenue”),


 


whether such liability arises under contract,
tort (including negligence) or for any other cause of action.


 


(c)                 Subject to clause 40.3(d), for
the purposes of clauses 40.3(b) and 40.5, “Indirect or Consequential Loss”
suffered by a person means any special, indirect, or consequential loss or
damage incurred or sustained by that person, including without limitation,
liability for any loss of information, data, goodwill, revenue, profits,
business, or any interruption to business or services or for any failure to
realise anticipated savings, even if such loss or damage was in the reasonable
contemplation of the parties at the time of entry into this agreement.


 


(d)                 For the purposes of
clause 40.3(c), where that person is the Principal:


 


(i)                  “Indirect or
Consequential Loss” does not include loss for which the Principal is
indemnified under clause 40.2; and


 


(ii)                 the parties agree
that any Services Charge adjustments for failure by the Contractor to meet the
Performance Requirements are not in the nature of loss or damage and
consequently are not Indirect or Consequential Loss of the Principal.


 


40.4             Exclusions


 


(a)                 Subject to clause 40.4(b),
the limitation in clause 40.3(a) does not apply to:


 


(i)                  liability in relation
to intellectual property under clause 30;


 


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(ii)                 loss or liability for
which the Contractor is required to be indemnified under a policy of insurance
required to be maintained under clause 36 which the Contractor recovers or
ought reasonably to have recovered but for an act or omission by the
Contractor, except where the Contractor has been unable to recover under the
policy due to the occurrence of an Event of Insolvency in relation to the
insurer; 


 


(iii)                loss or liability of
the Contractor which it is required to pay in respect of any deductible payable
in relation to any policy of insurance required to be maintained under clause
36;


 


(iv)               loss, liability or
claims in respect of loss of or damage to property or claims in respect of
injury to, or death, of persons; 


 


(v)                any amounts payable by
the Contractor pursuant to clauses 18.5 and 18.6.


 


(b)                 The limitation in
clause 40.3(a) does apply to the Contractor’s indemnity under clause
40.2.


 


40.5             Liability of Principal


 


(a)                 The total liability of the
Principal to the Contractor and its sub-contractors for Indirect or
Consequential Loss under or in any way arising out of or in connection with
this agreement or any other Project Document will not exceed $10,000,000. 
To avoid doubt, liability of the Contractor for loss or damage suffered
by its sub-contractors arising out of an act or omission of the Principal is
not Indirect or Consequential Loss of the Contractor unless the loss or damage
of the relevant sub-contractors is itself Indirect or Consequential Loss of
that sub-contractor.


 


(b)                 In any Claim for
breach of this agreement, the Contractor will not be entitled to damages on
account of loss of profits under this agreement for a period in excess of 2
years.


 


41.                Step-in and temporary suspension of Work


 


41.1             Principal’s right of
step-in


 


(a)                 If:


 


(i)                  the Work is not
being performed in accordance with this agreement, including the Requirements
Document and the Solution Documentation in a material respect, there is real
potential for this to lead to the occurrence of an Event of Default and the
Principal is of the reasonable opinion that it should exercise its rights under
this Clause 41.1 as a consequence;


 


(ii)                 there is an Event of
Default; or


 


(iii)                there is an Emergency,


 


then the Principal is entitled to take any
steps required to remedy the situation and, without prejudice to any of its
other remedies and at the Principal’s discretion, where the Principal has
stepped in under clause 41.1(a)(i) or (ii), the Contractor must pay
to the Principal on demand the cost of carrying out such steps (taking into
account any amounts which would otherwise be payable by the Principal to the
Contractor in respect of the Work which has been remedied by the Principal under


 


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this clause) provided
that in circumstances where it is reasonable to do so, the Principal has given
the Contractor 5 Business Days written notice of its intention to remedy the
situation and the Contractor has failed to remedy the situation within such a
notice period.  Where the Principal has
stepped in because there is an Emergency, unless the Emergency was caused by an
Event of Default or a failure by the Contractor to perform its obligations under
this agreement, the Principal will pay its own costs of carrying out such
steps.


 


(b)                 Without limiting its rights
under clause 41.1(a), the Principal may, pursuant to clause 41.1(a), do:


 


(i)                  all things:


 


A.                 which the Contractor
is obliged to do under or in connection with this agreement, any other Project
Document to which it is a party or any Law;


 


B.                 which the Principal
is under any Project Document or any Law authorised or empowered to do with
respect to the Contractor; and


 


(ii)                 anything necessary to
perform the Work.


 


(c)                 The Contractor agrees to provide
reasonable assistance to the Principal in the exercise of its rights under
clause 41.1(a) and will ensure that all employees, subcontractors and
third parties do the same.


 


(d)                 The Contractor acknowledges and
agrees that:


 


(i)                  the Principal will
not have any liability to the Contractor, and the Contractor will not be
entitled to make any Claim, arising out of or in connection with the exercise
by the Principal of its rights under clause 41.1(a) except where:


 


A.                 there is any
negligent or fraudulent act or omission by the Principal in the exercise of
those rights;


 


B.                 there is an Emergency
prior to the Completion Date of the NTS Regional and Metropolitan
Implementation Completion Phase and it is not caused by the Contractor, in
which case the Contractor will be entitled to make a claim:


 


1)                  for an extension of
time under clause 18.7; and


 


2)                  within [**] of such an Emergency occurring, for costs relating to the extension
of time (if any) granted under clause 18.7, which costs must be limited to
Delay Costs; and


 


(ii)                 the exercise by the
Principal of its rights under clause 41.1(a) does not limit any other
right of the Principal under this agreement, including any rights arising
pursuant to an Event of Default.


 


(e)                 Except where there is an Event
of Default, the exercise by the Principal of its rights under clause 41.1(a) does
not relieve the Principal from the performance of its obligations under this
agreement, including the obligation to pay amounts due to the


 


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Contractor
under this agreement, provided that to the extent that the Contractor’s ability
to achieve any Performance Requirements is affected by the Principal’s exercise
of its rights under clause 41.1(a), any adjustments to the Services Charge
under clause 27 in relation to the relevant Performance Requirements will
remain at the level of the adjustments applicable for the month immediately
prior to the month in which the Principal exercised its rights under clause
41.1(a).


 


(f)                 The Contractor will not be
relieved of its obligations under this agreement, including the Requirements
Document and the Solution Documentation, except to the extent that such
obligations (including any obligations in relation to the Performance
Requirements) cannot be performed as a result of the exercise by the Principal
of its rights under clause 41.1(a).


 


(g)                 The Principal may at any time
cease to exercise its rights under clause 41.1(a) by giving the Contractor
5 Business Days notice in writing.


 


41.2             Principal’s right to
temporarily suspend Work


 


(a)                 If:


 


(i)                  the Work is not
being performed in accordance with this agreement, including the Requirements
Document and the Solution Documentation, in a material respect, there is real
potential for this to lead to an Event of Default and the Principal is of the
reasonable opinion that it should exercise its rights under this clause 41.2 as
a consequence;


 


(ii)                 there is an Event of
Default; or


 


(iii)                there is an Emergency,


 


the
Principal may, by notice to the Contractor, stop or suspend all or any portion
of the Work for such period as the Principal deems necessary.  The Contractor must comply immediately with
the notice of the Principal to suspend the Work wholly or in part.


 


(b)                 Subject to paragraph 2) of clause 41.2(d)(i)B, the costs of
any delay arising as a result of the exercise by the Principal of its rights to
suspend under clause 41.2(a) will be at the Contractor’s expense.  


 


(c)                 The Contractor will not be relieved of its obligations under
this agreement, including the Requirements Document and the Solution
Documentation, except to the extent that such obligations (including any
obligations in relation to the Performance Requirements) cannot be performed as a result of the partial suspension.


 


(d)                 The Contractor acknowledges and
agrees that:


 


(i)                  the Principal will
not have any liability to the Contractor, and the Contractor will not be
entitled to make any Claim, arising out of or in connection with the exercise
by the Principal of its rights under clause 41.2(a) except where:


 


A.                 there is any
negligent or fraudulent act or omission by the Principal in the exercise of
those rights;


 


B.                 there is an Emergency
prior to the Completion Date of the NTS Regional and Metropolitan
Implementation Completion


 


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Phase and it is not caused by the Contractor,
in which case the Contractor will be entitled to make a claim: 


 


1)                  for an extension of
time under clause 18.7; and


 


2)                  within 10 Business
Days of such an Emergency occurring, for costs relating to the extension of
time (if any) granted under clause 18.7, which costs must be limited to Delay
Costs;


 


(ii)                 the exercise by the
Principal of its rights under clause 41.2(a) does not limit any other
right of the Principal under this agreement, including any rights arising
pursuant to an Event of Default and, in particular periods during which the
Contractor is entitled to remedy a breach are unaffected by the Principal
exercising its rights under clause 41.2(a).


 


(e)                 Except where there is an Event of Default, the exercise by
the Principal of its rights under clause 41.2(a) does not relieve the
Principal from the performance of its obligations under this agreement,
including the obligation to pay amounts due to the Contractor under this
agreement,
provided that to the extent that the Contractor’s ability to achieve any
Performance Requirements is affected by the Principal’s exercise of its rights
under clause 41.2(a), any adjustments to the
Services Charge under clause 27 in relation to the relevant Performance
Requirements will remain at the level of the adjustments applicable for the
month immediately prior to the month in which the Principal exercised its
rights under clause 41.2(a).


 


(f)                 The Principal may at
any time cease to exercise its rights under clause 41.2(a) by giving the
Contractor a written direction to resume the Work.


 


(g)                 Upon receipt of a written
direction under clause 41.2(f), the Contractor must as soon as practicable, but
in any event within 5 Business Days of receipt of that written direction,
resume the Work which was wholly or partially suspended under clause 41.2(a).


 


42.                Default and termination


 


42.1             Events
of Default


 


It
is an Event of Default if:


 


(a)                 the Contractor fails to commence, or to expeditiously and
diligently perform, the Work as required under clause 18.1 and does not cure
such failure within 10 Business Days of receiving written notice from the
Principal to do so;


 


(b)                 Completion of a Phase does not occur on or prior to the
relevant Phase Date;


 


(c)                 the Contractor:


 


(i)                  fails to provide the
Initial Services or the Core Services or any part thereof; or


 


(ii)                 ceases or threatens to cease
providing the Initial Services or the Core Services, or any part thereof,


 


in
accordance with its obligations under this agreement (other than as a result of
a Force Majeure in relation to which some or all of the Contractor’s
obligations under this agreement have been suspended, or an Act of Prevention
to the extent that the


 


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Contractor
has been given relief from compliance with this agreement under
clause 28.2) and does not cure such failure within 10 Business Days of
receiving written notice from the Principal to do so;


 


(d)                 all or any part of this agreement or any Project Document:


 


(i)                  ceases to have effect,
as against the Contractor or Keane Inc. otherwise than in accordance with its
terms as at the date of this agreement; or


 


(ii)                 is or becomes, as against the
Contractor or Keane Inc., void, voidable, illegal, invalid, unenforceable or of
limited force and effect;


 


(e)                 the Contractor defaults in the due observance and
performance of any of its other obligations under any Project Document and if
the default is capable of remediation the Contractor does not commence to
remedy such default to the reasonable satisfaction of the Principal within 10
Business Days of receipt of written notice specifying the default and does not
complete its remedy of the default within such reasonable time period as is
specified by the Principal in that notice;


 


(f)                 an Event of Insolvency occurs in relation to the Contractor;


 


(g)                 an Event of Insolvency occurs in relation to a Related Body
Corporate or one of the Contractor’s subcontractors which in the reasonable
opinion of the Principal has a material impact upon the Project or the
performance by the Contractor of its obligations under this agreement;


 


(h)                 without the consent of the Principal:


 


(i)                  a change occurs in the
equipment supplied or to be supplied; or


 


(ii)                 a material change occurs in the
scope or conduct of the work performed or to be performed,


 


pursuant
to a Key Contract between the Contractor and a subcontractor which is, or ought
to be, a party to a Direct Agreement, or pursuant to a Key Contract to which
Wayfarer or Gunnebo is party;


 


(i)                  a change in the control (as defined in section 50AA of
the Corporations Act) of the Contractor occurs without the consent of the
Principal under clause 45.3, or the Contractor is in breach of its
obligations under clause 45.3;


 


(j)                  where the Contractor’s shares are at any time listed on any
stock exchange, the listing is suspended or revoked and the suspension or
revocation remains in force for a period greater than 14 days;


 


(k)                 any representation or warranty
or statement made by the Contractor to the Principal in any Project Document or
in any document delivered under any Project Document proves to have been untrue
in any material respect;


 


(l)                  there is a failure to
provide the Initial Services or the Core Services or any part thereof to the
relevant minimum standard set out in the Performance Requirements and the
Contractor does not cure such failure within 20 Business Days of receiving
written notice from the Principal to do so;


 


(m)               any action is initiated by any competent authority with a
view to striking the Contractor’s name off any register of companies; or


 


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(n)                 the Contactor displays an intention to abandon the Project
or refuses to proceed with the Project.


 


42.2             Termination
by the Principal


 


(a)                 Upon the occurrence of an Event of Default, the Principal
may, at its option give the Contractor [**] written notice of its intention to:


 


(i)                  terminate this
agreement; or


 


(ii)                 terminate the Contractor’s rights
and obligations with respect to any part of the Services under this agreement.


 


During
the [**] period, the Contractor will have the right to remedy the event.


 


(b)                 If at the expiration of the [**] period following the
written notice under clause 42.2(a), the Event of Default has not been
remedied, the Principal may terminate this agreement by issuing a written
notice to the Contractor.


 


(c)                 Notwithstanding clauses 42.2(a) and (b), if in the
reasonable opinion of the Principal the Contractor is not making reasonable
efforts at any time to remedy the Event of Default at any time during the [**]
period, the Principal may:


 


(i)                  give to the Contractor [**]
written notice of the Contractor’s failure to make reasonable efforts to remedy
the Event of Default and of the Principal’s intention to terminate this
agreement; and


 


(ii)                 if at the expiration of the [**]
period the Contractor is not making reasonable efforts aimed at remedying the
Event of Default, the Principal may thereafter terminate this agreement by
written notice to the Contractor.


 


(d)                 Upon termination of this agreement under this clause the
Principal will not be liable to pay any compensation or other money in respect
of the termination to the Contractor.


 


42.3             Impact
of Dispute Resolution Procedures


 


The
fact that either party requires a matter to be resolved in accordance with the
Dispute Resolution Procedures or that a dispute has been referred to the
Dispute Resolution Procedures will not affect the Principal’s rights under this
clause 42.


 


42.4             Right
to Damages


 


Any
termination of this agreement by the Principal under this clause 42 will:


 


(a)                 not in any way prejudice the Principal’s rights to claim and
recover liquidated damages under this agreement and the Principal’s rights to
claim and recover damages for any prior breach of contract by the Contractor;
and


 


(b)                 entitle the Principal to recover such other damages as the
Principal may suffer or incur arising out of the termination of this agreement.


 


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42.5             Actions
taken following termination


 


Immediately
upon receipt of a notice of termination, the Contractor must:


 


(a)                 stop Work on the date and to the extent specified in said
notice;


 


(b)                 within [**] of receipt of said notice, notify the Principal
of all orders and subcontracts to the extent that they relate to the
performance of Work terminated and:


 


(i)                  unless the Principal
directs otherwise within [**] of receiving a notice from the Contractor under
this clause, terminate all orders and subcontracts to the extent that they
relate to the performance of Work terminated; and


 


(ii)                 place no further orders or
subcontracts for materials, services or facilities, except as may be necessary
for the completion of such portion of the Work as is not terminated;


 


(c)                 if directed by the Principal, assign to the Principal all of
the right, title and interest of the Contractor under any orders and
subcontracts;


 


(d)                 if directed by the Principal, transfer title and deliver to
the Principal:


 


(i)                  to the extent that the
Principal has already paid for them, the fabricated or unfabricated parts, work
in progress, completed work, supplies, and other material produced as a part
of, or acquired in connection with the performance of the Work terminated; and


 


(ii)                 the completed or partially
completed plans, drawings, manuals, information and other property which, if
the Work had been completed, would have been required to be furnished to the
Principal; and


 


(e)                 complete performance of such part (if any) of the Work not
terminated by said notice.


 


If
the Principal gives a direction under clause 42.5(d)(i) but has not
already paid the Contractor for the value of some or all of the items which are
the subject of that direction, the Contractor must immediately provide the
Principal with the relevant information necessary to demonstrate to the
Principal’s satisfaction the items for which the Principal has not already
paid, and the cost price payable by the Contractor for those items, and which
the Principal must pay to the Contractor if the Principal desires the transfer
of title to and the delivery of those items to it (the “Price”).  The Principal may request, and the Contractor
must immediately provide, such additional information as the Principal may from
time to time reasonably require to establish the Price.  The Principal will pay the Contractor the
Price upon transfer of title to and the delivery of those items by the
Contractor to the Principal.


 


43.                Termination for the convenience of the
Principal


 


43.1             Right
to Terminate


 


(a)                 Despite any other provision of this agreement, this agreement may be terminated without
cause by the Principal upon written notice to the Contractor, at the Principal’s
absolute discretion.


 


(b)                 If the Principal exercises its rights under clause 43.1(a),
it will not be obliged to give the Contractor any reasons or justification for
doing so.


 


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43.2             Compensation


 


If the Principal exercises its rights under
clause 43.1, it must:


 


(a)                 pay the Contractor, within [**] of termination of this agreement the amounts determined in
accordance with Schedule 18 (but will not be liable for any other costs,
losses, expenses, liabilities, payments, outgoings or damages suffered or
incurred by the Contractor as a result of such termination); and


 


(b)                 return to the
Contractor the Security Bonds held by it in accordance with clause 34.


 


44.                Expiration of Agreement and Handover


 


44.1             Termination prior to
Solution Completion Date


 


(a)                 If this agreement is terminated
prior to the Solution Completion Date, the Contractor must:


 


(i)                  from the date the
Contractor receives a notice under clause 42 or 43 (as applicable) until
the expiry of the period of notice given in that notice, do all things
requested by the Principal and co-operate with the Principal or any third party
engaged or employed by the Principal to carry out the Work; and


 


(ii)                 if requested by the
Principal, and in the case of paragraph D. subject to clause 30.6, hand over to
the Principal’s Representative all documentation and material necessary to
enable the Principal or a third party to undertake the Work including any of
the following which have not already been provided to the Principal in their
current form:


 


A.                 books of account and
all other records relating to the Project;


 


B.                 electronic and hard
copy versions of the Solution Documentation;


 


C.                 the most recent
versions of any Design Documents;


 


D.                 all Software and
Devices relating to the Project, which were utilised or intended to be utilised
in the Solution or to provide the Initial Services and the Core Services (but
excluding infrastructure used in the provision of the Initial Services or Core
Services, to the extent that it is infrastructure of an entity other than the
Contractor which is also used by that entity to provide a material level of
services not related to the Initial Services or Core Services and which the
Contractor, using reasonable endeavours, is not able to transfer).


 


(b)                 For the purposes of
clause 44.1(a) documentation must be current at the time of delivery
and reflect current business and other processes.


 


(c)                 For the avoidance of doubt,
clause 44.1(a)(ii)D is subject to the rights and obligations of the Principal
and the Contractor as set out in clause 30.6.


 


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44.2             Expiration


 


(a)                 This agreement shall commence on
the date of this agreement and shall, unless earlier terminated or extended in
accordance with this agreement, expire on the last day of the Term.


 


(b)                 The Contractor must ensure that
the Solution is in a state of good repair upon expiration of the Term, and that
all overhauls, repairs and retrofits of Devices, facilities and other materials
forming part of the Solution are completed (at the Contractor’s expense) at least
6 months prior to the expiration of the Term to allow the Principal
sufficient time to inspect their condition.


 


44.3             Transfer


 


(a)                 The Contractor must use best
endeavours to ensure that the Transfer from the Contractor to the Principal or
any third party takes place with minimal disruption to the Principal, the
Access Providers, the Bus Operators and Stakeholders.


 


(b)                 Upon expiration of the Initial
Services Term or earlier termination of this agreement, the Contractor must
Transfer, or facilitate the Transfer of, the provision of the Initial Services
and those parts of the Solution required to provide the Initial Services to the
Principal or a third party, in accordance with the Transfer Plan and the
Transfer Principles.


 


(c)                 Upon expiration of the Term or
earlier termination of this agreement, the Contractor must Transfer, or
facilitate the Transfer of, the provision of the Core Services and the Solution
in accordance with the Transfer Plan and the Transfer Principles.


 


(d)                 The Principal and the Contractor
agree to enter into:


 


(i)                  tripartite
agreements with any new contractors nominated by the Principal which will
confirm the roles and responsibilities of each of the parties in relation to
the Solution and the provision of the Initial Services and Core Services; and


 


(ii)                 any other agreements
necessary to facilitate the Transfer of the Solution.


 


(e)                 At any stage prior to expiration
of the Term or the earlier termination of this agreement, the Principal can
require modifications, additions or variations to the Transfer Plan if it is
not adequate to meet the objectives and strategies for the Transfer as set out
in this agreement, including the Requirements Document and the Transfer
Principles.  The Contractor must amend
the Transfer Plan in accordance with any such modifications, additions or
variations unless it is unreasonable to do so, and the amended Transfer Plan
must be approved by the Principal.


 


(f)                 The Contractor must prepare and
submit to the Principal for its approval an updated Transfer Plan at the same
time that it provides the Principal with its detailed financial forecasts under
clause 47.2(b)(i)B and 12 months prior to the expiry of the Initial Services
Term and the Term (or if the Principal terminates this agreement with a notice
period of less than 12 months, at a time specified by the Principal after
receipt of such notice by the Contractor). 
The Principal may, within 10 Business Days of receipt of an updated
Transfer Plan, advise the Contractor whether or not it considers such plan to be
in accordance with this agreement, including the Requirements Document and the
Transfer Principles, or reject it and provide its comments (if any).  If an updated Transfer Plan is rejected, the
Contractor must promptly, and in any event within 5 Business Days, submit to
the Principal a redraft


 


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of
the plan.  The Contractor must take into
account any comments of the Principal in finalising the Transfer Plan.


 


(g)                 The Principal may, within
40 Business Days of receipt of the amended Transfer Plan referred to in

clause 44.3(f) propose a modification or alteration to the Contractor’s
proposed method of Transfer and the Contractor must comply with such
modification or alteration unless it is manifestly unreasonable to do so.


 


(h)                 The Contractor must provide full
cooperation to the Principal in relation to any Transfer, or facilitation of
the Transfer, including in relation to any tender process the Principal carries
out for the procurement of a third party to operate the Solution or provide any
of the Initial Services and the Core Services or both, including carrying out
all acts reasonably requested by the Principal in relation to any Transfer in
an efficient, timely and professional manner.


 


44.4             Maintenance of
workforce


 


(a)                 The Contractor must maintain a
full and adequate workforce on the Project until the last day of the Term,
including those personnel nominated by the Principal to work with the Principal
or a new contractor.


 


(b)                 The Contractor must ensure that
prior to expiration or the earlier termination of this agreement the key
personnel set out in Schedule 2 co-operate with any incoming contractor to
ensure a smooth transition.


 


(c)                 The Contractor must make the key
personnel set out in Schedule 2 available to perform work reasonably
requested by the Principal in relation to the Solution or the Initial Services
and the Core Services for 12 months after the expiration or earlier termination
of this agreement.  The Principal must
pay the Contractor for the work requested by the Principal under this clause
its costs, based on time spent and materials used, at the rates for each which
are set out in Schedule 7.


 


(d)                 During the Term, and for a
period of 12 months after the expiration or earlier termination of this
agreement (other than termination for an Event of Default), the Principal will
not directly solicit the employment of any of the employees of the Contractor
involved in the provision of the Initial Services and the Core Services,
without the prior written consent of the Contractor.  Such consent will not be required where any
such employee makes an approach or offer to the Principal for employment by the
Principal which has not been solicited by the Principal.


 


(e)                 If the Principal does not obtain
the consent of the Contractor where required to do so under
clause 44.4(d), the Principal will be liable to pay to the Contractor, for
each employee it employs without the required consent, an amount equal to [**]%
of the annual gross salary of the employee for the last 12 months of
employment with the Contractor by way of liquidated damages, and this will be
the sole and exclusive remedy of the Contractor in relation to that failure to
obtain consent.


 


(f)                 Notwithstanding
clause 44.4(d), but subject to the rights of the Contractor to liquidated
damages under clause 44.4(e) the Contractor will not prohibit or
prevent its former staff from employment by the Principal or any third party
taking over operation of the Solution, or operation of a system to replace the
Solution or provision of the Initial Services and the Core Services and upon
notice from the Principal and where the relevant employee agrees, will
facilitate the transfer of all employees of the Contractor that the Principal
considers are necessary to whom it offers employment, to the Principal or a
third party.


 


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(g)                 Where any employee is
transferred to the Principal or a third party in accordance with
clause 44.4(f), the Contractor agrees to make an appropriate adjustment
and payment to the Principal or a third party of all actual or contingent
liability for annual leave, accrued rostered days off, sick leave, long service
leave and all other employee entitlements which are not to be paid out to the relevant
transferring employee at the time of transfer of employment.  


 


(h)                 If there is a dispute between
the Principal and the Contractor in relation to the payments and adjustments to
be made for employee entitlements under clause 44.4(g) or the amount
of liquidated damages that may be payable by the Principal under
clause 44.3(e), either party may give notice to the other requiring the
dispute to be referred to the Dispute Resolution Procedures.


 


44.5             Warranty


 


The Contractor warrants that the obligations
set out in this clause will be sufficient and adequate to enable the Principal
or a new contractor to replace the Solution with another system and/or provide
the Initial Services and the Core Services, provided the Principal or the new
contractor have the necessary experience and expertise of a service provider
skilled in providing similar services.


 


45.                Assignment


 


45.1             Assignment
by the Contractor


 


Subject
to clause 45.3, the Contractor must not assign, novate or otherwise
transfer any of its rights or obligations under this agreement without the
prior written consent of the Principal.


 


45.2             Assignment
by the Principal


 


(a)                 The Principal may, without the consent of the Contractor,
assign, novate or otherwise transfer:


 


(i)                  the benefit to the
Principal of all or any of the Contractor’s obligations under this agreement; and/or


 


(ii)                 any of its rights or obligations
under this agreement,


 


to any person which has the capacity to carry
out the obligations of the Principal under this agreement except for a Contractor
competitor.  The Contractor will execute
any document required by the Principal and do such things as and when requested
by the Principal to give effect to such assignment, novation or transfer.


 


(b)                 Upon written request by the
Principal, the Contractor hereby irrevocably agrees to enter into a new
agreement upon substantially the same terms and conditions as this agreement to
which another person, who is an assignee, novatee or transferee pursuant to
clause 45.2(a), agrees to perform and observe the Principal’s obligations
under the agreement as if it were named in the relevant agreement instead of
the Principal.


 


45.3             Change
in control


 


(a)                 For the purposes of clause 45.1, any change in control (as
defined in section 50AA of the Corporations Act) of the Contractor or
Keane Inc will be deemed to be an assignment by the Contractor of its rights
and obligations under this agreement and such change in control will be subject
to the terms and conditions of this clause 45.


 


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(b)                 The Contractor must immediately notify the Principal of any
proposed change in control (or, in the case of a change in control due to the
transfer of shares or securities in a publicly listed company, as soon as it
becomes aware of that change in control or proposed change in control and is
permitted by the laws applicable to that publicly listed company to disclose
that information to the Principal) of the Contractor and must provide the
Principal with details of:


 


(i)                  the identity of each
proposed Controller;


 


(ii)                 the address of each proposed
Controller;


 


(iii)                the extent and nature of the
proposed change in control; and


 


(iv)               any other information necessary for
the Principal to determine whether to consent, or not to consent, to the change
in control of the Contractor.


 


(c)                 The Principal will not unreasonably withhold its consent to
such change in control of the Contractor, unless the Principal is of the
reasonable opinion that:


 


(i)                  the proposed person
gaining the control of the Contractor following the change in control:


 


A.                 is not solvent or reputable;


 


B.                 has an interest which conflicts in
a material way with the interests of the Principal or is involved in a business
or activities which are incompatible with, or inappropriate in relation to the
Project; or


 


C.                 does not have the same or greater
financial and technical capacity than the person it is replacing or from which
it is taking control;


 


(ii)                 the proposed change is against the
public interest; or


 


(iii)                the proposed change will impact
adversely on the ability of the Contractor to perform its obligations under
this agreement and each other Project Document.


 


46.                Confidentiality, information and privacy


 


46.1             Confidential
information


 


(a)                 Each party will treat as confidential all information
obtained from the other party under or in connection with this agreement and:


 


(i)                  will not disclose such
information to any third party without the prior written consent of the other
party, except to such persons and to such extent as may be necessary for the
performance of this agreement or as otherwise required by law; and


 


(ii)                 will not use any of that
information otherwise than for the purposes of the agreement.


 


(b)                 Despite any other provision of this agreement, the Contractor will, upon request by the Principal, make
any information or data that is generated during the Project


 


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concerning Solution usage available to the
Principal who may then make that information available to the Operators and
Stakeholders.


 


(c)                 Each party will take all necessary precautions to ensure
that all information obtained from the other party under or in connection with
this agreement:


 


(i)                  is given to each member
of staff and, in the case of the Contractor, to its subcontractors, only to the
extent necessary for that member of staff’s or the subcontractor’s activities
in relation to the Solution, the performance of the Work, the provision of the
Initial Services and Core Services and the performance of the obligations under
this agreement; and


 


(ii)                 is treated as confidential and not
disclosed (without prior written approval) or used by any member of staff or
subcontractor otherwise than for the purposes of this agreement.


 


(d)                 Where it is considered necessary in the reasonable opinion
of the Principal, the Contractor will procure that all members of its staff and
all subcontractors sign a confidentiality undertaking with the Principal
agreeing to be bound by the same confidentiality obligations as the Contractor
under this clause 46.1, before commencing any Work.


 


46.2             Exceptions


 


(a)                 The provisions of clause 46.1 will not apply to any
information:


 


(i)                  which is or becomes
public knowledge (otherwise than by breach of this clause 46); or


 


(ii)                 which was in the possession of the
party concerned, without restriction as to its disclosure, before receiving it
from the disclosing party.


 


(b)                 Nothing in this clause 46 will prevent the Principal or
the Contractor from disclosing any information obtained from the Contractor to
any other department, office, or agency of the Commonwealth or State of
Victoria, or to any person engaged by the Principal in connection with this agreement, provided that in disclosing the information the Principal
has required that the information is treated as confidential, including
requiring confidentiality undertakings where appropriate.


 


(c)                 Nothing in this clause 46 will prevent either party
from using, in the course of its normal business, any techniques, ideas or
know-how gained during the performance of this agreement, to the extent that this does not result in a disclosure of
contract-specific information.


 


(d)                 The Principal may publish on a government internet web site
of the Principal the contents of any Project Document to which the Principal is
a party.  The Principal will act in
accordance with any Government policies and guidelines applicable from time to
time when determining what contents of any such Project Documents are to be so
published.


 


46.3             Publicity


 


(a)                 Subject to clause 46.3(b), the Contractor and its Related
Bodies Corporate must not make any public statements or issue any press
releases in respect of or in any way in connection with the Project or any
Project Document, the Solution or the Services without the prior written
consent of the Principal.


 


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(b)                 Where the Contractor or a Related Body Corporate is required
by law to disclose information to the public, the Contractor or the Related
Body Corporate (whichever is applicable) must, where possible, provide the
Principal with a copy of such disclosure prior to its issue to a third party,
or, where that is not possible, as soon as possible after the disclosure is
made.


 


46.4             Privacy


 


(a)                 The Contractor must:


 


(i)                  comply with the Privacy
Obligations and the Contractor’s Privacy Plan and agrees
to be bound by the Information Privacy Principles in
the Information Privacy Act 2000 (Vic) and any applicable Code of Practice with
respect to any act done, or practice engaged in, by it for the purposes of this
agreement, in the same way and to the same extent as the Principal would be
bound by the Information Privacy Principles in the Information Privacy Act 2000
(Vic) or any applicable Code of Practice in respect of that act or practice had
it been directly done or engaged in by the Principal;


 


(ii)                 provide all reasonable assistance
to enable the Principal to comply with the Privacy Obligations and the TTA’s
Privacy Management Plan and Policy;


 


(iii)                provide all reasonable assistance
to enable the Access Providers and the Bus Operators to comply with the Privacy
Obligations;


 


(iv)               design the Solution to operate, and
ensure the Solution operates;


 


A.                 in compliance with the Privacy
Obligations, the TTA’s Privacy Management Plan and Policy and the Contractor’s
Privacy Plan;


 


B.                 in a manner that ensures:


 


1)                  the Contractor complies
with the Privacy Obligations and the Contractor’s Privacy Plan;


 


2)                  the Principal can comply
with the Privacy Obligations and the TTA’s Privacy Management Plan and Policy;


 


3)                  the Access Providers and
the Bus Operators can comply with the Privacy Obligations.


 


(b)                 Without derogating from clause 46.4(a), the Contractor
must ensure that Personal Information is collected, used, disclosed and handled
by it and within the Solution in accordance with the Contractor’s Privacy Plan, the TTA’s Privacy Management Plan and Policy
and this agreement, including the Requirements Document and the Solution Documentation.


 


(c)                 The Contractor’s Privacy Plan must include
procedures which:


 


(i)                  ensure that the
Contractor will comply with the Privacy Obligations;


 


(ii)                 are consistent with the Privacy
Obligations as they apply to the Principal, the Access Providers and the Bus
Operators;


 


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(iii)                are consistent with the TTA’s
Privacy Management Plan and Policy; and


 


(iv)               are consistent with any additional
measures specified in the Requirements Document and the
Solution Documentation.


 


(d)                 The Contractor must update its procedures in relation to
privacy protection and the Contractor’s Privacy Plan as technology
and security threats evolve at all times in accordance with Industry Practice
and this agreement, including the Requirements Document and the Solution
Documentation and in any event, must prepare and
submit to the Principal for its approval an updated Contractor’s Privacy Plan
at the same time that it provides the Principal with its detailed financial
forecasts under clause 47.2(b)(i)B. 
The Principal may, within 10 Business Days of receipt of an updated
Contractor’s Privacy Plan, advise the Contractor whether or not it considers
such plan to be in accordance with this agreement or reject it and provide its
comments (if any).  If an updated
Contractor’s Privacy Plan is rejected, the Contractor must promptly, and in any
event within 5 Business Days, submit to the Principal a redraft of the
plan.  The Contractor must take into
account any comments of the Principal in finalising the Contractor’s Privacy
Plan.


 


(e)                 The Contractor must ensure that its contract with any
subcontractor who collects, uses, stores, disposes or discloses Personal
Information contains provisions to the same or similar effect as this clause
46.4.


 


(f)                 The Contractor will indemnify the Principal in respect of
all Claims and liabilities whatsoever incurred by the Principal resulting from
any act done or practice engaged in by the Contractor or its subcontractors
whether or not for the purposes of this agreement or a subcontract, and which
would, had that act or practice been done or engaged in by the Principal, have
contravened one or more of the Information Privacy Principles in
the Information Privacy Act
2000 (Vic) or any applicable Code of Practice.


 


(g)                 The Contractor and its subcontractors will have their privacy
procedures audited on an annual basis by a qualified nationally recognised firm
and the Contractor and its subcontractors must take such action as is
reasonable to comply with any exceptions or discrepancies discovered by any
such audit.


 


(h)                 Where the Principal, after the Completion Date of the NTS
Solution Requirements Phase, notifies the Contractor in writing of:


 


(i)                  any additions or changes
to the obligations, codes or similar instruments referred to in sub-paragraphs
(b), (d), (e) or (f) of the definition of Privacy Obligations; or


 


(ii)                 any additions or changes to the TTA’s
Privacy Management Plan and Policy, 


 


such
notification will constitute a Variation Order for the purposes of this
agreement and the Contractor’s obligations under this agreement will be varied
in accordance with, and the Contractor must comply with, the matters notified
by the Principal.  


 


46.5             Information


 


The
Contractor must immediately notify the Principal of the following:


 


(a)                 any Smartcard ticketing projects or related projects which
the Contractor has been awarded either in Australia or overseas;


 


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(b)                 any Event of Default;


 


(c)                 any litigation, arbitration or administrative proceedings
taking place, pending or threatened, affecting the Contractor or a Related Body
Corporate which could materially impact on the Project or the performance by
the Contractor of its obligations under this agreement;


 


(d)                 any change in control of the Contractor in accordance with
clause 45.3;


 


(e)                 any substantial dispute between the Contractor and any
subcontractor or third party the outcome of which could impact on the Project
or the performance by the Contractor of its obligations under this agreement;
and


 


(f)                 any change in the financial position or prospects of the
Contractor or a Related Body Corporate which could impact on the Project or the
performance by the Contractor of its obligations under this agreement.


 


47.                Financial record keeping and reporting


 


47.1             Books of Account


 


(a)                 The Contractor must keep proper
books of account and all other records relating to the Project at its offices
in Melbourne in a manner and to a standard as would be expected of a prudent
and competent person undertaking the obligations of the Contractor under this
agreement.


 


(b)                 The Contractor must ensure that:


 


(i)                  its books of account
and records referred to in clause 47.1(a); and


 


(ii)                 the books of account
and records of any third party who has entered into a Key Contract with the
Contractor in connection with this agreement,


 


are available to the Principal or any person
nominated by the Principal at all reasonable times for examination, audit,
inspection, transcription and copying, provided however that the Principal must
keep any information obtained by it under this clause confidential.


 


(c)                 Upon the expiration of the Term
or earlier termination of this agreement, the Contractor must deliver to the
Principal all books of account and records referred to in clause 47.1(a) which
are necessary for the continued delivery of the Solution and provision of the
Initial Services and the Core Services. 
The Contractor may keep a copy of such accounts and records for its
corporate records and audit purposes.


 


(d)                 The Principal must give the
Contractor access to any books of account or records given to it by the
Contractor for a period of 7 years after the date they are given to the
Principal.


 


47.2             Financial Statements


 


(a)                 Not later than 31 October in
each year, the Contractor must give to the Principal the Project’s audited
financial statements (including all notes to and forming part of the financial
statements) for the previous financial year.


 


(b)                 The Contractor must provide to
the Principal:


 


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(i)                  as soon as practicable
and in any event not later than 31 October of each year:


 


A.                 a copy of its audited
statement of financial position, statement of financial performance and
statement of cashflow (including all notes to and forming part of the
statements) for the previous financial year (“Audited
Annual Financial Statements”);


 


B.                 detailed forecasts of
its financial position, financial performance and cashflow for the next 2
financial years; and


 


C.                 copies of the Audited
Annual Financial Statements of the Contractor and Keane Inc.


 


(ii)                 as soon as
practicable and in any event not later than 20 Business Days after the first
half of each financial year:


 


A.                 a copy of its
statement of financial position, statement of financial performance and
statement of cashflow for that half year (“Unaudited
Half-yearly Financial Statements”), certified as correct by a
director and secretary of the Contractor; and


 


B.                 copies of the
Unaudited Half-yearly Financial Statements of the Contractor and Keane Inc.


 


(iii)                such additional
relevant financial or other information with respect to it, the Solution or the
Project as the Principal may from time to time reasonably require.


 


(c)                 The Contractor must ensure that
each statement of financial position, statement of financial performance and
statement of cashflow furnished pursuant to clause 47.2(b) will:


 


(i)                  in respect of the
Contractor, be prepared in accordance with the A-IFRS accounting principles and
practices as varied from time to time consistently applied, except to the
extent of departures from such principles and practices disclosed in such
accounts;


 


(ii)                 in respect of all
other relevant entities, be prepared in accordance with generally accepted
accounting principles and practices consistently applied in the country of
origin or incorporation of the relevant entity, except for the extent of
departures from such principles and practices disclosed in such accounts; and


 


(iii)                fairly represent its
financial condition or its consolidated financial position and that of its
controlled entities, as the case may be, and the result of its operations as at
the date and for the period ending on the date to which such accounts were
prepared.


 


47.3             Management Accounts


 


(a)                 The Contractor must provide to
the Principal:


 


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(i)                  as soon as
practicable and in any event not later than 20 Business Days after the close of
each month, a copy of its unaudited management accounts (“Management Accounts”) including:


 


A.                 summary financial
statements based on the Management Accounts;


 


B.                 statement of
cashflow;


 


C.                 statement of
financial position;


 


D.                 statement of
financial performance (containing at least the following detail: revenue by
type, material, labour, overhead (excluding margin), gross margin and
performance against budget and forecasts); and


 


E.                  details of any
related party transactions, including margin or mark up applied on items listed
at 47.3(a)(i)D above;


 


(ii)                 as soon as
practicable and in any event not later than:


 


A.                 31 October of
each year, a reconciliation of the Contractor’s Management Accounts with its
Audited Annual Financial Statements; and


 


B.                 20 Business Days
after the first half of each financial year, a reconciliation of the Contractor’s
Management Accounts with its Unaudited Half-yearly Financial Statements; and


 


C.                 such additional
relevant financial or other information with respect to it, the Solution or the
Project as the Principal may from time to time reasonably require.


 


(b)                 Where the Contractor performs a
reconciliation in accordance with clause 47.3(a)(ii) and there is any
difference between the Contractor’s Management Accounts and its Audited Annual
Financial Statements and Unaudited Half-yearly Financial Statements, the
differences must be fully explained in writing. 
The Contractor must immediately draw any unexplained items to the
attention of the Principal.  Any
adjustments or balancing items that do not fall within the A-IFRS accounting
principles and practices as varied from time to time or any successor standards
must promptly be referred to an independent auditor for review.


 


47.4             Fixed Asset and Spares
Inventory Reporting


 


(a)                 From
the date on which the first payment is made to the Contractor under clause 21
and thereafter for each year ending 30 June during the Term, as soon as
practicable and in any event not later than 31 July of each year, the
Contractor must provide to the Principal:


 


(i)                  a hard copy and an electronic copy (in an electronic format that can be
easily migrated into Microsoft Excel without loss of format or data integrity)
of the audited annual asset register of all assets comprised in the Solution
and owned by the Principal pursuant to this agreement (“Audited Annual Asset Register”);


 


(ii)                 a hard copy and an electronic copy (in an electronic format that can be
easily migrated into Microsoft Excel without loss of format or data


 


169





















 


integrity) of a detailed spares inventory, per asset
class and per transport mode where applicable (i.e. tram, metro train, V/Line train,
metro bus, regional bus, V/Line bus), including a reconciliation that clearly
identifies changes between the opening balance and the closing balance of the
asset register (“Audited Annual Spares
Inventory”); 


 


(iii)                certification of the Audited Annual Asset Register and Audited Annual
Spares Inventory by an independent auditor who is acceptable to the Principal,


 


and such additional relevant asset and
inventory information with respect to it, the Solution or the Project as the
Principal may from time to time reasonably require.


 


(b)                 From
the date on which the first payment is made to the Contractor under clause 21,
the Contractor must provide to the Principal on the second working day of each
new month, an electronic copy (in an electronic format that can be easily
migrated into Microsoft Excel without loss of format or data integrity) of:


 


(i)                  a detailed asset register of all assets comprised in the Solution and
owned by the Principal pursuant to this agreement in accordance, at a minimum,
with the level of detail set out in

clause 47.4(c), including a reconciliation that clearly identifies changes
between the opening balance and the closing balance of the asset register; 


 


(ii)                 a detailed set of depreciation and amortisation schedules per asset
class and per transport mode; and


 


(iii)                a detailed account of the spare parts inventory levels per asset class
and per transport mode where applicable, including a reconciliation that
clearly identifies changes between the opening balance and the closing balance
of the asset register,


 


and such additional relevant asset and
inventory information with respect to the Contractor, the Solution or the
Project as the Principal may from time to time reasonably require.


 


(c)                 The
Contractor must ensure that each asset register furnished pursuant to clause
47.4(a) or (b) contains full details of all assets comprised in the
Solution and owned by the Principal pursuant to this agreement, at a minimum,
per asset class and per transport mode where applicable (i.e. tram, metro train,
V/Line train, metro bus, regional bus, V/Line bus) and all related costs,
separately identified as follows:


 


(i)                  labour and equipment / materials for the initial cost of acquisition;


 


(ii)                 delivery and installation;


 


(iii)                modifications;


 


(iv)               testing and commissioning;


 


(v)                enhancements and / or upgrades which significantly extend the asset’s
useful life or functionality;


 


(vi)               software development; and


 


(vii)              network development;


 


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and a reconciliation that clearly identifies changes
between the opening balance and the closing balance of the asset register.


 


(d)                 The Contractor must ensure that
all asset or inventory reporting provided to the Principal under this

clause 47.4 is prepared in accordance with the prevailing accounting principles
and practices for the Victorian State Government (A-IFRS), except to the extent
of departures from such principles and practices disclosed in such accounts.


 


47.5             Blackout Periods


 


Notwithstanding anything in this agreement or
a Direct Agreement, the Contractor is not required to give the Principal
information or access to books of accounts or other records of the Contractor
or any of its independent sub-contractors which are publicly listed entities
for the period during which the Contractor or a sub-contractor (as the case may
be) is in a trading blackout period under applicable rules, regulations or
policies of, the US Securities and Exchange Commission, the New York Stock
Exchange or another exchange or regulatory authority to which the Contractor or
any of its sub-contractors (as the case may be) is subject.


 


48.                General record keeping
and reporting


 


48.1             Acknowledgement


 


The Contractor acknowledges that:


 


(a)                 it will comply with any
obligations imposed upon it under any Public Information Act;


 


(b)                 the Principal is bound to comply
with, amongst other things, the Public Information Acts; and


 


(c)                 it will, upon request by the
Principal, assist and co-operate with the Principal in respect of any request
made, or other action required to be taken by the Principal under a Public
Information Act in relation to the Project.


 


48.2             Contractor to
Co-operate


 


If a request is made of the Contractor in
accordance with clause 48.1(c), the Contractor will:


 


(a)                 ensure that all documentation it
provides to the Principal is in a format accessible to, and able to be read and
interpreted by the Principal; and


 


(b)                 ensure that the Principal is
given access to any employees, contractors or representatives of the Contractor
for the purposes of satisfying the request, including without limitation by
procuring that such persons:


 


(i)                  attend interviews;


 


(ii)                 give evidence in
Court at the request of the Principal; and


 


(c)                 provide all other reasonable
assistance in relation to any request.


 


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49.                Dispute Resolution
Procedures


 


49.1             General


 


(a)                 If any dispute or difference
arises between the parties as to any fact, matter or thing arising out of or in
connection with this agreement or the Project, either party may give to the
other party a notice adequately identifying the matters the subject of the
dispute or difference together with detailed particulars of it and that dispute
or difference will be referred to the Dispute Panel.


 


(b)                 For the avoidance of doubt, a
party has the right to refer any dispute or difference between the parties as
to any fact, matter or thing arising out of or in connection with this
agreement or the Project irrespective of whether any clause dealing with the
area of dispute specifically refers to the Dispute Resolution Procedures.


 


(c)                 Despite the existence of a
dispute between the parties:


 


(i)                  the Contractor must
continue to carry out the Work;


 


(ii)                 each party must
otherwise comply with its obligations under this agreement; and


 


(iii)                each party’s rights
under this agreement will not be affected.


 


(d)                 Except where a party seeks
urgent interlocutory relief (including interim injunctions), each party may not
commence court proceedings relating to this agreement before it has complied
with the Dispute Resolution Procedures.


 


(e)                 To the extent that a party is
successful in a dispute, the unsuccessful party will pay the successful party’s
costs incurred in resolving the dispute, calculated from the date the dispute is referred to the Project Control
Group under clause 49.2(e)(iii), or to the Chief Executive Officers under
clause 49.2(e)(iv), until the date the dispute is resolved in accordance with
the Dispute Resolution Procedures or the process is otherwise terminated.  For the avoidance of doubt, each party will
pay its own costs up until the date the dispute is referred to the Project
Control Group under clause 49.2(e)(iii) or the Chief Executive Officers
under clause 49.2(e)(iv).  For the purpose
of this clause, “costs” includes a party’s legal costs on an indemnity basis,
the time costs of personnel involved in resolving the dispute calculated on an
hourly basis and the cost of disbursements actually incurred.


 


(f)                  Any of the time
periods that appear in this clause 49.1 may be varied by written agreement
between the parties.


 


49.2             Dispute Panel review


 


(a)                 If a dispute is referred to the
Dispute Panel under clause 49.1(a), the Dispute Panel is required to meet
within 5 Business Days of the dispute being referred to it to attempt to
resolve the dispute in good faith.


 


(b)                 Meetings of the Dispute Panel
will be held at convenient venues in Melbourne, unless otherwise agreed by the
Principal’s Representative and the Contractor’s Representative.


 


(c)                 The Principal’s Representative
and the Contractor’s Representative may each invite other persons to attend
meetings of the Dispute Panel as they consider appropriate for the resolution
of a dispute, although such persons shall not have a vote.


 


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(d)                 Decisions of the Dispute Panel
will be contractually binding on the Principal and the Contractor provided they
are in writing and signed by the Principal’s Representative and the Contractor’s
Representative.


 


(e)                 If:


 


(i)                  the Dispute Panel is
unable to resolve the dispute within 5 Business Days of first convening to
resolve the dispute under clause 49.2(a); or


 


(ii)                 the Dispute Panel
does not convene within 5 Business Days following a referral of the dispute
under clause 49.1(a),


 


then:


 


(iii)                if the Principal
reasonably determines that the potential value of the dispute is less than
$500,000, either party may immediately refer the dispute to the Project Control
Group; or


 


(iv)               if the Principal
reasonably determines that the potential value of the dispute is greater than
$500,000, either party may immediately refer the dispute to the Chief Executive
Officers.


 


(f)                  A determination of
the Principal under clause 49.2(e) will be conclusive and binding on the
parties in the absence of a manifest error by the Principal.


 


49.3             Project Control Group
review


 


(a)                 If a dispute is referred to the
Project Control Group under clause 49.2(e)(iii), the Project Control Group is
required to meet within 10 Business Days of the dispute being referred to
it to attempt to resolve the dispute in good faith.


 


(b)                 Where the Project Control Group
is convened to resolve a dispute referred to it under clause 49.2(e)(iii):


 


(i)                  unless otherwise
agreed by the members of the Project Control Group, no other business will be
discussed at such meeting; and


 


(ii)                 the quorum of any
meeting of the Project Control Group must be at least two representatives of
each of the Principal and the Contractor. 
If a quorum is not present within 45 minutes after the time
appointed for commencement of the meeting of the Project Control Group, that
meeting will be adjourned to the same time 2 Business Days after that
meeting at the same place or at such other time, day or place as
representatives of both the Principal and the Contractor may agree.  If a quorum is again not present within 45
minutes after the time appointed for commencement of the adjourned meeting,
either party may immediately refer the dispute to the Chief Executive Officers.


 


(c)                 All matters determined at
meetings of the Project Control Group will be decided by a unanimous resolution
with each representative having one vote provided that if there is not a
unanimous resolution at a meeting of the Project Control Group then either
party may immediately refer the dispute to the Chief Executive Officers.


 


(d)                 Duly passed resolutions of the
Project Control Group will be contractually binding on the Principal and the
Contractor provided they are in writing and signed by each member of the
Project Control Group.


 


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(e)                 If:


 


(i)                  the Project Control
Group is unable to resolve the dispute within 5 Business Days of first
convening to resolve the dispute under clause 49.3(a); or


 


(ii)                 the Project Control
Group does not convene within 10 Business Days following a referral of the
dispute under clause 49.2(e)(iii),


 


then either party may immediately refer the
dispute to the Chief Executive Officers.


 


49.4             Chief Executive
Officer review


 


(a)                 If a dispute is referred to the
Chief Executive Officers under clause 49.2(e)(iv) or clauses 49.3(b), 49.3(c) or
49.3(e), the Chief Executive Officers (or other holder of the delegations of
that position for the time being) are required to meet within 5 Business
Days of the dispute being referred to them to attempt to resolve the dispute in
good faith.


 


(b)                 The joint decisions of the Chief
Executive Officers will be contractually binding on the Principal and the
Contractor provided they are in writing and signed by the Chief Executive Officers.


 


(c)                 If:


 


(i)                  the Chief Executive
Officers are unable to resolve the dispute within 5 Business Days of first
convening to resolve the dispute under clause 49.4(a); or


 


(ii)                 the Chief Executive
Officers do not convene within 5 Business Days following referral of the
dispute to them under clause 49.2(e)(iv) or clauses 49.3(b), (c) or
(e),


 


then either party may refer the dispute to
the Expert for determination in accordance with clause 49.5.


 


49.5             Expert determination


 


(a)                 Where this agreement requires a
matter to be referred to or resolved by the Expert or where the parties
otherwise agree to refer a matter to the Expert, the matter will be determined
by the Expert and administered in accordance with this clause 49.5.  For the avoidance of doubt, where this
agreement or the parties require a matter to be referred directly to the
Expert, the Dispute Resolution Procedures in clauses 49.1(a), 49.1(b), 49.2,
49.3 and 49.4 will not apply.


 


(b)                 The parties will appoint an
Expert as a condition precedent to the payment of the Milestone Payment due
after the Completion Date for the NTS Mobilisation Phase.


 


(c)                 The parties must comply with the
terms of the Expert Deed.


 


(d)                 If the Expert Deed is
terminated, the parties must appoint a new Expert, on the terms of Schedule 14,
with amendments in writing as reasonably required by the Expert and consistent
with the terms of this agreement, or as otherwise agreed between the parties
and the Expert.  If the parties are
unable to agree upon the identity of a new Expert within 10 Business Days of
the termination of the Expert Deed, or within a time otherwise agreed between
the parties, then either party may request the Australian Commercial Disputes
Centre (ACDC) to nominate an Expert.


 


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(e)                 The Expert must:


 


(i)                  act as an expert and
not as an arbitrator;


 


(ii)                 proceed in any manner
he or she thinks fit without being bound to observe the rules of evidence;


 


(iii)                take into
consideration all documents, information and other material which the parties
give the Expert which the Expert in his or her absolute discretion, considers
relevant to the determination of the dispute;


 


(iv)               not be expected or
required to obtain or refer to any other documents, information or material but
may do so if he or she so wishes;


 


(v)                act in good faith and
make his or her decision within 15 Business Days (or within a time otherwise
agreed between the parties);


 


(vi)               give his or her
determination in writing (including a statement of the value of the
determination) and give written reasons for the determination.


 


(f)                  The Expert may, with
prior written approval from both the Contractor and the Principal, commission
his or her own advisers or consultants, including lawyers, accountants,
bankers, engineers, surveyors, transport consultants, or other technical
consultants, to provide information to assist the Expert in his or her
decision.


 


(g)                 The Expert must appoint any
advisers or consultants nominated in writing by both the Principal and the
Contractor to provide information to assist the Expert in his or her decisions.


 


(h)                 The parties will indemnify the
Expert for the cost of retaining those advisers or consultants.


 


(i)                  The Contractor must
provide the Expert with copies of minutes of meetings and all reports relevant
to the Work within 5 Business Days of them being prepared, and all other
information required to keep the Expert informed and able to carry out his or
her function under this clause.


 


(j)                  The Principal may
provide the Expert with any relevant information it considers necessary to keep
the Expert informed and able to carry out his or her function under this
clause.


 


(k)                 A copy of all information
provided by one party under clause 49.5(i) or 49.5(j) must be sent to the
other party.


 


(l)                  The determination of
the Expert will be final and binding on each party unless:


 


(i)                  the value of the
determination is greater than $500,000; 
and


 


(ii)                 a party gives notice
of appeal to the other party within 10 Business Days of the determination
requiring the dispute to be referred to arbitration.


 


(m)                Where a dispute is referred to
the Expert for determination and the Expert does not make a determination
within 15 Business Days of the dispute being referred to him or her, or within
a time otherwise agreed between the parties, either party may refer the dispute
to arbitration.


 


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(n)                 The parties are to give effect
to the determination of the Expert unless and until it is reversed, overturned,
or otherwise changed by any subsequent arbitration under clause 49.6.


 


(o)                 Subject to clause 49.1(e), the
Principal and the Contractor will each pay one-half of the costs of the Expert.


 


49.6             Arbitration


 


(a)                 If a notice of appeal is given
under clause 49.5(l)(ii) or a dispute is referred to arbitration under

clause 49.5(m), the parties agree to refer the dispute to arbitration
administered by the Australian Commercial Disputes Centre (ACDC).


 


(b)                 The arbitration will be
conducted in accordance with the ACDC arbitration rules which are
operating at the time the dispute is referred to ACDC, and which terms are
herewith deemed to be incorporated into this agreement subject to this clause
49.6.


 


(c)                 The seat of the arbitration will
be Melbourne, Victoria.


 


(d)                 The dispute will be decided by a
sole arbitrator.


 


(e)                 The parties will appoint an
arbitrator as a condition precedent to the payment of the Milestone Payment due
after the Completion Date for the NTS Mobilisation Phase.  If at the time the dispute is referred to
arbitration the arbitrator is or declares not to be capable of performing its
duties as arbitrator under this agreement, the parties shall appoint another
arbitrator.  If the parties fail to
appoint a new arbitrator within 15 Business Days after the dispute has been
submitted to arbitration, an arbitrator shall be appointed by ACDC.  In selecting an arbitrator ACDC shall in
particular consider the nature of the dispute.


 


(f)                  The parties agree to
the following general principles in relation to the conduct of the arbitration:


 


(i)                  that they have
chosen arbitration for the purposes of achieving a just, quick and cheap
resolution of any dispute;


 


(ii)                 that any arbitration
conducted pursuant to this clause shall not mimic court proceedings and the
practices of those courts will not regulate the conduct of the proceedings
before the arbitrator;


 


(iii)                that in conducting the
arbitration, the arbitrator must take into account the matters set out above,
particularly in deciding issues such as:


 


A.                 how many written
submissions will be allowed;


 


B.                  how much time the
parties shall have for preparing written submissions;


 


C.                  where appropriate,
the length of written submissions;


 


D.                 the extent of
document discovery permitted, if any;


 


E.                  the length of any
hearing; and


 


F.                  the number of
experts, if any, each party is allowed to appoint.


 


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(g)                 The arbitrator will conduct the
arbitration as expeditiously as possible and no party will unnecessarily delay
the arbitration proceedings.


 


(h)                 The arbitrator will have the
power to grant all legal, equitable and statutory remedies, and will be
entitled to review and substitute any determination made by the Expert under
clause 49.5.


 


(i)                  The arbitration will
be private and confidential, and no party or arbitrator will, without prior
written consent of all parties to the arbitration, disclose any matter relating
to the arbitration.


 


(j)                  This clause 49.6 sets
out a separate and several agreement to this agreement.  Accordingly, if this agreement is void or
voidable for any reason the dispute resolution agreement set out in this clause
will be unaffected and will survive any determination that this agreement is
void or has been avoided.


 


50.                Administrative provisions


 


50.1             Notices


 


All
communications (including notices, consents, approvals, requests and demands)
under or in connection with this agreement:


 


(a)                 must be in writing;


 


(b)                 must be addressed as follows (or as otherwise notified by
that party to each other party from time to time):


 


Contractor


 


Name:          Keane Australia Micropayment
Consortium Pty Ltd


 


Address:     Level 50, Bourke Place, 600 Bourke
Street, Melbourne


 


Fax:              +61 3 9643 5999


 


For
the attention of:       Gary Constable, c/- C. Lim,
Partner, Mallesons Stephen Jaques


 


Principal


 


Name:          Transport Ticketing Authority


 


Address:    Level 38, 55 Collins Street,
Melbourne, Victoria


 


Fax:              +61 3 9651 7578


 


For
the attention of:       Principal’s Representative


 


(c)                 must be signed by the party making the communication or (on
its behalf) by the solicitor for, or any attorney, director, secretary or
authorised agent of, that party;


 


(d)                 must be delivered or posted by prepaid post to the address,
or sent by fax to the number of the addressee, in accordance with clause
50.1(b); and


 


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(e)                 are taken to be received by the addressee:


 


(i)                  in the case of prepaid
post, on the Business Day that is the third Business Day after the date of
posting to an address within Australia, and on the fifth Business Day after the
date of posting by airmail to an address outside Australia;


 


(ii)                 in the case of fax, at the local
time (in the place of receipt of that fax) which then equates to the time that
fax is sent as shown on the transmission report produced by the machine from
which that fax is sent confirming transmission of that fax in its entirety,
unless that local time is not on a Business Day, or is after 5.00 pm on a
Business Day, when that communication is taken to be received at 9.00 am on the
next Business Day; and


 


(iii)                in the case of delivery by hand, on
delivery at the address of the addressee as provided in

clause 50.1(b), unless that delivery is made on a day that is not a Business
Day, or after 5.00 pm on a Business Day, when that communication is taken to be
received at 9.00 am on the next Business Day.


 


50.2             Stamp
duty


 


The Contractor:


 


(a)                 must pay all stamp duties and
any related fines and penalties in respect of this agreement, the performance
of this agreement and each transaction effected by or made under or pursuant to
this agreement;


 


(b)                 must indemnify each other party
against any liability arising from failure to comply with clause 50.2(a); and


 


(c)                 is authorised to make
any application for and retain the proceeds of any refund due in respect of
stamp duty paid under this clause.


 


50.3             Governing
law


 


This
agreement is governed by and will be
construed according to the law applying in Victoria.


 


50.4             Jurisdiction


 


Subject to clause 49, each party irrevocably:


 


(a)                 submits to the non-exclusive
jurisdiction of the courts of Victoria, and the courts competent to determine
appeals from those courts, with respect to any proceedings which may be brought
at any time relating to this agreement; and


 


(b)                 waives any objection
it may now or in the future have to the venue of any proceedings, and any claim
it may now or in the future have that any proceedings have been brought in an
inconvenient forum, where that venue falls within clause 50.4(a).


 


50.5             Waiver


 


(a)                 Failure to exercise or enforce,
or a delay in exercising or enforcing or the partial exercise or enforcement of
a right, power or remedy provided by law or under this agreement by any party does not preclude, or operate as a waiver of, the exercise
or


 


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enforcement,
or further exercise or enforcement, of that or any other right, power or remedy
provided by law or under this agreement.


 


(b)                 Any waiver or consent given by a
party under this agreement is only effective and binding on that party if it is given or confirmed in writing by that party.


 


(c)                 No waiver of a breach of any
term of this agreement will operate as a waiver of another breach of that term
or of a breach of any other term of this agreement.


 


50.6             No limitation


 


Without limiting the generality of any other
provision of this agreement, any exercise by the Principal of any rights under
this agreement will not relieve the Contractor of any of its obligations under
this agreement.


 


50.7             Consent or approval of
the Principal


 


In any case where pursuant to this agreement
the doing or executing of any act, matter or thing by the Contractor is
dependent upon the approval or consent of the Principal such approval or
consent may be given or withheld, or may be given subject to any conditions, by
the Principal in its absolute discretion unless this agreement expressly
provides otherwise.


 


50.8             Measurements


 


All measurements of physical quantities will
be in Australian legal units of measurements in accordance with the National Measurement Act 1960 (Cth).


 


50.9             Amendments


 


This agreement may only be varied by a
document signed by or on behalf of each party.


 


50.10           Further
acts and documents


 


Each
party must promptly do and perform all further acts and sign, execute and
complete all additional documents which may be necessary to effect, perfect, or
complete the provisions of this agreement and the transactions to
which it relates.


 


50.11           Counterparts


 


This agreement may be executed in any number
of counterparts and by the parties on separate counterparts.  Each counterpart constitutes an original of
this agreement, and all together constitute one agreement.


 


50.12           Expenses


 


Except as otherwise provided in this
agreement, each party must pay its own costs and expenses in connection with
negotiating, preparing, executing, performing and amending this agreement.


 


50.13           Severability


 


If
any part of this agreement is or becomes illegal,
invalid or unenforceable in any relevant jurisdiction, the legality, validity
or enforceability of the remainder of this agreement will not be affected
and this agreement will be read as if the part had
been deleted in that jurisdiction only.


 


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50.14           Entire
agreement


 


To the extent permitted by law, in relation
to its subject matter, this agreement:


 


(a)                 embodies the entire
understanding of the parties, and constitutes the entire terms agreed by the
parties; and


 


(b)                 supersedes any prior written or
other agreement of the parties.


 


50.15           Representations and
warranties


 


Each representation and warranty in this
agreement is a continuing representation and warranty and will be repeated on
each day while any obligation under this agreement remains outstanding, with
reference to the facts and circumstances then subsisting.


 


50.16           Indemnities


 


(a)                 Each indemnity in this agreement
is a continuing obligation, separate and independent from the other obligations
of the parties, and survives termination, completion or expiration of this
agreement.


 


(b)                 It is not necessary for a party
to incur expense or to make any payment before enforcing a right of indemnity
conferred by this agreement.


 


(c)                 A party must pay on demand any
amount it must pay under an indemnity in this agreement.


 


50.17           Hold on Trust


 


To the extent that the obligations,
undertakings, warranties, indemnities or liabilities of the Contractor under
this agreement are given in respect of, or expressed to be in favour of, any
Government, Governmental Agency, Access Provider, Stakeholder or other third
party, the Principal holds the benefit of such obligations, undertakings,
warranties, indemnities and liabilities on trust for each of those parties as
from the date of this agreement.


 


50.18           Non-merger


 


None of the terms or conditions of this
agreement nor any act, matter or thing done under or by virtue of or in
connection with this agreement will operate as a merger of any of the rights
and remedies of the parties in or under this agreement all of which will
continue in full force and effect until the respective rights and obligations
of the parties under this agreement have been fully performed and satisfied.


 


50.19           Set-Off


 


(a)                 The Principal may deduct from
money otherwise due to the Contractor:


 


(i)                  any debt or other
money due from the Contractor to the Principal; or


 


(ii)                 any Claim to money
which the Principal may have against the Contractor whether for damages
(including liquidated damages) or otherwise,


 


whether under this agreement or otherwise at
law relating to the Work.


 


(b)                 The Contractor must not deduct
from money otherwise due to the Principal:


 


(i)                  any debt or other
money due from the Principal to the Contractor; or


 


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(ii)                 any Claim to money
which the Contractor may have against the Principal whether for damages
(including liquidated damages) or otherwise,


 


whether under this agreement or otherwise at
law relating to the Work.


 


50.20           Survival


 


The
parties respective rights under clauses 1, 6, 14.2, 19, 22.5, 23.5, 24.2,
30, 32, 36 to the extent required by

clause 36.1(c), 40, 42, 43.2, 44, 46.1, 46.2, 50.1, 50.2, 50.3, 50.4, 50.5,
50.6, 50.7, 50.9, 50.10, 50.13, 50.14, 50.15, 50.16, 50.17, 50.18, 50.19 and
this clause 50.20 survive the termination or expiry of this agreement on any
basis other than to the extent required or specifically contemplated under the
provisions of those clauses.


 


50.21           Goods
and services tax


 


(a)                 Interpretation


 


(i)                  Except where the context suggests otherwise, terms used in this clause
have the meanings given to those terms by the A New Tax System (Goods and Services Tax)
Act 1999 (as amended from time to time).


 


(ii)                 Unless stated to the
contrary, any amount, payment or consideration referred to under or in
connection with this agreement is exclusive of GST.  Any consideration that is specified to be
inclusive of GST must not be taken into account in calculating the GST payable
in relation to a supply for the purpose of this clause.


 


(iii)                Any part of a supply
that is treated as a separate supply for GST purposes (including attributing
GST payable to tax periods) will be treated as a separate supply for the
purposes of this clause.


 


(b)                 Reimbursements
and similar payments


 


Any payment or reimbursement required to be
made under this agreement that is calculated by reference to a cost, expense,
or other amount paid or incurred will be limited to the total cost, expense or
amount less the amount of any input tax credit to which an entity is entitled
for the acquisition to which the cost, expense or amount relates.


 


(c)                 GST
payable


 


(i)                  If GST is payable in
relation to a supply made under or in connection with this agreement then any
party (“Recipient”) that is
required to provide consideration to another party (“Supplier”) for that supply must pay an additional amount to
the Supplier equal to the amount of that GST at the same time as any
consideration is to be first provided for that supply.


 


(ii)                 The Supplier must
provide a tax invoice to the Recipient, no later than the time at which the
additional amount in respect of that taxable supply is to be provided under
clause 50.21(c)(i) unless the Recipient issues a recipient created tax
invoice pursuant to clause 50.21(e).


 


(d)                 Variation
of GST


 


If the GST payable in relation to a supply
made under or in connection with this agreement varies from the additional
amount paid by the Recipient under clause 50.21(c)(i)


 


181





















 


in relation to that supply then the Supplier
will provide a corresponding refund or credit to, or will be entitled to
receive the amount of that variation from, the Recipient.  Any payment, credit or refund under this
clause is deemed to be a payment, credit or refund of the additional amount
payable under clause 50.21(c)(i).


 


(e)                 Recipient
created tax invoices


 


(i)                  Where the GST law
permits, the Principal may issue to the Contractor a recipient created tax
invoice (“RCTI”) for each taxable
supply made by the Contractor to the Principal under this agreement that is
specified in a notice pursuant to clause 50.21(e)(ii).


 


(ii)                 Where the Principal
wishes to issue an RCTI in respect of a taxable supply made by the Contractor
to the Principal under this agreement, the Principal must give a written notice
to the Contractor identifying the relevant taxable supplies for which an RCTI
will be issued and the date from which the notice takes effect.  The Principal will issue the RCTI in a format
that states the total amount payable on account of GST.  The Principal will issue an adjustment note
for any adjustment event relating to any supply in respect of which it issues
an RCTI.


 


(iii)                Where the Principal is
permitted by the GST law and under this agreement to issue RCTIs and adjustment
notes in respect of taxable supplies referred to in the notice in clause
50.21(e)(ii) that are made by the Contractor to the Principal, the
Contractor must not issue a tax invoice or adjustment note in respect of these
taxable supplies.


 


(iv)               Each party acknowledges
that it is registered for GST purposes at the time this agreement is
executed.  Each party must notify the
other party if it ceases to be registered for GST or if that party ceases to
comply with any requirement or criteria in the GST law or any ruling or
determination relating to the issue of RCTIs (“Requirement”).  The parties agree that paragraphs (i) and
(ii) will not apply after the Principal or the Contractor cease to be
registered for GST, or after the Principal or the Contractor ceases to comply
with any Requirement.


 


(v)                The Contractor will
indemnify or reimburse the Principal on demand for any loss, cost, expense,
penalty, fine, interest, fee or other amount incurred in relation to the
Principal issuing RCTIs while:


 


A.                 the Contractor is not
registered for GST and/or otherwise fails to satisfy, or comply with, any
Requirement and the Principal has not received notification from the Contractor
of the relevant fact referred to in clause 50.21(e)(iii); or


 


B.                  the details
contained in any RCTI or adjustment note issued by the Principal is incorrect,
inaccurate or misleading as a result of information provided by the Contractor
to the Principal.


 


50.22           Interest


 


(a)                 If either party fails to pay
when due any moneys payable by it under, or in connection with any Project
Document (including interest under this clause), the party in default will pay
interest on the amount owing at a rate equal to the Overdue Rate calculated
daily and capitalised monthly in arrears for the period from the date


 


182





















 


when
the amount became owing until the amount is paid or satisfied (both before, and
as a separate and independent obligation after, any judgment).


 


(b)                 The interest will be capitalised
monthly and will be added to the amount owing, and will itself bear interest
under this clause.


 


50.23           Marketing
and Communications by the Principal


 


The
Contractor must, at its own cost, provide all reasonable assistance requested
by the Principal in relation to any marketing activities or public
communications that the Principal undertakes or wishes to undertake in relation
to or in connection with the Project, the Solution or the Services.


 


183





















 


Signed as an agreement.


 


 


	
  The Official Seal of Transport Ticketing

  Authority was affixed in the presence of:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
    Michael
  Pryles

  	
   

  	
    Vivian Miners

  	
   

  
	
    Witness:

  	
   

  	
    Witness:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
    /s/
  Michael Pryles

  	
   

  	
    /s/ Vivian Miners

  	
   

  
	
    Name:

  	
   

  	
    Name:

  	
   

  



 


 


	
  Signed for and on behalf of Keane
  Australia Micropayment Consortium Pty Ltd by its

  Attorney under a Power of Attorney dated 16 June 

  	
   

  	
   

  	
   

  	
   

  
	
  2005 and the Attorney declares
  that the Attorney

  	
   

  	
    /s/ Gary Constable

  	
   

  	
   

  
	
  has not received any notice of
  the revocation of

  	
   

  	
   

  	
   

  	
   

  
	
  such Power of Attorney, in the
  presence of:

  	
   

  	
    Signature

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
    Chena Lee Lim

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
    Signature of Witness

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
    /s/ Chena Lee Lim

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
    Name of Witness in full

  	
   

  	
   

  	
   

  	
   

  



 


184





















 


Schedule 1


 


Schedule 1

Phases


 


(Clause 1.1)


 


A.                 Phases


 


	
  Phase

  	
   

  	
  Phase Date

  	
   

  
	
  NTS
  Mobilisation Phase

  	
   

  	
  CD
  + 25 WD

  	
   

  
	
  NTS
  Solution Requirements Phase

  	
   

  	
  CD
  + 103 WD

  	
   

  
	
  NTS
  Release 0 and Prototyping Phase

  	
   

  	
  CD
  + 105 WD

  	
   

  
	
  NTS
  Front Office Design and Hardware FAT Phase

  	
   

  	
  CD
  + 169 WD

  	
   

  
	
  NTS
  Front Office Software FAT and Back Office Release 1 and 2 Phase

  	
   

  	
  CD
  + 278 WD

  	
   

  
	
  NTS
  Final Back Office Release Phase

  	
   

  	
  CD
  + 322 WD

  	
   

  
	
  NTS
  Front Office User Acceptance Test Phase

  	
   

  	
  CD
  + 344 WD

  	
   

  
	
  NTS
  User Acceptance Test Phase

  	
   

  	
  CD
  + 452 WD

  	
   

  
	
  NTS
  Front Office Implementation 1 Phase

  	
   

  	
  CD
  + 409 WD

  	
   

  
	
  NTS
  Front Office Implementation 2 Phase

  	
   

  	
  CD
  + 474 WD

  	
   

  
	
  NTS Regional and Metropolitan
  Implementation Completion Phase

  	
   

  	
  CD + 518 WD

  	
   

  
	
  NTS
  Operational Proving Phase

  	
   

  	
  CD
  + 649 WD

  	
   

  



 


Key


 


“CD” means Commencement Date as defined in
the Project Agreement


 


“WD” means work days, being any Monday to
Friday including Public Holidays.


 





















 


SCHEDULE 2


 


Schedule 2

Key Personnel


 


(Clause 7)


 


B.                 Part A


 


	
  Role

  	
   

  	
  Responsibilities

  	
   

  	
  Name

  	
   

  	
  Period

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kamco
  CEO and Project Director

  	
   

  	
  Delivery
  of business outcomes to the TTA

  	
   

  	
  Gary
  Constable

  	
   

  	
  The
  Term of the Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery
  Project Director

  	
   

  	
  Delivery
  of the NTS to the Kamco

  	
   

  	
  Lil
  Bianchi

  	
   

  	
  Commencement
  Date to the end of the NTS Operational Proving Phase

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Solution
  Architect

  	
   

  	
  Solution
  design and development authority

  	
   

  	
  Jurek
  Krasnodebski

  	
   

  	
  Commencement
  Date to the end of the NTS Operational Proving Phase

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Project
  Manager

  	
   

  	
  Project
  plan

  	
   

  	
  Steve
  Zammit

  	
   

  	
  Commencement
  Date to the end of the NTS Operational Proving Phase

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Integration
  Manager

  	
   

  	
  Delivery
  of integrated solution

  	
   

  	
  Lawrie
  Martin

  	
   

  	
  Commencement
  Date to the end of the NTS Operational Proving Phase

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Contract
  Manager

  	
   

  	
  Compliance

  	
   

  	
  Mike
  Duncombe

  	
   

  	
  The
  Term of the Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Acceptance/Operations
  Manager

  	
   

  	
  NTS
  acceptance and operations

  	
   

  	
  Adam
  Casey

  	
   

  	
  The
  Term of the Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Technical
  Services Manager

  	
   

  	
  Installation
  and maintenance

  	
   

  	
  Adrian
  Burling

  	
   

  	
  The
  Term of the Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Settlement
  Manager

  	
   

  	
  Delivery
  of settlement modules

  	
   

  	
  Frank
  Faulkner

  	
   

  	
  Commencement
  Date to the end of the NTS Operational Proving Phase

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Device
  Architect

  	
   

  	
  Design
  and development

  	
   

  	
  Andrew
  Sear

  	
   

  	
  Commencement
  Date to the end of the NTS Operational Proving Phase

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Device
  Project Manager

  	
   

  	
  Delivery
  of devices

  	
   

  	
  Jill
  Hatttersley Patrick Tillein

  	
   

  	
  Commencement
  Date to the end of the NTS Operational Proving Phase

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maintenance

  	
   

  	
  Device
  availability

  	
   

  	
  Mike
  Gamage

  	
   

  	
  The
  Term of the Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Financial
  Accounting and Records Manager

  	
   

  	
  Provide
  financial accounting and reporting for Kamco

  	
   

  	
  [To be appointed]

  	
   

  	
  The
  Term of the Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fixed
  Assets Manager

  	
   

  	
  Kamco
  Asset Manager

  	
   

  	
  [To be appointed]

  	
   

  	
  The
  Term of the Agreement

  



 





















 


	
  Role

  	
   

  	
  Responsibilities

  	
   

  	
  Name

  	
   

  	
  Period

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Clearing &
  Settlements Manager

  	
   

  	
  Responsible
  for the processing of all financial transactions

  	
   

  	
  [To be appointed]

  	
   

  	
  The
  Term of the Agreement

  



 


C.                 Part B


 


	
  Role

  	
   

  	
  Minimum qualifications &
  experience

  
	
   

  	
   

  	
   

  
	
  Fixed Assets Manager

  	
   

  	
  •  Must hold a recognised Australian accounting qualification at
  tertiary level, and be a member of an Australian accounting professional
  body;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  •  Must be knowledgeable in AGAAP (Australian Generally Accepted
  Accounting Principles) and IFRS (Australian Adoption of International
  Financial Reporting Standards); and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  •  Must have at least 3-4 years post-graduate experience, preferably
  including exposure to managing a substantial asset register on behalf of
  another owner.

  
	
   

  	
   

  	
   

  
	
  Clearing & Settlements Manager

  	
   

  	
  •  Will preferably hold a recognised Australian accounting
  qualification at tertiary level, and be a member of an Australian accounting
  professional body;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  •  Must have at least 3-5 years settlement experience in a
  substantial back office environment (preferably Australian); and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  •  Must have a sound working knowledge of and experience in Australia’s
  regulatory environment.

  



 





















 


SCHEDULE 3


 


Schedule 3

Completion Pre-Conditions


 


(Clause 1.1 and 17)


 


Completion Process


 


The Completion Pre-Conditions
- General and the Completion Pre-Conditions for the following Phases will be
incorporated into this Schedule 3 prior to the Principal executing the
agreement:


 


•                   NTS Mobilisation Phase;


 


•                   NTS Solution
Requirements Phase;


 


•                   NTS Regional and
Metropolitan Implementation Completion Phase; and


 


•                   NTS Operational Proving
Phase.


 


The Principal and the
Contractor will also seek to agree the Completion Pre-Conditions for all other
Phases prior to the Principal executing the agreement. If the Completion Pre-Conditions
for any of the following Phases required for this Schedule 3 have not
been agreed and completed prior to the Principal executing the agreement:


 


•                   NTS Release 0 and
Prototyping Phase;


 


•                   NTS Front Office Design
and Hardware FAT Phase;


 


•                   NTS Front Office
Software FAT and Back Office Release 1 and 2 Phase;


 


•                   NTS Final Back Office
Release Phase;


 


•                   NTS Front office User
Acceptance Test Phase;


 


•                   NTS User Acceptance
Phase;


 


•                   NTS Front Office
Implementation 1 Phase; and


 


•                   NTS Front Office
Implementation 2 Phase,


 


then the following process
will be used to determine the Completion Pre-Conditions for the relevant Phases
prior to the Phase Date for the NTS Mobilisation Phase:


 


•                   the Principal will
provide the Contractor with a draft of the Completion Pre-Conditions for the
relevant Phases, within 10 Business Days after the Commencement Date,
based on the description of phase deliverables set out in Exhibit 4;


 


•                   the Contractor must,
within 5 Business Days of receipt of the draft Completion Pre-Conditions,
advise the Principal whether or not it considers such Completion Pre-Conditions
to be acceptable or to provide its comments (if any);


 


•                   if the Contractor
provides comments in relation to the draft Completion Pre-Conditions, the
Principal must, within 5 Business Days of receipt of the Contractor’s
comments, provide a revised draft of the Completion Pre-Conditions to the
Contractor having considered any comments of the Contractor;


 


•                   if the Contractor does
not accept the revised draft Completion Pre-Conditions, then either party may
refer the matter for resolution in accordance with clause 2.2(e) of
the agreement; and


 





















 


•                   subject to the outcome
of any such dispute resolution process, the Completion Pre-Conditions, as determined
by the Principal’s Representative, will be incorporated into Schedule 3 as
the Completion Pre-Conditions for the relevant Phases as set out above.


 





















 


General


 


The following are the
minimum conditions precedent to the completion of each Phase, which may be
reasonably added to by the Principal for any or all Phases, in order to ensure
that the Phase deliverables and the requirements of the agreement are complied
with in relation to each Phase:


 


1.                  The Contractor has completed all work and deliverables for the
relevant Phase, including all work and deliverables as set out in the
Description of Phase Deliverables – Exhibit 4.


 


2.                  Completion of all testing required to be carried out in the relevant
Phase and achievement of the required test results.


 


3.                  All minor Defects identified in respect of a previous Phase have
been rectified in accordance with the agreement or, at the sole discretion of
the Principal; have been scheduled to be rectified by the Phase Date for a
subsequent Phase.


 


4.                  All relevant Approvals and licences required to be obtained by the
Contractor have been obtained and each of the relevant conditions to such
Approvals and licences have been satisfied.


 


5.                  All insurances required to be effected and maintained have been
effected pursuant to this Agreement.


 


6.                  The Contractor has provided to the Principal the warranties
available to the Contractor from all of its subcontractors and suppliers
directly in favour of the Principal.


 


7.                  Written confirmation from the Contractor that all its subcontractors
and suppliers have been paid all amounts due and payable to them.


 


8.                  Written confirmation from the Contractor that ownership of all
materials which should be passed to the TTA will be passed, in accordance with
clauses 30 and 32 of the agreement, upon payment in respect of that Phase.


 


9.                  The Contractor has procured from all relevant sub-contractors and
suppliers, and provided written confirmation to the Principal, that all
relevant sub-contractors and suppliers have no continuing interest in any materials
which will be owned by the Principal upon payment by the Principal of the
relevant Payment Milestone.


 


10.                Written
confirmation from the Contractor that the Solution Documentation prepared by
the Contractor complies with the requirements of the agreement and all relevant
approvals, and that the Phase and Solution has been constructed or completed
(as appropriate) in accordance with such documentation.


 


11.                The
Contractor has provided to the Principal all Design Documents and any other
Solution Documentation required to be provided as pat of the relevant Phase.


 


12.                The
Contractor has deposited in escrow all Escrow Material required to be deposited
in escrow in accordance with the agreement as part of the relevant Phase.


 


13.                The
Contractor has provided to the Principal a list of all material placed in
escrow since completion of the previous Phase.


 


14.                Completion
of all previous Phases has occurred.


 





















 


NTS Mobilisation Phase - Completion
Pre-Conditions


 


In addition to the general
Completion Pre-conditions, the following are conditions precedent to the
completion of the NTS Mobilisation Phase:


 


15.                Agreement
by the Principal of those Category 2 Matters set out in Part B of Schedule 37.


 


16.                Delivery
to the Principal of completed versions of the documents, plans and reports
detailed in the Description of Deliverables for the NTS Mobilisation Phase (Exhibit 4).


 


17.                Evidence
satisfactory to the Principal that the required Contractor resources are
available in Melbourne, including Key Personnel, to commence the NTS Solution
Requirements Phase and the NTS Release 0 and Prototyping Phase in
accordance with the Project Timeline (Exhibit 3).


 





















 


NTS Solution Requirements Phase - Completion
Pre-Conditions


 


In addition to the general
Completion Pre-conditions, the following are conditions precedent to the
completion of the NTS Solution Requirements Phase:


 


18.                Agreement
by the Principal of those Category 3 Matters set out in Part C of Schedule 37.


 


19.                Delivery
to the Principal of the completed NTS Requirements Specification developed in
accordance with clause 11.3.


 


20.                The
Contractor has obtained written confirmation from the Operators that all of the
outcomes, requirements, policies, procedures, practices and business rules of
the Operators have been documented in the NTS Requirements Specification in
accordance with clause 11.1(b)(i) of the agreement. However if the
Contractor has used best endeavours to obtain such confirmation from an
Operator, and has demonstrated to the satisfaction of the Principal that they
have in fact documented all the requirements, policies, procedures, practices
and business rules of that Operator, then the Principal will not require
confirmation from that Operator.


 


21.                Completion
of the Contractor’s obligations in regard to the NTS Solution Requirements
Phase in accordance with the agreement.


 


22.                Delivery
to the Principal of the required versions or releases of the documents, plans
and reports detailed in the Description of Deliverables for the NTS Solution
Requirements Phase (Exhibit 4) and as detailed in the Design Document list
prepared in accordance with Schedule 38.


 


23.                Delivery
to the Principal of the document which sets out any proposed reduction in the
Capital Price or the Service Charges or both, or which does not propose any
such reduction, in accordance with clause 11.4(b) of the agreement.


 


24.                A
description of the Work which will comprise an Interim Phase (if any) and the
Phase Dates and Completion Pre-Conditions of each Interim Phase, in accordance
with clause 11.8 of the agreement.


 


25.                Delivery
to the Principal of evidence that the NTS Requirements and outcomes,
requirements, business processes and business rules identified during the
NTS Solution Requirements Phase have been documented in the NTS Requirements
Specification, including the requirements of clause 11.1(b)(iii) of
the agreement.


 


26.                Provision
of completed documentation in relation to the Principal’s requirements for the
Pilot Trial as required by clause 11.1(b)(vi) of the agreement.


 


27.                Approval
by the Principal of the completed Design Document list developed in accordance
with clause 11.7 and Schedule 38 Part B.


 


28.                Acceptance
by the Principal of the completed Test Plan developed in accordance with
clause 11.7 and Schedule 39.


 


29.                Delivery
to the Principal of the completed Project Quality Assurance Plan.


 


30.                Payment
in full of all liquidated damages due and payable by the Contractor in
accordance with clause 18.6 (prepayment of Liquidated Damages).


 


31.                Delivery
to the Principal of a customisation document describing the extent of work the
Contractor must undertake to its existing equipment and system in order to meet
the Principal’s requirements, as required by clause 11.1(b)(iii) of
the agreement.


 





















 


32.                Delivery
to the Principal of all audit reports relating to CMM and or ISO, electronic
data processing or system security, undertaken either by the relevant
administering organisation or by or on behalf of the Contractor, since the
Commencement Date.


 





















 


NTS Release 0 and Prototyping
Phase - Completion Pre-Conditions


 


In addition to the general
Completion Pre-conditions, the following are conditions precedent to the
completion of the NTS System Prototyping Phase:


 


1.                   Evidence of the
Contractor having placing orders for the procurement of long lead time items
(purchase orders) in accordance with the Bill of Materials for long lead time
items.


 





















 


NTS Regional and Metropolitan Implementation
Completion Phase - Completion Pre-Conditions


 


In addition to the general
Completion Pre-Conditions, the following are conditions precedent to the
completion of the NTS Regional and Metropolitan Implementation Completion
Phase:


 


1.                 Demonstration to the reasonable
satisfaction of the Principal, who will make appropriate resources available,
that all components of the Solution have been correctly designed, manufactured,
produced, supplied, installed, connected, integrated, completed and tested so
that the Solution can meet all requirements of the agreement, including the
performance requirements as detailed in Schedules 29, 30 and 31.


 


2.                 Delivery to the Principal of all
Test Plan reports and data that demonstrates that all tests conducted in
accordance with the Test Plan, Test Documents and any additional testing
performed by the Principal in accordance with clause 15.7, have obtained a
‘Pass’ rating as described in the Test Plan.


 


3.                 Delivery to the Principal of all
final software, hardware and business systems required for the operation the
Solution.


 


4.                 Delivery to the Principal of all
stored test data and testing software.


 


5.                 Delivery to the Principal of the
completed final versions or releases of the documents, plans and reports as
detailed in the Design Document list prepared in accordance with Schedule 38.


 


6.                 Evidence satisfactory to the
Principal that all non-compliances identified through the Contractor’s Quality
Management System and the Project Quality Assurance System, have been
rectified.


 


7.                 Delivery to the Principal of the
final and completed documents, plans and reports detailed in the Description of
Deliverables for the NTS Regional and Metropolitan Implementation Completion
Phase (Exhibit 4).


 


8.                 Completion of all training required
in accordance with the Training Programme Plan and the agreement, to the
satisfaction of the Principal.


 


9.                 Verification that all redundant
equipment, devices and infrastructure has been removed and made good to the
satisfaction of the Principal.


 


10.               Payment in full of all liquidated
damages due and payable by the Contractor in accordance with clause 18.6
(prepayment of Liquidated Damages).


 


11.               Delivery to the Principal of all
audit reports relating to the Project Quality Assurance Plan, CMM and or ISO
reports, electronic data processing or system security, undertaken either by
the relevant administering organisation or by or on behalf of the Contractor,
that have not been previously provided to the Principal since the Commencement
Date.


 





















 


NTS Operational Proving Phase -
Completion Pre-Conditions


 


In addition to the general
Completion Pre-conditions, the following are conditions precedent to the
completion of the NTS Operational Proving Phase:


 


1.                 Verification to the satisfaction of
the Principal that all components of the Solution and the Solution as a whole
is operating in accordance with the requirements of the agreement, including
the performance requirements as detailed in Schedules 29, 30 and 31.


 


2.                 Verification to the satisfaction of
the Principal that the Solution has operated for the final three months of the
NTS Operational Proving Phase without incurring any more than 1500 Service
Points and $1,500 of Payment Reductions (the threshold amounts) in accordance
with the performance requirements set out in Schedules 29, 30 and 31.


 


3.                 Verification to the satisfaction of
the Principal that all tests required to achieve Completion of the NTS Regional
and Metropolitan Implementation Completion Phase have been repeated during this
Phase.


 


4.                 Delivery to the Principal of all
Test Plan reports and data that demonstrates that all tests conducted during
this Phase in accordance with the Test Plan, Test Documents and any additional
testing performed by the Principal in accordance with clause 15.7, have
obtained a ‘Pass’ rating as described in the Test Plan.


 


5.                 Delivery to the Principal of the
completed final versions or releases of all documents, plans and reports as
detailed in the Design Document list prepared in accordance with Schedule 38.


 


6.                 Evidence satisfactory to the
Principal that all non-compliances identified through the Contractor’s Quality
Management System and the Project Quality Assurance System, have been
rectified.


 


7.                 Delivery to the Principal of the
final and completed documents, plans or reports detailed under the Description
of Deliverables for the NTS Operational Proving Phase (Exhibit 4).


 


8.                 Verification to the satisfaction of
the Principal that all transition activities have been completed in accordance
with the Transition Plan.


 


9.                 Payment in full of all liquidated
damages due and payable by the Contractor in accordance with clause 18.6
(prepayment of Liquidated Damages).


 


10.               Delivery to the Principal of all
audit reports relating to the Project Quality Assurance Plan, CMM and or ISO,
electronic data processing or system security, undertaken either by the
relevant administering organisation or by or on behalf of the Contractor, that
have not been previously provided to the Principal since the Commencement Date.


 





















 


SCHEDULE 4


 


Schedule 4

Certificate of Completion


 


(Clause 17)


 


Given pursuant to
clause 17 of the Transport Ticketing Solution Project Agreement (“agreement”) dated [                                            ]
between Public Transport Ticketing Body trading as Transport Ticketing
Authority (“Principal”) and Keane Australia Micropayment Consortium Pty
Ltd (“Contractor”).


 


To:               Contractor


 


1.                   Pursuant to and for the
purposes of the agreement the Principal hereby certifies
that [specify Phase] achieved
Completion on [  ].


 


2.                  This certificate is
copied to:


 


(a)                 [                       ];
and


 


(b)                [                      ].


 


3.                  Terms defined in the
agreement have the same meaning where used in this certificate.


 


4.                  This certificate may
only be relied on by the parties to the agreement.


 


5.                  This certificate is
issued on [                                                        ].


 


 


	
  SIGNED for and on behalf of

  	
   

  	
  )

  	
   

  
	
  the
  Principal by

  	
   

  	
  )

  	
   

  
	
  [                                  ]
  in the presence of:

  	
   

  	
  )

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  for and on behalf of the Principal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (Signature of Witness)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (Name of Witness in full)

  	
   

  	
   

  	
   

  



 





















 


SCHEDULE 5


 


Schedule 5

Variation Order


 


(Clause 20)


 


(To the Contractor)


 


In accordance with clause 20 of the New Ticketing Solution Project Agreement (“agreement”), you are directed to carry out
the following works as a Variation:


 


[the Principal to insert details]


 


Subject to clause 20.4 of the agreement the value of the Variation is as
follows:


 


	
  (a)

  	
   

  	
  Direct Costs (if any)

  	
   

  	
  :

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  Direct Savings (if any)

  	
   

  	
  :

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  Delay Costs (if any)

  	
   

  	
  :

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  Acceleration Costs (if any)

  	
   

  	
  :

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  Extension of Time (if any)

  	
   

  	
  :

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (f)

  	
   

  	
  Date for Completion of Phase [   ]

  	
   

  	
  :

  	
   

  	
   

  



 


 


	
   

  	
   

  
	
  Principal’s Representative

  



 





















 


SCHEDULE 6


 


Schedule 6

Acceleration Direction


 


(Clause 20)


 


 


(To the Contractor)


 


In accordance with clause 20.3 of the New Ticketing Solution Project
Agreement (“agreement”), you are directed to
accelerate the Delivery by taking those measures which are necessary to
overcome or minimise the extent of any delay caused by:


 


[INSERT DETAILS]


 


in order to achieve Completion of Phase [   ] by [      
].


 


The Acceleration Costs are payable as follows:


 


[SET OUT DETAILS OF INSTALMENTS]


 


Terms defined in the agreement have the same meaning where used in this
direction.


 


 


	
   

  	
   

  
	
   

  
	
  Principal’s Representative

  



 





















 


SCHEDULE 7


 


Schedule 7

Schedule of Rates
and Prices for Variations


 


(Clause 20)


 


The rates and prices in this schedule are
divided between:


 


•                   equipment pricing by device and by vehicle, in Part 1 and Part 2
respectively;


 


•                   ongoing device maintenance costs, Part 3;


 


•                   capital and ongoing operating costs relating to Core work packages, Part 4;


 


•                   labour rates, Part 5; and


 


•                   transaction volume increases, Part 6.


 


In addition, Part 7 sets out the maximum
lead times between the order and delivery of devices.


 


The following items will be finalised by the
Principal and the Contractor as Category 3 Matters prior to the Completion
of the NTS Solution Requirements Phase:


 


•                   installation and de-installation hours and costs in Part 1 and Part 2;


 


•                   cost of Hand-Held Device - Selling Equipment in Part 1;


 


•                   device maintenance charges in Part 3;


 


•                   the labour rate for ERG - Installation Technician in Part 5;
and


 


•                   part 6 of this Schedule.


 


The
finalisation of these items by the Principal and the Contractor will be based
upon, and will involve no more cost to the Principal than, the rates and prices
currently set out in this schedule.


 





















 


1.                                                      Equipment


 


The hours and costs relating to installation
and de-installation will be finalised as a Category 3 Matter prior to the
Completion of the NTS Solution Requirements Phase in accordance with this
agreement and the process and principles set out at the beginning of this
schedule.


 


Hand-held devices – selling equipment
costs will be finalised as a Category 3 Matter prior to the Completion of
the NTS Solution Requirements Phase in accordance with this agreement and the
process and principles set out at the beginning of this schedule.


 


Prices are stated
as at 9 May 2005, to be escalated annually for CPI in accordance with
Schedule 11. All prices in Australian Dollars.


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Equipment Cost(1) – By Order
  Size

  (units)

  	
   

  	
  Installation Hours – Per Unit

  	
   

  	
  Other

  Cost

  	
   

  
	
  Work

  Package

  	
   

  	
  Equipment(1A)

  	
   

  	
  Equipment

  code

  	
   

  	
  1 – 5

  	
   

  	
  6 – 20

  	
   

  	
  More

  than 21

  	
   

  	
  Installation(2)

  	
   

  	
  De-installation(3)

  	
   

  	
  Per

  Unit(4)

  	
   

  
	
  Tram

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tram
  Driver Console Primary incl. Mounting Bracket (TDC Primary)

  	
   

  	
  (TDC P)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tram
  Driver Console Secondary (TDC Secondary)

  	
   

  	
  (TDC S)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Combined
  Card Vending / Add-Value Machine (CVM/AVM – Mobile)

  	
   

  	
  (CVM/AVM – Mobile)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Fare
  Payment Device (FPD Mobile)

  	
   

  	
  (FPD Mobile)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Depot
  Requirement – Tram (DR – T)

  	
   

  	
  (DR – T)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Combined
  Card Vending / Add-Value Machine – Superstop (CVM/AVM)

  	
   

  	
  (CVM/AVM)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
  Bus

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bus
  Driver Console (BDC)

  	
   

  	
  (BDC)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Fare
  Payment Device (FPD Mobile)

  	
   

  	
  (FPD Mobile)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Head
  Office Requirement – Bus (HOB)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Depot
  Requirement Bus (DB) – Small Depot

  	
   

  	
  (DB)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  



 





















 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Equipment Cost(1) – By Order
  Size

  (units)

  	
   

  	
  Installation Hours – Per Unit

  	
   

  	
  Other

  Cost

  	
   

  
	
  Work

  Package

  	
   

  	
  Equipment(1A)

  	
   

  	
  Equipment

  code

  	
   

  	
  1 – 5

  	
   

  	
  6 – 20

  	
   

  	
  More

  than 21

  	
   

  	
  Installation(2)

  	
   

  	
  De-installation(3)

  	
   

  	
  Per

  Unit(4)

  	
   

  
	
   

  	
   

  	
  Depot
  Requirement Bus (DB) – Medium Depot

  	
   

  	
  (DB)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Depot
  Requirement Bus (DB) – Large Depot

  	
   

  	
  (DB)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Combined
  Card Vending / Add-Value Machine – Interchange (CVM/AVM)

  	
   

  	
  (CVM/AVM)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
  Rail

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Station
  Requirement (SR)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ticket
  Office Terminal (TOT-f)

  	
   

  	
  (TOT-f)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Rail
  Combined Card Vending / Add-Value Machine (CVM/AVM)

  	
   

  	
  (CVM/AVM)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Add-Value
  Machines – standalone (AVM)

  	
   

  	
  (AVM)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Mobile
  (TOT-m)

  	
   

  	
  (TOT-m)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Electronic
  Gate

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Gate
  Attendant Control (GAC)

  	
   

  	
  (GAC)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Station
  Fare Payment Device (FPD – Platform)

  	
   

  	
  (FPD – Platform)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
  Third party

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Metropolitan
  Primary Agent Terminal (MPAT)

  	
   

  	
  (MPAT)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Primary V/Line Agent Terminal (VPAT)

  	
   

  	
  (VPAT)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Secondary Agent Terminal (SAT)

  	
   

  	
  (SAT)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
  Hand Held

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Depot Requirement (DR-H)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Hand-Held Device (HHD-s) – Selling

  	
   

  	
  (HHD-s)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transfer a tram device/
  requirement

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tram Driver Console (TDC)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Combined
  Card Vending / Add-Value Machine (CVM/AVM)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Fare Payment Device (FPD)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Depot Requirement – Tram (DR –
  T)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Combined
  Card Vending / Add-Value Machine – Superstop (CVM/AVM)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  



 





















 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Equipment Cost(1) – By Order
  Size

  (units)

  	
   

  	
  Installation Hours – Per Unit

  	
   

  	
  Other

  Cost

  	
   

  
	
  Work

  Package

  	
   

  	
  Equipment(1A)

  	
   

  	
  Equipment

  code

  	
   

  	
  1 – 5

  	
   

  	
  6 – 20

  	
   

  	
  More

  than 21

  	
   

  	
  Installation(2)

  	
   

  	
  De-installation(3)

  	
   

  	
  Per

  Unit(4)

  	
   

  
	
  Transfer a bus device/requirement

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bus Driver Console (BDC)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Fare Payment Device (FPD)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Head Office Requirement – Bus (HOB)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Depot Requirement Bus (DB) – Small
  Depot

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Depot Requirement Bus (DB) – Medium
  Depot

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Depot Requirement Bus (DB) – Large
  Depot

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Combined Card Vending / Add-Value
  Machine – Interchange (CVM/AVM)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
  Transfer a train
  device/requirement

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Station Requirement (SR)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ticket Office Terminal (TOT)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Rail
  Combined Card Vending / Add-Value Machine (CVM/AVM)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Add-Value Machines – standalone (AVM)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Mobile (TOT-m)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Electronic Gates (EG)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Gate Attendant Control (GAC)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Station Fare Payment Device (FPD)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
  Transfer a retail agent
  device/requirement

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Metropolitan
  Primary Agent Terminal (MPAT)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Primary V/Line Agent Terminal (VPAT)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Secondary Agent Terminal (SAT)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
  Remove a tram device/
  requirement

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tram Driver Console (TDC)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Combined
  Card Vending / Add-Value Machine (CVM/AVM)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Fare Payment Device (FPD)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Depot Requirement – Tram (DR –
  T)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  



 





















 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Equipment Cost(1) – By Order
  Size

  (units)

  	
   

  	
  Installation Hours – Per Unit

  	
   

  	
  Other

  Cost

  	
   

  
	
  Work

  Package

  	
   

  	
  Equipment(1A)

  	
   

  	
  Equipment

  code

  	
   

  	
  1 – 5

  	
   

  	
  6 – 20

  	
   

  	
  More

  than 21

  	
   

  	
  Installation(2)

  	
   

  	
  De-installation(3)

  	
   

  	
  Per

  Unit(4)

  	
   

  
	
   

  	
   

  	
  Combined Card Vending / Add-Value
  Machine – Superstop (CVM/AVM)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
  Remove a bus
  device/requirement

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bus Driver Console (BDC)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Fare Payment Device (FPD)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Head Office Requirement – Bus (HOB)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Depot Requirement Bus (DB) – Small
  Depot

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Depot
  Requirement Bus (DB) – Medium Depot

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Depot Requirement Bus (DB) – Large
  Depot

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Combined
  Card Vending / Add-Value Machine – Interchange (CVM/AVM)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
  Remove a train
  device/requirement

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Station Requirement (SR)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ticket Office Terminal (TOT)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Mobile (TOT-m)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Electronic Gates (EG)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Rail
  Combined Card Vending / Add-Value Machine (CVM/AVM)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Add-Value Machines – standalone (AVM)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Gate Attendant Control (GAC)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Station Fare Payment Device (FPD)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
  Remove a retail agent
  device/requirement

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Metropolitan
  Primary Agent Terminal (MPAT)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Primary V/Line Agent Terminal (VPAT)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Secondary Agent Terminal (SAT)

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  



 










(1A)                                        Devices represent the same devices as
delivered, or required to be delivered, as part of the original equipment
supply under the Project Agreement and as described in the BOM and Requirements
Document.


 





















 


(1)                                                  Costs for Ascom supplies are FCA Bern or FCA
Poole, as applicable.  FCA is a defined
INCOTERM meaning that the goods will be handed over to the carrier at the
designated place, cleared for export. 
Keane will charge freight costs from Bern or Poole to Melbourne at cost
plus a margin of [**]%.  Freight costs
include shipping, freight handling and freight insurance.  Costs exclude duty which is assumed to be
zero.  At the Principal’s discretion,
Keane will be required to obtain a minimum of [**]competitive quotes to support
these costs.


 


(2)                                                  Installation Cost includes all direct costs
to install equipment, including delivery to site, testing and commissioning and
safety requirements. That is, the cost, inclusive of those direct costs, will
be determined by multiplying the number of hours in the column by the
applicable hourly rate for “Installation Technician” from ERG, as set out in Part 5
of this Schedule.


 


(3)                                                  De-installation Cost includes all direct
costs associated with de-installing/ decommissioning equipment from a site/
vehicle, removing to depot or alternative site and making the existing site
safe. That is, the cost, inclusive of those direct costs, will be determined by
multiplying the number of hours in the column by the applicable hourly rate for
“Installation Technician” from ERG, as set out in  Part 5 of this
Schedule.


 


(4)                                                  Other Costs include all non-labour and
equipment costs (eg, accessories, miscellaneous materials).


 





















 


2.                                                      Vehicle packages


 


The hours and costs relating to installation
and de-installation will be finalised as a Category 3 Matter prior to the
Completion of the NTS Solution Requirements Phase in accordance with this
agreement and the process and principles set out at the beginning of this
schedule.


 


Prices are stated as at 9 May 2005,
to be escalated annually in accordance with Schedule 11. All prices in
Australian Dollars.


 


	
   

  	
   

  	
  Device Description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Driver Consoles(5A)

  	
   

  	
  Fare Payment Device(5A)

  	
   

  	
  CVM/AVM(5A)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  No of

  	
   

  	
   

  	
   

  	
  No. of

  	
   

  	
   

  	
   

  	
  No. of

  	
   

  	
  Equipment Cost – By

  	
   

  	
  Installation Hours – Per

  	
   

  	
  Other

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Devices

  	
   

  	
   

  	
   

  	
  Devices

  	
   

  	
   

  	
   

  	
  Devices

  	
   

  	
  Order Size (Units)(5)

  	
   

  	
  Unit

  	
   

  	
  Costs

  	
   

  
	
  Vehicle Type

  	
   

  	
  Equipment

  	
   

  	
  Per

  	
   

  	
  Equipment

  	
   

  	
  Per

  	
   

  	
  Equipment

  	
   

  	
  Per

  	
   

  	
  1 – 5

  	
   

  	
  More than

  	
   

  	
   

  	
   

  	
  De– 

  	
   

  	
  Per

  	
   

  
	
  Work Package

  	
   

  	
  Code

  	
   

  	
  Vehicle

  	
   

  	
  Code

  	
   

  	
  Vehicle

  	
   

  	
  Code

  	
   

  	
  Vehicle

  	
   

  	
  Vehicles

  	
   

  	
  5 vehicles

  	
   

  	
  Installation(6)

  	
   

  	
  Installation(7)

  	
   

  	
  Unit(8)

  	
   

  
	
  Tram

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  W
  Class

  	
   

  	
  TDC
  Primary (1) & TDC Secondary (1)

  	
   

  	
  2

  	
   

  	
  TDC P
  and TDC S

  	
   

  	
  8

  	
   

  	
  (CVM/ AVM – Mobile)

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Z
  Class

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  12

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  A
  Class

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  12

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  B
  Class

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  12

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Combino
  (3)

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  12

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Combino
  (5)

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  16

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Citadis

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  12

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Bus

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1 Door

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  n/a

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  2 Door

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
   

  	
   

  	
  4

  	
   

  	
   

  	
   

  	
  n/a

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Reticulated

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
   

  	
   

  	
  6

  	
   

  	
   

  	
   

  	
  n/a

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Transfer a Tram

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  W
  Class

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  8

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  



 





















 


	
   

  	
   

  	
  Device Description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Driver Consoles(5A)

  	
   

  	
  Fare Payment Device(5A)

  	
   

  	
  CVM/AVM(5A)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  No of

  	
   

  	
   

  	
   

  	
  No. of

  	
   

  	
   

  	
   

  	
  No. of

  	
   

  	
  Equipment Cost – By

  	
   

  	
  Installation Hours – Per

  	
   

  	
  Other

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Devices

  	
   

  	
   

  	
   

  	
  Devices

  	
   

  	
   

  	
   

  	
  Devices

  	
   

  	
  Order Size (Units)(5)

  	
   

  	
  Unit

  	
   

  	
  Costs

  	
   

  
	
  Vehicle Type

  	
   

  	
  Equipment

  	
   

  	
  Per

  	
   

  	
  Equipment

  	
   

  	
  Per

  	
   

  	
  Equipment

  	
   

  	
  Per

  	
   

  	
  1 – 5

  	
   

  	
  More than

  	
   

  	
   

  	
   

  	
  De– 

  	
   

  	
  Per

  	
   

  
	
  Work Package

  	
   

  	
  Code

  	
   

  	
  Vehicle

  	
   

  	
  Code

  	
   

  	
  Vehicle

  	
   

  	
  Code

  	
   

  	
  Vehicle

  	
   

  	
  Vehicles

  	
   

  	
  5 vehicles

  	
   

  	
  Installation(6)

  	
   

  	
  Installation(7)

  	
   

  	
  Unit(8)

  	
   

  
	
   

  	
   

  	
  Z
  Class

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  12

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  A
  Class

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  12

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  B
  Class

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  12

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Combino
  (3)

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  12

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Combino
  (5)

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  16

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Citadis

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  12

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Transfer a bus

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1 Door

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  n/a

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  2 Door

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
   

  	
   

  	
  4

  	
   

  	
   

  	
   

  	
  n/a

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Reticulated

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
   

  	
   

  	
  6

  	
   

  	
   

  	
   

  	
  n/a

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Remove a Tram

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  W
  Class

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  8

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Z
  Class

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  12

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  A
  Class

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  12

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  B
  Class

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  12

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Combino
  (3)

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  12

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Combino
  (5)

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  16

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Citadis

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  12

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Remove a bus

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1 Door

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
  n/a

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  2 Door

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
   

  	
   

  	
  4

  	
   

  	
   

  	
   

  	
  n/a

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Reticulated

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
   

  	
   

  	
  6

  	
   

  	
   

  	
   

  	
  n/a

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  



 





















 










(5A)                                        Devices represent the same devices as
delivered, or required to be delivered, as part of the original equipment
supply under the Project Agreement and as described in the BOM and Requirements
Document.


 


(5)                                                  Costs for Ascom supplies are FCA Bern or FCA
Poole, as applicable.  FCA is a defined
INCOTERM meaning that the goods will be handed over to the carrier at the
designated place, cleared for export. 
Keane will charge freight costs from Bern or Poole to Melbourne at cost
plus a margin of [**]%.  Freight costs
include shipping, freight handling and freight insurance.  Costs exclude duty which is assumed to be
zero.  At the Principal’s discretion,
Keane will be required to obtain a minimum of [**] competitive quotes to
support these costs.


 


(6)                                                  Installation Cost includes all direct costs
to install equipment, including delivery to site, testing and commissioning and
safety requirements. That is, the cost, inclusive of those direct costs, will
be determined by multiplying the number of hours in the column by the
applicable hourly rate for “Installation Technician” from ERG, as set out in Part 5
of this Schedule.


 


(7)                                                  De-installation Cost includes all direct
costs associated with de-installing/ decommissioning equipment from a site/
vehicle, removing to depot or alternative site and making the existing site
safe. That is, the cost, inclusive of those direct costs, will be determined by
multiplying the number of hours in the column by the applicable hourly rate for
“Installation Technician” from ERG, as set out in Part 5 of this Schedule.


 


(8)                                                  Other Costs include all non-labour and
equipment costs (eg, accessories, miscellaneous materials).


 





















 


3.                                                      Device maintenance and
other costs


 


Device maintenance charges in this Part 3
will be finalised as a Category 3 Matter prior to the Completion of the
NTS Solution Requirements Phase in accordance with this agreement and the
process and principles set out at the beginning of this schedule.


 


The rates contained in this table will be
indexed in accordance with Schedule 11. 
Prices are stated as at 9 May 2005.  The equipment which the maintenance and other
costs relate to are as set out in Part 1 and 2 of this Schedule 7.
All prices are in Australian Dollars.


 


The rates are to
apply as an increase to the services charges (where the overall number of units
being maintained and operated has increased) and as a decrease to the services
charges (where the overall number of units being maintained and operated has
decreased).


 


	
  Work

  Package

  	
   

  	
  Equipment

  	
   

  	
  Device

  Maintenance

  Charges per unit

  (per annum)(9)

  	
   

  	
  Other Core

  Service Charges

  per unit (per

  annum)(10)

  	
   

  	
  Initial
  Services

  Charges per unit

  (per annum)(11)

  	
   

  
	
  Tram

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tram Driver
  Console (TDC Primary)

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Tram Driver
  Console (TDC Secondary)

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Combined Card
  Vending / Add-Value Machine (CVM/AVM)

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Fare Payment
  Device (FPD)

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Depot
  Requirement – Tram (DR – T)

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Combined Card
  Vending / Add-Value Machine – Superstop (CVM/AVM)

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  W Class Tram

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Z Class Tram

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  A Class Tram

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  B Class Tram

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Combino (3)

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Combino (5)

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Citadis

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Bus

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bus Driver
  Console (BDC)

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Fare Payment
  Device (FPD)

  	
   

  	
  $[**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Head Office
  Requirement – Bus (HOB)

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Depot
  Requirement Bus (DB) – Small Depot

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Depot
  Requirement Bus (DB) – Medium Depot

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Depot
  Requirement Bus (DB) – Large Depot

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  



 





















 


	
  Work

  Package

  	
   

  	
  Equipment

  	
   

  	
  Device

  Maintenance

  Charges per unit

  (per annum)(9)

  	
   

  	
  Other Core

  Service Charges

  per unit (per

  annum)(10)

  	
   

  	
  Initial
  Services

  Charges per unit

  (per annum)(11)

  	
   

  
	
   

  	
   

  	
  Combined Card
  Vending / Add-Value Machine – Interchange (CVM/AVM)

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  1 Door

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  2 Door Bus

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Reticulated Bus

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Train

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Station
  Requirement (SR)

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Ticket Office
  Terminal (TOT)

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Rail Combined Card
  Vending / Add-Value Machine (CVM/AVM)

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Add-Value
  Machines – standalone (AVM)

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Mobile (TOT-m)

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Electronic
  Gates (EG)

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Gate Attendant
  Control (GAC)

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Station Fare
  Payment Device (FPD)

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Retail Agent

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Metropolitan
  Primary Agent Terminal (MPAT)

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Primary V/Line
  Agent Terminal (VPAT)

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Secondary Agent
  Terminal (SAT)

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  



 










(9)                                                  Device Management charges includes all
incremental labour and materials costs associated with preventative,
line 1, line 2 and line 3 maintenance activities (including an
allowance for the cost of vandalism).


 


(10)                                            Other Service charges includes all incremental
labour and materials costs associated other Core Services (except Device
Management Services) activities.


 


(11)                                            Initial Services charges include all
incremental costs associated with each of Cardholder Support Services,
Distribution Services or Cash Collection.


 





















 


4.                                                      Core work packages


 


The rates
contained in this table will be indexed in accordance with Schedule 11.  Prices are stated as at 9 May 2005.


 


	
   

  	
   

  	
  One-off
  development cost

  	
   

  	
  Ongoing
  Core

  Service

  Charges (per 

  	
   

  	
  Ongoing

  Initial Services

  Charges (per 

  	
   

  
	
  Description

  	
   

  	
  Hardware

  	
   

  	
  Software

  	
   

  	
  Implemen-tation

  	
   

  	
  Annum)

  	
   

  	
  annum)

  	
   

  
	
  Make a simple
  fare change(1)

  	
   

  	
  Nil

  	
   

  	
  Nil

  	
   

  	
  Nil

  	
   

  	
  Nil

  	
   

  	
  Nil

  	
   

  
	
  Make a moderate
  fare change(2)

  	
   

  	
  Nil

  	
   

  	
  5 days at Software Programmer Rate (see Part 5 –
  Labour Rates)

  	
   

  	
  Nil

  	
   

  	
  Nil

  	
   

  	
  Nil

  	
   

  
	
  Make a complex
  fare change(3)

  	
   

  	
  Nil

  	
   

  	
  In accordance with clause 20.4(a)(ii)B

  	
   

  	
  Nil

  	
   

  	
  Nil

  	
   

  	
  Nil

  	
   

  



 










	
  (1)

  	
   

  	
  Simple Fare Change:

  	
   

  	
  A change involving an update to one fare table, or one simple (20 or
  fewer stops) route table, or one stage/zone table, or any other parameters,
  and which requires no change to any source code and involves only user
  testing. Changes of this nature will not constitute a Variation.

  
	
   

  	
   

  	
   

  	
   

  	
  The Principal undertakes to be reasonable in the frequency or volume
  of requests.

  
	
   

  	
   

  	
   

  	
   

  	
  The Principal undertakes not to unreasonably attempt to break Moderate
  or Complex Fare Changes into parts to meet the Simple Fare Change definition.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  Moderate Fare Change:

  	
   

  	
  A change involving updates to a maximum of 5 fare tables, or one
  complex route table (greater than 20 stops), or up to 5 stage/zone
  tables, and which requires no change to any source code and involves only
  user testing.

  
	
   

  	
   

  	
   

  	
   

  	
  A change involving the implementation of a new route.

  
	
   

  	
   

  	
   

  	
   

  	
  The Principal undertakes to be reasonable in the frequency or volume
  of requests.

  
	
   

  	
   

  	
   

  	
   

  	
  The Principal undertakes not to unreasonably attempt to break Complex
  Fare Changes into parts to meet the Simple Fare Change definition.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)

  	
   

  	
  Complex Fare Change:

  	
   

  	
  A change involving source code changes, or database architectural
  changes.

  
	
   

  	
   

  	
   

  	
   

  	
  A Change from a zonal to a fare stage tariff system.

  
	
   

  	
   

  	
   

  	
   

  	
  Since the upper limit of the complexity of the Fare change has not
  been defined, it is not possible to offer a firm price for this change.

  



 





















 


5.                                                      Labour rates


 


The labour rate for ERG – Installation
Technician will be finalised as a Category 3 Matter prior to the
Completion of the NTS Solution Requirements Phase in accordance with this
agreement and the process and principles set out at the beginning of this
schedule.


 


The daily rates in this table are quoted on
the basis of a 7.5 hour working day.


 


The rates
contained in this table will be indexed annually in accordance with Schedule 11.  Prices are stated as at 9 May 2005.
All prices in Australian Dollars.


 


Prices
excluding Travel, Accommodation & Subsistence


 


	
  Labour Category

  	
   

  	
  Ascom

  Switzerland(1)

  	
   

  	
  Ascom

  UK(1)

  	
   

  	
  ERG(1)

  	
   

  	
  Keane

  Inc/

  Ltd(1)

  	
   

  	
  Keane

  Australia(1)

  	
   

  	
  Keane

  India in

  Australia(1)

  	
   

  	
  Keane

  India

  	
   

  
	
  Accountant

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Administrator –
  Office

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commercial
  Manager

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Draftsperson

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Electronics
  Engineer

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Engineering
  Manager

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Engineering
  Team Leader

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Hardware
  Manager

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Installation
  Supervisor

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Installation
  Technician

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maintenance
  Technician

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Mechanical
  Engineer

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Production
  Engineer

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Programme
  Manager

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Programme
  Planner

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Project
  Director

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Software
  Architect

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Software
  Engineer Jnr

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Software
  Engineer Snr

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Software
  Manager

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Software
  Programmer

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Solution
  Architect

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Technical
  Architect

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Technical
  Writer

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Technician

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Programme
  Director

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Business
  Architect

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Development
  Project Manager

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Senior
  Business Analyst

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  



 





















 


	
  Labour Category

  	
   

  	
  Ascom

  Switzerland(1)

  	
   

  	
  Ascom

  UK(1)

  	
   

  	
  ERG(1)

  	
   

  	
  Keane

  Inc/

  Ltd(1)

  	
   

  	
  Keane

  Australia(1)

  	
   

  	
  Keane

  India in

  Australia(1)

  	
   

  	
  Keane

  India

  	
   

  
	
  Business
  Analyst

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Senior
  Programmer

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Programmer

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Team
  Leader

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Test
  Manager

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Senior
  Tester

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Tester

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  



 










(1)                                                  Travel and accommodation costs are in
addition to the above rates and will be charged at cost.  Travel will be reimbursed on the basis of
economy flights for journeys with a scheduled flying time up to 12 hours
duration and business class flights for journeys with a scheduled flying time
of greater than 12 hours duration. All flight bookings will be made by
Keane.  Other expenses
(eg. Accommodation, food, etc) will be capped at $A[**] per day for trips
(measured from home location to home location) up to 10 days duration and
$A[**] per day for durations greater than 10 days duration.


 


The Principal and Contractor will agree the
most efficient allocation of tasks associated with a Variation taking into
consideration the necessary required expertise for that Variation.  Unless otherwise agreed to by the Principal,
the Contractor will allocate work for which the labour rates set out in this Part will
apply on the following basis:


 


•                                                                          Keane Australia will undertake
impact analysis, client facing tasks, requirements specification design (Keane
Australia rates will apply);


 


•                                                                          Keane India will undertake
software development, testing and maintenance (Keane India rates will apply);
and


 


•                                                                          Keane UK/US will provide
specialist expertise from Keane’s practices (Keane Inc/Ltd rates will apply).


 





















 


6.                                                      Transaction volumes
increase


 


This schedule has not been agreed by the
parties.  This schedule, including the
circumstances in which it will apply, will be completed as a Category 3
Matter prior to the Completion of the NTS Solution Requirements Phase in
accordance with this agreement and the process and principles set out at the
beginning of this schedule.  The parties
agree that there will no increase Services Charges if there is an increase in
transaction volumes which is solely due to an increase in the level of
Victorian transit ticketing transactions where there is no change to the
Solution.


 


No additional Service Charges will be paid in
relation to Cardholder Support Services and Distribution Services as the
Payments for these services contain a variable component which will take
account of changes in transaction volumes. 
Cash Collection Initial Service Payments variations will be valued in
accordance with clause 20.4. (a)(ii)B


 


Increases in Core
Services Payments due to transaction volume increases shall be calculated by
reference to the following table. When the Increase Percentage falls into one
of the bands shown in the first column (other than [**]%, which will not
constitute a Varation), an Increase Event is deemed to have occurred. When an
Increase Event occurs, the Core Services Base Charge shall be increased to an
amount calculated using the formula shown in the second column. The increased
payment will be payable from the beginning of the calendar month following the
month in which the Increase Event occurs.


 


	
  Percentage increase in

  transaction volumes

  (%)

  	
   

  	
  Core
  Services Payment

  (per annum)

  	
   

  
	
  [**]%[**]%

  	
   

  	
  [**]

  	
   

  
	
  [**]%[**]%[**]

  	
   

  	
  [**]

  	
   

  
	
  [**]%[**]%

  	
   

  	
  [**]

  	
   

  
	
  [**]%[**]%

  	
   

  	
  [**]

  	
   

  



 


Keane’s current estimate is a Base
Transaction Volume of 3,000,000 per day


 


Definitions:


 


	
  “Base Charge”

  	
   

  	
  The total of all the payments making up the Core
  Services Payment for the TTA Financial Year in which the Increase Event
  occurs.

  
	
   

  	
   

  	
   

  
	
  “Increase Event”

  	
   

  	
  An Increase Event will occur when the average
  number of Transaction Events (that is the sum of all Transaction Events for
  the previous 3 calendar months divided by the number of days in that
  period) exceeds the Base Transaction Volume by the specified percentages
  (other than increases in the range of [**]%). The Increase Event will be
  deemed to have occurred on the last day of the relevant period of 3 calendar
  months.

  



 





















 


	
  “Base Transaction Volume”

  	
   

  	
  The Base Transaction Volume will be calculated as
  the average number of transactions in the three calendar months following the
  date on which the last milestone payment becomes due (that is, at the end of
  the Operational Proving Phase). The average number of transactions shall be
  calculated as the sum of Transaction Events in the period divided by the
  number of days in the period.

  
	
   

  	
   

  	
   

  
	
  “Transaction Event”

  	
   

  	
  The use of a smart card or disposable card to pay
  for a journey.

  
	
   

  	
   

  	
   

  
	
  “Increase Percentage”

  	
   

  	
  Average number of Transaction Events (that is the
  sum of all Transaction Events for the previous 3 calendar months divided
  by the number of days in that period) minus the Base Transaction Volume, all
  divided by the Base Transaction Volume.

  



 





















 


7.                                                      Device delivery lead
times


 


The following
table sets out the lead times required by the Contractor between the order and
delivery of each device set out in Part 1.


 


	
  Devices

  	
   

  	
  Maximum Lead Times

  (in weeks)

  	
   

  
	
  Tram

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tram Driver
  Console (TDC)

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Combined Card
  Vending / Add-Value Machine (CVM/AVM)

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Fare Payment
  Device (FPD)

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Depot
  Requirement – Tram (DR – T)

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Combined Card
  Vending / Add-Value Machine – Superstop (CVM/AVM)

  	
   

  	
  [**]

  	
   

  
	
  Bus

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bus Driver
  Console (BDC)

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Fare Payment
  Device (FPD)

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Head Office
  Requirement – Bus (HOB)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Depot
  Requirement Bus (DB) – Small Depot

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Depot
  Requirement Bus (DB) – Medium Depot

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Depot
  Requirement Bus (DB) – Large Depot

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Combined Card
  Vending / Add-Value Machine – Interchange (CVM/AVM)

  	
   

  	
  [**]

  	
   

  
	
  Train

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Station
  Requirement (SR)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Rail Combined
  Card Vending / Add-Value Machine (CVM/AVM)

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Add-Value
  Machines – standalone (AVM)

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Ticket Office
  Terminal (TOT)

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Mobile (TOT-m)

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Reader Kit for
  Gate

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Gate Attendant
  Control (GAC)

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Station Fare
  Payment Device (FPD)

  	
   

  	
  [**]

  	
   

  
	
  Retail Agent

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Metropolitan Primary Agent Terminal (MPAT)

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Primary V/Line Agent Terminal (VPAT)

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
  Secondary Agent Terminal (SAT)

  	
   

  	
  [**]

  	
   

  
	
  Hand Held

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Depot
  Requirement (DR-H)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Hand-Held
  Devices – selling (HHD-s)

  	
   

  	
  [**]

  	
   

  



 





















 


Schedule 8


 


Schedule 8



Payment
Schedule


 


(Clause 21)


 


	
  Payment
  Milestones 

  (Completion Date of relevant Phase below)

  	
   

  	
  Payment

  Amount $

  	
   

  
	
  NTS Mobilisation Phase

  	
   

  	
  [**]

  	
   

  
	
  NTS Solution Requirements Phase

  	
   

  	
  [**]

  	
   

  
	
  NTS Release 0 and Prototyping Phase

  	
   

  	
  [**]

  	
   

  
	
  NTS Front Office Software FAT and Back Office
  Release 1 and 2 Phase

  	
   

  	
  [**]

  	
   

  
	
  NTS Final Back Office Release Phase

  	
   

  	
  [**]

  	
   

  
	
  NTS Front Office Implementation 1 Phase

  	
   

  	
  [**]

  	
   

  
	
  NTS Front Office Implementation 2 Phase

  	
   

  	
  [**]

  	
   

  
	
  NTS Regional and Metropolitan Implementation
  Completion Phase

  	
   

  	
  [**]

  	
   

  
	
  NTS Operational Proving Phase

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Capital Price

  	
   

  	
  [**]

  	
   

  



 





















 


Schedule 9


Schedule 9 

Subcontractors and Suppliers


 


(Clause 10.2)


 


Part A


 


Subcontractors


 


	
  Organisational

  Name

  	
   

  	
  Key
  Contact

  Name

  	
   

  	
  Organisational
  Contact Details

  	
   

  	
  Description
  of work

  to be performed

  
	
  Ascom

  	
   

  	
  Chris Franzen

  	
   

  	
  Belpstrasse 37

  CH-3000 Bern 14

  Switzerland

  	
   

  	
  Device
  provider

  
	
  ERG

  	
   

  	
  Alan Sullivan

  	
   

  	
  247 Balcatta
  Road

  Balcatta WA 6021

  Australia

  	
   

  	
  Installation
  and maintenance provider

  
	
  G&D

  	
   

  	
  Jim Calrow

  	
   

  	
  Giesecke &
  Devrient

  94 Rushdale Street

  Knoxfield Victoria 3180

  Australia

  	
   

  	
  Card
  management and customer support provider

  
	
  Headstrong

  	
   

  	
  Paul Kidmen

  	
   

  	
  Headstrong
  Australia Pty Ltd

  Level 1, Grosvenor Place

  225 George Street

  Sydney NSW 2000

  Australia

  	
   

  	
  Clearing and
  Issuer Processing Modules

  
	
  Wayfarer (sub–
  subcontractor)

  	
   

  	
  Tony McNamara

  	
   

  	
  Wayfarer
  Transit Systems Limited

  10 Willis Way

  Fleets Industrial Estate

  Poole Dorset BH15 3SS

  England

  	
   

  	
  Bus driver and
  tram driver consul provider

  
	
  Gunnebo

  	
   

  	
  Leo Detassis

  	
   

  	
  ITALY
  Gunnebo Entrance Control SpA

  Via A Volta-IT-380 15

  Lavis (TN)

  	
   

  	
  Gate Provider

  



 





















 


Part B


 


Suppliers


 


	
  Organisational

  Name

  	
   

  	
  Key
  Contact

  Name

  	
   

  	
  Organisational
  Contact Details

  	
   

  	
  Description
  of

  products or services

  to be supplied

  
	
  HP

  	
   

  	
  Andy Katz

  	
   

  	
  Hewlett-Packard Australia Pty Ltd

  ABN 74 004 394 763

  31-41 Joseph Street

  Blackburn Victoria 3130,Australia

  	
   

  	
  Data centre
  provider

  
	
  SPT

  	
   

  	
  Paul Weston

  	
   

  	
  SPT Telecommunications

  Ground Floor, 70 Park Street

  South Melbourne Victoria 3205 Australia

  	
   

  	
  Networking
  provider

  



 





















 


Schedule 10


Schedule 10


Service
Charges


 


(Clause 27) 


 


Completion Process


 


A. Card Drafting


 


The Smartcard procurement and payment principles below have been agreed
by the parties and will be drafted for incorporation into the Project Agreement
as a Category 2 Matter.


 


•             Prior
to each Smartcard order by the Contractor, the Principal will meet with the
Contractor to discuss Smartcard procurement for the coming period and provide
information in respect of its marketing (including special editions) and other
requirements which may impact demand for Smartcards and/or mix of Smartcard
types required (including the Smartcard type, printing, Personalisation and
design features required for the Smartcards).


 


•             The
Contractor will then determine the requirements for all Smartcard types and
seek relevant pricing and delivery information from its suppliers in light of
the Principal’s requirements discussed under the previous point.  Prior to confirming any order with its
suppliers, the Contractor must seek the Principal’s approval of the details of
its proposed order including details of volume, pricing and projected monthly
issue profile for each type of Smartcard.


 


•             The
Principal may either approve the order (subject to requiring potential
variation of proposed delivery program, ie. the Principal may require the
Contractor to hold greater or less volumes of stock than planned or to vary the
order to ensure it reflects the Principal’s requirements with respect to
marketing, Smartcard type, Smartcard features and Smartcard mix) or seek a deal
for better terms and conditions in the market (the Contractor must assist the
Principal with this procurement process and then adopt the resulting supply
arrangement).


 


•             The
Principal will pay the Contractor based on volume of Smartcards issued (on a
first in first out basis) multiplied by the lower of the “capped rate” (being
the amounts set out in this schedule) 
and “actual Smartcard cost plus agreed margin” in accordance with the
margin set out in Schedule 10I).


 


•             The
issue of a Smartcard is defined to be the point of time at which Smartcards
have been issued to the end user of the Smartcard (ie. the customer). For
clarity the following table summarises the point of issue for each Smartcard
under the various possible scenarios in the NTS:


 


	
   

  	
   

  	
  Point of Issue

  
	
  AVM/CVM

  	
   

  	
  When Smartcard is issued from machine to customer

  
	
  Agent sales

  	
   

  	
  When Smartcard is issued from agent to customer

  
	
  Principal individual sales

  	
   

  	
  When Smartcard is sent from Principal to customer

  
	
  Operator sales

  	
   

  	
  When Smartcard is issued from operator to customer

  
	
  Conductor (regional)/ bus driver sales

  	
   

  	
  When Smartcard is issued from conductor/driver to
  customer

  



 


A definition of Issued will be inserted as part of the drafting to be
completed as a Category 2 Matter.


 





















 


•             The
Contractor will be paid for all stock of Smartcards (ie. relating to
agreed order volumes) held at the time of expiry of the Initial Services Term
(where service is not renewed) or early termination at the relevant rate. In
addition the Principal will support any contract for future supply of agreed
order volumes (per the process above).


 


•             The
Contractor will be required to minimise distribution costs by optimising batch
delivery arrangements.


 


In addition, the drafting of Schedule 10 will be refined to
provide greater clarity in respect of how Schedules 10C to 10I interact in
light of the Smartcard procurement and payment principles set out above.


 


It is also noted that Schedule 10 and 32 both currently contain
separate Smartcard pricing and payment schedules.  The consolidation of the Smartcard pricing
and payment provisions of these schedules will be considered during the above
legal drafting process.


 





















 


 


1.                                                      Principal Formula


 


1.1                                 The
Service Charge for each month of the Core Services Term will be calculated as
follows:


 





 


where:


 


SC                                                is the Service Charge payable in that month;


 


CSP                                        is the Core Services Payment for the month as
determined in accordance with paragraph 2; and


 


ISP                                             is the Initial Services Payment for the month
as determined in accordance with paragraph 3.


 


2.                                                      Core Services
Payment


 


2.1                                                 The
Core Services Payment for the month is the amount set out against the relevant
month in the Core Services Payment Table in Schedule 10A, subject to
clause 4.1 of this schedule.


 


3.                                                      Initial Services
Payment


 


3.1                                                 The
Initial Services Payment for the month will be calculated as follows:


 





 


where:


 


ISP                                             is the Initial Service Payment payable in
that month;


 


DSP                                        is the Distribution Services Payment for the
month as determined in accordance with paragraph 3.2;


 


CCP                                       is the Cash Collection Services Payment for
the month as determined in accordance with paragraph 3.3; and


 


CSSP                                is the Cardholder Support Services Payment
for the month as determined in accordance with paragraph 3.4.


 


In
the event that at any time during the Initial Services Term the Contractor is
no longer providing one or more of the Distribution Services, Cash Collection
Services or Cardholder Support Services, the Contractor will no longer be
entitled to the corresponding payment and the Initial Services Payment will be
calculated excluding the relevant payments.


 


3.2                                                 The
Distribution Services Payment for each month will be calculated as follows:


 





 


where:


 


DSP                                        is the Distribution Services Payment payable
in that month;


 


FDSP                                 is the Fixed Distribution Services Payment
for the month calculated as the amount set out against the relevant month in
the Initial Services Payment Table in Schedule 10B, subject to clause 4.1 of this schedule;


 





















 


VD                                               is the volume of Disposable Smartcards (as
defined in the Glossary which forms part of the NTS Requirements Document)
Issued in the month;


 


UPD                                        is the unit price per Disposable Smartcard as
determined by the relevant Smartcard features as set out in Schedule 10C,
10D and 10E, subject to the operation of clause 27.8;


 


VR                                               is the volume of Re-Loadable Smartcards
Issued in the month;


 


UPR                                        is the unit price per Re-Loadable Smartcard
as determined by the relevant Smartcard features as set out in Schedule 10C,
10D and 10E, subject to the operation of clause 27.8;


 


VSE                                         is the volume of Special Edition Smartcards
Issued in the month;


 


UPSE                                  is the unit price per Special Edition
Smartcard as determined by the relevant Smartcard features as set out in Schedule 10C,
10D and 10E, subject to the operation of clause 27.8;


 


CDI                                           is the volume of Disposable Smartcard and
Re-Loadable Smartcards which were individually delivered in the month;


 


UPI                                             is the unit price per individual Smartcard
delivered as set out in Schedule 10F;


 


CDB                                      is the volume batches of Disposable Smartcard
and Re-Loadable Smartcards which were batched delivered in the month;


 


UPB                                        is the unit price per batched Smartcard
delivered as set out in Schedule 10F;


 


DO                                              is the monthly payment associated with
distributing materials, other than Smartcards, as agreed between the Contractor
and Principal;


 


CP                                                is the volume of Disposable Smartcard and
Re-Loadable Smartcards which were Personalised (as described in note 1 in Schedule 10G)
in the month;


 


UPP                                         is the unit price per Smartcard Personalised
as set out in Schedule 10G;


 


CDH                                      is number of design hours undertaking agreed Smartcard feature/ design
changes in the month;


 


UPH                                        is price per hour for Smartcard design services as set out in Schedule 10H;


 


CDC                                      is number of agreed Smartcard design changes in the month; and


 


UPCD                               is unit price per design change as set out in Schedule 10H.


 


3.3                                                 The
Cash Collection Services Payment for the month is the amount set out against
the relevant month in the Initial Services Payment Table in Schedule 10B,
subject to clause 4.1 of this schedule.


 


3.4                                                 The
Cardholder Support Services Payment for each month will be calculated as
follows:


 





 


where:


 


CSSP                                is the Cardholder Support Services Payment payable in that month;


 





















 


FCSSP                         is the Fixed Cardholder Support Services Payment for the month calculated as the amount set
out against the relevant month in the Initial Services Payment Table in Schedule 10B, subject to clause 4.1 of this schedule;


 


VC                                               is the volume of calls per month exceeding
the minimum call volume set out in the Cardholder Support Variable Service
Charge Table in Schedule 10J; and


 


UPC                                        is the unit price for each call exceeding the
minimum call volume set out in the Cardholder Support Variable Service Charge
Table in Schedule 10J.


 


4.                                                      Pro Rata


 


4.1                                                 If
the period during which the Initial Services and Core Services are being
provided and in respect of which Services Charges are being paid is less than a
full calendar month, the Core Services Payment and the Fixed Distribution
Services Payments, Cash Collection Services Payments and Fixed Cardholder
Support Services Payment set out in Schedules 10A and 10B respectively
will be pro rated by multiplying the relevant amount by:


 





 


where:


 


APD                                       is the actual number of days in the period;
and


 


CMD                                    is the number of days in the calendar month
in which the payment relates.


 





















 


Schedule 10A

Core Services Payment Table


 


	
  Core

  Services

  Term

  Month(1)

  	
   

  	
  Core

  Services

  Payment

  	
   

  	
  Core

  Services

  Term

  Month

  	
   

  	
  Core

  Services

  Payment

  	
   

  	
  Core

  Services

  Term

  Month

  	
   

  	
  Core

  Services

  Payment

  	
   

  	
  Core

  Services

  Term

  Month

  	
   

  	
  Core

  Services

  Payment

  	
   

  
	
  1

  	
   

  	
  [**]

  	
   

  	
  37

  	
   

  	
  [**]

  	
   

  	
  73

  	
   

  	
  [**]

  	
   

  	
  109

  	
   

  	
  [**]

  	
   

  
	
  2

  	
   

  	
  [**]

  	
   

  	
  38

  	
   

  	
  [**]

  	
   

  	
  74

  	
   

  	
  [**]

  	
   

  	
  110

  	
   

  	
  [**]

  	
   

  
	
  3

  	
   

  	
  [**]

  	
   

  	
  39

  	
   

  	
  [**]

  	
   

  	
  75

  	
   

  	
  [**]

  	
   

  	
  111

  	
   

  	
  [**]

  	
   

  
	
  4

  	
   

  	
  [**]

  	
   

  	
  40

  	
   

  	
  [**]

  	
   

  	
  76

  	
   

  	
  [**]

  	
   

  	
  112

  	
   

  	
  [**]

  	
   

  
	
  5

  	
   

  	
  [**]

  	
   

  	
  41

  	
   

  	
  [**]

  	
   

  	
  77

  	
   

  	
  [**]

  	
   

  	
  113

  	
   

  	
  [**]

  	
   

  
	
  6

  	
   

  	
  [**]

  	
   

  	
  42

  	
   

  	
  [**]

  	
   

  	
  78

  	
   

  	
  [**]

  	
   

  	
  114

  	
   

  	
  [**]

  	
   

  
	
  7

  	
   

  	
  [**]

  	
   

  	
  43

  	
   

  	
  [**]

  	
   

  	
  79

  	
   

  	
  [**]

  	
   

  	
  115

  	
   

  	
  [**]

  	
   

  
	
  8

  	
   

  	
  [**]

  	
   

  	
  44

  	
   

  	
  [**]

  	
   

  	
  80

  	
   

  	
  [**]

  	
   

  	
  116

  	
   

  	
  [**]

  	
   

  
	
  9

  	
   

  	
  [**]

  	
   

  	
  45

  	
   

  	
  [**]

  	
   

  	
  81

  	
   

  	
  [**]

  	
   

  	
  117

  	
   

  	
  [**]

  	
   

  
	
  10

  	
   

  	
  [**]

  	
   

  	
  46

  	
   

  	
  [**]

  	
   

  	
  82

  	
   

  	
  [**]

  	
   

  	
  118

  	
   

  	
  [**]

  	
   

  
	
  11

  	
   

  	
  [**]

  	
   

  	
  47

  	
   

  	
  [**]

  	
   

  	
  83

  	
   

  	
  [**]

  	
   

  	
  119

  	
   

  	
  [**]

  	
   

  
	
  12

  	
   

  	
  [**]

  	
   

  	
  48

  	
   

  	
  [**]

  	
   

  	
  84

  	
   

  	
  [**]

  	
   

  	
  120

  	
   

  	
  [**]

  	
   

  
	
  13

  	
   

  	
  [**]

  	
   

  	
  49

  	
   

  	
  [**]

  	
   

  	
  85

  	
   

  	
  [**]

  	
   

  	
  121

  	
   

  	
  [**]

  	
   

  
	
  14

  	
   

  	
  [**]

  	
   

  	
  50

  	
   

  	
  [**]

  	
   

  	
  86

  	
   

  	
  [**]

  	
   

  	
  122

  	
   

  	
  [**]

  	
   

  
	
  15

  	
   

  	
  [**]

  	
   

  	
  51

  	
   

  	
  [**]

  	
   

  	
  87

  	
   

  	
  [**]

  	
   

  	
  123

  	
   

  	
  [**]

  	
   

  
	
  16

  	
   

  	
  [**]

  	
   

  	
  52

  	
   

  	
  [**]

  	
   

  	
  88

  	
   

  	
  [**]

  	
   

  	
  124

  	
   

  	
  [**]

  	
   

  
	
  17

  	
   

  	
  [**]

  	
   

  	
  53

  	
   

  	
  [**]

  	
   

  	
  89

  	
   

  	
  [**]

  	
   

  	
  125

  	
   

  	
  [**]

  	
   

  
	
  18

  	
   

  	
  [**]

  	
   

  	
  54

  	
   

  	
  [**]

  	
   

  	
  90

  	
   

  	
  [**]

  	
   

  	
  126

  	
   

  	
  [**]

  	
   

  
	
  19

  	
   

  	
  [**]

  	
   

  	
  55

  	
   

  	
  [**]

  	
   

  	
  91

  	
   

  	
  [**]

  	
   

  	
  127

  	
   

  	
  [**]

  	
   

  
	
  20

  	
   

  	
  [**]

  	
   

  	
  56

  	
   

  	
  [**]

  	
   

  	
  92

  	
   

  	
  [**]

  	
   

  	
  128

  	
   

  	
  [**]

  	
   

  
	
  21

  	
   

  	
  [**]

  	
   

  	
  57

  	
   

  	
  [**]

  	
   

  	
  93

  	
   

  	
  [**]

  	
   

  	
  129

  	
   

  	
  [**]

  	
   

  
	
  22

  	
   

  	
  [**]

  	
   

  	
  58

  	
   

  	
  [**]

  	
   

  	
  94

  	
   

  	
  [**]

  	
   

  	
  130

  	
   

  	
  [**]

  	
   

  
	
  23

  	
   

  	
  [**]

  	
   

  	
  59

  	
   

  	
  [**]

  	
   

  	
  95

  	
   

  	
  [**]

  	
   

  	
  131

  	
   

  	
  [**]

  	
   

  
	
  24

  	
   

  	
  [**]

  	
   

  	
  60

  	
   

  	
  [**]

  	
   

  	
  96

  	
   

  	
  [**]

  	
   

  	
  132

  	
   

  	
  [**]

  	
   

  
	
  25

  	
   

  	
  [**]

  	
   

  	
  61

  	
   

  	
  [**]

  	
   

  	
  97

  	
   

  	
  [**]

  	
   

  	
  133

  	
   

  	
  [**]

  	
   

  
	
  26

  	
   

  	
  [**]

  	
   

  	
  62

  	
   

  	
  [**]

  	
   

  	
  98

  	
   

  	
  [**]

  	
   

  	
  134

  	
   

  	
  [**]

  	
   

  
	
  27

  	
   

  	
  [**]

  	
   

  	
  63

  	
   

  	
  [**]

  	
   

  	
  99

  	
   

  	
  [**]

  	
   

  	
  135

  	
   

  	
  [**]

  	
   

  
	
  28

  	
   

  	
  [**]

  	
   

  	
  64

  	
   

  	
  [**]

  	
   

  	
  100

  	
   

  	
  [**]

  	
   

  	
  136

  	
   

  	
  [**]

  	
   

  
	
  29

  	
   

  	
  [**]

  	
   

  	
  65

  	
   

  	
  [**]

  	
   

  	
  101

  	
   

  	
  [**]

  	
   

  	
  137

  	
   

  	
  [**]

  	
   

  
	
  30

  	
   

  	
  [**]

  	
   

  	
  66

  	
   

  	
  [**]

  	
   

  	
  102

  	
   

  	
  [**]

  	
   

  	
  138

  	
   

  	
  [**]

  	
   

  
	
  31

  	
   

  	
  [**]

  	
   

  	
  67

  	
   

  	
  [**]

  	
   

  	
  103

  	
   

  	
  [**]

  	
   

  	
  139

  	
   

  	
  [**]

  	
   

  
	
  32

  	
   

  	
  [**]

  	
   

  	
  68

  	
   

  	
  [**]

  	
   

  	
  104

  	
   

  	
  [**]

  	
   

  	
  140

  	
   

  	
  [**]

  	
   

  
	
  33

  	
   

  	
  [**]

  	
   

  	
  69

  	
   

  	
  [**]

  	
   

  	
  105

  	
   

  	
  [**]

  	
   

  	
  141

  	
   

  	
  [**]

  	
   

  
	
  34

  	
   

  	
  [**]

  	
   

  	
  70

  	
   

  	
  [**]

  	
   

  	
  106

  	
   

  	
  [**]

  	
   

  	
  142

  	
   

  	
  [**]

  	
   

  
	
  35

  	
   

  	
  [**]

  	
   

  	
  71

  	
   

  	
  [**]

  	
   

  	
  107

  	
   

  	
  [**]

  	
   

  	
  143

  	
   

  	
  [**]

  	
   

  
	
  36

  	
   

  	
  [**]

  	
   

  	
  72

  	
   

  	
  [**]

  	
   

  	
  108

  	
   

  	
  [**]

  	
   

  	
  144

  	
   

  	
  [**]

  	
   

  



 










(1)                                                  Represents the relevant calendar month end
from commencement of the Core Services Term. 
If commencement of the Core Services Term is not the first day of the
month, the first month will be pro-rated in accordance with 4.1 of Schedule 10.


 





















 


Schedule 10B

Initial Services Payment Table


 


	
  Initial

  Services

  Term

  Month(1)

  	
   

  	
  Fixed

  Distribution

  Services

  Payment

  	
   

  	
  Cash

  Collection

  Services

  Payment

  	
   

  	
  Fixed

  Cardholder

  Support

  Services

  Payment

  	
   

  	
  Initial

  Services

  Term

  Month

  	
   

  	
  Fixed

  Distribution

  Services

  Payment

  	
   

  	
  Cash

  Collection

  Services

  Payment

  	
   

  	
  Fixed

  Cardholder

  Support

  Services

  Payment

  	
   

  
	
  1

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  34

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  2

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  35

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  3

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  36

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  4

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  37

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  5

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  38

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  6

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  39

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  7

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  40

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  8

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  41

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  9

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  42

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  10

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  43

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  11

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  44

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  12

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  45

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  13

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  46

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  14

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  47

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  15

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  48

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  16

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  49

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  17

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  50

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  18

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  51

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  19

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  52

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  20

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  53

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  21

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  54

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  22

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  55

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  23

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  56

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  24

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  57

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  25

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  58

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  26

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  59

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  27

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  60

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  28

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  61

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  29

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  62

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  30

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  63

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  31

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  64

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  32

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  65

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  33

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  66

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  



 










(1)                                                  Represents the relevant calendar month end
from commencement of the Initial Services Term. 
If commencement of the Initial Services Term is not the first day of the
month, the first month will be pro-rated in accordance with 4.1 of Schedule 10.


 





















 


Schedule 10C

Unit Price – Cards Issued Table

Unit Price – Raw Card Unit Cost Table


 


The unit prices below are inclusive of all initialisation costs and
costs of unique serial numbers.


 


	
  Card
  Type(1)

  	
   

  	
  Unit Price – Smartcard ($)(2)

  	
   

  
	
   

  	
   

  	
  Band 1

  [**] per annum for each year of the Initial Services Term

  	
   

  	
  Band 2

  [**] per annum for each year of the Initial Servies Term

  	
   

  	
  Band 3

  Above [**] per annum for each year of the Initial Servies

  Term

  	
   

  
	
  Year ending

  30 June

  	
   

  	
  2007

  	
   

  	
  2008

  	
   

  	
  2009

  	
   

  	
  2010

  	
   

  	
  2011

  	
   

  	
  2012

  	
   

  	
  2013

  	
   

  	
  2007

  	
   

  	
  2008

  	
   

  	
  2009

  	
   

  	
  2010

  	
   

  	
  2011

  	
   

  	
  2012

  	
   

  	
  2013

  	
   

  	
  2007

  	
   

  	
  2008

  	
   

  	
  2009

  	
   

  	
  2010

  	
   

  	
  2011

  	
   

  	
  2012

  	
   

  	
  2013

  	
   

  
	
  A

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  B

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  C

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  D

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  E

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  



 


Note


 


There will be no additional costs to the Principal for issuing any of
the types of Smartcard listed in Schedule 10C, provided that no new
Smartcard data definition is required and no other on-Smartcard applications
are required. Should the Principal wish to introduce new services to customers
and Operators which require interventions at the Smartcard level, such
interventions will be Variations.


 










(1)                                                  Per Smartcard description table below.  The Smartcard types required will be
determined in accordance with the Smartcard procurement process set out in
[reference to procurement process to be inserted when that process has been
drafted and inserted into the agreement.]


 


(2)                                                  Four colour, two sided printing is included
in the base cost of the Smartcard as set out in this schedule, for both
Disposable and Re-loadable Smartcards.


 





















 


D.                                    Card
Type Description


 


	
   

  	
   

  	
  IC Card

  Type

  	
   

  	
  Usage

  	
   

  	
  Technology

  	
   

  	
  Interface

  	
   

  	
  Memory

  	
   

  	
  Comments

  
	
  A

  	
   

  	
  Contactless

  	
   

  	
  Disposable

  	
   

  	
  EEPROM read/write memory

  	
   

  	
  Contactless

  	
   

  	
  256 bit

  	
   

  	
  Wired Logic card capable of meeting ISO 14443
  parts 2 and 3 type A or B and supporting a one-time-bit capability
  of at least 10 bits

  
	
  B

  	
   

  	
  Contactless

  	
   

  	
  Disposable

  	
   

  	
  EEPROM read/write memory

  	
   

  	
  Contactless

  	
   

  	
  512 bit

  	
   

  	
  ISO 14443 Type B card

  
	
  C

  	
   

  	
  Contactless

  	
   

  	
  Re-Loadable/ Disposable

  	
   

  	
  EEPROM read/write memory

  	
   

  	
  Contactless

  	
   

  	
  1Kb

  	
   

  	
  ISO 14443 Type B card

  
	
  D

  	
   

  	
  Contactless

  	
   

  	
  Re-Loadable

  	
   

  	
  EEPROM read/write memory

  	
   

  	
  Contactless

  	
   

  	
  4Kb

  	
   

  	
  ISO 14443 Type B card

  
	
  E

  	
   

  	
  Contactless

  	
   

  	
  Re-Loadable

  	
   

  	
  EEPROM read/write memory

  	
   

  	
  Contactless and Contact

  	
   

  	
  4Kb

  	
   

  	
  3DES capable ISO 14443 type A or B cards
  complying with the commands defined by part 4 of ISO 7816 and
  supporting a Credit/Debit capability

  



 





















 


Schedule 10D

Unit Price – Initialisation


 


The Initialisation Cost set out in this schedule are to be paid
only where the Principal sources Smartcards from a third party supplier and
provides those Smartcards to the Contractor for Initialisation of the Smartcard
(and no Personalisation is required to be provided by the Contractor).


 


The “raw card cost” for Card Types C, D & E includes
initialisation. At the time of purchase, the Smartcard is printed in
4 colours both sides. Electronically, the Smartcard is encoded only with
the unique manufacturer’s number and is accessible using the “transport keys”.
Initialisation consists of opening and reading the Smartcard, changing the “transport
keys” for “scheme keys” and loading the basic “application” onto the Smartcard.
For Smartcards which are to be initialised only, the price for initialisation
is included in the raw card cost for each Smartcard set out in Schedule 10C.


 


Personalisation includes Initialisation, the encoding of personal
information and the printing of personal information on the Smartcard (see Schedule 10G).
So Smartcards which are to be Personalised do not require a separate
Initialisation process and the cost of Initialisation for Smartcards which are
Personalised is included in the costs set out in Schedule 10G.


 


For Disposable Cards, Initialisation (including loading the
application) is undertaken as part of the Smartcard manufacturing process for
Smartcards sourced by the Contractor. In the event that  the Principal wishes to procure Disposable
Smartcards from an alternative supplier, then the Contractor recommends that
the Principal procures the Initialisation at the same time.


 


Should Principal procure Smartcards (Smartcard types C, D or E)
from a third party, then the Contractor must Initialise them or Personalise
them as required by the Principal at the prices set out below, provided that:


 


1.                                                       the
Principal procures Smartcards tested for conformance to the relevant parts of
ISO 14443 as shown in the table entitled “Card Type Description” in Schedule 10C;


 


2.                                                       the
Principal procures PVC Smartcards;


 


3.                                                       the
Principal procures that the Smartcards are shrink wrapped in boxes of
400 Smartcards; and


 


4.                                                       the
Contractor is able to test the quality of each delivered batch of Smartcards by
sampling a statistically significant number of Smartcards, and reject the
entire delivery, if the Contractor reasonably concludes that the sample does
not meet the Contractor’s standards for surface irregularities, physical
damage, contamination and electrical performance. The Contractor shall not be
liable for any delay caused by the rejection of a delivery of Smartcards
provided it is acting reasonably in concluding that the Smartcards do not meet
its standards.


 


	
   

  	
   

  	
  Unit

  Price per 

  card

  ($)

  	
   

  	
  Unit

  Price per 

  card

  ($)

  	
   

  	
  Unit

  Price per

  card

  ($)

  	
   

  	
  Unit

  Price per

  card

  ($)

  	
   

  	
  Unit

  Price per

  card

  ($)

  	
   

  	
  Unit

  Price per

  card

  ($)

  	
   

  	
  Unit

  Price per

  card

  ($)

  	
   

  
	
  Year ending 30 June

  	
   

  	
  2007

  	
   

  	
  2008

  	
   

  	
  2009

  	
   

  	
  2010

  	
   

  	
  2011

  	
   

  	
  2012

  	
   

  	
  2013

  	
   

  
	
  Initialisation Cost(1)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  



 










(1)                                                  For Smartcard types C, D and D as
described in Schedule 10C only.


 





















 


Schedule 10E

Unit Price – Printing


 


The following prices are to be added to the base Smartcard price in Schedule 10C
for over-printing of each Smartcard (over and above the base printing features
included in Schedule 10C) or where the Principal sources Smartcards from a
third party supplier and provides it to the Contractor for printing.


 


	
  Printing

  	
   

  	
  Unit

  Price per 

  card

  ($)

  	
   

  	
  Unit

  Price per 

  card

  ($)

  	
   

  	
  Unit

  Price per 

  card

  ($)

  	
   

  	
  Unit

  Price per 

  card

  ($)

  	
   

  	
  Unit

  Price per 

  card

  ($)

  	
   

  	
  Unit

  Price per 

  card

  ($)

  	
   

  	
  Unit

  Price per 

  card

  ($)

  	
   

  
	
  Year ending 30 June

  	
   

  	
  2007

  	
   

  	
  2008

  	
   

  	
  2009

  	
   

  	
  2010

  	
   

  	
  2011

  	
   

  	
  2012

  	
   

  	
  2013

  	
   

  
	
  Printing(1),(2)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Add Cardholder
  service

  information(2)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Add Signature
  Panel(2)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Add Unique
  Serial Number (if not included in base Smartcard

  stock)(2)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  



 










(1)                                                  Printing is for full colour double sided
printing.


 


(2)                                                  The unit price per Smartcard for these
printing features is capped at $[**] in total if one or more of these features
is required to be provided at the same time or [**] if requested at the same
time as Personalisation (in accordance with Schedule 10G).


 





















 


Schedule 10F

Unit Price – Card Distribution


 


The following prices are to be paid depending on the delivery method
chosen.


 


	
  Card
  distribution

  	
   

  	
  Unit

  Price per

  card

  	
   

  	
  Unit

  Price per

  card

  	
   

  	
  Unit

  Price per

  card

  	
   

  	
  Unit

  Price per

  card

  	
   

  	
  Unit

  Price per

  card

  	
   

  	
  Unit

  Price per

  card

  	
   

  	
  Unit

  Price per

  card

  	
   

  
	
  Year ending

  30 June

  	
   

  	
  ($)

  2007

  	
   

  	
  ($)

  2008

  	
   

  	
  ($)

  2009

  	
   

  	
  ($)

  2010

  	
   

  	
  ($)

  2011

  	
   

  	
  ($)

  2012

  	
   

  	
  ($)

  2013

  	
   

  
	
  Individual
  Issue (1)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Batch Issue
  (pack 400 Smartcards)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Batch Issue
  (per roll of 2,000 Disposable Smartcards)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  



 


Note


 


The Contractor
must minimise distribution costs by optimising batch delivery arrangements.


 










(1)                                                  The cost of postage to the home of the cardholder
for personalised Smartcards is included in the cost of Personalisation.


 





















 


Schedule 10G

Unit Price – Personalisation


 


The following prices are to be paid depending on the type of
Personalisation chosen by the Principal.


 


	
  Plastic Personalisation Services(1)

  	
   

  	
  Unit

  Price per

  card

  	
   

  	
  Unit

  Price per card

  	
   

  	
  Unit

  Price per card

  	
   

  	
  Unit

  Price per

  card

  	
   

  	
  Unit

  Price per

  card

  	
   

  	
  Unit

  Price per

  card

  	
   

  	
  Unit

  Price per

  card

  	
   

  
	
  Year ending

  30 June

  	
   

  	
  ($)

  2007

  	
   

  	
  ($)

  2008

  	
   

  	
  ($)

  2009

  	
   

  	
  ($)

  2010

  	
   

  	
  ($)

  2011

  	
   

  	
  ($)

  2012

  	
   

  	
  ($)

  2013

  	
   

  
	
  Add Card
  Holder Details (Text – eg Name, Address)(2)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Add Card
  Holder Photo(2)

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  



 










(1)                                                  Personalisation includes Initialisation, the
encoding of personal information and the printing of personal information on
the Smartcard and the despatch of each Personalised Smartcard by post. As such,
Smartcards which are to be Personalised do not require a separate
Initialisation process.


 


(2)                                                  The unit price per Smartcard for these personalisation
features is capped at $[**] in total if one or more of these features are
required to be provided at the same time.


 





















 


Schedule 10H

Unit Price – Card Design


 


The following prices are to be used for each agreed design change.


 


	
  Card design services(1)

  	
   

  	
  Hourly

  rate

  ($)

  	
   

  	
  Hourly

  rate

  ($)

  	
   

  	
  Hourly

  rate

  ($)

  	
   

  	
  Hourly

  rate

  ($)

  	
   

  	
  Hourly

  rate

  ($)

  	
   

  	
  Hourly

  rate

  ($)

  	
   

  	
  Hourly

  rate

  ($)

  	
   

  
	
  Year ending 30 June

  	
   

  	
  2007

  	
   

  	
  2008

  	
   

  	
  2009

  	
   

  	
  2010

  	
   

  	
  2011

  	
   

  	
  2012

  	
   

  	
  2013

  	
   

  
	
  Card design services

  	
   

  	
  $

  	
  [**]

  	
   

  	
  $

  	
  [**]

  	
   

  	
  $

  	
  [**]

  	
   

  	
  $

  	
  [**]

  	
   

  	
  $

  	
  [**]

  	
   

  	
  $

  	
  [**]

  	
   

  	
  $

  	
  [**]

  	
   

  
																							



 


	
  Card design change(1)

  	
   

  	
  Design

  Price

  ($)

  	
   

  	
  Design

  Price

  ($)

  	
   

  	
  Design

  Price

  ($)

  	
   

  	
  Design

  Price

  ($)

  	
   

  	
  Design

  Price

  ($)

  	
   

  	
  Design

  Price

  ($)

  	
   

  	
  Design

  Price

  ($)

  	
   

  
	
  Year ending 30 June

  	
   

  	
  2005

  	
   

  	
  2006

  	
   

  	
  2007

  	
   

  	
  2010

  	
   

  	
  2011

  	
   

  	
  2012

  	
   

  	
  2013

  	
   

  
	
  Card design change

  	
   

  	
  $

  	
  [**]

  	
   

  	
  $

  	
  [**]

  	
   

  	
  $

  	
  [**]

  	
   

  	
  $

  	
  [**]

  	
   

  	
  $

  	
  [**]

  	
   

  	
  $

  	
  [**]

  	
   

  	
  $

  	
  [**]

  	
   

  
																							



 










(1)                                                  In the case that the Principal provides the
Contractor with the artwork, the Contractor will provide one design change per
annum free of charge, provided the Principal provides artwork in the format
required by the Smartcard printer.


 





















 


Schedule 10I
Margin


 


Margins set out in the table below will only apply when the unit price
for Smartcards is based on the actual cost (as per clause 27.8).


 


	
  Distribution Service Component

  	
   

  	
  Margin (%)

  	
   

  
	
  Card Buying

  	
   

  	
  [**]

  	
  %

  	
   

  
	
  Card Personalisation

  	
   

  	
  [**]

  	
  %

  	
   

  
	
  Card Design

  	
   

  	
  [**]

  	
   

  	
   

  
	
  Other Distribution

  	
   

  	
  [**]

  	
  %

  	
   

  



 





















 


Schedule 10J

Cardholder Support Variable Service Charge Table


 


	
  Year ending 30 June

  	
   

  	
  Minimum Call Volumes

  (per month)

  	
   

  	
  Price ($) per call in excess of

  Minimum Call Volumes

  	
   

  
	
  2007

  	
   

  	
  [**]

  	
   

  	
  $ [**]

  	
   

  
	
  2008

  	
   

  	
  [**]

  	
   

  	
  $ [**]

  	
   

  
	
  2009

  	
   

  	
  [**]

  	
   

  	
  $ [**]

  	
   

  
	
  2010

  	
   

  	
  [**]

  	
   

  	
  $ [**]

  	
   

  
	
  2011

  	
   

  	
  [**]

  	
   

  	
  $ [**]

  	
   

  
	
  2012

  	
   

  	
  [**]

  	
   

  	
  $ [**]

  	
   

  
	
  2013

  	
   

  	
  [**]

  	
   

  	
  $ [**]

  	
   

  



 





















 


Schedule 11


 


Schedule 11


CPI Adjustment


 


(Schedule 7)


 


References to amounts to
be indexed in accordance with CPI are references to such amounts multiplied by
an adjustment factor.  The adjustment
factor shall be calculated as shown in the formula below:


 





 


where


 


“CPI1” is the CPI for the quarter ending
31 December in the preceding calendar year to the relevant
calculation date; and


 


“CPI2” is the CPI for the quarter ending 30 June 2005.


 


“Consumer Price Index” or “CPI”
means:


 


(a)                                                  the
“All Groups Consumer Price Index Weighted Average of Eight Capital Cities”
published quarterly by the Australian Bureau of Statistics, as long as there is
no change in the coverage, periodicity or reference base from those applying at
the date of this agreement;


 


(b)                                                 if
there is a change in the coverage of the All Groups Consumer Price Index
Weighted Average of Eight Capital Cities from that applying at the date of this
agreement and the new All Groups Consumer Price Index Weighted Average of Eight
Capital Cities is linked to previous All Groups Consumer Price Indexes, CPI is
the All Group Consumer Price Index Weighted Average of Eight Capital Cities;


 


(c)                                                  if
there is a change in the reference base of the All Groups Consumer Price Index
Weighted Average of Eight Capital Cities from that applying at the date of this
agreement and the Australian Bureau of Statistics provides a conversion factor,
that conversion factor will be applied to calculate revised CPI figures for the
purpose of this agreement, in terms of the new reference base;


 


(d)                                                 if
there is a change in the reference base of the All Groups Consumer Price Index
Weighted Average of Eight Capital Cities from that applying at the date of this
agreement and the Australian Bureau of Statistics does not provide a conversion
factor, the parties will request the President of the Institute of Actuaries
(or his nominee) to calculate revised CPIs for the purposes of this agreement,
and his determination is final and binds the parties;


 


(e)                                                  if
the All Groups Consumer Price Index Weighted Average of Eight Capital Cities is
published and:


 


(i)                                                      there
is a change in its coverage and it is not linked to previous All Groups
Consumer Price Indexes; or


 


(ii)                                                   there
is a change in its periodicity,


 


the parties must
request the President of the Institute of Actuaries (or his nominee) to
determine:


 





















 


A.                                                   whether
the new All Groups Consumer Price Index Weighted Average of Eight Capital
Cities is appropriate as a general indicator of the rate of price change for
consumer goods and services; or


 


B.                                                     if
it is not, what other index should be used as a substitute index for the purpose
of this agreement,


 


and his
determination is final and binds the parties;


 


(f)                                                    if
the All Groups Consumer Price Index Weighted Average of Eight Capital Cities is
not published and the Australian Bureau of Statistics publishes another index
which is:


 


(i)                                                      a
replacement of the All Groups Consumer Price Index Weighted Average of Eight
Capital Cities; and


 


(ii)                                                   linked
to the All Groups Consumer Price Index Weighted Average of Eight Capital
Cities,


 


all CPIs relevant
to this agreement must be re-calculated to the same reference base as the
replacement index;


 


(g)                                                 if
the All Groups Consumer Price Index Weighted Average of Eight Capital Cities is
not published and the Australian Bureau of Statistics publishes another index
which is not linked to the All Groups Consumer Price Index Weighted Average of
Eight Capital Cities, the parties must request the President of the Institute
of Actuaries (or his nominee) to calculate the revised CPIs for the purposes of
this agreement, and his calculation is final and binds the parties; or


 


(h)                                                 if
the All Groups Consumer Price Index Weighted Average of Eight Capital Cities is
not published and the Australian Bureau of Statistics does not publish another
index in replacement of the All Groups Consumer Price Index Weighted Average of
Eight Capital Cities, the parties must request the President of the Institute
of Actuaries (or his nominee) to determine an appropriate index which is a
general indicator of the rate of price change for consumer goods and services,
and his determination is final and binds the parties.


 





















 


Schedule 12


 


Schedule 12


Invoice Substantiation Data and Format


 


Part A – Payments of Capital Price


 


(Clause 21)


 


The format of the invoice for any claim by the Contractor in respect of
a Payment Milestone invoice to be submitted under clause 21.3(a) and
clause 21.3(b) is set out in Schedule 12A.  In accordance with clause 21.3, the
invoice for any claim with respect to a Payment Milestone must be accompanied
by, at a minimum, the following information and substantiation data:


 


(a)                                                  a
copy of the relevant Certificate of Completion issued by the TTA in accordance
with clause 17 for completion of the relevant Phase;


 


(b)                                                 a
copy of all Variation Orders issued by the Principal to the Contractor since
the date of the last claim with respect to a Payment Milestone setting out the
value and scope of the Variation and the amended Schedule 8 and Schedule 8A
to the Project Agreement;


 


(c)                                                  a
copy of all Variation Orders issued by the Principal to the Contractor for
which payment is due at the end of the relevant Phase to which the invoice
relates;


 


(d)                                                 detail
of the nature and amounts to be capitalised and expensed in accordance with
A-IFRS;


 


(e)                                                  the
relevant extract(s) of the detailed fixed asset register and spares inventory
in the detail as set out in clause 47.4 and a full reconciliation of the
invoice to the additions to fixed asset register and spares inventory.  The invoice, reconciliation, fixed asset
register extracts and spares inventory extracts must provide sufficient detail
to readily support the reconciliation, and to enable TTA to meet the
requirements of its auditors in this regard;


 


(f)                                                    any
other adjustments or payments due to or to be made by either party in
accordance with this Project Agreement including any adjustment relating to
certificates or notices issued by the TTA; and


 


(g)                                                 any
other information reasonably requested by the Principal.


 





















 


Part B – Delivery Services Charges


 


(Clause 21A)


 


The format of the Monthly Invoice to be submitted during the Delivery
Services Term, in accordance with clause 27.3, is set out in Schedule 12B.  In accordance with clause 27.3, any
Monthly Invoice for any Delivery Services Charge claim must be accompanied by,
at a minimum, the following information and substantiation data:


 


(a)                                                  The
dates of the relevant month of the Delivery Services Term to which the invoice
relates.


 


(b)                                                 Either:


 


I.                                                          where
a Variation Order amends the Services to be delivered during the Delivery
Services Term and the Variation Order:


 


(i)                                                     has
been issued since the last Monthly Invoice; or


 


(ii)                                                  where
the current invoice is the first Monthly Invoice;


 


then a copy of:


 


1.                                                       each
Variation Order issued by the Principal to the Contractor since the last
Monthly Invoice (or if the first Monthly Invoice, all Variation orders) setting
out the value and scope of the Variation; and


 


2.                                                       the
amended Schedule 32 to the Project Agreement; or


 


II.                                                      where
no variation order has been issued since the date of the last Monthly Invoice,
a copy of Schedule 32 to the Project Agreement used as substantiation in
the last Monthly Invoice; or


 


III.                                                  where
no Variation Order has been issued and the current invoice is the first Monthly
Invoice, a copy of Schedule 32 included in the Project Agreement at
execution.


 


(c)                                                  Full
calculations of the monthly Delivery Services Charge in accordance with Schedule 32,
including where applicable:


 


I.                                                          the
relevant base data and payable amounts calculated for Cardholder Support
Services, Distribution Services and Cash Collection, including the:


 


(i)                                                     applicable
Fixed Cardholder Support Delivery Services Payment;


 


(ii)                                                  volume
of calls of the month;


 


(iii)                                               unit
price for each call;


 


(iv)                                              Fixed
Distribution Services Payment;


 


(v)                                                 volume
of Disposable Smartcards Issued in the month;


 


(vi)                                              unit
price per Disposable Smartcard;


 


(vii)                                           volume
of Re-Loadable Smartcards Issued in the month;


 


(viii)                                        unit
price per Re-Loadable Smartcard;


 





















 


(ix)                                                volume
of Special Edition Smartcards Issued in the month;


 


(x)                                                   unit
price per Special Edition Smartcard;


 


(xi)                                                volume
of Disposable Smartcard and Re-Loadable Smartcards which were individually
delivered in the month;


 


(xii)                                             unit
price per individual card delivered;


 


(xiii)                                          volume
batches of Disposable Smartcard and Re-Loadable Smartcards which were batched
delivered in the month;


 


(xiv)                                         unit
price per batched card delivered;


 


(xv)                                            monthly
payment associated with distributing materials, other than cards;


 


(xvi)                                         volume
of Disposable Smartcard and Re-Loadable Smartcards which were Personalised in
the month;


 


(xvii)                                      unit
price per card Personalised;


 


(xviii)                                   number
of design hours undertaking agreed smartcard feature / design changes in
the month; and


 


(xix)                                           price
per hour for card design;


 


II.                                                      for
substantiation of Fixed Delivery Services charge for all other Delivery
Services, a copy of each relevant Certificate of Completion issued by the TTA
in accordance with clause 17 for the completion of all Phases occurring
before the payment date.


 


(d)                                                 Any
other adjustments or payments due to or to be made by either party in
accordance with this Project Agreement including any adjustment relating to
certificates or notices issued by the TTA.


 


(e)                                                  Copies
of invoices for the pass through of banking charges in accordance with clause
27.9.


 


(f)                                                    Detail
of the nature and amounts to be capitalised and expensed in accordance with the
prevailing accounting principles and practices for the Victorian State
Government (A-IFRS).


 


(g)                                                 Any
other information reasonably requested by the Principal.


 





















 


Part C – Service Charges


 


(Clause 27)


 


The format of the Monthly Invoice to be submitted during the Core
Services Term in accordance with clause 27.3 is set out in Schedule 12C.  In accordance with clause 27.3, an
invoice for any Services Charges claim must be accompanied by, at a minimum,
the following information and substantiation data:


 


(a)                                                  The
dates of the relevant month of the Core Services Term to which the invoice
relates.


 


(b)                                                 Either:


 


I.                                                          where
a Variation Order amends the Services to be delivered during the Core Services
Term and the Variation Order:


 


(i)                                                     has
been issued since the date of the last Monthly Invoice; or


 


(ii)                                                  where
the current invoice is the first Monthly Invoice,


 


then a copy of:


 


1.                                                       each
Variation Order issued by the Principal to the Contractor since the last
Monthly Invoice (or if it is the first Monthly Invoice, all Variation orders);
and


 


2.                                                       the
amended Schedule 10 to the Project Agreement;


 


II.                                                      where
no Variation Order has been issued since the date of the last Monthly Invoice,
then a copy of Schedule 10 of the Project Agreement used as substantiation
in the last Monthly Invoice; or


 


III.                                                  where
the current invoice is the first Monthly Invoice, a copy of Schedule 10
included in the Project Agreement at execution.


 


(c)                                                  Full
calculations of the monthly Service Charges according to Schedule 10, to a
sufficient level of detail to enable verification of the invoice amount,
including:


 


I.                                                          the
Core Services Payment for the relevant month;


 


II.                                                      the
relevant base data and payable amounts calculated for any Initial Services
Payment for the month, including:


 


(i)                                                     the
Fixed Distribution Services Payment;


 


(ii)                                                  the
actual cost plus margin calculation of the Distribution Service Payment, where
applicable;


 


(iii)                                               the
volume of Disposable Smartcards Issued in the month;


 


(iv)                                              the
unit price per Disposable Smartcard;


 


(v)                                                 the
volume of Re-Loadable Smartcards Issued in the month;


 


(vi)                                              the
unit price per Re-Loadable Smartcard;


 


(vii)                                           the
volume of Special Edition Smartcards Issued in the month;


 


(viii)                                        the
unit price per Special Edition Smartcard;


 





















 


(ix)                                                the
volume of Disposable Smartcard and Re-Loadable Smartcards which were
individually delivered in the month;


 


(x)                                                   the
unit price per individual card delivered;


 


(xi)                                                the
volume batches of Disposable Smartcard and Re-Loadable Smartcards which were
batched delivered in the month;


 


(xii)                                             the
unit price per batched card delivered;


 


(xiii)                                          the
monthly payment associated with distributing materials, other than cards;


 


(xiv)                                         the
volume of Re-Loadable Smartcards which were Personalised in the month;


 


(xv)                                            the
unit price per card Personalised;


 


(xvi)                                         the
number of design hours undertaking agreed smartcard feature / design
changes in the month;


 


(xvii)                                      the
price per hour for card design;


 


(xviii)                                   the
Cash Collection Services Payment for the relevant month;


 


(xix)                                           the
Fixed Cardholder Support Services Payment for the month;


 


(xx)                                              the
volume of calls per month, including the calculation of the calls that exceed
the minimum call volume; and


 


(xxi)                                           the
unit price for each call exceeding the minimum call volume;


 


III.                                                  the
calculation of any adjustment to the Service Charge, where the payment period
is less than a full calendar month.


 


(d)                                                 In
accordance with Schedule 31 the full calculations of any Adjustment Amount
that the Services Charge will be reduced by in the month, including relevant
base data and calculation of the Services KPI Performance Amount, Entry /
Exit Point Performance Amount, Entry / Exit Device Performance Amount, and
the Distribution / Selling Device Performance Amount supported by an
electronic Excel spreadsheet containing active formulae and base data for the
calculation of the Adjustment Amount.


 


(e)                                                  In
accordance with Schedule 31 the full calculations of any Half Yearly
Service Bonus, Monthly Service Charge Bonus, Smartcard activation and use
Bonuses, or Farebox growth bonuses, as applicable, payable to the Contractor,
supported by an electronic Excel spreadsheet containing active formulae and
base data for the calculation of any bonuses.


 


(f)                                                    The
amount of any capital variation that is due and payable in the month to which
the Monthly Invoice relates, including a copy of the relevant Variation Orders
issued by the Principal to the Contractor.


 


(g)                                                 The
calculation of any amount payable relating to replacement and refurbishment in
accordance with clause 23.10 and Schedule 33 to the Project
Agreement.  The Monthly Invoice should
contain details of:


 


I.                                                          the
specific component replaced (including type of component and its location);


 


II.                                                      the
component which was installed as a replacement;


 





















 


III.                                                  the
date and time that the replacement took place; and


 


IV.                                                  the
price of the replacement, in accordance with Schedule 33.


 


(h)                                                 In
accordance with clause 23.9, the Contractor must set out in each Monthly
Invoice, any act of Vandalism and, in relation to each act of Vandalism:


 


I.                                                          the
Device affected;


 


II.                                                      the
Vandalism Category which the Vandalism falls into and substantiation of the
vandalism act;


 


III.                                                  the
Vandalism Costs for those vandalism acts above the agreed cap;


 


IV.                                                  information
and documents to substantiate the Vandalism Costs above the agreed cap;


 


V.                                                      the
Equivalent Incident units; and


 


VI.                                                  the
total Equivalent Units for the relevant month.


 


(i)                                                     Details
of all spare parts procured by the Contractor during the month, relating to
either the Initial Services spares inventory (clause 22.9) or Core
Services spares inventory (clause 23.8).


 


(j)                                                     The
relevant extract(s) of the detailed fixed asset register and spares inventory
in the detail as set out in clause 47.4 and a reconciliation (where
applicable) of the invoice to the additions to the fixed asset register
and / or spares inventory.  The
reconciliation, fixed asset register extracts and spares inventory extracts
must provide sufficient detail to enable TTA to meet the requirements of its
auditors in this regard.


 


(k)                                                  Detail
of the nature and amounts to be capitalised and expensed in accordance with the
prevailing accounting principles and practices for the Victorian State
Government (A-IFRS).


 


(l)                                                     Any
other adjustments or payments due to or to be made by either party in accordance
with this Project Agreement including any adjustment relating to certificates
or notices issued by the TTA.


 


(m)                                               Copies
of invoices for any pass through of banking charges in accordance with clause
27.9.


 


(n)                                                 Any
other information reasonably requested by the Principal.


 





















 


Schedule 12A

Format of invoice – Payments of Capital Price


 


	
  A.

  	
  Invoice relating to the completion of the
  following Phase

   

  Substantiated by the
  information under Part A a)

  	
   

  
	
  B.

  	
  The amount of the Mobilisation Payment, exclusive
  of GST

   

  As set out in Schedule 8
  or 8A (as relevant) of the Project Agreement

  	
  $

  
	
  C.

  	
  Total Capital Price less Mobilisation Payment,
  exclusive of GST

   

  As set out in Schedule 8
  or 8A (as relevant) of the Project Agreement

  	
  $

  
	
  D.

  	
  Cumulative percentage milestone payments to end of
  the Phase to which the invoice relates

   

  Sum of percentages up to
  completed Phase as set out in Schedule 8 or 8A (as relevant)

  	
  %

  
	
  E.

  	
  Cumulative capital payments payable at the end of
  the Phase to which the invoice relates

   

  (Item C x Item D) + Item B

  	
  $

  
	
  F.

  	
  Cumulative capital payments made to date

  	
  $

  
	
  G.

  	
  Capital payment due under this invoice

   

  Item E – Item F

  	
  $

  
	
  H.

  	
  Any variation amount due and payable at the end of
  the Phase to which the invoice relates (provided not already included in Schedule 8
  or Schedule 8A)

   

  Amounts to be substantiated
  with information required under Part A c)

  	
  $

  
	
  I.

  	
  Any other payments to be made by Principal to the
  Contractor

   

  Amounts to be substantiated
  with information required under Part A f)

  	
  $

  
	
  J.

  	
  Any other receipts due to Principal by Contractor

   

  Amounts to be substantiated
  with information required under Part A f)

  	
  $

  
	
  K.

  	
  Amount of this invoice, exclusive of GST

   

  Item G + Item H + Item I + Item
  J

  	
  $

  
	
  L.

  	
  GST

   

  10% of Item K

  	
  $

  
	
  M.

  	
  Amount of this invoice, inclusive of GST

   

  Item K + Item L

  	
  $

  
	
  N.

  	
  Full breakdown of the amounts within Item K to be
  capitalised and expensed

   

  Amounts to be substantiated by
  the information under Part A d)

  	
  $

  



 





















 


Schedule 12B

Format of invoice – Delivery Services Charges


 


	
  A.

  	
  Date of the relevant month of the Delivery
  Services Term to which the invoice relates

   

  Substantiated by the
  information under Part B a)

  	
   

  
	
  B.

  	
  The total amount of the Initial Services Delivery
  Charge for Cash Collection payable for the month, exclusive of GST

   

  Substantiated by the information
  under Part B c)

  	
  $

  
	
  C.

  	
  The total amount of the Initial Services Delivery
  Charge for Cardholder Support Services, exclusive of GST

   

  Substantiated by the
  information under Part B c)

  	
  $

  
	
  D.

  	
  The total amount of the Initial Services Delivery
  Charge for Distribution Services, exclusive of GST

   

  Substantiated by the
  information under Part B c)

  	
  $

  
	
  E.

  	
  The total amount of the Fixed Delivery Charge
  payable for the month, exclusive of GST

   

  Substantiated by the
  information under Part B c)

  	
  $

  
	
  F.

  	
  Any other payments or adjustments due or to be
  made by either party (with payments by the Principal to the Contractor to be
  expressed as positive amounts)

   

  Amounts to be substantiated
  with information required under Part B d)

  	
  $

  
	
  G.

  	
  Amounts of banking charges passed through in
  accordance with clause 27.9

   

  Amounts to be substantiated
  with information required under Part B e)

  	
  $

  
	
  H.

  	
  Amount of this invoice, exclusive of GST

   

  Item  B +Item C + Item D + Item E + Item F + Item
  G

  	
  $

  
	
  I.

  	
  GST

   

  10% of Item H

  	
  $

  
	
  J.

  	
  Amount of this invoice, inclusive of GST

   

  Item H + Item I

  	
  $

  
	
  K.

  	
  Full breakdown of the amounts within Item H to be
  capitalised and expensed

   

  Amounts to be substantiated by
  the information under Part B  f)

  	
  $

  



 





















 


Schedule 12C

Format of invoice – Service Charges


 


	
  A.

  	
  Date of the relevant month of the Core Services
  Term to which the invoice relates

   

  Substantiated by the
  information under Part C a)

  	
   

  
	
  B.

  	
  The total amount of the Core Services Payment
  payable for the month, exclusive of GST

   

  Substantiated by the
  information under Part C c)

  	
  $

  
	
  C.

  	
  The total amount of the Cash Collection Services
  Payment payable for the month, exclusive of GST

   

  Substantiated by the
  information under Part C c)

  	
  $

  
	
  D.

  	
  The total amount of the Cardholder Support
  Services Payment payable for the month, exclusive of GST

   

  Substantiated by the
  information under Part C c)

  	
  $

  
	
  E.

  	
  The total amount of the Distribution Services
  Payment payable for the month, exclusive of GST

   

  Substantiated by the
  information under Part C c)

  	
  $

  
	
  F.

  	
  Any applicable Adjustment Amount to the Service
  Charge for the relevant month (to be expressed in negative values)

   

  Substantiated by the
  information under Part C d)

  	
  $

  
	
  G.

  	
  Any applicable bonus due and payable to the
  Contractor for the relevant month

   

  Substantiated by the
  information under Part C e)

  	
  $

  
	
  H.

  	
  Any applicable capital variation amount due and
  payable to the Contractor for the relevant month

   

  Substantiated by the
  information under Part C f)

  	
  $

  
	
  I.

  	
  Any applicable amount due and payable to the
  Contractor as a result of replacement and refurbishment in accordance with
  clause 23.10 and Schedule 33 to the Project Agreement

   

  Substantiated by the
  information under Part C g)

  	
  $

  
	
  J.

  	
  50% of any Vandalism Costs for those vandalism
  acts above the agreed cap

   

  Amounts to be substantiated
  with information required under Part C h)

  	
  $

  
	
  K.

  	
  Any other payments or adjustments due or to be
  made by either party (with payments by the Principal to the Contractor to be
  expressed as positive amounts)

   

  Amounts to be substantiated
  with information required under Part C l)

  	
  $

  
	
  L.

  	
  Amounts of any banking charges passed through in
  accordance with clause 27.9

   

  Amounts to be substantiated
  with information required under Part C m)

  	
  $

  
	
  M.

  	
  Amount of this invoice, exclusive of GST

   

  Item B + Item C + Item D + Item
  E - Item F + Item G + Item H + Item I + Item J + Item K + Item L

  	
  $

  



 





















 


	
  N.

  	
  GST

   

  10% of Item M

  	
  $

  
	
  O.

  	
  Amount of this invoice, inclusive of GST

   

  Item N + Item O

  	
  $

  
	
  K.

  	
  Full breakdown of the amounts within Item M to be
  capitalised and expensed

   

  Amounts to be substantiated by
  the information under Part C  k)

  	
  $

  



 





















 


Schedule 13


 


Schedule 13


Transfer Principles


 


(Clause 44)


 


1.                                       Transfer
must take place in a manner which:


 


(a)                                                   minimises
disruptions to the businesses of the Principal, Access Providers, Bus Operators
and Stakeholders;


 


(b)                                                  minimises
disruptions to the public;


 


(c)                                                   minimises
costs for the Principal, Access Providers, Bus Operators and Stakeholders;


 


(d)                                                  minimises
the start up and ongoing costs for the Principal or any third party that


 


(i)    takes over the operation of
the Solution; or


 


(ii)                                                 is
operating a system that replaces the Solution; or


 


(iii)                                              takes
over the provision of any of the Services;


 


(e)                                                   occurs
in the most expeditious and efficient manner possible;


 


(f)                                                     where
the Solution is being replaced by a new system, provides for the concurrent
operation of the Solution and the new system and gradual decommissioning of the
Solution.


 


2.                                                       The
Contractor must as part of the Transfer or facilitation of the Transfer to the
Principal or a third party, at a minimum:


 


(a)                                                   peaceably
surrender and transfer to the Principal or a third party the Solution in a
fully functional condition which complies with this agreement, including the
Requirements Document and the Solution Documentation;


 


(b)                                                  deliver
to the Principal all Devices, documentation and material in relation to the
Solution which is necessary to enable the Principal or a third party to operate
the Solution and/or replace the Solution with another system and/or provide the
Services including any of the following which have not previously been provided
to the Principal in their current form:


 


(i)                                                     electronic
and hard copy versions of the Solution Documentation including each of the
Design Documents;


 


(ii)                                                  all
data associated with the Solution, including System Data and Test Data;


 


(iii)                                               all
manufacturers’ warranties and guarantees relating to Devices and materials to
be delivered to the Principal or a third party;


 


(iv)                                              documentation,
information, books, records and other materials (current at the time of
delivery and reflecting current business and other processes) relating to the
Solution and the Services; and


 


(v)                                                 all
Software, Devices and other equipment required to operate and maintain the
Solution or provide the Services (other than infrastructure used in the
provision of the Initial Services or Core Services to the extent


 





















 


that it is infrastructure of an entity other
than the Contractor which is also used by that entity to provide a material
level of services not related to the Initial Services or Core Services and
which the Contractor, using reasonable endeavours, is not able to transfer);


 


(c)                                                   prior
to the Transfer, provide to the Principal or a third party authorised by the
Principal, access to:


 


(i)                                                     any
part of the Solution; and


 


(ii)                                                 any
of the items referred to in section 2(b) of this schedule;


 


(d)                                                  upon
notice from the Principal, transfer, or facilitate the transfer, by way of
novation or otherwise, of:


 


(i)                                                     all
premises owned, leased or operated by the Contractor or any subcontractor;


 


(ii)                                                  all
Key Contracts, agreements and other contracts (including supply contracts)
entered into by the Contractor and its subcontractors;


 


(iii)                                              all
Approvals obtained by the Contractor and its subcontractors;


 


in relation to
the Solution which are necessary for the ongoing operation of the Solution and
the continued provision of the Services or the replacement of the Solution with
another system.


 


(e)                                                   do
all other reasonable acts and things to enable the Principal or a third party
to operate the Solution and provide the Services at a level at least equal to
that in effect immediately before the termination of this agreement without
interruption.


 





















 


Schedule 14


 


Schedule 14


Expert
Deed


 


(Clause 49.5)


 


[Note:  To be finalised by the Principal.]


 


DEED OF APPOINTMENT OF EXPERT made
at Melbourne on


 


Parties                                                                                            Public Transport Ticketing Body trading as Transport Ticketing
Authority of Level 38, 55 Collins Street, Melbourne, Victoria (the “Principal”)


 


Keane Australia Micropayment Consortium Pty
Ltd  ACN 114 334 600,
of Level 50, Bourke Place, 600 Bourke Street, Melbourne, Victoria (the “Contractor”)


 


[INSERT NAME] of [insert address] (“Expert”)


 


Recitals


 


A.                                                   The
Principal and the Contractor have entered into an agreement dated
[             ]
entitled “New Ticketing Solution Project Agreement” (“Project
Agreement”).


 


B.                                                     The
Expert has been appointed by the Principal and the Contractor to determine
disputes or differences in relation to the Project Agreement under the
procedure described in the Project Agreement.


 


This Deed witnesses


 


1.                                                      Interpretation


 


Unless the
contrary intention appears, words and phrases used in this Deed shall have the
same meaning as attributed to such words in the Project Agreement.


 


2.                                                      Decide on disputes


 


The Expert shall
be required to determine disputes or differences referred to the Expert in
accordance with the procedures set out in the Project Agreement and shall, in
discharging the Expert’s obligations
under this Deed, abide and be bound by the provisions of the Project Agreement.


 


3.                                                      Meeting


 


Within 5 Business
Days of a dispute being referred to the Expert, the Expert shall meet with the
Principal and the Contractor to determine a procedure to resolve the dispute or
difference.


 


4.                                                      Expert release


 


The parties
release and indemnify the Expert from and against all claims, except in the
case of fraud on the part of the Expert, which may be made against him or her
by any person in respect of the Expert’s appointment to determine the dispute.


 





















 


5.                                                      Expert’s powers


 


5.1                                               General
powers


 


The Expert will
in discharging the Expert’s
obligations under this Deed:


 


(a)                                                   act
as an expert and not as an arbitrator;


 


(b)                                                  proceed
in such manner as the Expert thinks fit without being bound to observe the rules of
evidence;


 


(c)                                                   take
into consideration all documents, information, and other written and oral
material that the parties place before the Expert including documents,
information, and material relating to the facts in dispute and to arguments and
submissions upon the matters in dispute;


 


(d)                                                  not
be expected or required to obtain or refer to any other documents, information,
or material but may do so if the Expert so desires;


 


(e)                                                   act
in good faith and with expedition with a view to making a decision within the
time period required by the Project Agreement;


 


(f)                                                     give
his or her determination in writing (including a statement of the value of the
determination) and give written reasons for the determination.


 


5.2                                               Advisors
and consultants


 


(a)                                                   The
Expert may, with prior written approval from both the Contractor and the
Principal, commission his or her own advisers or consultants, including
lawyers, accountants, bankers, engineers, surveyors, transport consultants or
other technical consultants, to provide information to assist the Expert in his
or her decision.


 


(b)                                                  The
Expert must appoint any advisors or consultants nominated in writing by both
the Principal and the Contractor to provide information to assist the Expert in
his or her decisions.


 


6.                                                      Meet with parties


 


The Expert may as
a part of the procedure to be determined under clause 3 further meet with the
parties to discuss the dispute or difference and at and in connection with any
such meeting:


 


(a)                                                   neither
party may be accompanied by their legal representative; and


 


(b)                                                  the
parties agree to be bound by such procedural directions as may be given by the
Expert both in preparation for and during the course of the meeting.


 


The parties agree
that any such meeting or meetings shall not in any way be regarded as a formal
hearing.


 


7.                                                      Decision binding


 


Subject to clause
49.5(l) of the Project Agreement, the Expert’s decision shall be final and
binding.


 





















 


8.                                                      Remuneration


 


In consideration
of the Expert performing the Expert’s obligations under this Deed, the
Principal and the Contractor shall jointly pay to the Expert the amount set out
in the Schedule or such other amount as is agreed between all parties to
this Deed.


 


9.                                                      Confidentiality


 


The Expert shall
not, at any time, whether before or after the expiration or sooner
determination of this Deed, without the consent of the Principal and the Contractor
divulge to any person any details concerning:


 


(a)                                                   the
subject matter of any dispute or difference referred to the Expert under this
Deed;


 


(b)                                                  any
of the contents of the Project Agreement or this Deed or any other agreements
collateral or supplemental to the Project Agreement or this Deed;


 


(c)                                                   any
of the commercial bases of the Project Agreement or any information relating to
the negotiations concerning the same or any information which may have come to
the Expert’s knowledge in the course of such negotiations; or


 


(d)                                                  the
operations, dealings, transactions, contracts, commercial, or financial
arrangements, or affairs of the Principal and the Contractor as contemplated by
the Project Agreement.


 


10.                                               Nature of Expert’s
role


 


(a)                                                   The
Expert shall be independent from the Principal and the Contractor and (without
limitation) the Expert warrants that he or she has no conflict of interest in
acting under this Deed.  Nothing in this
Deed shall be deemed to make the Expert an agent, employee, or partner of the
Principal or the Contractor.


 


(b)                                                  The
Expert shall assume full responsibility and liability for the payment of all
taxes due on moneys received by the Expert under this Deed.


 


11.                                               Term


 


This Deed will
expire on [Note:  To be
inserted.]


 


12.                                               Termination


 


(a)                                                   This
Deed may be terminated by either the Principal or the Contractor by giving the
other parties 10 days written notice upon the occurrence of any of the
following events:


 


(i)                                                     the
Expert being declared of unsound mind or mentally ill;


 


(ii)                                                  the
death of the Expert;


 


(iii)                                               the
Expert being declared bankrupt;


 


(iv)                                              the
Expert committing any proven act of dishonesty or, by wilful act or omission or
by gross neglect, behaving in a fashion clearly prejudicial to the interests of
the Principal or the Contractor;


 





















 


(v)                                                 the
Expert being prevented by prolonged illness or incapacity from performing the
Expert’s obligations under this Deed.


 


(b)                                                  This
Deed may be terminated by 10 days written notice to the Expert from both the
Principal and the Contractor for any reason.


 


13.                                               Insurance


 


The Expert shall
hold professional indemnity insurance as required by the Principal and the
Contractor.


 


14.                                               Notices


 


All notices to be
given to the Expert under this Deed shall be properly given if hand delivered
to the Expert or if sent by certified or registered mail to the Expert’s
address shown in this Deed or to such other address as the Expert may from time
to time advise by notice in writing.


 


15.                                               Governing law


 


This Deed will be
governed by the laws of Victoria.


 


THE SCHEDULE


 


 


Expert’s
Remuneration


 


[Note: To be inserted.]


 


 


EXECUTED as a deed.


 





















 


Schedule 15


 


Schedule 15


Parent Company Guarantee


 


(Clause 2.1)


 


DEED OF GUARANTEE AND INDEMNITY
made on                            2005


 


Parties


 


Public
Transport Ticketing Body trading as Transport Ticketing Authority,
ABN 73 595 242 024 (“Beneficiary”)


 


Keane, Inc. US
federal identification number 042437166 (“Guarantor”)


 


Recitals


 


A.                                                   At
the request of the Contractor and in consideration of the Beneficiary entering
into and being bound by the Project Agreement, the Guarantor has agreed to
grant a guarantee and indemnity on the terms of this deed.


 


B.                                                     The
Guarantor considers that by providing the guarantee and indemnity on the terms
of this deed there will be a commercial benefit flowing to the Guarantor.


 


This deed provides


 


1.                                                      Definitions and
Interpretation


 


1.1                                               Definitions


 


In this deed:


 


“Contractor”
means Keane Australia Micropayment Consortium Pty Ltd ACN 114 334 600.


 


“Encumbrance”
means a mortgage, charge, pledge, lien, hypothecation, guarantee (including
this deed), indemnity, letter of credit, letter of comfort, performance bond,
or other avoidance against loss which secures any obligation which is or may be
or becomes owing by any other Relevant Person to the Guarantor.


 


“Government
Authority” means any government or any governmental or
semi-governmental entity, authority, agency, commission, corporation or body
(including those constituted or formed under any Statute), local government
authority, stock exchange, administrative or judicial body or tribunal.


 


“Guarantee”
means the guarantee and indemnity provided for in this deed.


 


“Guaranteed
Money” means all money the payment or repayment of which
from time to time forms part of the Obligations including all moneys payable by
way of interest, fees, costs, charges, duties, Taxes or expense or payable by
way of indemnity or as damages under or in relation to, or as a consequence of,
any breach or default of the Project Agreement or any other Project Document.


 


“Material
Adverse Effect” means a material adverse
effect on:


 


(a)                                                   the business, assets, or financial condition of the
Contractor and the Guarantor (taken as a whole); or


 





















 


(b)                                                  the ability of the Contractor and the Guarantor (taken
as a whole) to perform their obligations under any Project Document.


 


“Obligations”
means all the liabilities and obligations of the Contractor  to the Beneficiary pursuant to or in
connection with the Project Agreement and each other Project Document and
includes any liabilities or obligations which:


 


(a)                                                   are
liquidated or unliquidated;


 


(b)                                                  are
present, prospective or contingent;


 


(c)                                                   are
in existence before or come into existence on or after the date of this deed;


 


(d)                                                  relate
to the payment of money or the performance or omission of any act;


 


(e)                                                   sound
in damages only; or


 


(f)                                                     accrue
as a result of any Event of Default,


 


and irrespective
of:


 


(g)                                                  whether
the Contractor is liable or obligated solely, or jointly, or jointly and
severally with another person;


 


(h)                                                  the
circumstances in which the Beneficiary comes to be owed each liability or
obligation and in which each liability or obligation comes to be the subject of
the Guarantee, including any assignment of any liability or obligation or of
this deed; or


 


(i)                                                      the
capacity in which the Contractor and the Beneficiary comes to owe or be owed
such liability or obligation.


 


“Project
Agreement” means the agreement entitled “New Ticketing
Solution Project Agreement” dated on or about the date of this deed between the
Beneficiary and the Contractor.


 


“Relevant
Person” means the Contractor and any person who has
executed a Security in favour of the Beneficiary.


 


“Security”
means a mortgage, charge, pledge, lien, hypothecation, guarantee (including
this deed), indemnity, letter of credit, letter of comfort, performance bond,
or other assurance against loss which secures any of the Obligations (including
the payment of the Guaranteed Money) and whether existing at the date of this
deed or at any time in the future.


 


“Statute”
means any legislation of the Parliament of the Commonwealth of Australia or of
any State or Territory of the Commonwealth of Australia in force at any time,
and any rule, regulation, ordinance, by-law, statutory instrument, order or
notice at any time made under that legislation.


 


“Tax”
means any present or future tax, levy, impost, deduction, charge, duty,
compulsory loan, or withholding (together with any related interest, penalty,
fine, and expense in connection with any of them) levied or imposed by any
Government Authority, other than any imposed on overall net income.


 


1.2                                               The
Project Agreement


 


Except where the
context requires otherwise, words and expressions used in this deed which are
not otherwise defined shall have the meaning given to them in the Project
Agreement.


 





















 


1.3                                               Interpretation


 


In this deed:


 


(a)                                                   headings
are for convenience only and do not affect interpretation,


 


and unless the
context indicates a contrary intention:


 


(b)                                                  an
obligation or a liability assumed by, or a right conferred on, 2 or more
persons binds or benefits them jointly and severally;


 


(c)                                                   “person” includes an individual, the
estate of an individual, a corporation, a Government Authority, an association
or a joint venture (whether incorporated or unincorporated), a partnership, and
a trust;


 


(d)                                                  a
reference to any party includes that party’s executors, administrators,
successors and permitted assigns, including persons taking by way of novation;


 


(e)                                                   a
reference to any document (including this deed) is to that document as varied,
novated, ratified or replaced from time to time;


 


(f)                                                     a
reference to a Statute includes its delegated legislation and a reference to a
Statute or delegated legislation or a provision of either includes
consolidations, amendments, re-enactments and replacements;


 


(g)                                                  a word
importing the singular includes the plural (and vice versa), and a word
importing a gender includes every other gender;


 


(h)                                                  a
reference to a party, clause, schedule, exhibit, attachment or annexure is a
reference to a party, clause, schedule, exhibit, attachment and annexure to or
of this deed, and a reference to this deed includes all, schedules, exhibits,
attachments and annexures to it;


 


(i)                                                      if a
word or phrase is given a defined meaning, any other part of speech or
grammatical form of that word or phrase has a corresponding meaning;


 


(j)                                                      “includes” in any form is
not a word of limitation; and


 


(k)                                                   a
reference to “$” or “dollar” is to Australian currency.


 


1.4                                               Rule of
construction excluded


 


No term or
provision of this deed shall be construed against a party on the basis that the
deed or the term or provision in question was put forward or drafted by that
party.


 


2.                                                      Guarantee


 


2.1                                               Guarantee


 


The Guarantor
unconditionally and irrevocably guarantees to the Beneficiary the
due and punctual performance and satisfaction by the Contractor of all of the
Obligations including the payment in full of the Guaranteed Money.


 





















 


2.2                                               Payment
of Guaranteed Money


 


If the Contractor
does not pay the Guaranteed Money when due, the Guarantor must, on demand being
made pursuant to clause 2.4, pay to the Beneficiary the Guaranteed Money which
is then due and payable, subject only to the limitation in clause 4.3.


 


2.3                                               Perform
Obligations


 


If the Contractor
defaults in the performance or observance of any of the Obligations, the
Guarantor shall, in addition to its obligations under clause 2.2, and subject
only to the limitation in clause 4.3, on demand from time to time by the
Beneficiary pursuant to clause 2.4, immediately perform or procure the
performance by the Contractor of any of the Obligations then required to be
performed by the Contractor in the same manner as the Contractor is required to
perform the Obligations.


 


2.4                                               Demand


 


The Beneficiary will:


 


(a)                                                   prior
to making demand on the Guarantor under clause 2.2 or 2.3, make demand on the
Contractor to pay the Guaranteed Money or perform the Obligation then
outstanding;


 


(b)                                                  on
the same day, give a copy of the demand under clause 2.4(a) to the
Guarantor; and


 


(c)                                                   be
entitled to make demand on the Guarantor for payment of the Guaranteed Money or
performance of the Obligation if a demand made under clause 2.4(a) remains
outstanding at the end of 5 Business Days from the date of that demand,


 


and the Guarantor must make the relevant
payment or perform or procure performance of the relevant Obligation pursuant
to that demand without reference to the Contractor and notwithstanding any
dispute by the Contractor as to its liability to the Principal to make that
payment or perform that Obligation, but subject to clause 4.5.


 


3.                                                      Indemnity


 


As a covenant
separate and distinct from that contained in clause 2, the Guarantor
irrevocably agrees, subject only to the limitation in clause 4.3, to indemnify
the Beneficiary and at all times to keep the Beneficiary indemnified against
any loss or damage suffered by the Beneficiary arising out of or in connection
with:


 


(a)                                                   any
failure by the Contractor to observe or perform any of the Obligations
including any failure by the Contractor to pay the Guaranteed Money duly and
punctually; or


 


(b)                                                  any
Project Document being wholly or partly void, voidable, or unenforceable
against the Contractor as a result of any act or omission by or on behalf of
the Contractor or other Relevant Person, with the effect, in any such case,
that:


 


(i)                                                     sums
which would (but for the voidness, voidability, or unenforceability) have been
Guaranteed Money are not recoverable by the Beneficiary under clause 2.2; or


 


(ii)                                                  any
other obligations which would (but for the voidness, voidability, or
unenforceability) have been Obligations are not guaranteed under
clause 2.3; or


 





















 


(c)                                                   a
disclaimer of any contract or property (including the Project Agreement) made
by a liquidator of the Contractor,


 


provided however that the Guarantor shall not
indemnify the Beneficiary for losses to the extent that they result from the
gross negligence of the Beneficiary or breach by the Beneficiary of its
obligations under the Project Documents.


 


4.                                                      Nature and
Preservation of Liability


 


4.1                                               Absolute
liability


 


The liability of
the Guarantor under this deed arises immediately on execution and delivery of
this deed by the Guarantor, and:


 


(a)                                                   arises
notwithstanding that any person expressed to be a party to this deed does not
execute and deliver this deed, that there is any invalidity, forgery or irregularity
in the execution or purported execution of this deed by any person, or that
this deed is or becomes unenforceable against any such person for any reason;
and


 


(b)                                                  is
not conditional on the entering into by any other person of any other document
or agreement which might benefit (directly or indirectly) the Guarantor, or on
the satisfaction of any other condition.


 


4.2                                               Unconditional
liability


 


The liability of
the Guarantor under this deed will not be affected by any act, omission, matter
or thing which but for this clause 4.2, might operate in law or in equity
to release the Guarantor from that liability or to reduce the Guarantor’s
liability under this deed including, any of the following:


 


(a)                                                   (Invalidity etc.): any Security or any
Project Document being terminated or discharged (whether by any party thereto
or by operation of law) or being or becoming void, voidable, or unenforceable
for any reason;


 


(b)                                                  (Other Securities): the Beneficiary
accepting or declining to accept any Security from any person;


 


(c)                                                   (Time or indulgence): the Beneficiary
granting or agreeing with the Guarantor, the Contractor or other Relevant
Person to grant time, waiver, or other indulgence or concession to, or making
any composition or compromise with any person whether or not pursuant to any
Project Document;


 


(d)                                                  (Forbearance): the Beneficiary not
exercising or delaying in the exercise of any remedy or right it has at any
time to terminate or enforce its rights under this deed, any Project Document,
or any Security;


 


(e)                                                   (Variation): any variation, novation or
alteration to or substitution of this deed, any Project Document or any
Security, if that variation, novation or alteration permits or results in a
change in the Obligations, including amount of the Guaranteed Money or a change
in the date by which it must be paid, or a change in the identity of the
Contractor or other Relevant Person;


 


(f)                                                     (Release): the partial or conditional
release or discharge by the Beneficiary or by operation of law of any Relevant
Person from its obligations under any Project Document or any Security;


 





















 


(g)                                                  (Securities): the Beneficiary enforcing,
releasing, disposing of, surrendering, wasting, impairing, destroying,
abandoning, prejudicing, or failing or delaying to perfect, maintain, preserve,
realise, or enforce any Project Document, any Security, whether negligently or
otherwise;


 


(h)                                                  (Accounts): the opening or operation of any
new account with the Beneficiary by the Contractor or other Relevant Person;


 


(i)                                                      (Change of constitution): any change for any
reason in the name or manner in which the Beneficiary or any Relevant Person
carries on business, including any change in any partnership, firm, or
association of which the Beneficiary or any Relevant Person is a member;


 


(j)                                                      (Disclosure): any failure by the Beneficiary
to disclose to the Guarantor any material or unusual fact, circumstance, event,
or thing known by, or which ought to have been known by, the Beneficiary
relating to or affecting any Relevant Person before or at any time after the date
of this deed;


 


(k)                                                   (Prejudicial Conduct): any breach by the
Beneficiary of any term of any Project Document or Security or any other act or
omission (negligent or otherwise) of the Beneficiary with regard to any Project
Document, any Security, or any Relevant Person which is prejudicial to the
interests of the Guarantor;


 


(l)                                                      (Preference): any claim by any person that a
payment to, receipt by, or other transaction in favour of the Beneficiary in or
towards satisfaction of the Obligations, including the payment of the
Guaranteed Money is void, voidable, or capable of being set aside under any law
relating to bankruptcy, insolvency, or liquidation being upheld, conceded, or
compromised;


 


(m)                                                (Assignment): the transfer, assignment, or
novation by the Beneficiary or any Relevant Person of all or any of its rights
or obligations under any Project Document or Security to which it is a party;


 


(n)                                                  (Administration): the provisions of section 440J
of the Corporations Act so operating as to prevent or delay;


 


(i)                                                     the
enforcement of this deed against any Guarantor other than a Guarantor in
respect of whose liability the section applies; and/or


 


(ii)                                                  any
claim for contribution against any Guarantor;


 


(o)                                                  (Disclaimer): a disclaimer of any contract
or property (including the Project Agreement) made by a liquidator of the
Contractor or other Relevant Person;


 


(p)                                                  (Event of Insolvency): the occurrence
before, on or at any time after the date of this deed, of any Event of
Insolvency in relation to any Relevant Person;


 


(q)                                                  (Distribution): the receipt by the
Beneficiary of any payment, dividend or distribution under any Insolvency
Provision in relation to any Relevant Person;


 


(r)                                                     (Event of Default): the occurrence of any
Event of Default;


 


(s)                                                   (Acquiescence or other omission): any
laches, acquiescence or other act, neglect, default, omission or mistake by the
Beneficiary;


 





















 


(t)                                                     (Repudiation): the determination,
rescission, repudiation or termination, or the acceptance of any of the
foregoing, by the Beneficiary or any Relevant Person of any Project Document or
any Obligation;


 


(u)                                                  (Security property): the release of any
property from any Security or the substitution of any property in place of any
other property the subject of a Security;


 


(v)                                                  (Loss of Securities): the failure to obtain
any Security or the loss or impairment of any Security by operation of law or
otherwise, whether or not the same is in breach of any express or implied
condition to obtain or preserve that Security, or is in breach of any equitable
duty which might otherwise have been imposed on the Beneficiary; or


 


(w)                                                (Priority of Securities): the Beneficiary
agreeing to the postponement or loss of any priority attaching to any Security.


 


4.3                                               Limitation
of Liability


 


(a)                                                   Except
in respect of clause 12, subject to clause 4.3(b), the aggregate liability of
the Guarantor under this Deed, whether for the Guarantor’s obligations,
indemnifications or otherwise, shall not be greater than and falls within the
same monetary limitations as are imposed on the liability of the Contractor to
the Beneficiary:


 


(ii)                                                  in
respect of the Obligations; and


 


(iii)                                               in
respect of any payment or other act the making or doing of which would have
formed part of the Obligations but for a circumstance where the Project
Agreement or another Project Document becomes wholly or party void, voidable or
unenforceable against the Contractor for any reason.


 


(b)                                                  To
the extent that the Contractor satisfies a liability to the Principal which is
subject to the monetary limitation on liability of the Contractor under clause
40.2 of the Project Agreement, the maximum liability amount of the Guarantor to
the Principal under this Deed will be reduced accordingly.


 


4.4                                               Claim
on the Guarantor


 


Subject to clause
2.4, the Beneficiary is not required to make any claim or demand on the
Contractor or on any other Relevant Person, or to take any steps to enforce its
rights under any Project Document or any Security before making any demand or
claim on, or otherwise enforcing its rights against, the Guarantor under this deed.


 


4.5                                               No
set off, counterclaim etc.


 


The liability of
the Guarantor under this deed will not be reduced or avoided by any defence,
set off, or counterclaim available to the Contractor against the Beneficiary
except that the Guarantor will be entitled to raise any defence of the
Contractor, where the Contractor has a bona fide dispute with the Principal as
to its liability for the particular payment of Guaranteed Moneys or performance
of the Obligation to which the demand on the Guarantor relates, provided
however that the dispute does not relate to any claim that any Project Document
is wholly or partly void, voidable or unenforceable against the Contractor.


 





















 


4.6                                               No
marshalling


 


The Beneficiary
is under no obligation to marshal or appropriate in favour of the Guarantor or
to exercise, apply, transfer, or recover in favour of any Guarantor, any
Security or any funds or assets that the Beneficiary holds, has a claim on, or
is entitled to receive.


 


4.7                                               No
representation by Beneficiary


 


The Guarantor
acknowledges that in entering into this deed it
has not relied upon any representation, warranty, statement, information or
data made or provided to it by the Beneficiary, the Government, any Government
Agencies, the Access Providers or any Stakeholder.


 


4.8                                               Void
or voidable transactions


 


If:


 


(a)                                                   the
Beneficiary has at any time released or discharged:


 


(i)                                                     the
Guarantor from its obligations under this deed or any Security executed by the
Guarantor; or


 


(ii)                                                  any
assets of the Guarantor from a Security,


 


in either case in
reliance on a payment, receipt, or other transaction to or in favour of the
Beneficiary;


 


(b)                                                  that
payment, receipt, or other transaction is subsequently claimed by any person to
be void, voidable, or capable of being set aside for any reason, including
under an Insolvency Provision; and


 


(c)                                                   that
claim is upheld, conceded, or compromised, which results in such payment,
receipt or other transaction being rescinded, repaid or disgorged,


 


then:


 


(d)                                                  (Restitution of rights): the Beneficiary
will immediately become entitled against the Guarantor to all such rights
(including under any Security) as it had immediately before that release or
discharge;


 


(e)                                                   (Restore Beneficiary’s position): the
Guarantor must immediately do all things and execute all documents as the
Beneficiary may require to restore the Beneficiary all those rights; and


 


(f)                                                     (Indemnity): the Guarantor must indemnify
and keep the Beneficiary indemnified against costs, losses, and expenses
suffered or incurred by the Beneficiary as a result of the upholding,
concession, or compromise of the claim.


 


4.9                                               No
double proof


 


This deed
constitutes a guarantee of the whole of the Obligations, even if the Beneficiary
and the Guarantor have agreed or agree at any time that the Guarantor’s
liability under this deed
will be limited to a maximum amount under clause 4.3.  Accordingly, subject to clause 4.10, the
Guarantor is not entitled to lodge any proof of debt in
the winding up of the Contractor or other Relevant Person with
respect to any claim arising as a result of the Guarantor making a payment
under this deed, unless and until the Obligations have been satisfied in full
and the Guaranteed Money has been paid to, or recovered by, the Beneficiary in
full and no claim


 





















 


referred to in
4.8(b) is threatened, pending, upheld, conceded or compromised in relation
to that payment or other transaction relied on by the Beneficiary as the basis
for any discharge.


 


4.10                                        Proof
of debt in competition with Beneficiary


 


(a)                                                   The
Guarantor must prove in the winding-up of any Relevant Person in respect of any
claim it has against that Relevant Person other than a claim arising as a
result of the Guarantor making a payment under this deed,
and agrees to hold any dividend received in respect of that proof on trust for
the Beneficiary in or towards satisfaction of the Guarantor’s obligations under
this deed.


 


(b)                                                  The
Guarantor irrevocably appoints the Beneficiary its attorney for the purposes of
lodging a proof in the Guarantor’s name, and authorises the Beneficiary to
retain and to carry to a suspense account and appropriate at the discretion of
the Beneficiary any amounts received in respect of that proof until, after
taking the amount into account, the Beneficiary has recovered an amount equal
to all of the Guaranteed Money.


 


4.11                                        Waiver
of rights


 


The Guarantor:


 


(a)                                                   must
not exercise any right to contribution, indemnity or subrogation (including
being entitled to the benefit of any Security held by the Beneficiary) which it
might otherwise be entitled to claim and enforce against any Relevant Person on
account of the Obligations; and


 


(b)                                                  will
not be entitled to the benefit of, nor seek the transfer to it, any Security
held by the Beneficiary,


 


until all the
Obligations have been satisfied and Guaranteed Money has been paid to,
discharged or recovered by the Beneficiary in full and no claim referred to in
4.7(b) is threatened, pending, upheld, conceded or compromised in relation
to that payment or other transaction relied on by the Beneficiary as the basis
for any discharge.


 


4.12                                        Restriction
on Guarantor’s dealings


 


The Guarantor
must not without the Beneficiary’s prior written consent to those matters in
clause 4.12(a) to (c):


 


(a)                                                   (No proceedings): institute any
proceedings against the Contractor;


 


(b)                                                  (No demand): in relation to the Project
Document make any demand for, or accept any money in or towards satisfaction of
any liability on any account of the Contractor other than for a liability
arising out of the supply of goods or services by the Guarantor to the
Contractor in the ordinary course of that Guarantor’s ordinary business, and on
arm’s length terms;


 


(c)                                                   (No Encumbrances): create or permit to exist
any Encumbrance as security for any obligation which is or may be or become
owing by the Contractor to the Guarantor. 
The Guarantor agrees to hold the benefit of any Encumbrance created or
existing in breach of this clause 4.12 and the proceeds of its realisation
on trust for the Beneficiary to be applied in or towards satisfaction of the
Guarantor’s liability under this deed; or


 


(d)                                                  (administrator): appoint an administrator to
the Contractor or other Relevant Person without prior written notice to the
Beneficiary.


 





















 


4.13                                        Suspense
account


 


The Beneficiary
may retain and carry to a suspense account and appropriate at the discretion of
the Beneficiary any dividend received by the Beneficiary in the winding-up of
any Relevant Person, plus any other sums received by the Beneficiary on account
of the Guaranteed Money, until the Beneficiary has received the full amount of
the Guaranteed Money.


 


4.14                                        Exercise
of subrogation rights


 


The Guarantor
will not seek the transfer to it of any Security which is subject to an agreed
order of priority in the Beneficiary’s hands under any right of subrogation,
unless and until it has entered into a deed under which it undertakes to be
bound by the priority affecting that Security with the other parties to that
agreed order or priority.


 


5.                                                      Corporate
Representations and Warranties


 


5.1                                               Representations
and Warranties


 


The Guarantor
represents and warrants to the Beneficiary that:


 


(a)                                                   (Constitution): the execution, delivery, and
performance of this deed does not violate its Constitution or any other
document, agreement, law, or rules by which it is bound;


 


(b)                                                  (Corporate power): it has taken all action
required to enter into this deed and to authorise the execution and delivery of
this deed and the performance of its obligations under this deed;


 


(c)                                                   (Filings): it has filed all material notices
and effected all registrations with the United States Securities and Exchange
Commission or similar office in its jurisdiction of incorporation and in any
other jurisdiction as required by law which could have an effect upon the
enforceability or validity of any Project Document or the ability of the
Guarantor to perform its obligations under any Project Document, and those
filings and registrations are current, complete, and accurate;


 


(d)                                                  (Corporate Benefit): the execution of this
deed is in the best commercial interests of the Guarantor;


 


(e)                                                   (Consideration): this deed is executed for
valuable consideration, the receipt and adequacy of which the Guarantor
acknowledges;


 


(f)                                                     (Status): no Event of Insolvency has
occurred or subsists in respect of the Contractor or the Guarantor and no
matter relating to the Contractor or the Guarantor is the subject of a
direction under, or having effect as if it were a direction under, section 14
of the Australian Securities and Investment Commission Act 2001, or the subject
of an investigation under, or taken to be under, that Act;


 


(g)                                                  (Ownership of property): it has full legal
capacity and power to own its property and assets and carry on its business as
it is now being conducted;


 


(h)                                                  (Ranking of obligations): this deed
constitutes a valid and legally binding obligation, enforceable in accordance
with its terms, to rank at all times at least equally with all of its other
present and future unsecured payment obligations (including, without
limitation, contingent obligations), other than those which are mandatorily
preferred by law and that the Guarantor has taken all action required to ensure
that its obligations under this deed so rank and will continue to so rank;


 





















 


(i)                                                      (No litigation): no litigation, arbitration,
or administrative proceedings are taking place, pending or, to the knowledge of
any of its officers, threatened against it or any of its subsidiaries or any of
its or their property which, if adversely determined, would be likely to have a
Material Adverse Effect;


 


(j)                                                      (Financial statements): its financial
statements have been prepared and will from time to time be prepared in
accordance with Guarantor’s
Constitution, any applicable Statute, and all accounting principles and
practices generally accepted in its place of incorporation consistently
applied, and give a true and fair view of the financial
condition of it and its subsidiaries as at the date to which they are made up,
and of the results of operations for the financial year then ended, and there
has been no change since that date having a Material Adverse Effect;


 


(k)                                                   (Other information): the written information
and reports (if any) which it has given to the Beneficiary in connection with
the negotiation and preparation of this deed:


 


(i)                                                     was,
when given, true and accurate in all material respects and not misleading,
whether by omission or otherwise; and


 


(ii)                                                  contain
forecasts and opinions all of which were made or formed after due and careful
consideration on the part of its relevant officers based on the best
information available to it and were in the bona fide opinion of the Guarantor
fair and reasonable when made or formed; and


 


(l)                                                      (No filings or Taxes): it is not necessary
or desirable to ensure the legality, validity, enforceability, or admissibility
in evidence of this deed that this deed or any other instrument be filed or
registered with any Government Authority or that any Taxes be paid.


 


5.2                                               Representations
and Warranties Repeated


 


While Obligations
remain to be performed or satisfied or any or the Guaranteed Money remains
outstanding (whether or not then due for payment) the Guarantor will:


 


(a)                                                   give
to the Beneficiary a report on each anniversary of the date of this deed,
signed by a director and secretary of the Guarantor giving details of all
litigation, arbitration or administrative proceedings taking place, pending, or
to the knowledge of its officers, threatened against the Guarantor or any of
its subsidiaries or any of their property which, if adversely determined, would
be likely to have Material Adverse Effect; and


 


(b)                                                  promptly
upon becoming aware, advise the Beneficiary if any Event of Insolvency occurs
or subsists in respect of the Contractor or the Guarantor.


 


5.3                                               Reliance
on Representations and Warranties


 


The Guarantor
acknowledges that the Beneficiary has entered into the Project Agreement and
each other Project Document in reliance on the representations and warranties
in this Clause 5.


 


5.4                                               No
Representations to Guarantor


 


The Guarantor
confirms that, except as provided herein and any Project Document, it has not
executed this deed as a result of
or in reliance upon any promise, representation, statement, or information of
any kind or nature whatever given or offered to it by or on behalf of the
Beneficiary whether in answer to any inquiry by or on behalf of the Guarantor
or not.


 





















 


6.                                                      Payments


 


6.1                                               On
demand


 


All money payable
by the Guarantor under this deed
must be paid on demand by the Beneficiary, in immediately available funds to
the account of, and in the manner notified to the Guarantor from time to time
by, the Beneficiary.


 


6.2                                               Payment
in gross


 


All money
received or recovered by the Beneficiary on account of the Guaranteed Money
will be treated as payments in gross.


 


6.3                                               Interest


 


As a liability
separate and distinct from the Guarantor’s liability under clauses 2 and 3, the
Guarantor must on demand by the Beneficiary pay interest on all amounts due and
payable by it and unpaid under or in respect of this deed.  Interest will accrue on those amounts from
day to day from the due date up to the date of actual payment, before and (as a
separate and independent obligation) after judgment, at the Overdue Rate for
successive 60 day interest periods commencing on the date of default and, if
not paid when due, will itself bear interest in accordance with this clause
6.3.


 


6.4                                               Merger


 


If the liability
of the Guarantor to pay to the Beneficiary any money under this deed becomes
merged in any judgment or order, then, as an independent obligation, the
Guarantor will pay interest on the amount of that money at the rate which is
the higher of that payable under clause 6.3 and that fixed by or payable under
the judgment or order.


 


6.5                                               Appropriation
of payments


 


The Beneficiary
may appropriate any money received by it under or in respect of this deed, any
Project Document, or any Security in the manner and order and at all times as
the Beneficiary in its absolute discretion determines.


 


6.6                                               No
set-off or deduction


 


All payments by
the Guarantor under this deed
will be free of any set-off or counterclaim and without deduction or
withholding for any present or future Taxes unless the Guarantor is compelled
by law to make any deduction or withholding and if this is the case, the
Guarantor must pay to the Beneficiary any additional amounts as are necessary
to enable the Beneficiary to receive, after all those deductions and
withholdings, a net amount equal to the full amount which would otherwise have
been payable had no deduction or withholding been required to be made.


 


7.                                                      Expenses and Stamp
Duty


 


7.1                                               Expenses


 


The Guarantor
must on demand indemnify and keep the Beneficiary indemnified against all
expenses including legal fees, costs, and disbursements (on a solicitor and own
client basis or on a full indemnity basis, whichever is the higher), incurred
by the Beneficiary in connection with the enforcement,
attempted enforcement, or preservation of any rights under this deed.


 





















 


7.2                                               Stamp
duties


 


The Guarantor
must:


 


(a)                                                   (Payment of all duties): pay all stamp
duties, registration, and similar Taxes, including fines and penalties,
financial institutions duty, and debits tax in connection with the execution,
delivery, performance, enforcement, or attempted enforcement of this deed or
any payment or other transaction under or contemplated in this deed; and


 


(b)                                                  (Indemnity): indemnify and keep the
Beneficiary indemnified against any loss or liability incurred or suffered by
it as a result of the delay or failure by the Guarantor to pay Taxes.


 


8.                                                      GST


 


8.1                                               Interpretation


 


(a)                                                   Except
where the context suggests otherwise, terms used in this clause 8 have the
meanings given to those terms by the A New
Tax System (Goods and Services Tax) Act 1999 (as amended from time
to time).


 


(b)                                                  Unless
stated to the contrary, any amount, payment or consideration referred to under
or in connection with this deed is exclusive of GST.  Any consideration that is specified to be
inclusive of GST must not be taken into account in calculating the GST payable
in relation to a supply for the purpose of this clause 8.


 


(c)                                                   Any
part of a supply that is treated as a separate supply for GST purposes
(including attributing GST payable to tax periods) will be treated as a
separate supply for the purposes of this clause 8.


 


8.2                                               Reimbursements
and similar payments


 


Any payment or
reimbursement required to be made under this deed that is calculated by
reference to a cost, expense, or other amount paid or incurred will be limited
to the total cost, expense or amount less the amount of any input tax credit to
which an entity (or its representative member) is entitled for the acquisition
to which the cost, expense or amount relates.


 


8.3                                               GST
payable


 


If GST is payable
in relation to a supply made under or in connection with this deed then:


 


(a)                                                   any
party (“Recipient”) that is required to
provide consideration to another party (“Supplier”) for
that supply must pay an additional amount to the Supplier equal to the amount
of that GST; and


 


(b)                                                  the
additional amount is payable at the same time as any other consideration is to
be first provided for that supply or, if later, within 14 days after the day on
which the Supplier provides the Recipient with a tax invoice for the supply.


 


8.4                                               Variation
of GST


 


If the GST
payable in relation to a supply made under or in connection with this deed
varies from the additional amount paid by the Recipient under clause 8.3 such
that a further amount of GST is payable in relation to the supply or a refund
or credit of GST is obtained in relation to the supply, then the Supplier will
provide a corresponding refund or credit to, or will be


 





















 


entitled to
receive the amount of that variation from, the Recipient.  Any payment, credit or refund under this
clause 8.4 is deemed to be a payment, credit or refund of the additional amount
payable under clause 8.3.


 


9.                                                      Assignments


 


The Beneficiary
may at any time assign or otherwise transfer all or any part of its rights
under this deed to a person to whom the
Beneficiary has assigned or otherwise transferred its rights under, and in
accordance with, the Project Agreement and may disclose to a proposed assignee
or transferee any information in the possession of the Beneficiary relating to
the Guarantor.


 


10.                                               Governing Law and
Jurisdiction


 


10.1                                        Governing
law


 


This deed is
governed by and will be construed according to the law applying in Victoria.


 


10.2                                        Jurisdiction


 


(a)                                                   (Acceptance of jurisdiction): The Guarantor
irrevocably submits to, acknowledges and accepts, generally and
unconditionally, the exclusive personal and subject matter jurisdiction of the
courts and appellate courts of Victoria with respect to any legal action or
proceedings which may be brought at any time relating in any way to this deed,
subject to clause 10.2(c)(ii).


 


(b)                                                  (No objection to inconvenient forum): The Guarantor
irrevocably waives any objection it may now or in the future have to the venue
of any action or proceeding, and any Claim it may now or in the future have
that any action or proceeding has been brought in an inconvenient forum.


 


(c)                                                   (Enforcement of Victorian judgment):  The Guarantor agrees that a judgment or order
of a Victorian court in connection with this deed:


 


(i)                                                     is
conclusive and binding on the Guarantor, subject to any rights of appeal which
the Guarantor may have in Victoria or to the High Court of Australia; and


 


(ii)                                                  may
be enforced, and the Guarantor consents to the enforcement of such a judgment
or order, against the Guarantor in the courts of any other jurisdiction,
including the state and federal courts of the Commonwealth of Massachusetts, in
the United States of America.


 


11.                                               Miscellaneous


 


11.1                                        Certificate
of Beneficiary


 


A certificate in
writing of the Beneficiary certifying the amount payable by the Guarantor to
the Beneficiary or stating any other act, matter, or thing relating to this deed,
any Project Document or any Security will be prima facie evidence of that
amount, act, matter or thing in the absence of manifest error on the face of
the certificate.


 


11.2                                        Notices


 


All
communications (including notices, consents, approvals, requests and demands
under or in connection with this deed:


 





















 


(a)                                                   must
be in writing;


 


(b)                                                  must
be addressed as follows (or as otherwise notified by that party to each other
party from time to time):


 


Guarantor


 


Name:                              Keane
Inc.


 


Address:             100 City Square,
Boston, Massachusetts 02129, United States of America


 


Fax:                                          +1
617 241 8032


 


For the attention of:                      Chief
Financial Officer


 


Beneficiary


 


Name:                              Transport
Ticketing Authority


 


Address:              Level 38, 55
Collins Street, Melbourne, Victoria


 


Fax:                                          +61
3 9651 7578


 


For the attention
of:     Principal’s
Representative


 


(c)                                                   must
be signed by the party making the communication or (on its behalf) by the
solicitor for, or any attorney, chief executive officer, director, secretary of
that party or other senior officer authorised to make such communications by
written notice from time to time by that party to the other party;


 


(d)                                                  must
be delivered or posted by prepaid post to the address, or sent by fax to the
number, of the addressee, in accordance with this clause; and


 


are taken to be
received by the addressee:


 


(i)                                                     in
the case of prepaid post, on the Business Day that is the third Business Day
after the date of posting to an address within Australia, and on the fifth
Business Day after the date of posting by airmail to an address outside
Australia;


 


(ii)                                                  in
the case of fax, at the local time (in the place of receipt of that fax) which
then equates to the time that fax is sent as shown on the transmission report
produced by the machine from which that fax is sent confirming transmission of
that fax in its entirety, unless that local time is not on a Business Day, or
is after 5.00 pm on a Business Day, when that communication is taken to be
received at 9.00 am on the next Business Day; and


 


(iii)                                               in
the case of delivery by hand, on delivery at the address of the addressee as
provided in this clause, unless that delivery is made on a day that is not a
Business Day, or after 5.00 pm on a Business Day, when that communication is
taken to be received at 9.00 am on the next Business Day.


 


11.3                                        Continuing
obligation


 


This deed
will be a continuing obligation notwithstanding any termination by the
Guarantor, settlement of account, intervening payment, a disclaimer of any
contract or property (including


 





















 


any Project
Document) made by a liquidator of the Contractor, express or implied
revocation, or any other matter or thing and continues to entitle the
Beneficiary to the benefit of this deed as regards the performance and
satisfaction of all the Obligations including due and punctual payment of any
of the Guaranteed Money which becomes due or owing or is incurred after
termination, settlement of account, payment, revocation, or other matter or
thing until a final discharge has been given to the Guarantor.


 


11.4                                        Further
assurance


 


The Guarantor
will upon request (given in accordance with clause 11.2) by the Beneficiary and
at the entire cost and expense of the Guarantor, perform all things and execute
all agreements, assurances, and other documents as the Beneficiary reasonably
requires, to perfect or give effect to the rights and powers of the Beneficiary
created, or intended to be created, by this deed.


 


11.5                                        Form of
Demand


 


At a minimum, a
demand on the Guarantor for the performance of the Obligations or the payment
of the Guaranteed Money must be made in accordance with clause 11.2 and may
contain any information as the Beneficiary determines.


 


11.6                                        Severability
of provisions


 


Any provision of
this deed which is illegal, void, or
unenforceable will be ineffective to the extent only of that illegality,
voidness, or unenforceability without invalidating the remaining provisions.


 


11.7                                        Remedies
cumulative


 


The rights and
remedies conferred by this deed on
the Beneficiary are cumulative and in addition to all other rights or remedies
available to the Beneficiary by law or by virtue of any Project Document or any
Security.


 


11.8                                        Waiver


 


(a)                                                   Failure
to exercise or enforce, or a delay in exercising or enforcing or the partial
exercise or enforcement of a right, power or remedy provided by law or under
this deed by any party does not
preclude, or operate as a waiver of, the exercise or enforcement, or further
exercise or enforcement, of that or any other right, power or remedy provided
by law or under this deed.


 


(b)                                                  No
waiver of a breach of any term of this deed
will operate as a waiver of another breach of that term or of a breach of any
other term of this deed.


 


11.9                                        Consents
and approvals


 


Where under this deed the
consent or approval of the Beneficiary is required to any act or thing, then
unless expressly provided otherwise in this deed,
that consent or approval may be reasonably given or withheld.


 


11.10                                 Written
waiver, consent and approval


 


Any waiver,
consent, or approval given by the Beneficiary under this deed
will only be effective and will only bind the Beneficiary if it is given in
writing.


 





















 


11.11                                 Moratorium
legislation


 


To the fullest
extent permitted by law, the provisions of all legislation whether existing now
or in the future, operating directly or indirectly:


 


(a)                                                   to
lessen or otherwise to vary or affect in favour of the Guarantor any obligation
under this deed; or


 


(b)                                                  to
delay or otherwise prevent or prejudicially affect the exercise of any rights
or remedies conferred on the Beneficiary under this deed,


 


are expressly
waived and excluded.


 


11.12                                 Debit
accounts and set-off


 


The Beneficiary
may without prior notice to the Guarantor set-off any amount which or may
become owing, actually or contingently and on any account whatsoever by the
Beneficiary to the Guarantor against any liability actual or contingent of the
Guarantor to the Beneficiary under this deed.  The rights of the Beneficiary under this
clause 11.12 are without prejudice and in addition to any other right or remedy
to which it is at any time entitled.


 


11.13                                 Counterparts


 


This deed may
be executed in any number of counterparts and by the different parties on
different counterparts, each of which constitutes an original of this deed,
and all of which together constitute one and the same instrument.


 


11.14                                 Execution
by less than all parties


 


This deed
binds each of the persons executing it notwithstanding:


 


(a)                                                   that
one or more of the persons named in this deed as a Guarantor may not execute or
may not become or may cease to be bound by this deed; or


 


(b)                                                  that
the Beneficiary may not execute or may only subsequently execute this deed.


 


11.15                                 Resolution
of Disputes Binding


 


The settlement or
the resolution of any dispute arising under or in connection with the Project
Agreement whether by express or implied agreement between the parties in the
Project Agreement, in accordance with the procedures provided for in the
Project Agreement or otherwise will be binding on each of the Guarantors and a
Guarantor will not reopen, revisit or otherwise dispute that settlement or resolution
and the subject matter of that settlement or resolution.


 


11.16                                 No
Right to be Heard


 


The Guarantor
waives and expressly disclaims any right to be heard at or appear in any
procedure (whether judicial, arbitral, administrative, or of any other nature)
which is conducted, inter alia, for purposes connected with settling or
resolving or attempting to settle or resolve any dispute referred to in clause
11.15 or otherwise to be involved in the settlement or resolution of any such
dispute.


 


11.17                                 Agent
for Service


 


The Guarantor
irrevocably agrees that service of process in any proceedings in the courts of
Victoria relating to this deed
will be sufficiently served on it by service (in any manner


 





















 


permitted by law)
on Mallesons Stephen Jaques,
Solicitors at Level 50, Bourke Place, 600 Bourke Street, Melbourne, Victoria,
or at another address, as the Guarantor last notified the Beneficiary before
that service to be the current address for service on Mallesons Stephen Jaques
or at an address where Mallesons Stephen Jaques conduct business in the State
of Victoria.


 


This clause does
not affect service of process on the Guarantor in any other manner permitted by
law.


 


12.                                               Payment by the
Guarantor


 


12.1                                        Separate
payment obligation


 


As a covenant
separate and distinct from that contained in clauses 2 and 3, the Guarantor
irrevocably agrees to pay to the Beneficiary on demand from time to time any
amount required to be paid in accordance with clause 12.2.  The obligations of the Guarantor under this
clause 12 are not subject in any way to the limitations set out in clause 4.3.


 


12.2                                        Amounts
payable


 


Where the
Beneficiary, the Government and Governmental Agencies to the extent of their
insurable interest according to the Project Documents (in this clause 12, the “Other Insured Parties”) has paid or incurred, or is
required to pay or incur, any deductible in respect of a claim made or to be
made or which, but for the size of the deductible, would have been made under
such an insurance policy and such deductible is greater than $[**], or where
the Beneficiary or any Other Insured Party could, but for the size of the
applicable deductible have made a claim under such an insurance policy, [**],
by the Beneficiary or any Other Insured Party an amount equal to the difference
between the amount of the deductible (where a claim is or will be made) or the
loss or liability suffered (where, but for the size of the applicable
deductible a claim could have been made) and $[**].


 


12.3                                        Hold
on Trust


 


The Beneficiary
will hold a payment made by the Guarantor in accordance with this clause 12 on
trust to the extent that the amount paid by the Guarantor is in respect of an
amount paid or a loss or liability suffered by any Other Insured Party.


 


12.4                                        Increase
in deductible


 


The Guarantor confirms
to the Beneficiary that as at the date of this deed, no deductible in respect
of the insurances required to be effected and maintained by the Contractor
under clause 36 of the Project Agreement exceeds US$[**].  If the deductible under the Guarantor’s
global insurance policy is proposed to be increased above US$[**] at any time
during which the Contractor’s obligations to effect and maintain insurance
under clause 36 of the Project Agreement are being met under the Guarantor’s
global insurance policy, the Guarantor will notify the Beneficiary.


 





















 


EXECUTED as a deed.


 


	
  Executed and delivered
  for and on behalf of

  Keane, Inc. by Brian T.
  Keane, President and

  Chief Executive Officer in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature of Witness 

  	
   

  	
  Signature of Brian T. Keane

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  C. Whitney Pedersen, Assistant Secretary

  	
   

  	
   

  
	
  Name of Witness in full

  	
   

  	
   

  



 


 


	
  The Official Seal
  of Transport Ticketing

  Authority was affixed in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Witness:

  	
   

  	
  Witness:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Name:

  



 





















 


Schedule 16


 


Schedule 16


Escrow
Agreement


 


(Clause 30)


 


ESCROW AGREEMENT
made at Melbourne on 


 


Parties                                                                                                   [Escrow Agent] of [                                                   ]
(“Escrow Agent”)


 


Keane Australia Micropayment Consortium Pty
Ltd ACN 114 334 600 of Level 50, Bourke Place, 600
Bourke Street, Melbourne, Victoria (“Contractor”)


 


Public Transport Ticketing Body trading as
Transport Ticketing Authority of Level 38, 55 Collins
Street, Melbourne, Victoria (“Principal”)


 


Recitals


 


A.                                                   The  Principal and the  Contractor have entered into an agreement
dated
[                    ]
entitled “New Ticketing Solution Project Agreement” (the “Project Agreement”).


 


B.                                                     The
Escrow Agent has been appointed by the 
Principal and the Contractor  to
hold the  Material in escrow.


 


1.                                                      Definitions and
Interpretation


 


1.1                                               Definitions


 


In this
Agreement:


 


“Business
Day” means a day which banks are open for business in
Melbourne other than a Saturday or Sunday.


 


“Commencement
Date” means the date of this agreement.


 


“Container”
means an air tight, moisture free container approved by the Principal.


 


“Dispute
Resolution Procedures” has the meaning given to
that expression in the Project Agreement.


 


“Escrow
Fee” means [         ].


 


“Escrow
Material” has the meaning given to that expression in the Project
Agreement.


 


“Material”
means the data and material provided by the Contractor to the Escrow Agent as
varied, added to or replaced from time to time.


 


“Prescribed
Form” means [Note:  insert information as to the form of the
register the Escrow Agent is required to maintain as agreed by the Principal,
the Contractor and the Escrow Agent].


 


“Term” has
the meaning given to that expression in the Project Agreement.


 


1.2                                               Interpretation


 


In this
agreement:


 





















 


(a)                                                   headings
are for convenience only and do not affect interpretation;


 


and unless the
context indicates a contrary intention:


 


(b)                                                  “person”
includes an individual, the estate of an individual, a corporation, an
authority, an association or a joint venture (whether incorporated or
unincorporated), a partnership, a trust and governmental agencies;


 


(c)                                                   a
reference to any party includes that party’s executors, administrators,
successors, substitutes and assigns, including any person taking by way of
novation


 


(d)                                                  a
reference to this agreement or to any other deed, agreement or document
includes, respectively, this agreement or other such deed, agreement or
document as amended, novated, supplemented, varied or replaced from time to
time;


 


(e)                                                   a
reference to a statute includes its delegated legislation and a reference to a
statute or delegated legislation or a provision of either includes
consolidations, amendments, re-enactments and replacements;


 


(f)                                                     words
importing the singular including the plural (and vice versa) and words denoting
a given gender include all other genders;


 


(g)                                                  a
reference to a party, clause, schedule, exhibit, attachment or annexure is a
reference to a party, clause, schedule, exhibit, attachment or annexure to or
of this agreement, and a reference to this agreement includes all recitals,
schedules, exhibits, attachments and annexures to it;


 


(h)                                                  if a
word or phrase is given a defined meaning, any other part of speech or
grammatical form of that word or phrase has a corresponding meaning;


 


(i)                                                      “includes”
in any form is not a word of limitation; and


 


(j)                                                      references
to currency unless otherwise specifically provided are references to Australian
currency.


 


2.                                                      Purpose of Agreement


 


Subject to the
terms and conditions of this agreement, to secure the interests of the
Principal under the Project Agreement:


 


(a)                                                   the
Contractor must deposit the Escrow Material the Contractor is required to
deposit pursuant to the Project Agreement with the Escrow Agent in Melbourne;
and


 


(b)                                                  the
Escrow Agent must act as escrowee of the Material.


 


3.                                                      Term of Agreement


 


This agreement
commences on the Commencement Date and will remain in force until all Material
is released in accordance with this agreement or this agreement is otherwise
terminated.


 





















 


4.                                                      Deposit of Material


 


4.1                                               Deposit
of Material


 


The Contractor shall
deposit Material with the Escrow Agent from time to time as required by the
Project Agreement and the Escrow Agent must accept custody of the Material.


 


4.2                                               Confirmation
of Receipt


 


The Escrow Agent
must give the Contractor and the Principal written confirmation of receipt of
all Material referred to in clause 4.1 immediately it is received.


 


4.3                                               Storage
of Material


 


The Escrow Agent
must store the Material in the following manner (“Prescribed Manner”):


 


(a)                                                   place
the Material in a Container; and


 


(b)                                                  store
the Container in a safe and secure place at the Escrow Agent’s premises in
Melbourne.


 


4.4                                               Material
Register


 


The Escrow Agent
must maintain a register of Material deposited, stored and released under this
agreement in the Prescribed Form.


 


4.5                                               Information
and Inspection Requests


 


(a)                                                   The
Escrow Agent must promptly comply with a request of the Principal or the
Contractor to inspect and be furnished with a copy of the register referred to
in clause 4.4 and to be furnished with information about storage, safety and
security procedures relating to the Material.


 


(b)                                                  The
reasonable costs of the Escrow Agent complying with a request in this clause
4.5 will be borne by the Contractor.  The
Principal shall promptly reimburse the Contractor for the costs of the Escrow
Agent borne by the Contractor arising from a request by the Principal under
this clause 4.5.


 


(c)                                                   The
Escrow Agent must release the Material to the Principal’s auditor upon
presentation of a notice issued by the Principal under clause 30.6 of the
Project Agreement.  The Principal’s
auditor will conduct the audit at the Escrow Agent’s premises or, if the Escrow
Agent does not have the required equipment or facilities, at the Contractor’s
Premises.


 


5.                                                      Access to Material


 


The Escrow Agent
must authorise the relevant personnel to perform maintenance, security or
supervisory activities relating to the Material’s storage facilities or to the
Escrow Agent’s premises generally.  Subject to this agreement and unless required
by law, no other person shall have access to the Material unless the Escrow
Agent has been notified in advance in writing by the Contractor.


 





















 


6.                                                      Loss of Material


 


6.1                                               Loss
of Material


 


If the Material
or any medium containing the Material is lost, destroyed or damaged while in
the possession, custody or control of the Escrow Agent:


 


(a)                                                   the
Escrow Agent must promptly notify the Contractor and Principal;


 


(b)                                                  the
Contractor must within 7 Business Days replace the lost, damaged or destroyed
Material; at:


 


(i)                                                     the
Escrow Agent’s costs if the loss, damage or destruction was caused by the
Escrow Agent’s negligence, recklessness, act or omission or breach of this
Agreement; or


 


(ii)                                                  the
Contractor’s and the Principal’s cost in all other circumstance.


 


6.2                                               Specific
performance


 


Without derogating
from any other right to obtain specific performance, the Contractor
acknowledges that the Principal is entitled to specific performance of the
Contractor’s obligations in clause 6.1.


 


7.                                                      Insurance by Escrow
Agent


 


During this
agreement the Escrow Agent must keep the Material insured in favour of the
Principal and the Contractor for their respective interests under this
agreement against loss of or damage to the Material due to any cause and the
Escrow Agent must provide both the Principal and the Contractor with a copy of
the insurance policy upon request by either of them.


 


8.                                                      Release of Material


 


The Escrow Agent
shall immediately release the Material to any person nominated by a notice in
writing signed by both the Principal and the Contractor.


 


9.                                                      Release of Material to
Principal


 


9.1                                               Release


 


The Escrow Agent
must release the Material (except the material referred to in paragraphs (c), (d) and
(e) of the definition of “Escrow Material” in the Project Agreement) to
the Principal immediately after the expiration of 10 Business Days’
notice in writing by the Principal if:


 


(a)                                                   the
Principal terminates the Project Agreement as provided under clause 42 of the
Project Agreement;


 


(b)                                                  the
Term of the Project Agreement expires (after all and any extensions pursuant to
clause 26 of the Project Agreement);


 


(c)                                                   the
Principal gives the Contractor a written request for Escrow Material in
accordance with clause 30.6 of the Project Agreement and in this case the
Escrow Agent must only release that part of the Material the subject of such
request; or


 





















 


(d)                                                  the
Principal terminates the Project Agreement as provided in clause 43 of the
Project Agreement after payment by the Principal of the amount due under the
Project Agreement as a consequence of the Principal issuing a Certificate of
Completion in respect of the NTS Operational Proving Phase (as each of those
terms are defined in the Project Agreement).


 


9.2                                               Release
Required 


 


The Escrow Agent
must release any part of the Material referred to in paragraphs (c), (d) and
(e) of the definition of “Escrow Material” to the Project Agreement that
is the subject of a written notice from the Principal under clause 30.6(c),
(ca) or (cb) (as applicable) immediately after the expiration of 10 Business
Days’ notice in writing by the Principal.


 


9.3                                               Objection
by Contractor


 


Immediately on
giving the Escrow Agent notice under clause 9.1 or clause 9.2, the Principal
must give a copy of the notice to the Contractor.  The Contractor may then object to the release
of the whole or part of the Material to the Principal by notice in writing to
the Escrow Agent and the Principal given before the expiration of the 10
Business Days period referred in clause 9.1. 
If the Contractor makes such an objection within the time specified, the
Escrow Agent must not release to the Principal any part of the Material the
subject of such objection.


 


9.4                                               Disputes


 


If the Contractor
gives notice to the Principal under clause 9.3 and the Contractor and the
Principal are unable to resolve their dispute within  5 Business Days, this dispute must be dealt
with in accordance with the Dispute Resolution Procedures in the Project
Agreement.


 


10.                                               Release of Material to
new Escrow Agent


 


(a)                                                   Subject
to clause 10(b) in the event that this agreement terminates or the Escrow
Agent:


 


(i)                                                     becomes,
threatens to become or is in jeopardy of becoming subject to any form of
insolvency administration; or


 


(ii)                                                  is
in breach of this Agreement,


 


then the Escrow
Agent shall immediately release the Material to a new escrow agent nominated by
notice in writing by the Principal and agreed by the Contractor.


 


(b)                                                  If a
new escrow agent has not been appointed the Escrow Agent will release the
Material to a third party as agreed by the Contractor and the Principal and
notified to the Escrow Agent in writing. 
If the Principal and the Contractor are unable to agree on a third party
within 2 Business Days of any communication between the Parties relating
to this clause, the Escrow Agent will release the Material to the Expert
referred to in the Project Agreement immediately upon written notice from the
Principal.


 


11.                                               Escrow fees and
charges


 


11.1                                        Payment


 


During the Term,
the Contractor will pay the Escrow Fee to the Escrow Agent without demand on
the Commencement Date and on each anniversary of the Commencement Date.  After the


 





















 


Term, the
Principal will pay the Escrow Fee to the Escrow Agent annually upon receipt of
a notice from the Escrow Agent requesting payment.


 


11.2                                        Increases


 


[Note:  Provision for increases to the Escrow Fee
will be inserted following discussion with preferred Escrow Agent.]


 


11.3                                        Late
Payments


 


(a)                                                   The
Escrow Agent shall notify the Principal within a reasonable period if the
Contractor fails to make any payment to the Escrow Agent by the due date.  On receipt of such notice, the Principal may
pay to the Escrow Agent all amounts for which the Contractor is in arrears, in
which case the Escrow Agent shall release the Material to the Principal pending
resolution of any payment issue or dispute. 



 


(b)                                                  The
Principal may deduct amounts paid or incurred under this clause by the
Principal from any moneys otherwise due from the Principal to the Contractor or
recover such amounts from the Contractor as a debt. 


 


11.4                                        Other
Charges


 


The Escrow Fee is
inclusive of all taxes, duties, fees or other government charges which may be
imposed on the storage of the Material under this agreement or otherwise.  


 


12.                                               GST


 


12.1                                        Interpretation


 


(a)                                                   Except
where the context suggests otherwise, terms used in this clause 12 have the
meanings given to those terms by the A New
Tax System (Goods and Services Tax) Act 1999 (as amended from time
to time).


 


(b)                                                  Unless
stated to the contrary, any amount, payment or consideration referred to under
or in connection with this agreement is exclusive of GST.  Any consideration that is specified to be
inclusive of GST must not be taken into account in calculating the GST payable
in relation to a supply for the purpose of this clause 12.


 


(c)                                                   Any
part of a supply that is treated as a separate supply for GST purposes
(including attributing GST payable to tax periods) will be treated as a
separate supply for the purposes of this clause 12.


 


12.2                                        Reimbursements
and similar payments


 


Any payment or
reimbursement required to be made under this agreement that is calculated by
reference to a cost, expense, or other amount paid or incurred will be limited
to the total cost, expense or amount less the amount of any input tax credit to
which an entity (or its representative member) is entitled for the acquisition
to which the cost, expense or amount relates.


 


12.3                                        GST
payable


 


If GST is payable
in relation to a supply made under or in connection with this agreement then:


 


(a)                                                   any
party (“Recipient”) that is required to
provide consideration to another party (“Supplier”) for
that supply must pay an additional amount to the Supplier equal to the amount
of that GST; and


 





















 


(b)                                                  the
additional amount is payable at the same time as any other consideration is to
be first provided for that supply or, if later, within 14 days after the day on
which the Supplier provides the Recipient with a tax invoice for the supply.


 


12.4                                        Variation
of GST


 


If the GST
payable in relation to a supply made under or in connection with this agreement
varies from the additional amount paid by the Recipient under clause 12.3 such
that a further amount of GST is payable in relation to the supply or a refund
or credit of GST is obtained in relation to the supply, then the Supplier will
provide a corresponding refund or credit to, or will be entitled to receive the
amount of that variation from, the Recipient. 
Any payment, credit or refund under this clause 12.4 is deemed to be a
payment, credit or refund of the additional amount payable under
clause 12.3.


 


13.                                               Confidentiality


 


13.1                                        Confidentiality
of Material


 


The Escrow Agent
acknowledges that the Material is the property of the Contractor or the
Principal and accordingly must treat the Material which comes into its
possession, control or custody, under this agreement as confidential.


 


13.2                                        Prohibited
Acts


 


The Escrow Agent
must not copy, reproduce, deal with or in any way use the Material or disclose
it to any person without the written permission of both the Contractor and the
Principal.


 


13.3                                        Access
by Other Persons


 


The Escrow Agent
must ensure that persons granted access to the Material pursuant to this
agreement or otherwise will, if requested by the Contractor or the Principal,
execute an agreement with the Contractor or the Principal undertaking the same
obligations as are imposed on the Escrow Agent under this clause 13.


 


13.4                                        After
Termination


 


The obligations
under this clause 13 survive the termination of this agreement or the release
of all Material.


 


14.                                               Escrow Agent’s further
obligations


 


The Escrow Agent
must:


 


(a)                                                   retain
the Material in a safe and secure manner and in an environment that minimises
degradation of the Material;


 


(b)                                                  subject
to clause 6.1(b) bear the costs of any loss or destruction of or damage to
the Material whilst in its possession or control;


 


(c)                                                   ensure
the Material remains in the same condition it was in at the time of deposit
with the Escrow Agent.


 





















 


15.                                               Termination Of
Agreement


 


15.1                                        Terminating
Events


 


This agreement
will immediately terminate if both the Contractor and the Principal give 10
Business Days’ notice of such termination. 


 


15.2                                        Release
of Material


 


On termination of
this agreement for whatever cause the Escrow Agent must immediately release the
Material in accordance with clause 10.


 


16.                                               Assignment


 


16.1                                        Assignment
by Contractor or Escrow Agent


 


The benefit of
this Agreement will not be dealt with in any way by the Contractor or the
Escrow Agent (whether by assignment or otherwise) without the prior consent of
all other parties.


 


16.2                                        Assignment
by Principal


 


The Principal may
at any time assign, novate or otherwise transfer all or any part of its rights
or liabilities under this Agreement to any person upon the Principal assigning
its rights under the Project Agreement under clause 45 of the Project
Agreement.


 


17.                                               Sub-contracts


 


The Escrow Agent
must not subcontract or otherwise arrange for another person to perform any
part of this agreement or to discharge any of its obligations under this
agreement without the prior written consent of the Principal.


 


18.                                               Waiver


 


18.1                                        Notice
in Writing


 


No right under
this agreement will be deemed to be waived except by notice in writing signed
by each party.


 


18.2                                        Subsequent
Breaches


 


No waiver by a
party under clause 18.1 will prejudice its rights in respect of any subsequent
breach of this agreement by another party.


 


18.3                                        Actions
Not Constituting Waiver


 


Subject to clause
18.1, no failure by a party to enforce any clause of this agreement or any
forbearance, delay or indulgence granted by that party to another party will be
construed as a waiver of its rights under this agreement.


 


19.                                               Severability


 


Each party acknowledges that the covenants,
obligations and restrictions herein contained are reasonable and each and every
one of the covenants, obligations and restrictions in whole or in part is
deemed to be severable and independent. 
Any provision of this agreement which is 


 





















 


determined to be unreasonable will be
ineffective to the extent only of such unreasonableness, without invalidating
the remaining provisions hereof.


 


20.                                               Governing Law


 


This agreement
will be governed by and construed and taken into effect in accordance with the
laws of Victoria and the parties irrevocably submit to the jurisdiction of the
Courts of  Victoria and Courts entitled
to hear appeals therefrom.


 


21.                                               Notices


 


All communications (including notices, consents, approvals,
requests and demands) under or in connection with this agreement:


 


(a)                                                   must be in writing;


 


(b)                                                  must be addressed as follows (or as
otherwise notified by that party to each other party from time to time):


 


Principal


 


	
  Name:

  	
  Transport
  Ticketing Authority

  
	
   

  	
   

  
	
  Address:

  	
  Level
  38, 55 Collins Street, Melbourne, Victoria

  
	
   

  	
   

  
	
  Fax:

  	
  +61 3
  9651 7578

  
	
   

  	
   

  
	
  For
  the attention of:

  	
  Principal’s
  Representative

  
	
   

  	
   

  
	
  Contractor

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Keane
  Australia Micropayment Consortium Pty Ltd

  
	
   

  	
   

  
	
  Address:

  	
  Level
  50, Bourke Place, 600 Bourke Street, Melbourne

  
	
   

  	
   

  
	
  Fax:

  	
  +61 3
  9643 5999

  
	
   

  	
   

  
	
  For
  the attention of:

  	
  Gary
  Constable, C/- C. Lim, Partner, Mallesons Stephen Jaques

  
	
   

  	
   

  
	
  Escrow Agent

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  [                                  ]

  
	
   

  	
   

  
	
  Address:

  	
  [                                  ]

  
	
   

  	
   

  
	
  Fax:

  	
  [                                  ]

  
	
   

  	
   

  
	
  For
  the attention of:

  	
  [                                  ]

  



 


(c)                                                   must be signed by the party making the
communication or (on its behalf) by the solicitor for, or any attorney,
director, secretary or authorised agent of, that party;


 


(d)                                                  must be delivered or posted or prepaid
post to the address, or sent by fax to the number, of the addressee, in
accordance with clause 21.1(b); and


 


(e)                                                   are taken to be received by the addressee:


 





















 


(i)                                                     in case of prepaid post on the Business
Day that is the third Business Day after the date of posting to an address
within Australia, and on the fifth Business Day after the date of posting by
airmail to an address outside Australia.


 


(ii)                                                  in the case of fax at the local time (in
the place of receipt of that fax) which then equates to the time that fax is
sent as shown on the transmission report produced by the machine from which
that fax is sent confirming transmission of that fax in its entirety, unless that
local time is not on a Business Day, or is after 5.00 pm on a Business Day,
when that communication is taken to be received at 9.00 am on the next Business
Day; and


 


(iii)                                               in the case of delivery by hand on
delivery at the address of the addressee as provided in clause 21.1(b), unless
that delivery is made on a day that is not a Business Day, or after 5.00 pm on
a Business Day, when that communication is taken to be received at 9.00 am on
the next Business Day.


 


22.                                               Principal’s rights


 


Any express
statement of a right of the Principal under this agreement is without prejudice
to any other statement of a right of the Principal under this agreement or at
law.


 


23.                                               Entire Agreement


 


This agreement
constitutes the entire agreement between the parties for the subject matter
referred to in clause 2.  Any prior
arrangements, agreements, representations or undertakings are superseded.  No modification or alteration of any clause
of this agreement will be valid unless in writing signed by each party. 


 


SIGNED as an agreement.


 


[Note: 
Execution clauses to be inserted]


 





















 


Schedule 17 


 


Schedule 17


Access Providers and Bus Operators


 


(Clause 9)


 


Part A
- Bus Operators


 


Metropolitan


 


Bacchus Marsh Coaches P/L


 


Broadmeadows Bus Service
P/L


 


Bryant Motors P/L (for
Diamond Coaches)


 


Croydon Bus Service P/L
(for InvictaBus)


 


Donric P/L (for Sunbury
Bus Service)


 


Driver Group P/L (for
Driver Bus Lines)


 


Kefford Corporation (for
Eastrans, Westrans, Altona Buslines P/L, Footscray/Yarraville Bus Service P/L,
Eastern Suburbs Omnibus Service P/L, W Sinclair & Sons P/L, North
Sunshine Bus Service P/L, Sitch Bus Service, St Albans Bus Service, West
Transit Bus Lines P/L, Pt Cook/Werribee Passenger Service)


 


Grenda Corporation (for
Grendas, Cardinia Transit, Moorabbin Transit, Peninsula Bus Lines, Portsea
Passenger Service)


 


Hurstbridge Bus &
Coach P/L


 


Ivanhoe Bus Co P/L


 


Kastoria Bus Lines


 


LC Dysons Bus Services P/L


 


McKenzies Tourist Service
P/L


 


Mees Bus Lines P/L


 


Melbourne Bus Link P/L
(owned in partnership by Reservoir Bus Co & L C Dysons)


 


Mountjoy Public Transport
P/L (for Martyrs Bus Service)


 


Moonee Valley Bus Lines
P/L


 


Moreland Bus Lines P/L


 


Northern Bus Lines P/L


 


Pulfran Transit P/L (for
US Bus Lines, Cranbourne Transit)


 


Reservoir Bus Co (Vic) P/L
(for Reservoir Bus Company and East West Bus Company - owned in partnership
with LC Dysons)


 


Ryan Bros Bus Service P/L


 


Sangold P/L (for Chris’s
Coaches and Hope Street Bus Line)


 





















 


Sita Bus Lines P/L (for
Sita Buslines and SunBus)


 


SkyBus P/L


 


Tullamarine Bus Lines P/L


 


Ventura Group (for
National Bus Co, Ventura Motors P/L, Mt Dandenong Passenger Service, Ventura
Bus Lines P/L)


 


Regional


 


Ballarat Coachlines


 


BM Walkers Bus Service P/L


 


Christians Bus Company
(for W Christian Terang P/L, B & G Christian P/L,)


 


Coaches-R-Us


 


Donric P/L (for Clockworld
P/L, Sunbury Bus Service)


 


Firefly Coaches P/L


 


Fords Bus P/L


 


Grenda Corporation P/L


 


Hollands Bus Lines P/L


 


KR Little P/L


 


Kefford Corporation (for
Benders Geelong, H A Davis Motor Service P/L, Pivot Bus Service)


 


Latrobe Valley Bus Lines


 


LC Dysons Bus Services P/L


 


McHarry’s Buslines P/L


 


McKenzie’s Tourist Service


 


Mees Bus Lines P/L


 


Moreland Bus Lines P/L


 


Mylon Motorways P/L


 


Parkinson Bus Service


 


South Western Roadways P/L
(for Warrnambool Bus & Motor P/L, Sunraysia Bus Lines P/L)


 


Swan Hill Bus Lines P/L


 


The Dineen Group (for
Westernport Road Lines)


 


Wangaratta Bus Lines


 





















 


Part B
- Other Operators


 


B1
Regional Rail Services


 


B1-1. V/Line Passenger Corporation is a statutory corporation under Government
ownership governed by an independent board of directors.  V/Line
Passenger Pty Ltd (V/Line) is owned by V/Line Passenger Corporation and operates Regional rail and
coach services under franchise.


 


Franchise period from October 2003
to October 2006 with an option for extension by the Director of Public
Transport (DPT).


 


B2
Metropolitan Rail Services


 


B2-1. Connex Melbourne Pty Ltd
operates Metropolitan Rail services under Franchise, trading as “Connex Trains”.


 


Franchise period from April 2004
to November 2008, with an option for extension by the DPT up to not later
than May, 2010.  In April 2004,
Connex assumed responsibility for the operations of the former Bayside Trains
franchise marketed under the M>Train brand.


 


B3 Tram Services


 


B3-1. MetroLink Victoria
Pty Ltd is a joint venture partnership between an Australian company
(Transfield Services) and a European transport operator (Transdev).  The company operates Metropolitan Tram
services under Franchise, trading as “Yarra Trams”.  Franchise period from April 2004 to November 2008
with an option for extension by the DPT to not later than May 2010.  In April 2004, Yarra  assumed responsibility for the operations of
the former Swanston Trams franchise marketed under the M>Tram brand.


 


Part C
- Other Access Providers


 


C1-1. Spencer Street Station Authority (SSSA) manages
the Spencer Street Station (SSS) re-development project.  SSSA will operate the Station for the period
prior to completion of the project.


 


C1-2. Civic Nexus is the
contractor for the SSS re-development project, and will operate SSS following
completion of the project.  The Civic
Nexus consortium is financed and led by ABN Amro Australia, and includes
Leighton Contractors, Honeywell and Delaware North Australia.


 


C1-3. Victorian Rail Track (VicTrack) owns all
land and infrastructure in Victoria used for the purposes of public train and
tram based transport.  It leases these
assets to the private transport operators through the DPT, however retains some
residual interests not specifically related to transport operations.


 


C1-4. Pacific
National Pty Ltd (PN) operates the regional rail
network (but not stations) leased from the DPT. 
V/Line operates rail services over certain of PN’s rail network pursuant
to an access agreement (regional stations are leased by V/Line directly from
the DPT).


 


C1-5. - Rail Corporation of NSW
operates Albury Station and associated NSW rail infrastructure operated over by
V/Line.


 





















 


Schedule 18


 


Schedule 18


Early Termination Amount


 


(Clause 43)


 


The Early Termination
Amount payable to the Contractor will be the aggregate of the following costs
that the Contractor has used its best endeavours to minimise:


 


(a)                                                  the unpaid value of all Work
completed in accordance with this agreement prior to the date of termination;


 


(b)                                                 the cost of goods, services and
materials ordered by the Contractor and for which it is legally bound to pay
and for which the TTA will take delivery and ownership;


 


(c)                                                  the reasonable cost of removing its
property from any property where Work is being carried out;


 


(d)                                                 the reasonable cost of return to
their place of recruitment of the Contractor’s employees engaged in the work
under this agreement
at the date of termination including any amounts payable at Law upon
termination of employment; and


 


(e)                                                  [**]% of the outstanding unpaid
amounts (if any) of the Contract Price (less amounts paid under (a) to (d) of
this schedule). For the purposes of this schedule only the Contract Price is defined as the sum of the Capital Price
plus services charges assuming 2 years of Initial Services and
10 years of Core Services.


 


No double-counting of
costs will be allowed.  That is, an
amount claimed by the Contractor to be payable under one of paragraphs (a) to
(e) cannot be claimed and is not payable under any other of the
paragraphs.


 





















 


Schedule 19


 


Schedule 19


Bus Access


 


(Clause 9)


 


Part A

Bus Access Principles


 


1.                                                      Time of access


 


Satellite NTS Bus
equipment installation stations will be set up at selected Private Bus Operator
(PBO) depots to operate up to 24 hours per day, 7 days per week, to
ensure that the equipment for the NTS is installed as efficiently as possible.


 


Bus Association
Victoria (BAV) will arrange and negotiate with PBOs which PBO depots will be
used as installation stations and provide details of each location and the
facilities available at each site to TTA and the Contractor. The Contractor
will work with the BAV during this process to ensure that the needs of both the
PBOs and the Contractor are fairly balanced. 
An installation station must have sufficient area to locate a portable
office and workshop facility eg. Container space to support the
installation of the NTS equipment. Any area occupied by a Contractor will be
returned to a PBO in a clean and tidy state. 
Access charges for space occupied by the installation stations may apply
and will be negotiated with each PBO.


 


Out-of-pocket
costs may be payable to the BAV in respect of the arrangements for the PBOs.


 


BAV and the
Contractor will arrange and negotiate the schedule for each PBO vehicle to
be fitted with NTS equipment in consultation with the TTA.


 


The Contractor
will negotiate with the BAV where changes to the agreed schedule are
required.  Where an individual PBO may
experience difficulties in adhering to an agreed schedule, the BAV will
negotiate amendments to the schedule with the Contractor, as required, to
ensure that the installation process is not delayed.


 


The PBOs will
assist in delivering their vehicles to an installation station in a manner that
facilitates installation according to the agreed schedule whilst
minimising the cost to the Contractor. A delivery charge of $50 per hour and
$2.20 per kilometre will apply.


 


Any changes or
installation of equipment or components at major bus stops will be managed by
the Contractor, in association with the PBOs servicing these routes. Access to
the agreed sites will be procured by the Contractor in conjunction with TTA and
BAV as required to ensure that the equipment for the NTS is installed in an
efficient manner.


 


Any changes or
installation of equipment or components required to be made at Bus
Interchanges, including shopping centres and railway station interchanges,
would be managed by the Contractor in association with the Department of
Infrastructure (DOI) and TTA. Access to these venues will be provided as
required to ensure that the equipment for the NTS is installed as soon as
possible.


 


1.1                                               Access
to Bus Operator’s Property


 


The Metropolitan
PBOs and selected Regional PBOs agree that the NTS will be installed at the
PBOs sites and on the PBOs vehicles approved by the DOI under the DOI/PBO
transport services arrangements.


 


Access to the
maintenance pits or vehicle hoists will be provided according to the agreed
schedule.


 





















 


Access to
vehicles will be provided as required to ensure that the equipment for the NTS
is installed in an efficient manner that facilitates the equipment for the NTS
is installed according to the agreed schedule. Further the Contractor is
required to comply with all conditions and rules of access as defined in Section 3
Conditions and Rules of Access.


 


The Contractor
will negotiate with the BAV where changes to the agreed schedule are
required.  Where an individual PBO may
experience difficulties in adhering to an agreed schedule, the BAV will
negotiate amendments to the schedule as required to ensure that the
installation process is not delayed.


 


1.2                                               Access
to information


 


PBOs agree to
make available information, such as reports, drawings, maps, diagrams, or
sketches which are reasonably required by TTA or the Contractor, to facilitate
the installation of equipment for the NTS in an efficient manner.


 


1.3                                               Access
to Bus Operator staff


 


PBOs agree to
make available those of their employees, agents and contractors which are
reasonably required by TTA or the Contractor to attend and complete appropriate
training in the NTS.


 


A charge of $45
per hour will be incurred to access staff for training purposes. The number of
staff requiring training is approximately 3,000.


 


PBOs agree to
make available those of their employees, agents and contractors which are
reasonably required by TTA or the Contractor, to supply any information
required to facilitate the installation of equipment for the NTS in an
efficient manner.


 


PBOs agree to
make available staff which are reasonably required by TTA or the Contractor, to
test the installation of NTS equipment. A checklist that will define the test
criteria will be developed in consultation with the BPO, TWU, TTA and the
Contractor.


 


A charge of $45
per person per hour will be incurred to cover the cost of testing personnel.


 


A charge of $75
per hour will be incurred for an after hours supervisor if required by the PBO
to provide access to facilities or information to the Contractor outside of
normal business operating times This supervisor may also provide vehicle moving
services as required by the Contractor.


 


2.                                                      Services


 


2.1                                               To
be provided by a PBO


 


The PBOs are
required to make available to the Contractor or their contractors:


 


(a)                                                   Supply
power to operate the NTS;


 


(b)                                                  Supply
power for the successful contractor to be able to operate the equipment
necessary for the installation of the NTS to vehicles and Back Office /
Head Office;


 


(c)                                                   Supply
of water to or close by the installation area;


 


(d)                                                  Access
to change rooms and mess rooms (tea and coffee making facilities) if required;


 


(e)                                                   Site
amenities; and


 





















 


(f)                                                     Site
safety rules and OHS Act 2004, its regulations and amendments.


 


2.2                                               To
be provided by the Contractor


 


The Contractor
will be responsible for the supply and installation of the NTS system, accessories
and components, including cable ducting on buses and at PBO sites as required
for the NTS. These will be both workman like, aesthetically pleasing and
approved by the PBO and TTA.


 


Any storage or
office space requirements will be provided by the Contractor.  Any mobile buildings will be sited in
consultation with the PBO.


 


It is envisaged
that the installation of the Back Office / Head Office equipment would be
fitted at an agreed time with the PBO.


 


3.                                                      Conditions and Rules of
Access


 


The Contractor
and/or their contractors will adhere to all the following conditions and rules outlined
below when operating on a PBO’s site.


 


3.1                                               Bus
Operator’s Property


 


(a)                                                   Safety


 


(i)                                                     Conform
to the Occupational Health & Safety requirements that are in place at
the PBO’s site.


 


(ii)                                                  Conform
to Safe Working environment requirements.


 


(iii)                                               Conform
to Safety and Protective equipment requirements.


 


(iv)                                              Maintain
a zero blood alcohol reading.


 


(v)                                                 Conform
to any other requirements that are applicable to that site.


 


(b)                                                  Security


 


(i)                                                     The
Contractor and/or their contractors will be responsible for the security of
their equipment while working at the PBOs site.


 


(ii)                                                  The
Contractor will be responsible for Asset Insurance on NTS equipment while on
site.


 


(c)                                                   Training


 


(i)                                                     BAV
will provide details of safe working environment standards and training
requirements.


 


(ii)                                                  BAV
will provide internal training capabilities detailing the number of staff by
category to be trained, average hourly costs of staff and proposed methodology
of training.


 


(d)                                                  Miscellaneous
conditions and rules


 


(i)                                                     Be
responsible for removal of all rubbish created by the installation of the NTS
at the PBO’s site.


 





















 


(ii)                                                  PBOs
agree to use their best endeavours to assist the NTS team to install the NTS
equipment within the scheduled time frames.


 


(iii)                                               The
Contractor will be required to complete all installation works in accordance
with applicable Australian Standards and provide formal certification of all
works prior to the return of the vehicle.


 


(iv)                                              The
Contractor will agree to use all endeavours to minimise the disruption to the
PBO’s normal operations and their requirement to provide services under DOI
contracts.


 


(v)                                                 The
Contractor will remove all existing ATS equipment and make good repairs to the
satisfaction of the PBO and the TTA.


 


(vi)                                              The
Contractor will set up a service support hotline for operators from
5.00 am – 11.00 pm (7 days per week).


 


(vii)                                           Removal
of old ATS equipment and make good repairs if necessary.


 


4.                                                      Schedule of
Charges


 


The following
charges will be imposed in the following scenarios.


 


4.1                                               Vehicle
Delivery Charge


 


A delivery charge
of $50 per driver hour and $2.20 per vehicle kilometre will apply.


 


(a)                                                   The
driver charge will be incurred from the time a driver leaves the ‘Home’ depot with
the vehicle to when the driver returns the vehicle to the ‘Home’ depot. The
kilometre charge will be incurred from the distance a vehicle will travel from
the ‘Home’ depot with the vehicle to when the driver returns the vehicle to the
‘Home’ depot. A set standard charge will apply from each ‘Home’ depot to the
installation station nominated.  This
standard charge will be established by BAV in consultation with the PBO and
TTA.


 


(b)                                                  Where
a vehicle is being fitted at its ‘Home’ depot no vehicle delivery charges will
be incurred.


 


(c)                                                   Where
a driver is required by a PBO at a ‘Home’ depot being utilised as an
Installation Station to move vehicles, for the Contractor, no vehicle delivery
charges for this service will be incurred.


 


4.2                                               Training
Charge


 


An estimated
charge of $45 per hour will be incurred to access staff for training purposes
via the existing EBA arrangements. This cost will vary according to various
conditions outlined within the EBA.


 


4.3                                               After
Hours Supervision Charge


 


A charge of $75
per hour will be incurred for an after hours supervisor.


 


Where a driver is
required by a PBO at a ‘Home’ depot being utilised as an Installation Station
to move vehicles, for the Contractor, or where access to PBO facilities are
required after 5.00 pm and before 5.00 am, an after hours supervision
charge will apply.


 





















 


4.4                                               Installation
Station Occupation Charge


 


An occupation
charge of $200 per week is payable to reimburse a PBO for the following costs:


 


(a)                                                  additional
power used by the Contractor while on site; and


 


(b)                                                  purchase
replacement of tea, coffee and biscuits stock used by Contractor.


 


4.5                                               Testing
Charge


 


A charge of $45
per person per hour will be incurred for testing personnel.


 


This cost will cover all PBO staff who are involved in testing NTS
equipment as part of the sign off process to authorise the release of each
vehicle to an operation ready status. A standard fee will be developed to
address each part of the sign off process by BAV in consultation with the PBO
and TTA.


 





















 


Schedule 20


 


Schedule 20


Security Bonds


 


(Clause 34)


 


Security Bond


 


In favour of:                                                           Public Transport Ticketing Body trading as
Transport Ticketing Authority (“Principal”)


 


	
  Given
  by:

  	
   

  	
  (“Financial Institution”)

  



 


Recitals


 


A.                                                    The Principal and the Contractor have entered into the New
Ticketing Solution Project Agreement dated [insert date of Project Agreement] (the “Project Agreement”).


 


B.                                                    Under the Project Agreement, the Contractor
has agreed, amongst other things, to carry out certain works.


 


C.                                                    Under the Project Agreement, the Contractor
is required to provide this undertaking to the Principal to secure performance
of certain aspects of the works to be performed by the Contractor under the
Project Agreement.


 


Operative


 


1.                                                      In consideration of the Principal accepting
this undertaking, the Financial Institution unconditionally undertakes and
covenants to pay to the Principal on written demand without reference to the
Contractor, and notwithstanding any notice given by the Contractor to the
Financial Institution not to do so, any sum or sums which may from time to time
be demanded in writing by the Principal to a maximum aggregate sum of $[amount required in accordance with clause [  ] of the Project Agreement].


 


2.                                                      The liability of the Financial Institution
under this undertaking will not be discharged or impaired by reason of any
variation or variations in any of the terms of the Project Agreement, any
breach or breaches of the Project Agreement by the Contractor or the Principal,
or any extensions of time or other forbearance by the Principal or the
Contractor under the Project Agreement.


 


3.                                                      The Financial Institution’s liability under
this undertaking will be a continuing liability and will continue until the
first of the following events occurs:


 


(a)                                                  the Principal notifies the Financial Institution in
writing that the undertaking is no longer required;


 


(b)                                                  the Financial Institution has paid the maximum
aggregate sum to the Principal; and


 


(c)                                                   the [expiry date].


 


4.                                                      Neither the Bank nor the Principal may
transfer or assign any of its rights or obligations under this undertaking.


 


5.                                                      This undertaking will be governed by and
construed in accordance with the laws for the time being of Victoria.


 





















 


Signed as a deed poll this
                    
day of
                    
20


 


	
  Signed sealed
  and delivered for and on behalf

  of [               ]
  by [      ]  

  under Power of Attorney, in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature of
  Attorney

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature of
  Witness

  	
   

  	
  Name of
  Attorney

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Details of
  Power of Attorney

  



 





















 


Schedule 21


 


Schedule 21


Exit Costs


 


(Clause 27.7)


 


Part A
– Initial Services


 


The following exit costs will be paid to the Contractor by the
Principal for each Initial Service at the expiry of the Initial Service Term
for that Initial Service.


 


	
  Number of Completed

  	
   

  	
  Exit Cost

  	
   

  
	
  Years of Initial

  Services Term

  	
   

  	
  Card Distribution

  Services

  	
   

  	
  Cash Collection

  	
   

  	
  Cardholder

  Support Services

  	
   

  
	
  2

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  
	
  3

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  
	
  4

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  
	
  5

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  



 


Part B
– Core Services


 


The following exit costs will be paid to the Contractor by the
Principal:


 


•                                                          upon
early termination of the Core Services Term under clause 23.7; or


 


•                                                          upon
termination of the Core Services under clause 26(d).


 


The amount paid will be referrable to the number of years of the Core
Services Term that has been completed.


 


	
  Number of completed years of

  Core Services Term

  	
   

  	
  Core Services Exit Cost

  	
   

  
	
  5

  	
   

  	
  $[**]

  	
   

  
	
  10

  	
   

  	
  $[**]

  	
   

  
	
  11

  	
   

  	
  $[**]

  	
   

  
	
  12

  	
   

  	
  $[**]

  	
   

  



 





















 


Schedule 22


 


Schedule 22


Industrial Relations Plan


 


Completion Process


 


The document included in this Schedule 22 is incomplete and
represents an outline of the Industrial Relations Plan that the Contractor must
prepare and implement in accordance with clause 8.1 of the agreement. The
finalisation of the Industrial Relations Plan is a Category 3 matter.


 


The Contractor must undertake the following process to complete the
Industrial Relations Plan, prior to the Phase Date for the NTS Solution
Requirements Phase, to the reasonable satisfaction of the Principal:


 


•                                                          the
Contractor must develop an Industrial Relations Plan, based on the outline
document included in this Schedule 22, which is compliant with any and all
employment and industrial relations obligations, including without limitation,
any obligations arising under the Workplace
Relations Act 1996 (Cth) and which takes into account the
requirements of clause 8.1(c) of the agreement;


 


•                                                          the
Contractor must prepare and submit its proposed Industrial Relations Plan to
the Principal for its approval within 40 Business Days after the
Commencement Date; and


 


•                                                          the
Principal may, within 10 Business Days of receipt of the Contractor’s
proposed Industrial Relations Plan, advise the Contractor whether or not it
considers such plan to be in accordance with this agreement, including the
Requirements Document and the Solution Documentation, or reject it and provide
its comments (if any). If the proposed Industrial Relations Plan is rejected,
the Contractor must promptly, and in any event within 5 Business Days,
submit to the Principal a redraft of the plan and such redraft will be dealt
with by the Principal as if it were the initial draft submitted. The Contractor
must take into account any comments of the Principal in finalising the
Industrial Relations Plan.


 


 





















 


Schedule 23


 


Schedule 23


OH&S Plan


 


Completion Process


 


The document included in this Schedule 23 is incomplete and
represents an outline of the OH&S Plan that the Contractor must prepare and
implement in accordance with clause 8.2 of the agreement. Finalisation of
the OH&S Plan is a Category 3 matter.


 


The Contractor must undertake the following process to complete the
OH&S Plan, prior to the Phase Date for the NTS Solution Requirements Phase,
to the reasonable satisfaction of the Principal:


 


•                                                          the
Contractor must develop an OH&S Plan, based on the outline document included
in this Schedule 23, which is compliant with the applicable occupational
health and safety obligations, including obligations under the OH&S Act and
associated regulations;


 


•                                                          the
Contractor must prepare and submit its proposed OH&S Plan to the Principal
for its approval within 20 Business Days after the Commencement Date; and


 


•                                                          the
Principal may, within 10 Business Days of receipt of the Contractor’s
proposed OH&S Plan, advise the Contractor whether or not it considers such
plan to be in accordance with this agreement, including the Requirements
Document and the Solution Documentation, or reject it and provide its comments
(if any). If the proposed OH&S Plan is rejected, the Contractor must
promptly, and in any event within 5 Business Days, submit to the Principal
a redraft of the plan and such redraft will be dealt with by the Principal as
if it were the initial draft submitted. The Contractor must take into account
any comments of the Principal in finalising the OH&S Plan.


 





















 


Schedule 24


 


Schedule 24


Access


 


1.                                                      Connex Access
Principles


 


1.1                                               Access
Principles


 


1.1.1                                     Time
of Access


 


Details
concerning available access times are listed below:


 


•                                                          Connex
grants the Contractor the right to access Connex Property excluding the
following hours (daily):


 


•                                                                                                                                                                                          06.00
to 09.30;


 


•                                                                                                                                                                                          15.00
to 18.30; and


 


•                                                                                                                                                                                          00.00
to 05.00.


 


Connex can
provide access to stations between 8.00 pm and 5.00 am daily, except
during special events, project works and planned and unplanned maintenance and
subject to the availability of Connex and the Franchise Entities’ employees.


 


•                                                          Regarding
access to Stony Point vehicles, Connex is able to provide access at Frankston
Station between approximately 11.05 and 12.15 each Monday, Wednesday and
Thursday. If this access is insufficient, access at times outside these periods
will need to be considered and agreed by Connex once the Contractor’s
requirements are known in more detail.


 


•                                                          Access
at times outside the periods above to be agreed on a case by case basis in
accordance with the Connex Access Coordination Agreement.


 


1.1.2                                     Services


 


The following
service arrangements apply:


 


•                                                          Where
Connex supplied power facilities are available, the Contractor is to arrange
access with local Station staff for temporary use of power supplies during
installation of NTS equipment (including power for the Contractor’s work
equipment).  The Contractor must
reimburse Connex for the cost of any power used by the Contractor during the
installation of the NTS equipment.  If
Connex is unable to provide power supplies to the Contractor, the Contractor
must arrange its own direct power supply at its own cost.


 


•                                                          For
permanent power supply to NTS equipment, the Contractor must arrange, at its
own cost, direct power connection and wiring to the NTS equipment at each
station.


 


•                                                          For
telecommunication services to the NTS equipment during the installation and
ongoing operation of the NTS equipment, the Contractor must arrange its own
telecommunication services directly with VicTrack or with another provider.  The Contractor will be responsible for the
cost of arranging the telecommunication services for the NTS equipment and for
the installation and ongoing costs of the telecommunication services.


 





















 


•                                                          Where
Connex supplied water supplies are available, the Contractor is to make local
arrangements with Station staff (area manager) for temporary use.  The Contractor must reimburse Connex for the
cost of any water used by the Contractor. 
If Connex is unable to provide water supplies to the Contractor, the
Contractor must arrange its own direct water supply at its own cost.


 


•                                                          The
Contractor is to provide its own change and mess sheds at its own cost.


 


•                                                          The
Contractor is to provide its own storage at its own cost.


 


•                                                          The
Contractor is to make local arrangements with Station staff (area manager) for
access to toilets / amenities or provide its own at its own cost.


 


1.1.3                                     Conditions
and Rules of Access


 


1.1.3.1                          Supervision


 


Connex may elect
at its sole discretion to supervise the Contractor’s access in circumstances
where the Contractor’s access may:


 


•                                                          impact
on Connex’s business and the provision of services to customer; or


 


•                                                          impact
on the safety of people or property on Connex Property.


 


The Contractor
may reasonably expect that Connex will elect to supervise the Contractor’s
access in all circumstances meeting one or both of the criteria above.


 


If Connex elects
to supervise the Contractor’s access, the Contractor must not access any Connex
Property at the specified location until representatives of Connex or MainCo
are present.


 


Where Connex
elects to supervise the Contractor’s access, it will:


 


•                                                          provide
reasonable notice of the supervision to the Contractor; and


 


•                                                          provide
a minimum of two staff members to undertake supervision.


 


The Contractor
acknowledges that any supervision by Connex or MainCo does not release the
Contractor from any of its obligations under the Connex Access Coordination
Agreement.


 


If Connex or
MainCo’s personnel elect to supervise the Contractor’s access, the Contractor
must pay Connex the charges set out in Schedule 3 Section 1.


 


1.1.3.2                          Safety


 


The access
principles and arrangements for access to land / property contained in the
following documents must be complied with by the Contractor:


 


•                                                          “Safety
and Environmental Requirements for Contractors Working on MainCo Premises”.


 


MainCo is
contracted by Connex to perform infrastructure and existing rolling stock
maintenance.


 





















 


1.1.3.3                          Security


 


Additional
property access and supervision issues that have not already been listed above
are listed below:


 


•                                                          The
Contractor must at all times comply with the respective Station Visitor policy “Visitor
Control Procedure” at each Station. This procedure details the Visitor access
requirements. In circumstances where a Contractor requires access to a site,
the Contractor may be requested to obtain keys from a controlling station for
an unstaffed station. In this circumstance the Contractor prior to entering an
unstaffed station must call the security centre advising of entry and call
again upon departure – returning the keys back to the controlling station.
The Contractor should be assigned security keys for their own personal use.
However they will still be required to call security when entering/departing.
Where the Contractor requires access to a City Loop station the Contractor will
be requested to complete the “Induction Checklist for Contractors Visiting the
City Loop”.


 


•                                                          The
Contractor must ensure that all external doors and access areas to the Stations
as well as any rooms or other areas which are not open to the public, are at
all times kept locked, except at the times that the Contractor is entering or
exiting the Station or such rooms or other areas, and during the hours when the
Stations are open to the public in relation to all external doors and access
areas to the Stations.


 


•                                                          The
Contractor must ensure that if any unauthorised person is observed at any of
the Stations between the hours of 00.00 and 05.00 am, the Contractor must
contact a member of Connex personnel and provide information of the
observation. The Contractor’s officers, employees, subcontractors and agents (Contractor’s Personnel) must
leave the Station and not enter or remain on the Station premises without the
presence of the police or appropriate Connex personnel.


 


•                                                          The
Contractor must reimburse Connex for any cost or expense incurred as a result
of any Contractor Personnel accidentally, intentionally, carelessly or
negligently setting off security alarms, fire alarms or other alarms.


 


•                                                          The
Contractor must not make any copies of any keys, alarm codes or any other
material provided for access to the Stations (Connex Security  Material)
without the prior written consent of Connex and on the conditions imposed by
Connex.


 


•                                                          The
Contractor must only permit access to areas of the Stations which are not open
to the public to the Contractor’s Personnel authorised by it to carry out the
Connex Work and who have successfully completed any training required under Section 4.5.


 


•                                                          The
Contractor must take all necessary precautions to ensure the security of any Connex
Security Material issued by Connex to the Contractor is maintained in a manner
which is satisfactory to Connex.


 


•                                                          The
Contractor must adequately safeguard and comply with any specific requirements
of Connex in respect of any Connex Security Material.


 


•                                                          The
Contractor must if any Connex Security Material is misplaced, lost or stolen by
the Contractor or the Contractor’s Personnel, immediately notify Connex and
provide Connex with full particulars of how the incident occurred via


 





















 


an incident report.  Any Connex Security Material which is lost or
misplaced by or that is stolen from the Contractor or the Contractor’s
Personnel must be replaced at the Contractor’s cost and where reasonably
required by Connex taking into account the safety of Connex’s property,
business and rail network, the Contractor must pay for the replacement of any
locks resulting from the loss or misplacement of any Connex Security Material.


 


•                                                          The
Contractor will employ reasonable endeavours to bring to the attention of the
Superintendent’s Representative (or other nominated officer of Connex) any
matter that in the Contractor’s opinion lessens the security or safety of any
or any part of Connex Property, including the Stations or any equipment,
materials or other property at the Stations and any trains.


 


1.1.3.4                          Emergencies


 


Emergency plans
for each of the three underground stations and Flinders Street Station,
describing the facilities, environment, services and other features must be
complied with by the Contractor. These are contained in the following
documents:


 


•                                                          “Flagstaff
Stations Emergency Plan”;


 


•                                                          “Melbourne
Central Emergency Plan”; and


 


•                                                          “Parliament
Stations Emergency Plan”.


 


Emergency plans
for all other stations on the network must also be complied with by the Contractor.


 


1.1.3.5                          Education
and Training


 


(a)                                                  The
Contractor must ensure that the Contractor Personnel’s have successfully
completed the following training before accessing any Connex Property:


 


•                                                                                                                                                                                          an
induction course for each station if required by Connex. This induction course
need only be completed once per station for each of the Contractor’s Personnel;
and


 


•                                                                                                                                                                                          Train
Track Safety Awareness training (at course level 1, 2 or 3 as appropriate)
in all instances where the Contractor’s Work takes place within three metres of
rail track. Current training charges are detailed in Schedule 4, “Training
Charge”, but may be subject to change without notice.


 


(b)                                                  Connex
requires evidence that each of the Contractor’s Personnel has successfully
completed the Train Track Safety
Awareness training where applicable prior to the authorisation of access.


 


(c)                                                   Access
to Access Provider staff for education and training of the NTS from Contractor:


 


As a general
rule, Connex’s staff will be available between the hours of 9.00 am and 3.00 pm
on weekdays.


 


Any additional
limitations or restrictions on staff availability, including timing issues are
listed below:


 


•                                                          Restrictions
on staff availability for training will apply to all operational staff, for
example, drivers, maintenance staff and other operational staff.


 





















 


•                                                          Training
of station staff and authorised officers will need to be conducted during
off-peak hours from Mondays to Fridays (ie. outside of 06.00 to 09.30 and
15.00 to 18.30).


 


•                                                          It
should also be noted that training may need to be conducted at several non-CBD
work sites dispersed across the suburban areas.


 


•                                                          325
of the Authorised Officers will be based at 4 main depots plus
8 additional satellite depots across the network.


 


1.1.3.6                          Miscellaneous
Conditions and Rules


 


The Contractor
must comply with all applicable building codes and regulations at all times and
the Contractor will provide Connex with access to “as-built” drawings to enable
Connex to undertake any maintenance required at stations to non-NTS equipment
areas / services.


 


Connex will be
required to provide information to its customers, sublessees, licensees and to
Connex and the Franchise Entities’ officers, employees, subcontractors and
agents (Interested Parties) (for
example, by signage, posters or flyers) on the NTS installation works.  Connex will be responsible for specifying the
nature and extent of the information that is required to be provided to the
Interested Parties and the Contractor must reimburse Connex for any costs
incurred by Connex in advising the Interested Parties of the NTS installation
works.


 


1.1.4                                     Operations
Principles


 


1.1.4.1                          Cash
Collection Principles


 


The Contractor
must ensure that the following access times / limitations and special
procedures relating to access for cash collection and replenishment purposes
are complied with:


 


•                                                          cash
collections must occur outside the peaks Mondays to Fridays (ie. outside
of the hours 06.00 to 09.30 and 15.00 to 18.30);


 


•                                                          Special
Events will require additional and increased frequency of cash collection and
equipment servicing, depending on the particular event;


 


•                                                          the
process of cash transferral must be timely and efficient so as not to disrupt
the operation of the station to the extent that lengthy delays result in
ticketing purchases being reduced; and


 


•                                                          cash
collection includes both collection from all ticket machinery including booking
office machines.


 


1.1.4.2                          Cleaning
Principles


 


Access times,
limitations and special procedures for scheduled basic cleaning services of NTS
equipment are as per requirements for cash collection.


 


Attachments


 


•                                                               MainCo
Melbourne Third Party Access Agreement.


 


•                                                        “Safety
and Environmental Requirements for Contractors Working on Mainco Premises” and
associated forms:


 


•                                                        “Site
Safety Plan for Minor Works Contractors”; and


 





















 


•                                                        “Minor
Works Project Induction”.


 


•                                                        “Flagstaff
Stations Emergency Plan”.


 


•                                                        “Melbourne
Central Emergency Plan”.


 


•                                                        “Parliament
Stations Emergency Plan”.


 


1.2                                               Access
Charge


 


If supervision is
required per Schedule 1, Section 4.1 the Contractor will be required
to pay Connex at the hourly rate of $75 (in July 2004 prices) for each
employee of Connex or the Franchise Entities.


 


Where any of
Connex or the Franchise Entities’ staff are made available to the Contractor
for training, Connex will be paid the following rates in addition to the Access
Charge. The table below outlines the staff categories and hourly costs. Staff
numbers are for information only.


 


	
  Role

  	
   

  	
  Number

  	
   

  	
  Hourly Cost

  (July 2004 prices – $)

  	
   

  
	
  Drivers

  	
   

  	
  650

  	
   

  	
  47

  	
   

  
	
  Authorised Officers

  	
   

  	
  325

  	
   

  	
  36

  	
   

  
	
  Station staff

  	
   

  	
  625

  	
   

  	
  32

  	
   

  
	
  Other operational

  	
   

  	
  300

  	
   

  	
  44

  	
   

  
	
  Maintenance staff

  	
   

  	
  650

  	
   

  	
  44

  	
   

  
	
  Administration/Head Office

  	
   

  	
  100

  	
   

  	
  53

  	
   

  



 


1.3                                               Training
Charge


 


For information
purposes, the estimated cost of each level of the Train Track Safety Awareness
training is as follows:


 


(a)                                                  level 1
Train Track Safety Awareness – $80 per person plus GST (basic training to
work within 3 metres of track);


 


(b)                                                  level 2
Train Track Safety Awareness – $140 per person plus GST (for training
flagmen); and


 


(c)                                                   level 3
Train Track Safety Awareness – $320 per person plus GST (for supervision
of flagmen and co-ordination).


 





















 


Form 1


 


Site Safety
Plan for Minor Works Contractors


 


	
  Project Number: H

  	
   

  	
  Project Name:

  
	
   

  	
   

  	
   

  
	
  Contractor Details

  	
  Name:

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Business Telephone:

  	
   

  
	
   

  	
  Contractor Representative:

  	
   

  
	
   

  	
  Mobile Telephone:

  	
   

  
				



 


1.                                                      Safety Training/Induction


 


All personnel having business on the site shall be inducted to enable
their necessary duties to be performed in a manner that is safe and without
risk to health.


 


Train Track Safety Awareness training is to be
undertaken by all persons carrying out or intending to carry out works on or
near train tracks, who do not have a current Certificate of Competency to
perform the task to be undertaken.


 


2.                                                      Workplace Safety – Risk assessment


 


	
  Risks

  	
   

  	
  Control Measures

  	
   

  	
  PPE/Training Required (if
  applicable)

  	
   

  	
  Status

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 





















 


	
  Risks

  	
   

  	
  Control Measures

  	
   

  	
  PPE/Training Required (if
  applicable)

  	
   

  	
  Status

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 





















 


	
  Risks

  	
   

  	
  Control Measures

  	
   

  	
  PPE/Training Required (if
  applicable)

  	
   

  	
  Status

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 





















 


3.                                                      Plant Safety – Plant and equipment used to deliver the contract


 


	
  Plant/Equipment Item

  	
   

  	
  Maintenance Details

  	
   

  	
  PPE/Training Required (if
  applicable)

  	
   

  	
  Status

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


4.                                                      Accident/Incident Reporting Procedure


 


All accidents, incidents and near misses must be reported to MAINCO as
soon as practical.  In case of emergency:


 


	
  MAINCO Contact Person:

  	
   

  	
  Telephone:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Mobile:

  
	
   

  	
   

  	
   

  
	
  Contractor Contact person:

  	
   

  	
  Telephone:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Mobile:

  



 





















 


	
  AMBULANCE/POLICE/FIRE

  	
   

  	
  TELEPHONE: 000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Nearest Hospital

  	
  Address:

  	
   

  	
  Telephone:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Nearest Medical Centre

  	
  Address:

  	
   

  	
  Telephone:

  
	
   

  	
   

  	
   

  	
   

  



 


5.                                                      Emergency Procedures


 


Listing of emergency equipment provided on site:


 


•                      


•                      


•                      


•                      


 


Details of qualified first aiders on site:


 


•                      


•                      


•                      


•                      


 


Listing or description of emergency response procedures to be applied
on site:


 


•                      


•                      


•                      


•                      


 





















 


6.                                                      Dangerous Goods/Hazardous
Substances


 


	
  Dangerous Goods/Hazardous
  Substances

  	
   

  	
  Material
  Safety Data Sheet (MSDS) details

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


7.                                                      Protective Clothing and Protective Equipment (PPE)


 


Detail the personal protective clothing to be used on site.


 


•                      


•                      


•                      


•                      


 


Detail the personal protective equipment to be used on
site.


 


•                      


•                      


•                      


•                      


 


8.                                                      Site Map


 


Where possible, provide a site map indicating the location of various
risks identified in item 2 of this form.


 


MAINCO Representative Name:


 





















 


	
  MAINCO
  Representative Telephone:

  	
   

  	
   

  



 


	
  Site Safety Plan Approved By:

  	
  Contractor Representative Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Contractor Representative Signature:

  	
   

  	
   

  	
  Date:

  	
   

  



 





















 


MainCo


 


Melbourne


 


MINOR WORKS PROJECT INDUCTION                                             Project
Number  H


 


Please
tick off each item as it is discussed by the person conducting this induction.


 


	
  Contractor’s Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Contact Person:

  	
   

  	
   

  
	
   

  	
   

  
	
  •             Company
  OH&S and Environmental Policies (copy to be given to Contractor).

  	
  o

  
	
   

  	
   

  
	
  MainCo Melbourne general site OH&S Rules includes the
  following:

  	
   

  
	
   

  	
   

  
	
  Safety Glasses or full face protection

  	
  o

  
	
  Ear muffs or ear plugs

  	
  o

  
	
  Helmet or bump cap

  	
  o

  
	
  Hi-visibility vest

  	
  o

  
	
  Protective Clothing

  	
  o

  
	
   

  	
   

  
	
  •             A Zero Blood
  Alcohol Policy is practised by MainCo Melbourne, and as such ALL contractors
  and their employees shall abide by this rule at all times when working
  on or at a MainCo Melbourne site or premises.

  	
  o

  
	
   

  	
   

  
	
  •             MainCo
  Melbourne has a No Smoking policy in place which prohibits smoking in all
  buildings and enclosed areas.

  	
  o

  
	
   

  	
   

  
	
  •             All precautions
  must be taken to reduce the incidence of pollution to the environment
  including air, water, noise and land situations.

  	
  o

  
	
   

  	
   

  
	
  •             All waste
  generated by the contractor must be removed from the site and disposed of
  appropriately, in accordance with regulatory requirements.

  	
  o

  
	
   

  	
   

  
	
  •             Ensure safe
  working procedures are in place (as applicable) for the following:

  	
  o

  
	
   

  	
   

  
	
  Chemicals – Dangerous goods/hazardous
  substances

  	
  o

  
	
  Electrical equipment safety and isolations

  	
  o

  
	
  Manual handling

  	
  o

  
	
  Mechanical aids for materials handling

  	
  o

  
	
  Safe usage of plant and machinery

  	
  o

  
	
   

  	
   

  
	
  •             Site
  orientation (if required or necessary).

  	
  o

  
	
  •             Locations of
  First Aid Room and kits.

  	
  o

  
	
  •             Locations of
  fire extinguishers and hose reels.

  	
   

  
	
  •             Identification
  of First Aiders and Fire Wardens.

  	
  o

  
	
  •             Accident and
  incident or hazard reporting system actions.

  	
  o

  
	
  •             Emergency
  procedures (site applicable).

  	
  o

  
	
   

  	
   

  
	
  The preceding items have been explained, shown and understood by me,
  and shall be adhered to by all personnel participating in this project,
  operation or task:

  	
   

  
	
   

  	
   

  
	
  Contractor Representative’s signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Project Manager/Supervisor’s signature:

  (Contact telephone number):

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
				



 





















 


2.                                                      V/Line Access
Principles


 


2.1                                               Access
Principles


 


2.1.1                                     General
Site Access


 


Contractor and TTA staff requiring station access must:


 


•                                                          complete appropriate Level 1 Track Safety Awareness
(including medical) and Induction courses; and


 


•                                                          by law, have a zero blood alcohol level and not
impaired by drugs whilst on duty.


 


All Contractor and TTA staff must wear safety footwear, protective
clothing and high visibility safety clothing (Australian Standard
AS/NZS 4602 Class D/N for day and Night use) printed front and back
with “NTS CONTRACTOR” (or equivalent as agreed with V/Line) to identify
Contractor and TTA staff working on or near the track.


 


When working in and around station buildings, Contractor and TTA staff
must at least be identified by a project badge in an agreed format.


 


2.1.2                                     Times
of Access


 


2.1.2.1                          General


 


V/Line grants reasonable site access at the locations and times provided
in Table 1 (attached) to all stations, excluding the hours of 7.00 am-9.00 am
at the following stations:


 


•                                                          Geelong;


 


•                                                          Ballarat; and


 


•                                                          Bendigo.


 


For operational reasons, these arrangements may change without
notice.  Prior to commencing work, the
Contractor must liaise with each station’s officer or representative (“Officer
in Charge”).  V/Line will provide to the
Contractor the contact details of the Officer in Charge for each station.


 


2.1.2.2                          Spencer Street


 


Hours of access at SSS shall exclude:


 


•                                                          06.00 to 09.30 (morning peak); and


 


•                                                          15.00 to 18.30 (afternoon peak).


 


Any other times as agreed with Civic Nexus (operator of SSS).


 


2.1.2.3                          Special Events


 


Site access restrictions may apply for special events.  Events and access restriction details will be
advised closer to the event.  V/Line, the
Contractor and the TTA will work co-operatively to ensure that restrictions are
confirmed as early as possible and their effects on the NTS implementation are
minimised.


 





















 


2.1.3                                     Services


 


2.1.3.1                          Site and Building Plans


 


V/Line will make available to the Contractor (where available) existing
site and building plans.  V/Line does not
warrant that these plans are up-to-date.


 


The Contractor will provide copies of ‘as-built’ drawings to allow for
future V/Line maintenance at stations and buildings to non-NTS equipment areas /
services appropriate level of information to V/Line or 3rd party to enable
existing site and building plans to be updated with new works.


 


2.1.3.2                          Power


 


V/Line will reasonably endeavour to provide temporary use of power
supplies during installation of NTS equipment (including power for the
Contractor’s work equipment).  The
Contractor is to arrange access with the Officer in Charge where power
facilities are available.  If V/Line is
unable to provide power supplies to the Contractor, the Contractor is to
arrange its own direct power supply at its own cost.


 


For permanent power supply to NTS equipment, the Contractor must
arrange, at its own cost, direct power connection and wiring to the NTS
equipment at each station.


 


2.1.3.3                          Water


 


The Contractor is to make local arrangements with station staff (via the
Officer in Charge) where water supplies are available.  If V/Line is unable to provide water supplies
to the Contractor, the Contractor must arrange their own direct water supply at
its own cost.


 


2.1.3.4                          Cleaning and Removal of Rubbish


 


The Contractor is to, at its own cost; remove all NTS works related
rubbish from the site at the completion of each station installation.


 


Temporary storage of rubbish is permitted but must not interfere with
the safe operation of trains or movement of passengers.  The Contractor should agree with the Officer
in Charge the temporary arrangements prior to commencing work.


 


2.1.3.5                          Toilets & Other
Amenities (Changing and Mess Sheds)


 


The Contractor is
to make local arrangements with station staff (via the Officer in Charge) for
access to toilets/amenities or provide its own (at its own cost).


 


2.1.4                                     Third
Party Access


 


The Contractor must arrange 3rd party sites land / property
access through nominated site owners listed below:


 


(i)                                                      Pacific National – contact and telephone
number TBA;


 


(ii)                                                   VicTrack – contact and telephone number TBA;


 


(iii)                                                SSSA – contact and telephone number TBA; and


 


(iv)                                               Civic Nexus – contact and telephone number
TBA.


 





















 


Following discussions with V/Line, V/Line is to provide contact details
of other third parties, together with a list of the sites controlled by these
parties to which it is reasonably expected that that the Contractor will
require access.


 


Where the Contractor experiences difficulty in obtaining third party
Access, on request from the Contractor V/Line must assist in facilitating
access.


 


The Contractor is to ensure compliance with requirement for all 3rd
party access, including OH&S.


 


2.1.5                                     Conditions
and Rules of Access


 


2.1.5.1                          Site Checklist


 


Prior to work commencing the Contractor will be in possession of (or
provide to) the Officer in Charge a completed site access check list.  The checklist shall be agreed between V/Line,
the Contractor and the TTA.


 


2.1.5.2                          Supervision


 


Prior to entering either a staffed or unstaffed station, the Contractor
must first obtain the correct authority, keys, security access codes from the
appropriate owner, franchise or station master (or Officer in Charge) and on
completion of each installation ensure the site is secure, alarms set and
notification provided, and the keys are returned immediately to the building
owner, franchisee or station master (or Officer in Charge).


 


Option:  Post
site survey phase only:


 


A V/Line staff representative is to accompany the Contractor (and/or
TTA) on all site surveys (eg. civil works and equipment location surveys).  Costs associated with staff supplied by
V/Line shall be calculated in accordance with Schedule 1.


 


Option: Post site survey phase:


 


If a Contractor staff member is Safety Accredited (ie. has
completed a Certified Supervisor course – Level 3 Track Safety Awareness)
and requires access to the track then they may work unaccompanied
ie. without supervision of a V/Line safety-accredited personnel and also
supervise Level 1 accredited Contractor personnel.


 


2.1.5.3                          Tools and Equipment


 


Contractor tools and equipment are to be tagged.  In addition, the Contractor must comply with
all State and Federal Electrical Safety Regulations.


 


2.1.5.4                          Contractor work, emergency and
OH&S plans


 


The Contractor will provide V/Line with work, emergency and OH&S
plans in advance of work commencing.


 


2.1.6                                     Education
and Training


 


2.1.6.1                          Track Safety and Awareness


 


All Contractors and TTA staff requiring access to the V/Line network
must complete a Level 1 Track Safety Awareness course (duration approx
21⁄2 hours).


 





















 


At the successful completion of this session participants will be able
to demonstrate and explain the safety precautions and procedures to be followed
when on or about the track, interacting with other workgroups and using High
Visibility garments.


 


This also includes the requirement for a Level 4 Health Assessment
(for those contractors who are required to attend a Track Safety Awareness
Course) at the cost of the Contractor.


 


Indicative costs associated with these qualifications are set out in Schedule 3.


 


Training is to be arranged by the Contractor at its own cost.  The Contractor should liaise with V/Line
regarding the appointment of the training supplier.


 


Training of TTA staff is to be managed and funded separately by the TTA,
however the TTA will use best endeavours to ensure the TTA and Contractor staff
training is conducted concurrently.


 


Contractors and TTA staff will require proof of certification in the
form of an identify card.  The card must
be carried at all times and be produced on request by a V/Line staff member
when working on or visiting rail infrastructure.


 


Course content will be supplied and delivered initially by V/Line, at
the costs set out in Schedule 4. 
V/Line and the Contractor will work co-operatively to agree future
training arrangements for V/Line, with the option of ‘Train the Trainer’ to be
explored.


 


2.1.6.2                          Local Site Induction Training


 


The Contractor shall report to the Officer in Charge prior to commencing
work at any station (or group of stations). 
The Contractor will be required to attend a local site induction carried
out by the Officer.  The Contractor and
V/Line will work co-operatively to ensure that the induction process is carried
out as efficiently as possible so that disruptions to both the NTS
implementation and V/Line operations are minimised.


 


2.1.7                                     Safety
Procedures, References and Policies


 


As a minimum, the Contractor needs to be aware of, and comply with, the
following policies, procedures, registers and regulations:


 


•                                                          V/Line Induction Training;


 


•                                                          V/Line Local Site Induction;


 


•                                                          SAPO 001 Alcohol and Drug Free Workplace Policy;


 


•                                                          SAPO 004 Policy Statement on Health &
Safety;


 


•                                                          SAPR 004 Alcohol and Other Drugs Management;


 


•                                                          SAPR 014 Reporting OH&S Incidents Procedure;


 


•                                                          SAPR 012 V/Line Asbestos Register;


 


•                                                          SAPR 017 Major Incident Report; and


 


•                                                          HRPR 006 Medical Examination Procedures.


 


These documents are available from V/Line.


 





















 


Other reference sources to be aware of include:


 


•                                                          Occupational Health & Safety (Incident
Notification) Regulations 1997;


 


•                                                          SAB. No. 2004-06: Dept. of Infrastructure-
Public Transport Safety Advisory Bulletin- Occurrence Reporting &
Investigation;


 


•                                                          Equipment (Public Safety)(Incident Notification)
Regulations 1997;


 


•                                                          Electrical Safety (Network Assets) Regulations
1997;


 


•                                                          Occupational Health and Safety Act 1985;


 


•                                                          Australian Standard AS 4292.1 – 1995 Railway
Safety Management;


 


•                                                          Electronic OHS Incident Reporting Work Instruction
(SAWI:005);


 


•                                                          Victorian Heritage Act (1995);


 


•                                                          Environment Protection and Biodiversity
Conservation Act 1999 (EPBC Act), its Regulations and Amendments; and


 


•                                                          Historical Building Act


 


The Contractor shall comply with all relevant State and Federal
Regulations and Policies.


 


2.1.8                                     Training
of V/Line staff


 


The TTA, the Contractor and V/Line will work co-operatively to ensure
that appropriate training programs are developed for V/Line staff and are
delivered as efficiently as possible to minimise the disruption to V/Line’s
operations.


 


The Contractor will manage, at its own cost, all relevant NTS
training.  Associated out-of costs will
also be met by the Contractor, whilst V/Line staff costs will be re-imbursed at
the rates set out in Schedule 4. 
Further information on the nature and quantum of training to be provided
to staff members is also provided at Schedule 4.


 


2.1.9                                     Security
(Building Access, Key Management and Security Alarms)


 


The Contractor shall ensure that all external doors and access areas to
the stations and buildings, as well as any rooms or other areas which are not
open to the public, are at all times kept locked.  The only exception is times when the
Contractor is entering or exiting the station or buildings or such rooms or
other areas, and during the hours when the stations are open to the public in
relation to all external doors and access areas to the stations.


 


The Contractor shall reimburse V/Line for any cost or expenses incurred
as a result of any Contractor staff accidentally, intentionally, carelessly or
negligently setting off security alarms.


 


The Contractor must not make any copies of any keys, alarm codes or any
other material provided for access to the stations or building.


 


The Contractor must bring to the attention of V/Line’s Access
Representative any matter that, in the Contractor’s opinion, lessens the
security of any or any part of the stations, equipment, materials or other
property at the Stations, including trains.


 





















 


2.1.10                              V/Line
System Access


 


V/Line will provide reasonable access to relevant V/Line staff to
provide such advice, within the knowledge or control of V/Line, to the
Contractor as is reasonably required for NTS system integration.


 


The Contractor will be provided access to the V/Line’s IT Network
system, in accordance with an agreed operations transition plan, to allow for
NTS implementation.


 


The Contractor must provide documentation showing clear roles and
responsibilities of all V/Line IT system interfaces prior to completion of
design phase.  End-to-end integration of
the NTS to V/Line’s systems is at the Contractor’s cost.


 


The NTS must have an interface with V/Line’s General Ledger System.  The cost of the interface (including
consulting with Oakton (V/Line’s Great Plains consultant) or equivalent) must
be included as part of the project.


 


2.1.11                              Cash Handling


 


Access time/limitations and other procedures related to access for cash
collection are highlighted below:


 


•                                                          V/Line’s general requirement is that cash
collections occur outside the morning peaks Mondays to Fridays
(ie. outside of the hours 06.00 to 09.30).


 


•                                                          Special Events will require additional and
increased frequency of cash collection and equipment servicing, depending on
the particular event.


 


•                                                          The process of cash transferral must be timely and
efficient so as not to disrupt the operation of the station to the extent that
lengthy delays result for customers wanting to purchase tickets.


 


•                                                          Cash collection includes both collection and
replenishment of all ticket machinery including ticket office terminals.


 


The following should also be noted:


 


•                                                          V/Line is working on a Cash Handling documentation
project at present to determine best practice in relation to staffed stations
cash collection.


 


•                                                          The scope of this project includes optimal delivery
times & optimal cash balances, and summarise individual station
security capacities (ie. CCTV, safes etc.).  It planned to have this project completed by
end June 2005.


 


•                                                          Some remote agents have indicated their resistance
to daily banking of sales receipts.


 


•                                                          V/Line future interest in the retail agent’s cash
handling will be dependant on its final regional retail agent strategy.


 


2.2                                               Access
Charge


 


If supervision is
required the Contractor will be required to pay V/Line at the hourly rate of
$100.00 plus GST.


 





















 


The table below
outlines the staff categories identified for the purpose of NTS education and
training requirements, including number of staff and indicative hourly costs.


 


	
  Category A

  	
   

  	
  Estimated

  Staff

  Numbers

  	
   

  	
  Category B

  	
   

  	
  Estimated

  Staff

  Numbers

  	
   

  	
  Category C

  	
   

  	
  Estimated

  Staff

  Numbers

  	
   

  
	
  Station Staff General

  	
   

  	
  117

  	
   

  	
  Platform Supervisors

  	
   

  	
  24

  	
   

  	
  Drivers

  	
   

  	
  249

  	
   

  
	
  Conductors

  	
   

  	
  147

  	
   

  	
  Station Masters (SS)

  	
   

  	
  4

  	
   

  	
  Shunters

  	
   

  	
  24

  	
   

  
	
  Booking Office (SS)

  	
   

  	
  18

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Other Staff

  	
   

  	
  100

  	
   

  
	
  Finance Ops

  	
   

  	
  9

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commercial

  	
   

  	
  6

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Customer Services

  	
   

  	
  6

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Marketing

  	
   

  	
  6

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Regional Management

  	
   

  	
  4

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  313

  	
   

  	
   

  	
   

  	
  28

  	
   

  	
   

  	
   

  	
  373

  	
   

  



 


Note: These are
estimate figures only and may vary by 10-15%.


 


Category
A: Front Line Training: These are people who
will have to directly “use” the system, ie. sell /check tickets or be
involved “toping up existing tickets /cards. These will include Booking
Office, conductors, coach operators etc.


 


Category
B: Customer Advice / Service Personnel.
These people are involved in providing advice or handling enquiry’s face to
face or over the phone to the general public. These include such areas as
Stakeholder relations customer service personnel, Senior Station staff,
platform staff etc.


 


Category
C: General Awareness. These are people who do
not directly interface with customers. This is general high level understanding
and overview of the NTS system.


 


2.3                                               Training
Charge


 


The
Contractor/TTA will be required to attend as a minimum the following V/Line
courses:


 


•                                                          V/Line
general induction training (cost per session TBC); and


 


•                                                          V/Line
local site induction training at each station (cost per hour TBC).


 





















 


H.                                                   


 


3.                                                      Yarra Access
Principles


 


3.1                                               Access
Principles


 


3.1.1                     Time
of Access


 


Details
concerning available access times are listed below.


 


Yarra Trams
grants the Contractor the right to access the Depots and trams during the
following hours (daily):


 


(Access at times
outside the periods above to be agreed on a case by case basis in accordance
with the Yarra Trams Access Coordination Agreement.)


 


Tram Depot Access (Office and
Depot Computer Equipment)


 


	
   

  	
   

  	
  Weekdays

  	
   

  	
  Weekend

  	
   

  	
  Special Event

  	
   

  
	
  Installation

  	
   

  	
  10.00 am – 3.00 pm

  	
   

  	
  No Access

  	
   

  	
  No Access

  	
   

  
	
  Planned Maintenance (Preventive and
  Remedial)

  	
   

  	
  10.00 am – 3.00 pm

  	
   

  	
  No Access

  	
   

  	
  No Access

  	
   

  
	
  Emergency Curative Maintenance

  	
   

  	
  5.30 am – 1.00 am

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cash Collection

  	
   

  	
  See Tram Access

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cleaning

  	
   

  	
  10.00 am – 3.00 pm

  	
   

  	
  No Access

  	
   

  	
  No Access

  	
   

  



 


Tram Stops and Superstops Access


 


	
   

  	
   

  	
  Weekdays

  	
   

  	
  Weekend

  	
   

  	
  Special Event

  	
   

  
	
  Installation

  	
   

  	
  7.00 pm – 6.00 am

  	
   

  	
  7.00 pm – 6.00 am

  	
   

  	
  No Access

  	
   

  
	
  Planned Maintenance (Preventive and
  Remedial)

  	
   

  	
  7.00 pm – 6.00 am

  	
   

  	
  7.00 pm – 6.00 am

  	
   

  	
  No Access

  	
   

  
	
  Emergency Curative Maintenance

  	
   

  	
  24 hours / 7 days

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cash Collection

  	
   

  	
  7.00 pm – 6.00 am

  	
   

  	
  7.00 pm – 6.00 am

  	
   

  	
  7.00 pm – 6.00 am

  	
   

  
	
  Cleaning

  	
   

  	
  7.00 pm – 6.00 am

  	
   

  	
  7.00 pm – 6.00 am

  	
   

  	
  7.00 pm – 6.00 am

  	
   

  



 





















 


Tram Access


 


	
   

  	
   

  	
  Weekdays

  	
   

  	
  Weekend

  	
   

  	
  Special Event

  	
   

  
	
  Installation

  4 trams available per depot

  10 trams available per depot

  Most of trams available All tram installation work must be completed and the
  trams ready for operational service no later than 5.00 am.

  	
   

  	
  8.00 pm – 5.00 am 8.00 pm-10.00 pm
  10.00 pm-12.00 am 12.00 am-5.00 am

  	
   

  	
  8.00 pm – 5.00 am 8.00 pm-10.00 pm
  10.00 pm-12.00 am 12.00 am-5.00 am

  	
   

  	
  No Access

  	
   

  
	
  Planned Maintenance (Preventive and
  Remedial)

  	
   

  	
  8.00 pm –12.00 am

  	
   

  	
  8.00 pm – 12.00 am

  	
   

  	
  No Access

  	
   

  
	
  Emergency Corrective Maintenance

  	
   

  	
  During working hours: To be arranged
  through Fleet Operation Centre: 3 Meeting points proposed for boarding,
  Continuing Operations cannot be slowed down In the depots from 5.30 am –
  1.00 am

  	
   

  
	
  Cash Collection

  	
   

  	
  8.00 pm – 1.00 am in the depots if TVM
  on-board or until last trams return to depot around 1.30 am)

  	
   

  	
  8.00 pm – 1.00 am in the depots if TVM
  on-board or until last trams return to depot around 1.30 am)

  	
   

  	
  8.00 pm – 1.00 am in the depots if TVM
  on-board or until last trams return to depot around 1.30 am)

  	
   

  
	
  Cleaning

  	
   

  	
  8.00 pm – 12.00 am 4 trams between 8.00-10.00 pm,
  10 trams 10.00 pm-12.00 am in each depot

  	
   

  	
  8.00 pm – 12.00 am 4 trams between
  8.00 –10.00 pm, 10 trams 10.00 pm-12.00 am in each depot

  	
   

  	
  8.00 pm – 12.00 am 4 trams between 8.00-10.00 pm,
  10 trams 10.00 pm-12.00 am in each depot

  	
   

  



 


3.1.2                     Services


 


The following
service arrangements apply:


 


•                                                          For
temporary use of power supplies (240v) during installation of NTS equipment
(including power for the Contractor’s work equipment), the Contractor is to
arrange access with local Depot Manager, who will provide access to power
supply as long as it does not disturb operations.


 


•                                                          For
site water supplies, the Contractor is to make local arrangements with the
Depot Manger. All Depots have access to water supply which will be provided by
Yarra Trams.


 


•                                                          The
Contractor is to provide their own change and mess sheds at its own cost.


 


•                                                          The
Contractor is to provide their own storage at its own cost.


 


•                                                          The
Contractor is to make local arrangements with the Depot Manager for access to
toilets / amenities, access to which will be provided by Yarra Trams.


 





















 


The following
principles should be noted:


 


•                                                          Contractors
are responsible for cleaning and removal of rubbish after work.


 


•                                                          Contractors
are responsible for parking their cars as such facility will not be provided by
Yarra Trams.


 


•                                                          Occupational
health and safety requirements for site access as per Yarra Trams’
accreditation must be adhered to.


 


•                                                          Contractors
must comply with all statutory requirements, in relation to compliance with
safe working environment requirements, including rail safety.


 


•                                                          High
visibility vests and safety shoes.


 


•                                                          Compliance
with Yarra Trams’ Zero Drug and Alcohol Policy (PTSD requirements for rail
safety workers. Refer PTSD web site).


 


•                                                          Standard
work site warning signs.


 


•                                                          Further
details are provided in the attached “Worker Competence Induction” document
(sections 1, 2, 3.2, 3.3 and 4).


 


3.1.3                                     Conditions
and Rules of Access


 


3.1.3.1                          Supervision


 


Work Supervision
is not required provided the following safe working environment training is
completed.


 


Details and
associated cost regarding safe working environment training, etc required by
the Contractor prior to accessing sites and equipment are described and listed
below:


 


	
  Training Required

  	
   

  	
  Reason

  	
   

  	
  Approximate

  Duration

  	
   

  	
  Cost

  
	
  Depot Induction Training

  	
   

  	
  To enable staff to work unsupervised in the Depot
  environment.

  	
   

  	
  1 hour per Depot

  	
   

  	
  $100 per training session (15 staff per
  session)

  
	
  Open, “turn on” and close trams

  	
   

  	
  To enable staff to access and work in trams
  unsupervised

  	
   

  	
  1/2 hour
  per tram class

  	
   

  	
  $50 per training session (1 tram class and 10 staff
  per session)

  
	
  Tram Track and Overhead Awareness Training

  	
   

  	
  To enable staff to safely access trams in an
  operating environment eg. On Superstops

  	
   

  	
  2 hours

  	
   

  	
  $200 per training session. This includes the issue
  of a competency card. (12 staff per session)

  



 


All the above
training is to be supplied by Yarra Trams personnel.


 


Yarra Trams will
provide one authorised officer to provide access to the Tram Depot during the
hours of 1.00 am to 5.00 am when the Depot would normally be closed.


 


The authorised
officer is there to facilitate access and provide such level of supervision as
may be required by Yarra Trams.


 





















 


The rate of
charge for the authorised officer will be $344 per Depot per night, for each
night that access is required by the Contractor to a Depot after 1.00 am.


 


3.1.3.2                          OH&S


 


The Contractor
shall comply with all OH&S requirements which from time to time may be
applicable.


 


Prior to any
work, the Contractor shall provide Job Safety Assessment and request its
approval by Yarra Trams.


 


Contractor staff
is required to wear appropriate Personal Protective Equipment.


 


3.1.3.3                          Security


 


The Contractor
shall comply with all Yarra Trams security requirements and measures which may
be form time to time be in force.


 


In particular,
any access to Yarra Trams offices and depots requires a preliminary Sign-On
Process by the Yarra Trams designated starter staff.


 


3.1.3.4                          Emergencies


 


Emergency plans
for each of the eight Tram Depots, describing the facilities environment,
services and other features must be complied with by the Contractor. These are
contained in the Yarra Trams Emergency Plan for each Depot.


 


3.1.3.5                          Limitations


 


Limited tram key
availability may require Yarra Trams staff attendance for turning on power,
especially on D-Class trams.


 


Power will not be
turned on for all trams at the same time.


 


3.1.4                                      Education
and Training


 


Access to Access
Provider staff for education and training from Contractor:


 


•                                                          As a
general rule, staff will be available between the hours of 9.00 am and
5.00 pm on weekdays.


 


•                                                          Training
of drivers will conducted by the YT Tram trainers (4 to 5 per depot) at each of
the eight Tram Depots. Only 2 Tram drivers will be trained per depot per
day. At least 3 Tram Trainer training sessions will be conducted at a Tram
Depot or other site provided by Yarra Trams.


 


•                                                          Restrictions
on staff availability for training will particularly apply to maintenance staff
and other operational staff. In particular, training of Depot staff, Authorised
Officers, Customer Service and Tram Attendants will need to be conducted during
off-peak hours from Mondays to Fridays (ie. outside of 06.00 to 09.30 and
15.00 to 18.30).


 


•                                                          115 Tram
Authorised Officers and 100 Tram Attendants will be conducted at a Tram
Depot or other site provided by Yarra Trams.


 





















 


3.1.5                                      Cash
Collection Principles


 


See Access Times.


 


3.1.6                                      Cleaning
Principles


 


See Access Times.


 


3.2                                               Access
Charges


 


Where access is
required between 1.00 am and 5.00 am at a Depot an Access Charge will
apply. The Contractor will be required to pay Yarra Trams $344 per Depot per
night.


 


3.3                                               Training
Charges


 


The table below
outlines the staff categories identified for the purpose of NTS education and
training requirements, including number of staff and [average indicative]
incremental hourly cost:


 


	
  Role

  	
   

  	
  Number

  	
   

  	
  Average Indicative

  Incremental Hourly Cost

  	
   

  
	
  Drivers

  	
   

  	
  1,070

  	
   

  	
  $

  	
  37.22

  	
   

  
	
  Tram
  Attendant

  	
   

  	
  102

  	
   

  	
  $

  	
  37.22

  	
   

  
	
  Revenue
  Protection

  	
   

  	
  114

  	
   

  	
  $

  	
  43.00

  	
   

  
	
  Tram Fleet
  Maintenance

  	
   

  	
  123

  	
   

  	
  $

  	
  48.00

  	
   

  
	
  Other
  Operational (Line officers, Control Centre Operator, Depot Starters)

  	
   

  	
  120

  	
   

  	
  $

  	
  43.00

  	
   

  
	
  Management /
  Administration

  	
   

  	
  70

  	
   

  	
  $

  	
  55.00

  	
   

  
	
  Qualified
  Train the Trainers

  	
   

  	
  38

  	
   

  	
  $

  	
  43.00

  	
   

  



 





















 


Pro forma Access Coordination Agreement


 


Transport Ticketing
Authority


 


Principal


 


Keane Australia
Micropayment Consortium Pty Ltd


 


Contractor


 


[                              ]


 


Access Provider


 





















 


Table
of contents


 


	
  2.

  	
  Definitions and interpretation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Definitions

  	
   

  
	
   

  	
  2.2

  	
  Interpretation

  	
   

  
	
   

  	
  2.3

  	
  Rule of construction excluded

  	
   

  
	
   

  	
  2.4

  	
  Order of precedence

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Compliance with Law

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Term

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Representatives and meetings

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Contractor’s Access Representative

  	
   

  
	
   

  	
  5.2

  	
  [ ]’s
  Representative

  	
   

  
	
   

  	
  5.3

  	
  Principal’s Access Representative

  	
   

  
	
   

  	
  5.4

  	
  Meetings

  	
   

  
	
   

  	
  5.5

  	
  Access Coordination Meetings

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  [ ] Access Plan

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  General Obligations

  	
   

  
	
   

  	
  6.2

  	
  Development of [ ] Access Plan

  	
   

  
	
   

  	
  6.3

  	
  Amendment of the Access Plan

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Warranty

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  Access

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Contractor’s access

  	
   

  
	
   

  	
  8.2

  	
  Services

  	
   

  
	
   

  	
  8.3

  	
  Principal’s access

  	
   

  
	
   

  	
  8.4

  	
  Access Provider’s right to inspect

  	
   

  
	
   

  	
  8.5

  	
  The
  Solution

  	
   

  
	
   

  	
  8.6

  	
  Emergency
  Access

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  Contractor obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  Other activities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  Alternative Access

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  Failure to provide access

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.1

  	
  Access Charge and Training Charge

  	
   

  
	
   

  	
  13.2

  	
  Alternative Access

  	
   

  
	
   

  	
  13.3

  	
  Additional Access

  	
   

  
	
   

  	
  13.4

  	
  Monthly Invoice

  	
   

  
	
   

  	
  13.5

  	
  Payment

  	
   

  
	
   

  	
  13.6

  	
  Non-Acceptance of Monthly Invoice

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
  Indemnity and Limitation of Liability

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.1

  	
  Contractor
  Indemnity

  	
   

  
	
   

  	
  14.2

  	
  Liability of Contractor

  	
   

  
	
   

  	
  14.3

  	
  Exclusions

  	
   

  
	
   

  	
  14.4

  	
  Liability of Access Provider

  	
   

  



 


i





















 


	
  15.

  	
  Remedy Notice

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
  Liability for damage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  17.

  	
  Reporting and Information

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.1

  	
  Information

  	
   

  
	
   

  	
  17.2

  	
  Regular updates

  	
   

  
	
   

  	
  17.3

  	
  Reporting Obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  18.

  	
  Insurances

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  19.

  	
  Dispute Resolution

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.1

  	
  General

  	
   

  
	
   

  	
  19.2

  	
  Access Representatives’ review

  	
   

  
	
   

  	
  19.3

  	
  Chief Executive Officer review

  	
   

  
	
   

  	
  19.4

  	
  Determination by the Expert

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  20.

  	
  Force Majeure

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  20.1

  	
  Force Majeure Notice

  	
   

  
	
   

  	
  20.2

  	
  Meeting, Application of Provisions

  	
   

  
	
   

  	
  20.3

  	
  Suspension of Obligations

  	
   

  
	
   

  	
  20.4

  	
  Duty to Remedy Force Majeure

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  21.

  	
  Assignment

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  22.

  	
  Novation

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  22.1

  	
  Novation on Termination of Project
  Agreement

  	
   

  
	
   

  	
  22.2

  	
  Obligations prior to novation by Contractor

  	
   

  
	
   

  	
  22.3

  	
  Set off in relation to Project Agreement

  	
   

  
	
   

  	
  22.4

  	
  Novation on Termination of the Access
  Provider’s Rights

  	
   

  
	
   

  	
  22.5

  	
  Obligations prior to novation by Access
  Provider

  	
   

  
	
   

  	
  22.6

  	
  Set off in relation to termination of
  Access Provider’s rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  23.

  	
  Confidentiality and publicity

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  23.1

  	
  Confidential information

  	
   

  
	
   

  	
  23.2

  	
  Exceptions

  	
   

  
	
   

  	
  23.3

  	
  Publicity

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  24.

  	
  General

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  24.1

  	
  Notices

  	
   

  
	
   

  	
  24.2

  	
  Stamp Duty

  	
   

  
	
   

  	
  24.3

  	
  Governing Law

  	
   

  
	
   

  	
  24.4

  	
  Jurisdiction

  	
   

  
	
   

  	
  24.5

  	
  Waiver

  	
   

  
	
   

  	
  24.6

  	
  No limitation

  	
   

  
	
   

  	
  24.7

  	
  Consent or approval of the Principal

  	
   

  
	
   

  	
  24.8

  	
  Measurements

  	
   

  
	
   

  	
  24.9

  	
  Amendments

  	
   

  
	
   

  	
  24.10

  	
  Further acts and documents

  	
   

  
	
   

  	
  24.11

  	
  Counterparts

  	
   

  
	
   

  	
  24.12

  	
  Expenses

  	
   

  
	
   

  	
  24.13

  	
  Severability

  	
   

  
	
   

  	
  24.14

  	
  Entire agreement

  	
   

  
	
   

  	
  24.15

  	
  Representations and warranties

  	
   

  
	
   

  	
  24.16

  	
  Indemnities

  	
   

  



 


ii





















 


	
   

  	
  24.17

  	
  Non-merger

  	
   

  
	
   

  	
  24.18

  	
  Set-Off

  	
   

  
	
   

  	
  24.19

  	
  Survival

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  25.

  	
  GST

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  25.1

  	
  Interpretation

  	
   

  
	
   

  	
  25.2

  	
  Reimbursements and similar payments

  	
   

  
	
   

  	
  25.3

  	
  GST payable

  	
   

  
	
   

  	
  25.4

  	
  Variation of GST

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1
  Access Principles

  	
   

  
	
   

  	
   

  
	
  Schedule 2
  [ ] Access Plan

  	
   

  
	
   

  	
   

  
	
  Schedule 3
  Access Charge

  	
   

  
	
   

  	
   

  
	
  Schedule 4
  Training Charge

  	
   

  
	
   

  	
   

  
	
  Schedule 5
  Monthly Invoice

  	
   

  
	
   

  	
   

  
	
  Schedule 6
  PA Novation Deed

  	
   

  
	
   

  	
   

  
	
  Schedule 7
  Novation Deed

  	
   

  
	
   

  	
   

  
	
  Schedule 8
  Expert Deed

  	
   

  
					



 


iii





















 


Pro
forma Access Coordination Agreement made at
                                on


 


Parties                                                                                         Transport
Ticketing Authority ABN [                   
] of [  ]


 


(“Principal”)


 


[insert details], [ABN]  of [                     ]


 


(“Contractor”)


 


[insert details], [ABN]   of 
[                          ]


 


(“Access Provider”)


 


Background


 


A.                                                   The
Principal and the Contractor have or will enter into the New Ticketing System
Project Agreement (the “Project Agreement”)
under which the Contractor will carry out the Project.


 


B.                                                     In
order to carry out its obligations under the Project Agreement, the Contractor
requires access to third party property, information and staff.


 


C.                                                     This
Agreement facilitates the provision of access by the Access Provider to the
Contractor.


 


Operative
provisions


 


2.                                                      Definitions and
interpretation


 


2.1                                               Definitions


 


In this
Agreement:


 


“Access”
means access to [and use of] the Access Provider’s Property reasonably required
by the Contractor to perform its obligations under the Project Agreement.


 


“Access
Charge” means the charge for the provision of access based
on the Access Provider Rates and calculated in accordance with Schedule 3.


 


“Access
Coordination Meeting” means meetings between the
Principal, the Contractor, access providers or their authorised representatives
and other interested parties to facilitate the overall coordination of access
for the Project.


 


“Access
Provider Rates” means the rates set out in Schedule 3.


 


“Access
Representatives” means each of the Contractor’s
Access Representative, the Principal’s Access Representative and the [  ]’s Representative.


 


“Alternative
Access” means access not provided for in the version of the
[   ] Access Plan finalised in accordance
with clause 6.2(h), and required as a result of the Access Provider
failing to provide access in accordance with the Access Plan.


 


“[Note:  Insert name of Access
Provider] Access Plan” means the
document set out in Schedule 2, as developed and amended in accordance
with this Agreement.


 


“[Note:  Insert name of Access
Provider] Access Principles” means the
principles, obligations and conditions of access set out in Schedule 1.


 


4





















 


“[Note:  Insert name of Access
Provider] Property” means:


 


(a)                                                   all
property owned, leased or used by the Access Provider (and information and
drawings relating to such property including wiring diagrams) including any
rolling stock, stops, terminals, stations, vehicles, depots, interchanges,
computer systems and other facilities, systems, power supplies of the Access
Provider other than the Solution; and


 


(b)                                                  personnel
involved in the operation or use of the property referred to in paragraph (a) including
employees of the Access Provider.


 


“[   ]’s Representative”
means the person appointed by the Access Provider in accordance with
clause 5.2.


 


“[Note:  Insert name of Access
Provider] Work” means that part of the Work
which affects the [ ] Property.


 


“Business
Day” means a
day on which banks are open for business in Melbourne but not a Saturday or
Sunday


 


“Business
Hours” means between 9.00 am and 5.00 pm on a
Business Day.


 


“Chief
Executive Officers” means the chief executive
officer of the Principal, the chief executive officer of the Contractor, and
the chief executive officer of the Access Provider.


 


“Commencement
Date” means the date this Agreement is validly executed
by the Parties, to the satisfaction of the Principal.


 


“Contractor’s
Access Representative” means the person appointed
by the Contractor in accordance with clause 5.1.


 


“Core
Services” means the core services described and
provided by the Contractor under the Project Agreement.


 


“Cure
Plan” means a proposal that the Contractor or the Access
Provider submits to the Principal pursuant to clause 15(a) which
details the steps to be taken and the dates by which those steps must be
satisfactorily performed in order to rectify a default.


 


“Dispute
Resolution Procedures” means the procedures
established under clause 20.


 


“Expert”
means the party appointed by the Principal and the
Contractor pursuant to clause 49.5 of the Project Agreement to act as an expert or such other party appointed pursuant to clause 18.5(k).


 


“Force
Majeure” means lightning, earthquake, fire explosion,
cyclone, riots, industry wide, industrial action which is not specific to, or
attributable to the action of, the Contractor or any of its Related Bodies
Corporate or subcontractors and is not industrial action which falls within
paragraph (f) of the definition of Act of Prevention, civil commotion,
natural disaster, sabotage, act of a public enemy, act of God (excluding storm
and tempest), war (declared or undeclared), revolution, radioactive
contamination, flood or an outbreak of an infectious disease which results in
the Government, a Governmental Agency or a government having jurisdiction over
the person claiming force majeure relief issuing general prohibition against
any persons entering the State of Victoria, but only if the party claiming the
relief could not


 


5





















 


have prevented
the effects of the event by taking those steps which a prudent, experienced and
competent contractor or operator (as the case may be) would have taken.


 


“Government
Agency” means any government or semi-governmental entity or
authority, body politic, government department or statutory authority of the
State of Victoria.


 


“Initial
Services” means the initial services described and to
be provided by the Contractor under the Project Agreement.


 


“Law”
means:


 


(a)                                                   common law;


 


(b)                                                  Commonwealth, Victorian or local government
legislation, regulations, by-laws and other subordinate regulations; and


 


(c)                                                   all building codes and regulations relevant to
carrying out the [      ] Work.


 


“Monthly
Invoice” means the invoice referred to in clause 13, in
the form set out in Schedule 5.


 


“Novation
Deed” means the deed substantially in the form annexed to
this Agreement as Schedule 7.


 


“Novation
Notice” means a notice issued by the Principal pursuant to
clause 22.4 of this Agreement.


 


“PA
Novation Deed” means the deed substantially in the form
annexed to this Agreement as Schedule 6.


 


“PA
Novation Notice” means a notice issued by
the Principal pursuant to clause 22.1 of this Agreement.


 


“Party”
means each of the Principal, the Contractor and the Access Provider and “Parties” means all of them.


 


“Principal’s
Access Representative” means the person appointed
by the Principal in accordance with clause 5.3.


 


“Principal’s
Nominee” means the Principal or any party nominated by the
Principal.


 


“Project”
means the design,
development, integration, installation, testing and implementation of the
Solution and the development, testing and provision of the Services.


 


“Project Documents” means:


 


(a)                                                   the Project Agreement;


 


(b)                                                  the Escrow Agreement;


 


(c)                                                   the Expert Deed;


 


(d)                                                  the Parent Company Guarantee;


 


(e)                                                   the Access Co-ordination Agreements;


 


(f)                                                     the Direct Agreements; and


 


6





















 


(g)                                                  the Key Contracts.


 


“Project Master Schedule” means the detailed plan titled the “Project
Master Schedule” prepared by the Contractor (and updated from time to time), in
accordance with the Project Agreement.


 


“Project Timeline” means the document which is titled the “Project Timeline”
prepared by the Contractor (and updated from time to time) in accordance with
the Project Agreement.


 


“Related
Body Corporate” has the same meaning as in
the Corporations Act.


 


“Services”
means the Initial Services and the Core Services.


 


“Solution”
means the ticketing and payment system designed, and
to be provided by the Contractor, as described in the Project Agreement.


 


“Training
Charge” means the charge for the provision of training
calculated in accordance with Schedule 3.


 


“Urgent Action” means action required to be taken to avoid an
immediate threat to a member of the public or the property of the Principal or
the Access Provider.


 


“Work”
means any work required to be performed by the Contractor pursuant to the
Project Agreement.


 


2.2                                               Interpretation


 


In this
Agreement:


 


(a)                                                   headings are for convenience only and
do not affect interpretation;


 


and unless the
context indicates a contrary intention:


 


(b)                                                  an obligation or a liability assumed
by, or a right conferred on, 2 or more persons binds or benefits them jointly
and severally;


 


(c)                                                   “person” includes an individual, the
estate of an individual, a corporation, an authority, an association or a joint
venture (whether incorporated or unincorporated), a partnership, a trust and
Governmental Agencies;


 


(d)                                                  a reference to a Party includes that
Party’s executors, administrators, successors and permitted assigns, including
persons taking by way of novation;


 


(e)                                                   a reference to a document (including
this Agreement) is to that document as varied, novated, ratified or replaced
from time to time;


 


(f)                                                     a reference to a statute includes its
delegated legislation and a reference to a statute or delegated legislation or
a provision of either includes consolidations, amendments, re-enactments and
replacements;


 


(g)                                                  a word importing the singular includes the
plural (and vice versa), and a word indicating a gender includes every other
gender;


 


(h)                                                  a reference to a Party, clause,
schedule, exhibit, attachment or annexure is a reference to a Party, clause,
schedule, exhibit, attachment or annexure to or of this Agreement, and a
reference to this Agreement includes all recitals, schedules, exhibits,
attachments and annexures to it;


 


7





















 


(i)                                                      if a word or phrase is given a defined
meaning, any other part of speech or grammatical form of that word or phrase
has a corresponding meaning;


 


(j)                                                      “includes” in any form is not a word of
limitation; and


 


(k)                                                   a reference to “$” or “dollar” is to
Australian currency.


 


2.3                                               Rule of construction excluded


 


In the
interpretation of this Agreement, no rule of construction applies to the
disadvantage of one Party on the basis that that Party put forward or drafted
this Agreement or any provision in it.


 


2.4                                               Order of precedence


 


(a)                                                   If there is or arises any
inconsistency, ambiguity, or discrepancy between any of:


 


(i)                                                     this
Agreement;


 


(ii)                                                  the
[   ] Access Principles; and


 


(iii)                                               the
[   ] Access Plan,


 


the following
order of precedence will apply:


 


(iv)                                              this
Agreement;


 


(v)                                                 the
[   ] Access Principles;


 


(vi)                                              the
[  ] Access Plan.


 


(b)                                                  If there is or arises any
inconsistency, ambiguity or discrepancy within:


 


(i)                                                     this
Agreement;


 


(ii)                                                  the
[   ] Access Principles; or


 


(iii)                                               the
[  ] Access Plan,


 


the Contractor or
the Access Provider must notify the Principal, or the Principal’s Access Representative
may notify the Contractor and the Access Provider, in writing within
10 Business Days of becoming aware of any such inconsistency, ambiguity or
discrepancy.  The Principal’s Access
Representative must determine the intention of the Parties and notify the
Contractor and the Access Provider of the resolution of the inconsistency,
ambiguity or discrepancy within 20 Business Days of the Principal’s Access
Representative being so notified.


 


3.                                                      Compliance with Law


 


The Contractor
and the Access Provider must perform all their respective obligations under
this Agreement in accordance with the requirements of Law.


 


4.                                                      Term


 


(a)                                                   This
Agreement will commence on the Commencement Date.


 


(b)                                                  This
Agreement will expire:


 


8





















 


(i)                                                     on the expiry of the Project
Agreement;


 


(ii)                                                  on the issue of a variation order
by the Principal under clause 20.3 of the Project Agreement which has the
effect, in the reasonable opinion of both the Principal and the Contractor,
that access is no longer required from the Access Provider; or


 


(iii)                                               after the termination of the
Project Agreement, by written notice from the Principal;


 


unless the Principal gives a PA Novation Notice under
clause 22.


 


(c)                                                   Prior
to the Solution Completion Date, the parties agree to meet and negotiate, in
good faith, an access agreement to replace this Agreement which deals with
access for the maintenance and ongoing operation of the Solution.  However, this Agreement remains on foot
unless and until it is replaced by the agreement of the parties or otherwise
expires pursuant to this clause.


 


5.                                                      Representatives and
meetings


 


5.1                                               Contractor’s Access Representative


 


(a)                                                   The Contractor must:


 


(i)                                                     within
5 Business Days of the Commencement Date give notice in writing to the
Principal and the Access Provider of the person that will act as a
representative of and be authorised to act on behalf of it in discharging its
functions under this Agreement; and


 


(ii)                                                  obtain
the Principal’s prior written approval to any appointment made under
clause 5.1(a)(i) such approval not to be unreasonably withheld or
delayed.


 


(b)                                                  The Contractor may by notice in writing
to the Principal and Access Provider substitute a person appointed under
clause 5.1(a) with another person, provided the Contractor has
obtained the prior written approval of the Principal, which must not be
unreasonably withheld or delayed.


 


(c)                                                   The Contractor is bound by any act or
omission of the person appointed under this clause 5.1 and any direction,
notice, or instruction given to the person appointed under this clause 5.1
will be deemed to be a direction, notice, or instruction to the Contractor.


 


5.2                                               [   ]’s
Representative


 


(a)                                                   The Access Provider must within
5 Business Days of the Commencement Date give notice in writing to the
Principal and the Contractor of the person that will act as a representative of
and be authorised to act on behalf of it in discharging its functions under
this Agreement.


 


(b)                                                  The Access Provider may by notice in
writing to the Principal and the Contractor substitute a person appointed under
clause 5.2(a) with another person, provided the Access Provider has
obtained the prior written approval of the Principal, which must not be
unreasonably withheld or delayed.


 


(c)                                                   The Access Provider is bound by any act
or omission of the person appointed under this clause 5.2 and any
direction, notice, or instruction given to the person


 


9





















 


appointed under this
clause 5.2 will be deemed to be a direction, notice, or instruction to the
Access Provider.


 


5.3                                               Principal’s Access
Representative


 


(a)                                                   The Principal:


 


(i)                                                     will,
within 5 Business Days of the Commencement Date, appoint a person to be the
Principal’s Access Representative for the purposes of this Agreement;


 


(ii)                                                  may
at any time replace the Principal’s Access Representative, in which event the
Principal must appoint another person as the Principal’s Access Representative;
and


 


(iii)                                               will
give written notice of all appointments made under clauses 5.3(a)(i) and
(ii) to the Contractor and the Access Provider.


 


(b)                                                  The Principal’s Access Representative:


 


(i)                                                     may
by written notice to the Contractor and the Access Provider appoint persons to
exercise any of the Principal’s Access Representative’s functions under this
Agreement;


 


(ii)                                                  must
not appoint more than one person to exercise the same function under this
Agreement; and


 


(iii)                                               may
revoke any appointment made under clause 5.3(b)(i) by notice in
writing to the Contractor and the Access Provider.


 


(c)                                                   The Principal’s Access Representative
may continue to exercise a function under this Agreement despite appointing
another person to exercise the function under clause 5.3(b).


 


(d)                                                  The Access Provider and the Contractor
acknowledge and agree that the Principal’s Access Representative and any
appointee of the Principal’s Access Representative act at all times as agents
of the Principal and are subject to the directions of the Principal and will
act solely in the interests of the Principal.


 


(e)                                                   Without limiting clause 21 of the
Project Agreement the Contractor and the Access Provider must comply with any
direction by the Principal’s Access Representative given or purported to be
given under a provision of this Agreement except where such direction would
cause the Contractor or the Access Provider (as the case may be) to be in
breach of its obligations under this Agreement.


 


(f)                                                     The Principal is bound by any act or
omission of any person appointed under this clause 5.3(a) or (b)(i) and
any written direction, notice or instruction (other than an email) given to
those persons will be deemed to be a direction, notice or instruction to the
Principal.


 


5.4                                               Meetings


 


(a)                                                   The Access Provider and the Contractor
must meet fortnightly in order to facilitate and coordinate access.  A meeting may be cancelled by the agreement
of the Parties.


 


10





















 


(b)                                                  The Principal must be notified in
writing of all meetings between the Contractor and the Access Provider
5 Business Days prior to such meeting, or such other period as is agreed
between the Parties, and the Principal has the right to attend and participate
in all meetings.


 


(c)                                                   A Party may schedule meetings that
are additional to the meetings held in accordance with clause 5.4(a) by
providing 5 Business Days notice to the other Parties.  If a Party schedules a meeting under this
clause, the Access Provider and the Contractor must attend the meeting and the
Principal has the right to attend and participate in such meeting.


 


(d)                                                  If the Access Provider is in breach of
clauses 7, 10 or 11 of this Agreement the Contractor must give the other
Parties written notice of that breach and a meeting must be held between the
Contractor and the Access Provider within [5] Business Days of that written
notice.  The Principal has the right to
attend and participate in that meeting.


 


(e)                                                   The Contractor will minute and provide
copies of all such minutes to the Access Provider and the Principal.  the Contractor will notify the Principal and
any attendees at a meeting, in writing, of all agreements that are reached at
any meeting.


 


5.5                                               Access Coordination
Meetings


 


(a)                                                   The Parties acknowledge that the
purpose of the Access Coordination Meetings is to facilitate the overall
coordination of access for the Project between the Access Provider, the
Contractor, the Principal, and other access providers and interested parties.


 


(b)                                                  Access Coordination Meetings will be
held as and when necessary in order to coordinate and facilitate access issues
that concern more than one access provider.


 


(c)                                                   Access Coordination Meetings may be
convened by the Principal by giving reasonable notice.  Where an Access Coordination Meeting is
convened to deal with an emergency the Principal will only be required to give
one Business Day’s notice.  The Principal
may specify the access providers and other interested Parties that are
requested to attend.


 


(d)                                                  The Principal may attend and
participate in all Access Coordination Meetings.


 


(e)                                                   At the request of the Principal, the
Access Provider and the Contractor must attend a specified Access Coordination
Meeting, and agree to negotiate and participate in the resolution of the access
issues raised, in good faith.


 


(f)                                                     The Access Provider, the Contractor and
the Principal’s responsibilities in relation to the Access Coordination
Meetings may be carried out by the representatives appointed under
clause 5.


 


(g)                                                  The Access Provider and the Contractor
acknowledge that other access providers and interested parties may be present
at the Access Coordination Meeting, and they agree to participate and negotiate
with such parties in good faith.


 


(h)                                                  The Contractor will minute and provide
copies of all such minutes and notify the Principal and any attendees at an
Access Coordination Meeting, in writing, of all agreements that are reached at
an Access Coordination Meeting.


 


11





















 


6.                                                      [   ] Access Plan


 


6.1                                               General Obligations


 


(a)                                                   The
Contractor must coordinate access and develop the [ ] Access Plan in accordance
with:


 


(i)                                                     this Agreement, and in particular
clause 6.2;


 


(ii)                                                  the [ 
] Access Principles;


 


(iii)                                               the Project Timeline and the Project
Master Schedule; and


 


(iv)                                              the Project Agreement.


 


(b)                                                  The
Access Plan will document the access to the [  ] Property which the
Contractor reasonably requires in order to carry out the [  ] Work in
accordance with:


 


(i)                                                     the Project Agreement;


 


(ii)                                                  the Project Timeline and Project Master
Schedule; and


 


(iii)                                               the [  ] Access Principles.


 


6.2                                               Development of [  ] Access Plan


 


(a)                                                   The Contractor must prepare and submit
to the Principal and the Access Provider a revised draft of the [ ] Access Plan
based on the version of the [      ]
Access Plan set out in Schedule 2 and at the time specified in the Project
Master Schedule.


 


(b)                                                  The Access Provider must, as soon as
reasonably practicable and in any event, within 10 Business Days of
receipt of the draft [  ] Access Plan,
advise the Contractor in writing whether or not it considers such plan to be in
accordance with this Agreement, including the [   ] Access Principles and suitable for a final
draft to be prepared pursuant to clause 5.2(e) or reject it and provide
its comments (including reasons for rejecting the draft [  ]
Access Plan) to the Principal and the Contractor.


 


(c)                                                   The Principal must as soon as
reasonably practicable and in any event, within 20 Business Days of
receipt of the draft [ ] Access Plan, advise the Contractor in writing whether
or not it considers such plan to be in accordance with this Agreement,
including the [ ] Access Principles, and suitable for a final draft to be
prepared pursuant to clause 5.2(e) or reject it and provide its comments
(including reasons for rejecting the draft [  ] Access Plan) to the Contractor
and the Access Provider.  If the draft [
] Access Plan is rejected by the Access Provider or the Principal, the
Contractor must promptly, and in any event within 5 Business Days, submit
to the Principal and the Access Provider a redraft of the revised [ ] Access
Plan and such redraft will be dealt with by the Principal and the Access
Provider as if it were submitted under clause 6.2(a).


 


(d)                                                  The Contractor must take into account
the Access Provider’s and the Principal’s comments, if any, in revising the [ ]
Access Plan.


 


(e)                                                   The Contractor must prepare and submit
to the Principal and the Access Provider a final version of the [ ] Access Plan
prepared on the basis of the draft submitted under clause 6.2(a) and
in accordance with this Agreement, and at the times specified in the Project
Master Schedule.


 


12





















 


(f)                                                     The Access Provider must as soon as
reasonably practicable and in any event,, within 10 Business Days of
receipt of the final version of the final [  
] Access Plan, advise the Contractor in writing whether or not it
considers such final version to be in accordance with this Agreement, including
the Access Principles, or reject it and provide its comments (including reasons
for rejecting the final version of the final[  ] Access Plan) to the Principal
and the Contractor.


 


(g)                                                  The Principal must as soon as
reasonably practicable and in any event, within 20 Business Days of
receipt of the final version of the final [ ] Access Plan, advise the
Contractor in writing whether or not it considers such final version to be in
accordance with this Agreement, including the Access Principles, or reject it
and provide its comments (including reasons for rejecting the final version of
the final [ 
] Access Plan) to the Contractor and the Access
Provider.  If the final [ ] Access Plan
is rejected, the Contractor must promptly, and in any event within
5 Business Days, submit to the Principal and the Access Provider a redraft
of the [ ] Access Plan and such draft will be dealt with by the Principal and
the Access Provider as if it were submitted under clause 6.2(e).


 


(h)                                                  The Contractor must finalise the [ ]
Access Plan taking into account the comments of the Access Provider and the
Principal and in accordance with the requirements set out in this Agreement, as
a condition precedent to completion of the
NTS Solution Requirements Phase.


 


(i)                                                      The Principal’s and the Access Provider’s
receipt, review or approval of, or any comment, representation or statement
(whether verbal or in writing) in relation to the [   ] Access Plan or any part thereof will not
relieve the Contractor of its responsibility for any errors, omissions or
departures from, or failures to comply with, requirements of this Agreement and
will not affect the rights or obligations of the Principal or the Access Provider
under this Agreement, including the payment obligations under clause 13.


 


(j)                                                      If the Contractor reasonably believes
the Principal or the Access Provider is being unreasonable in any review of,
comment on or other action undertaken under clauses  6.2(f) or 6.2(i) in
relation to the [   ] Access Plan it must
give written notice to the Principal’s Access Representative.  If the matter is not resolved within
10 Business Days of the receipt of such notice, the dispute will be
referred to the Dispute Resolution Procedures.


 


(k)                                                   The Access Provider and the Principal
shall act reasonably in exercising its right to review, comment on or take
other action in accordance with the provisions of this clause 6.2.


 


(l)                                                      The Principal will use reasonable
endeavours to provide a response to the Contractor under clauses 6.2(c) and
6.2(g) as soon as reasonably practicable and in any event in a period of
less than the 20 Business Days referred to in those clauses.


 


6.3                                               Amendment of the
Access Plan


 


(a)                                                   Amendments to the [   ] Access Plan can be proposed at any time by
a Party by giving written notice to the other Parties.  Amendments to the [   ] Access Plan after it has been finalised
pursuant to clause 6.2 may include:


 


(i)                                                     additional
access or Alternative Access required by the Contractor;


 


(ii)                                                  a
change to access times proposed by either the Access Provider or the
Contractor;


 


13





















 


(iii)                                               affect
the substantive rights or obligations of the Parties under the Access Plan; or


 


(iv)                                              merely
clarify existing rights and obligations.


 


(b)                                                  Where a Party proposes an amendment
under clause 6.3(a), the Parties agree to negotiate the proposed
amendments in good faith and acting reasonably.


 


(c)                                                   Within 5 Business Days of written
notice of the proposed amendment, the Access Provider and Contractor must
convene and attend a meeting to negotiate any proposed amendments to the [   ] Access Plan.


 


(d)                                                  The Principal:


 


(i)                                                     must
be given 2 Business Days notice of any meeting under this clause by the Contractor;


 


(ii)                                                  has
a right to attend and participate in any such meetings; and


 


(iii)                                               must
be advised of the outcome of any negotiations in relation to proposed
amendments to the Access Plan by the Contractor.


 


(e)                                                   Any agreed amendment to the [   ] Access Plan must be in writing, and is
deemed to form part of the [   ] Access
Plan.


 


(f)                                                     The Contractor must revise, to the
reasonable satisfaction of the Access Provider and the Principal, the [   ] Access Plan to reflect the agreed
amendments.


 


(g)                                                  The Principal may direct the Contractor
to propose an amendment to the [   ]
Access Plan under clause 6.3(a) and to consolidate any agreed
amendments to the [   ] Access Plan under
clause 6.3(f).


 


(h)                                                  Where an amendment to the [   ] Access Plan is for additional access required
by the Contractor, the Contractor and the Access Provider must notify the
Principal in writing, including an estimate of the resulting increases to the
Access Charge paid in accordance with clause 13.


 


(i)                                                      Where agreement on a proposed amendment
to the [   ] Access Plan cannot be
reached between the Parties at a meeting convened under clause 6.3(c), any
Party may refer the dispute to the Dispute Resolution Process.


 


7.                                                      Warranty


 


The Contractor acknowledges and warrants that:


 


(a)                                                   it
has checked and carefully considered the [ ] Access Principles and they are fit
for their purpose;


 


(b)                                                  the performance of the Work will be
undertaken in accordance with the requirements of this Agreement, including the
[ ] Access Principles and [ ] Access Plan, and the requirements of this
Agreement will enable the Work to be carried out in accordance with the Project
Agreement; and


 


(c)                                                   no representation or warranty has been
given or is given by or on behalf of the Principal or the Access Provider, as
to:


 


14





















 


(i)                                                     the
suitability, completeness or efficacy of any information or data supplied or
made available by any of them, including information or data forming part of
this Agreement, including the [ ] Access Principles;


 


(ii)                                                  any
other drawings, plans, design specifications, reports or other information or
data which relate directly or indirectly to the Solution; or


 


(iii)                                               the
adequacy or sufficiency of the [  ]
Property.


 


8.                                                      Access


 


8.1                                               Contractor’s access


 


(a)                                                   The Access Provider must provide the
Contractor with access, and otherwise comply with its obligations, in
accordance with the [  ] Access Plan and
this Agreement, including the Access Principles, for the purpose of enabling the
Contractor to carry out the [   ] Work.


 


(b)                                                  If the Access Provider fails to give
Access in accordance with the [ ] Access Plan, the Principal will use its best
endeavours to procure the Access Provider to provide Alternative Access on a
date and at a time reasonably acceptable to the Contractor which is within 10
Business Days, or such other period as agreed by the parties, of the date for
the original Access nominated in the [ ] Access Plan.


 


(c)                                                   The Access Provider must:


 


(i)                                                     use
all reasonable endeavours to agree Alternative Access with the Contractor; and


 


(ii)                                                  subject
to the terms of this Agreement and the Access Principles, cooperate with and
not interfere with or obstruct the Contractor or any other contractor engaged
by the Contractor to perform the [ ] Work on or in the vicinity of the [ ]
Property.


 


(d)                                                  The rights of access provided pursuant
to this Agreement are for the purpose only of carrying out the [ ] Work and
incidental activities and the Contractor will obtain no legal estate or other
interest in the [ ] Property.


 


(e)                                                   The Access Provider must act reasonably
and in good faith in giving directions to, and in all its dealings with the
Contractor, its subcontractors, officers, employees and agents while the
Contractor or its subcontractors are performing the [ ] Work at the [ ] Property.


 


(f)                                                     If preparatory works by or on behalf of
the Access Provider are required in order to enable the Contractor to perform
the Work the scope and timing of such preparatory works will be agreed between
the Access Provider and the Contractor and set out in the Access Plan.


 


8.2                                               Services


 


For the avoidance
of doubt, the Contractor must:


 


(a)                                                   obtain all services required to
undertake the [ ] Work; and


 


(b)                                                  pay for all services obtained in
respect of carrying out the [ ] Work,


 


other than as
provided in this Agreement, including the Access Principles and [  ] Access Plan.


 


15





















 


8.3                                               Principal’s access


 


(a)                                                   The
Access Provider and the Contractor agree that, at all times, the Principal or
any person authorised by it will:


 


(i)                                                     subject to normal safety and security
constraints as notified by the Access Provider, have the right of access during
Business Hours or on reasonable notice to:


 


A.                                                   the sites where the [  ] Work is being carried out; and


 


B.                                                     all other areas relevant to the [  ] Work; and


 


(ii)                                                  be entitled to exercise this right of
access for the purposes of:


 


A.                                                   observing the [   ] Work and monitoring compliance by the
Contractor with its obligations under this Agreement and the Project Agreement;


 


B.                                                     undertaking progress inspections of the
Solution ; and


 


C.                                                     any other reason relating to the Solution,
the Project Agreement or this Agreement.


 


(b)                                                  The
Principal agrees that any person accessing sites on behalf of the Principal
under clause 8.3(a) must not unduly interfere with the performance of the
[  ] Work.  To the extent
possible, reasonable advance notice will be given of the Principal’s intention
to access a site.


 


8.4                                               Access Provider’s
right to inspect


 


The Access
Provider has the right to be present when any [ ] Work is being performed.


 


8.5                                               The Solution


 


The Access Provider acknowledges and agrees that any part of the
Solution installed on the [  ] Property:


 


(a)                                                   as
between the Access Provider and the Principal, will be owned by and is the
property of the Principal; and


 


(b)                                                  will
be installed as a fitting and not a fixture and will not become a fixture on
the [ ] Property.


 


8.6                                               Emergency Access


 


Notwithstanding the [  ] Access Plan, the Access
Principles and the notice requirements in clause 9(a), if requested by the
Access Provider or the Principal or if agreed between the Contractor and the
Access Provider, the Contractor may be granted emergency access to the [ ] Property in order to undertake or complete urgent
maintenance or repairs.  Such emergency access
shall (where possible) be in accordance with the [  ] Access Principles or on such
terms as the Contractor and the Access Provider may agree from time to time.


 


9.                                                      Contractor obligations


 


(a)                                                   Subject to clause 7.6 or as agreed
between the Parties, the Contractor will give notice to the Access Provider and
the Principal 2 weeks, or such other period agreed


 


16





















 


between the parties, prior to
accessing the [   ] Property, even where
such Access is in accordance with the [ 
] Access Plan.


 


(b)                                                  The Contractor must carry out the [ ]
Work in accordance with this Agreement, including the [ ] Access Principles and
[ ] Access Plan.


 


(c)                                                   The Contractor must comply with the [ ]
Access Principles and the [ ] Access Plan at all times.


 


(d)                                                  The Contractor must comply with:


 


(i)                                                     all
of the Access Provider’s safety requirements, emergency plans and mandatory
safety training in accordance with the Access Principles and the [  ] Access Plan; and


 


(ii)                                                  any
reasonable or lawful direction of
the [    ] Representative given to protect the safety of
people or property on the [ ] Property.


 


(e)                                                   The Contractor represents and warrants
that it or its subcontractors have or will have all required approvals
(including any consents required from any statutory or governmental bodies),
licences, professional ability, skills and financial resources, and has
available or will obtain the necessary equipment, materials, tools and
facilities to perform its obligations in accordance with the requirements
contained in this Agreement.


 


(f)                                                     Without limiting clause 9(c) the
Contractor must:


 


(i)                                                     unless
otherwise agreed by the Contractor and the Access Provider, conclude each
period of continuous access at the time specified in the
[       ] Access Plan, regardless of whether
the task for which that period of access was allocated has been completed;


 


(ii)                                                  unless
otherwise agreed by the Contractor and Access Provider or specifically
permitted by the [  ] Access Plan, at the conclusion
of each period of continuous access, leave the [  ] Property in the
state in which it was found by the Contractor, other than permanent alterations
made to the [  ] Property as part of the [  ] Work; and


 


(iii)                                               unless
otherwise agreed by the Contractor and Access Provider, at the conclusion of
each period of continuous access, leave the [  
] Property in a safe condition.


 


10.                                               Other activities


 


(a)                                                   The Contractor must:


 


(i)                                                     develop
the [ ] Access Plan and carry out the [ ] Work so as to co-ordinate with the
other operations of the Access Provider on the [ ] Property, and as far as
reasonable practicable avoid inconvenience or disruption to those operations;


 


(ii)                                                  as
far as reasonably practicable avoid inconvenience to the Access Provider’s
customers and risk to those customer’s safety;


 


(iii)                                               at
all times co-operate with and not interfere with or obstruct any other
contractor engaged by the Principal or the Access Provider to perform other
works on or in the vicinity of the [ ] Property; and


 


17





















 


(iv)                                              use
reasonable endeavours to ensure that the [ ] Works do not interfere with the
normal activities of the Access Provider.


 


(b)                                                  The Contractor will not be liable for
any costs that are incurred if the [ ] Works do interfere with the activities
of the Access Providers or any other contractor, provided the Contractor is
carrying out the [ ] Work in accordance with this Agreement, including the
Access Principles, and the [  ] Access
Plan.


 


11.                                               Alternative Access


 


(a)                                                   Without limiting what amounts to a
failure to act in good faith, where an amendment proposed under clause 6.3
is for Alternative Access, the Access Provider will be deemed to be not
negotiating in good faith and acting reasonably where:


 


(i)                                                     the
Access Provider repeatedly objects to amendments that comply with the Access
Principles;


 


(ii)                                                  the
Access Provider fails to offer Alterative Access which is consistent with the
[  ] Access Principles; or


 


(iii)                                               the
Access Provider objects to amendments that comply with the Access Principles
and result only in a change to the timing of the access as set out in the
[   ] Access Plan, and the Access
Provider has been given reasonable notice of the amendments.  For the avoidance of doubt, in any
circumstances one month will constitute reasonable notice and shorter periods
may constitute reasonable notice depending on the circumstances.


 


(b)                                                  Where an agreed amendment to the [  ] Access Plan for Alternative Access is
incorporated into the [  ] Access Plan by
the Contractor in accordance with clause 6.3(e) such access will be
identified as Alternative Access in the revised [  ] Access Plan.


 


12.                                               Failure to provide
access


 


(a)                                                   If the Access Provider fails to provide
access in accordance with the [  ] Access
Plan or this Agreement (including the Access Principles), the Contractor will
give a written notice to the Access Provider and the Principal.


 


(b)                                                  The Principal acknowledges that the
Access Provider’s failure to provide Alternative Access may give the Contractor
the right to claim an extension of time and delay costs in accordance with the
Project Agreement.


 


(c)                                                   If the Access Provider has consistently
failed to provide access (other than Alternative Access) in accordance with the
[  ] Access Plan, the matter will be
referred to the Principal for consideration. If, in the opinion of the
Principal the Access Provider has consistently failed to provide access in
accordance with the [   ] Access Plan,
the Principal will deem such failure to provide access to be a breach of this
Agreement.  If the Contractor reasonably
considers the Principal is being unreasonable in any consideration under this
clause, it may refer the matter to the Dispute Resolution Procedures.


 


18





















 


13.                                               Payment


 


13.1                                        Access Charge and Training
Charge


 


(a)                                                   Subject to the terms of this Agreement,
the Contractor will, for the period commencing on the Commencement Date and
ending on the Solution Completion Date (as defined in the Project Agreement),
pay to the Access Provider:


 


(i)                                                     the
monthly Access Charge to be calculated on the basis of the actual access
provided by the Access Provider in each month, in consideration of the Access
Provider providing access in accordance with this Agreement; and


 


(ii)                                                  the
Training Charge in consideration of the Access Provider providing training to
the Contractor’s personnel in accordance with the Access Principles and the
Access Plan.


 


(b)                                                  For the avoidance of doubt and subject
to clause 13.4;


 


(i)                                                     the
Contractor acknowledges and agrees that the Access Provider is entitled to
payment of the Access Charge in accordance with clause 13 for any access
provided by the Access Provider to the Contractor for the
[    ] Work regardless of whether it is set out in the
[    ] Access Plan; and


 


(ii)                                                  the
Contractor will pay the Access Provider in accordance with clause 12.1(a) for
any access provided by the Access Provider in excess of the access set out in
the [  ] Access Plan.


 


(c)                                                   Provided that the Access Provider has
given the relevant access to the Contractor in accordance with this Agreement,
the [ ] Access Principles and the [ ] Access Plan, if:


 


(i)                                                     the
Contractor has not paid the Access Provider the Access Charge or the Training
Charge in accordance with this clause 13;


 


(ii)                                                  the
dispute resolution procedures set out in clause 19 have been invoked in
relation to such non-payment and conducted in accordance with clause 19; and


 


(iii)                                               the
Expert has made a determination under clause 18.5 that the Contractor must pay
money to the Access Provider to fulfil its obligation to pay the Access Charge
and Training Charge under clause 13.1(a), and the Contractor has not paid the
money within [  ] Business Days of such
determination,


 


the Principal
will pay the money to the Access Provider. 
The amount of any money paid by the Principal to the Access Provider
under this clause will be a debt due and payable by the Contractor to the
Principal within 20 Business Days of demand by the Principal.


 


13.2                                        Alternative Access


 


The Access
Provider will not be entitled to the Access Charge for the provision of
Alternative Access.  For the avoidance of
doubt, Alternative Access does not include additional access required
where the Access Provider has failed to provide access in accordance with the
Access Plan solely as a consequence of the Contractor not having complied with
the Access Plan or the Access Principles.


 


19





















 


13.3                                        Additional Access


 


Notwithstanding
any other clause in this Agreement or the Project Agreement, the Contractor
will be liable for any part of the Access Charge attributable to any additional
access sought under clause 6.3(a) by the Contractor or notified to the
Principal under clause 6.3(h) and will not be entitled to any
reimbursement from the Principal in relation to such part of the Access Charge
where that additional access is due to the act or omission of the Contractor.


 


13.4                                        Monthly Invoice


 


(a)                                                   The Access Provider shall submit to the
Contractor a Monthly Invoice within 10 Business Days of the end of each month
itemising the Access Charge and Training Charge applicable for that month and
provide a copy of the Monthly Invoice to the Principal.


 


(b)                                                  Each Monthly Invoice shall include such
data and information as is required by the Contractor to verify the computation
of the Access Charge, including each day and time that access was granted to
the Contractor.


 


(c)                                                   [Each Monthly Invoice shall be a valid
tax invoice for GST purposes].


 


13.5                                        Payment


 


(a)                                                   If the Contractor does not dispute any
aspect of a Monthly Invoice in accordance with clause 13.6, it shall
within 20 Business Days after receipt of the Monthly Invoice pay to the
Access Provider the amount set out in the Monthly Invoice.


 


(b)                                                  If the Contractor disputes any aspect
of a Monthly Invoice in accordance with clause 13.6, it shall within
20 Business Days after receipt of the Monthly Invoice pay to the Access
Provider all undisputed amounts in respect of that Monthly Invoice.


 


13.6                                        Non-Acceptance of
Monthly Invoice


 


(a)                                                   If the Contractor disputes any aspect
of a Monthly Invoice, it shall within 10 Business Days after receipt of the
Monthly Invoice notify the Access Provider in writing of all aspects which it
disputes and, to the extent that it is able to calculate them, details of the
adjustments it requires and provide a copy of the notice to the Principal.  The Contractor may request the Access
Provider to provide to it such further information as it requires to determine
the amounts in dispute and if so requested the Access Provider shall provide
such information as soon as practicable and in any event no later than
5 Business Days after being so requested. 
If upon receipt of such information the Contractor no longer disputes
any aspect of the Monthly Invoice, the Contractor shall within 20 Business
Days after receipt of the information pay to the Access Provider the amount
owing under the Monthly Invoice.


 


(b)                                                  If the Access Provider notifies the
Contractor in writing that it agrees with the adjustments requested by the
Contractor within 5 Business Days after receipt of the notification under
clause 13.6(a) and issues a valid adjustment note or revised tax
invoice (as appropriate), the Contractor shall within 20 Business Days
after receipt of notification of such acceptance pay to the Access Provider the
agreed amount owing in respect of the Monthly Invoice.


 


(c)                                                   If within 20 Business Days after
receipt by the Access Provider of the notice from the Contractor pursuant to
clause 13.6(a) the Parties have not agreed the amounts in dispute in
respect of the Monthly Invoice, the matter shall be resolved in


 


20





















 


accordance with the Dispute
Resolution Procedures.


 


14.                                               Indemnity and
Limitation of Liability


 


14.1                                        Contractor Indemnity


 


(a)                                                   The Contractor indemnifies and keeps
indemnified on demand and by way of continuing indemnity, defends, and saves
harmless the Access Provider and its employees, agents and subcontractors from
and against all liabilities, damages, losses, penalties, demands, suits, costs,
payments, outgoings, expenses (including reasonable solicitor’s fees and
expenses) and proceedings of any nature, including for:


 


(i)                                                     loss
of or damage to property; and


 


(ii)                                                  claims
by any person in respect of personal injury or death,


 


to the extent to
which they arise out of or as a consequence of:


 


(iii)                                               the
Contractor’s performance of its obligations under this Agreement;


 


(iv)                                              a
breach of this Agreement by or on behalf of the Contractor;


 


(v)                                                 any
negligent, wilful or fraudulent act or omission by or on behalf of the
Contractor in relation to this Agreement; or


 


(vi)                                              a
breach of a representation or warranty given by the Contractor under this
Agreement,


 


except to the
extent that such loss, damage, injury or death is attributable to the negligent
or wilful act or omission of the Access Provider or the Principal or the breach
by the Access Provider or the Principal of its obligations under this
Agreement.  In the event such loss,
damage, injury or death results from the joint or concurrent act or omission of
the Parties, the Contractor will be liable under this indemnity in proportion
to its relative degree of fault.


 


(b)                                                  For the avoidance of doubt, neither the
Access Provider nor the Contractor has a claim against the Principal of any
nature whatsoever for:


 


(i)                                                     loss
of or damage to property;


 


(ii)                                                  economic
loss; or


 


(iii)                                               claims
by any person in respect of personal injury or death,


 


as a result of a
Party’s failure to perform its obligations in accordance with this Agreement or
otherwise in connection with this Agreement, whether such claim is in breach of
contract, any tort (including negligence) or on any other basis whatsoever.


 


14.2                                        Liability of
Contractor


 


(a)                                                   The Access Provider and the Principal
acknowledge that the liability of the Contractor to the Principal and any
access provider under the Project Documents is subject to and will not exceed
the Contractor’s limitations of liability set out in clause 40 of the
Project Agreement when aggregated with any liability under the Project
Agreement.


 


21





















 


(b)                                                  The Access Provider agrees that the
liability of the Contractor to the Access Provider is limited in accordance
with this clause 14.2.


 


14.3                                        Exclusions


 


The limitation in
clause 14.2 does not apply to:


 


(a)                                                   the extent to which the Contractor is
required to be indemnified under a policy of insurance in accordance with the
Project Agreement; or


 


(b)                                                  claims in respect of damage to real or
personal property or injury to, or death, of persons.


 


14.4                                        Liability of Access
Provider


 


(a)                                                   Subject to clause 1 to 50 of the
Project Agreement where relevant, the total liability of the Access Provider to
the Contractor and the Principal under or in any way arising out of or in
connection with this Agreement will not exceed:


 


(i)                                                     $[**];
or


 


(ii)                                                  the
value of the payment received by the Access Provider for access in accordance
with the Access Provider Rates,


 


whichever is the
higher amount.


 


(b)                                                  Notwithstanding any other clause in
this Agreement, the Access Provider will not be liable to make any payment (by
way of indemnity, damages or otherwise) in respect of any indirect or
consequential loss incurred or sustained by the Contractor.


 


15.                                               Remedy Notice


 


(a)                                                   If either the Contractor or the Access
Provider  is in default under this
Agreement and that default is capable of remedy, the Principal may give the
Contractor or the Access Provider (as the case may be) a notice requiring it to
rectify that default (or overcome its effects) within a reasonable period
specified in that notice.  If requested
by the Principal from time to time, the Contractor or the Access Provider (as
the case may be) must provide to the Principal any information in respect of an
alleged breach within [5 Business Days of a request].


 


(b)                                                  Within [5 Business Days] of
receipt of a notice under clause 15(a), the Contractor or the Access
Provider (as the case may be) must submit to the Principal a Cure Plan in
relation to the default for approval by the Principal that is consistent with
this Agreement and the Access Principles. 
The Contractor or the Access Provider (as the case may be) may, as part
of its Cure Plan, request that the period for rectification specified in the
Principal ‘s notice be extended (but the Principal is not required to approve
any such extension).


 


(c)                                                   The Principal must review the Cure Plan
within a reasonable period having regard to the nature of the default to which
the Cure Plan relates.  In considering
the Cure Plan, the Principal must not unreasonably withhold its approval to the
Cure Plan, unless the default may have an adverse impact on or adversely affect
the following:


 


(i)                                                     the
[   ] Property;


 


(ii)                                                  safety;
and


 


22





















 


(iii)                                               the
operations of the Access Provider.


 


(d)                                                  The Principal may:


 


(i)                                                     approve
the Cure Plan, and notify the Contractor or the Access Provider (as the case
may be) in writing of the approval; or


 


(ii)                                                  require
modifications to the Cure Plan, and notify the Contractor or the Access
Provider (as the case may be) in writing of such modifications as the Principal
considers reasonably necessary,


 


and the
Contractor or the Access Provider (as the case may be) must immediately comply
with the terms and conditions set out in the Cure Plan or the modified Cure
Plan (as the case may be).


 


(e)                                                   If the Contractor or the Access
Provider fails to rectify a default in accordance with a Cure Plan:


 


(i)                                                     the
Principal may take any action (including engaging persons) it considers
appropriate to rectify that default: and


 


(ii)                                                  where
such failure is by the Contractor, the Contractor acknowledges and agrees that
it indemnifies the Principal under clause 40 of the Project Agreement in
respect of any damage, expense, loss or liability the Principal suffers or
incurs arising out of such action.


 


(f)                                                     If Urgent Action is necessary:


 


(i)                                                     the
Principal or the Access Provider may take any action (including engaging
persons) it considers appropriate to take that Urgent Action; and


 


(ii)                                                  the
Contractor acknowledges and agrees that it indemnifies:


 


A.                                                   the
Principal under clause 40 of the Project Agreement; and


 


B.                                                     the
Access Provider under clause 13,


 


in respect of any damage, expense, loss or
liability the Principal or the Access Provider suffers or incurs arising out of
such action provided that such action was taken to avoid an immediate threat to
a member of the public or the property of the Principal or the Access Provider
which arose out of or was a consequence of the Contractor’s performance of its
obligations under this Agreement or the Project Agreement.


 


(g)                                                  For the avoidance of doubt, nothing in
this clause 15 affects the Principal’s right to perform, or require the
performance of, urgent works as set out elsewhere in this Agreement.


 


16.                                               Liability for damage


 


The Contractor
acknowledges that it is liable for damage or loss to the [ ] Property to the
extent caused by the Contractor or the Contractor’s officers, employees,
subcontractors or agents in performing any [ ] Work carried out on the [ ]
Property.


 


23





















 


17.                                               Reporting and Information


 


17.1                                        Information


 


When requested to
do so by the Principal’s Access Representative, the Contractor and the Access
Provider must promptly give the Principal’s Access Representative any
information in respect of the [  ] Works
or the provision of access under this Agreement which it reasonably requires.


 


17.2                                        Regular updates


 


Without limiting
the generality of clause 17.1, the Contractor must keep the Principal’s
Access Representative regularly informed of the progress of the [   ] Works and notify the Access Provider and
the representative immediately of any matter that may threaten or is likely to
threaten the safety or operational capacity or efficiency of the [   ] Property due to the carrying out the [   ] Works.


 


17.3                                        Reporting Obligations


 


[Note:
Additional reporting obligations may be required and inserted here].


 


18.                                               Insurances


 


The Contractor acknowledges
that it is required to effect and maintain the following insurances in
accordance with the Project Agreement:


 


(a)                                                   insurance policy or policies providing
cover for:


 


(i)                                                     physical
loss, destruction or damage to all property identifiable as forming or to form
part of the Work or the Solution for a sum insured of not less than
$[              ];


 


(ii)                                                  loss
of cash in transit within Australia, including loss due to theft, from the date
on which the Contractor commences providing cash collection services in
accordance with the Project Agreement;


 


(iii)                                               consequential
loss (business interruption) in respect of additional expenditure/increased
costs of working, claims preparation costs and loss of turnover/output arising
out of physical loss, destruction or damage to the property identified in
clause 20.1(a)(i), for a sum insured of not less than
$[        ];


 


(b)                                                  public and products liability,
indemnifying all third party claims in respect of:


 


(i)                                                     loss,
destruction or damage to real or personal property, including property of the
Principal, and including ensuing loss of use of that property (legal liability
only); and


 


(ii)                                                  personal
injury, disease or death of any person,


 


arising out of or
in connection with the Work or the Solution including arising out of or in
connection with rail risks, both for a sum insured of not less than
$[                ]
for any one claim (public liability) and for all claims in the aggregate, any
one period of insurance (product liability);


 


24





















 


(c)                                                   current motor vehicle registration
insurance in respect of all vehicles of the Contractor used in connection with
the Work or the Solution;


 


(d)                                                  professional indemnity insurance for
itself and its employees against any civil liability arising out of or in
connection with the Work or the Solution, for a sum insured of not less than
$[              ]
for any one claim and in the aggregate, plus one automatic reinstatement;


 


(e)                                                   employer’s liability and workers’
compensation insurance against any liability which may arise at common law or
by virtue of any relevant workers’ compensation or employers’ liability
legislation, whenever and to the extent required by law;


 


(f)                                                     fidelity guarantee and computer crime
insurance for a sum insured of not less than $[ ] to enable the Contractor to
fulfil its obligations under the Project Agreement; and


 


(g)                                                  all insurances which are reasonable and
customary for a prudent business enterprise engaged in similar Work or
providing similar services.


 


[Note:  Details to be inserted and clause to be
reviewed upon finalisation of the Project Agreement to ensure consistency.]


 


19.                                               Dispute Resolution


 


19.1                                        General


 


(a)                                                   If any dispute or difference arises
between the Parties as to any fact, matter or thing arising out of or in
connection with this Agreement, either Party may give to the other Party a
notice adequately identifying the matters the subject of the dispute or
difference together with detailed particulars of it and that dispute or
difference will be referred to the Access Representatives for review.


 


(b)                                                  For the avoidance of doubt, a Party has
the right to refer any dispute or difference between the Parties as to any
fact, matter or thing arising out of or in connection with this Agreement
irrespective of whether any clause dealing with the area of dispute
specifically refers to the Dispute Resolution Procedures.


 


(c)                                                   Despite the existence of a dispute between
the Parties:


 


(i)                                                     the
Contractor must continue to carry out the [  
] Work;


 


(ii)                                                  the
Access Provider must continue to provide access in accordance with the [   ] Access Plan;


 


(iii)                                               each
Party must otherwise comply with its obligations under this Agreement,
including the Access Principles; and


 


(iv)                                              each
Party’s rights under this Agreement will not be affected.


 


(d)                                                  Except where a Party seeks urgent
interlocutory relief (including interim injunctions), each Party may not
commence court proceedings relating to this Agreement before it has complied
with the Dispute Resolution Procedures.


 


(e)                                                   Any of the time periods that appear in
this clause 19.1 may be varied by written agreement between the Parties.


 


25





















 


19.2                                        Access Representatives’
review


 


(a)                                                   If a dispute is referred to the Access
Representatives for review, the Access Representatives are required to meet
within 2 Business Days of the dispute being referred to attempt to resolve the
dispute in good faith.


 


(b)                                                  Meetings of the Access Representatives
will be held at convenient venues in Melbourne, unless otherwise agreed by the
Access Representatives.


 


(c)                                                   The joint decisions of the Access
Representatives will be contractually binding on the Parties provided they are
in writing and signed by the Access Representatives.


 


(d)                                                  If:


 


(i)                                                     the
Access Representatives are unable to resolve the dispute within 2 Business Days
of first convening to resolve the dispute under clause 19.2(a); or


 


(ii)                                                  the
Access Representatives do not convene within 2 Business Days following a
referral of the dispute under clause 19.2(a),


 


then any Party
may immediately refer the dispute to the Chief Executive Officers.


 


19.3                                        Chief Executive
Officer review


 


(a)                                                   If a dispute is referred to the Chief
Executive Officers under clause 19.2(d), the Chief Executive Officers (or other
holder of the delegations of that position for the time being) are required to
meet within 2 Business Days of the dispute being referred to them to attempt to
resolve the dispute in good faith.


 


(b)                                                  The joint decisions of the Chief
Executive Officers will be contractually binding on the Parties provided they
are in writing and signed by the Chief Executive Officers.


 


(c)                                                   If:


 


(i)                                                     the
Chief Executive Officers are unable to resolve the dispute within 1 Business
Days of first convening to resolve the dispute under clause 19.3(a); or


 


(ii)                                                  the
Chief Executive Officers do not convene within 2 Business Days following
referral of the dispute to them under clause 19.2(d),


 


then any Party
may refer the dispute to the Expert for determination in accordance with clause
19.4.


 


19.4                                        Determination by the
Expert


 


(a)                                                   Where this Agreement requires a matter
to be referred to or resolved by the Expert or where the parties otherwise
agree to refer a matter to the Expert, the matter will be determined by the
Expert and administered in accordance with this clause 19.4.


 


(b)                                                  The Expert must:


 


(i)                                                     act
as an expert and not as an arbitrator;


 


(ii)                                                  proceed
in any manner he or she thinks fit without being bound to observe the rules of
evidence;


 


26





















 


(iii)                                               take
into consideration all documents, information and other material which the
parties give the Expert which the Expert in his or her absolute discretion,
considers relevant to the determination of the dispute;


 


(iv)                                              not
be expected or required to obtain or refer to any other documents, information
or material but may do so if he or she so wishes;


 


(v)                                                 act
in good faith and make his or her decision within 15 Business Days;


 


(vi)                                              give
his or her determination in writing (including a statement of the value of the
determination) and give written reasons for the determination.


 


(c)                                                   The Expert may, with prior written
approval from the Contractor, the Access Provider and the Principal, commission
his or her own advisers or consultants, including lawyers, accountants,
bankers, engineers, surveyors, traffic consultants, or other technical
consultants, to provide information to assist the Expert in his or her decision.


 


(d)                                                  The Expert must appoint any advisers or
consultants nominated in writing by the Principal, the Access Provider and the
Contractor to provide information to assist the Expert in his or her decisions.


 


(e)                                                   The parties will indemnify the Expert
for the cost of retaining those advisers or consultants.


 


(f)                                                     The Contractor and the Access Provider
must provide the Expert with copies of minutes of meetings and all reports
relevant to the [    ] Work within
[5] Business Days of them being prepared, and all other information
required to keep the Expert informed and able to carry out his or her function
under this clause.


 


(g)                                                  The Principal may provide the Expert
with any relevant information it considers necessary to keep the Expert
informed and able to carry out his or her function under this clause.


 


(h)                                                  A copy of all information provided by
one party under clause 19.4(f) or 19.4(g) must be sent to the other
parties.


 


(i)                                                      The determination of the Expert will be
final and binding on each party.


 


(j)                                                      The Principal, the Access Provider and
the Contractor will each pay one-third of the costs of the Expert.


 


20.                                               Force Majeure


 


20.1                                        Force Majeure Notice


 


(a)                                                   If a Party to this Agreement alleges or
wishes to claim that Force Majeure has occurred it must give the other Parties
prompt written notice of the Force Majeure once it becomes aware of the same
and the obligations affected together with full particulars of all relevant
matters including:


 


(i)                                                     details
of the Force Majeure;


 


(ii)                                                  details
of the obligations affected;


 


27





















 


(iii)                                               details
of the action that it has taken and/or proposes to take to remedy the
situation;


 


(iv)                                              an
estimate of the time during which it will be unable to carry out its
obligations due to the Force Majeure;


 


(v)                                                 an
estimate of the costs that it will incur to remedy the situation; and


 


(vi)                                              details
of all insurance moneys upon which it will be able to rely in making good
damage caused by the Force Majeure.


 


(b)                                                  After giving notice under
clause 20.1(a) the Party must continue to provide to the other Parties
all relevant information pertaining to the Force Majeure.


 


20.2                                        Meeting, Application
of Provisions


 


The Parties must
meet within 5 Business Days of service of a notice of a Force Majeure
event to determine:


 


(a)                                                   if the Force Majeure is covered by
insurance;


 


(b)                                                  the estimated length of time for which
the Force Majeure will continue; and


 


(c)                                                   a plan of action to remedy (if
possible) the effects of the Force Majeure.


 


20.3                                        Suspension of
Obligations


 


(a)                                                   If a Force Majeure occurs each Party’s obligations under this Agreement
(other than under this clause 20) which are affected by the Force Majeure
will be suspended but only to the extent and for so long as such obligations
are affected by the Force Majeure.


 


(b)                                                  If a Force Majeure occurs and a notice
under clause 20.1(a) is issued, no Party will be in default of its obligations
under this Agreement in so far as the failure or delay in the observance or
performance of those obligations by that Party is caused by the Force Majeure
specified in the Force Majeure notice.


 


(c)                                                   Upon the Party becoming able to
recommence performing its obligations which were suspended under
clause 20.3(a), the Party must recommence the performance of those
obligations.


 


20.4                                        Duty to Remedy Force
Majeure


 


Where there is a
remedy, the Contractor must and the Principal must use its best endeavours to
procure the Access Provider to use reasonable endeavours to remedy the effects
of a Force Majeure promptly, including making any reasonable expenditure of
funds which may mitigate or avoid the effect of the Force Majeure.


 


21.                                               Assignment


 


(a)                                                   The Contractor and the Access Provider
must not assign, novate or otherwise transfer any of its rights or obligations
under this Agreement without the prior written consent of the Principal.


 


(b)                                                  The Principal may, without the consent
of the Access Provider or the Contractor, at any time assign, novate or
otherwise transfer:


 


28





















 


(i)                                                     the
benefit of all or any of the Access Provider and Contractor’s obligations under
this Agreement; and/or


 


(ii)                                                  any
of its rights or obligations under this Agreement,


 


to any person to
whom the Principal has assigned corresponding rights under the Project
Agreement and which has the capacity to carry out the obligations of the
Principal under this Agreement.  The
Access Provider and Contractor will execute any document required by the
Principal and do such things as and when requested by the Principal to give
effect to such assignment, novation or transfer.


 


(c)                                                   Upon written request by the Principal,
each of the Access Provider and Contractor hereby irrevocably agrees to enter
into a new agreement upon substantially the same terms and conditions as this
Agreement to which another person agrees to perform and observe the Principal’s
obligations under the agreement as if it were named in the relevant agreement
instead of the Principal.


 


22.                                               Novation


 


22.1                                        Novation on
Termination of Project Agreement


 


If the Project
Agreement has been terminated, or the Contractors’ rights and obligations with
respect to any part of the Services under the Project Agreement have been
terminated, and if the Principal gives written notice to the Access Provider
and the Contractor of its intention to exercise its rights under this
clause 22.1, then as from the date of the PA Novation Notice:


 


(a)                                                   except in respect of any rights of the
Contractor that arise out of a breach of this Agreement or other liability on
the part of the Access Provider or the Principal under this Agreement occurring
or arising prior to the date of the PA Novation Notice the Contractor releases
each of the Access Provider and the Principal from its obligations under this
Agreement and Access Provider and the Principal shall release the Contractor
from its performance of its future obligations under this Agreement, and
perform for, and owe to the Principal’s Nominee, each of its obligations under
this Agreement;


 


(b)                                                  except in respect of the rights of the
Contractor referred to in clause 22.1(a), the Principal’s Nominee, shall
be entitled to exercise all of the rights and, subject to clause 22.2,
shall assume all of the obligations, of the Contractor under this Agreement;


 


(c)                                                   subject to clause 22.2, each of
the Access Provider and the Principal shall have the same rights against the
Principal’s Nominee, as it had against the Contractor in respect of obligations
so assumed; and


 


(d)                                                  any Party requested by the Principal to
do so will:


 


(i)                                                     enter
into the PA Novation Deed; and


 


(ii)                                                  take
such other action as is required to vest in the Principal’s Nominee full legal
and equitable title to any retention account, bank guarantee, performance bond,
letter of credit or other security held by the Contractor to secure obligations
of the Access Provider or the Principal under this Agreement.


 


29





















 


22.2                                        Obligations prior to
novation by Contractor


 


Clause 22.1
will not operate to:


 


(a)                                                   require the Principal’s Nominee, to
assume any obligations under this Agreement which relate to the period or arise
prior to the date of the PA Novation Notice or which relate to any breach or
failure to perform in that period;


 


(b)                                                  vest in any person any rights against
the Principal’s Nominee, in respect of obligations which the Principal’s
Nominee is not required to assume; or


 


(c)                                                   release either of the Access Provider
or the Principal in respect of its obligations under this Agreement or
liability for any breach of this Agreement or other liability on the part of
the Access Provider or the Principal under this Agreement which relates to the
period prior to the date of the PA Novation Notice.


 


22.3                                        Set off in relation to
Project Agreement


 


The Principal and
the Access Provider agree that no right of set off or counterclaim may be
exercised against the Principal’s Nominee in relation to this Agreement if:


 


(a)                                                   this Agreement is novated to the
Principal’s Nominee; and


 


(b)                                                  the right relates to a circumstance,
event, breach or failure occurring or arising prior to the date of the PA
Novation Notice.


 


22.4                                        Novation on Termination
of the Access Provider’s Rights


 


If


 


(a)                                                   the Access Provider’s rights and
obligations with respect to any part of the [ 
] Property have expired or been terminated or


 


(b)                                                  the Access Provider’s ability to
provide access in accordance with the Access Plan or otherwise observe its
obligations under this Agreement is adversely affected,


 


the Principal
will give written notice to the Access Provider and the Contractor that the
Principal will exercise its rights and obligations under this clause 22.4,
and then as from the date of that Novation Notice:


 


(c)                                                   except in respect of any rights of the
Access Provider that arise out of a breach of this Agreement or other liability
on the part of Contractor or the Principal under this Agreement occurring or
arising prior to the date of the Novation Notice the Access Provider releases
each of the Contractor and the Principal from its obligations under this
Agreement and each of the Contractor and the Principal shall perform for, and
owe to the Principal’s Nominee, all its obligations under this Agreement;


 


(d)                                                  except in respect of the rights of the
Access Provider referred to in clause 22.4(c), the Principal’s Nominee,
shall be entitled to exercise all of the rights and, subject to
clause 22.5, shall assume all of the obligations, of the Access Provider
under this Agreement;


 


(e)                                                   subject to clause 22.5, each of
the Contractor and the Principal shall have the same rights against the
Principal’s Nominee, as it had against the Access Provider in respect of
obligations so assumed; and


 


(f)                                                     any Party that receives a notice to do
so from the Principal to do so will:


 


(i)                                                     enter
into the Novation Deed; and


 


30





















 


(ii)                                                  take
such other action as is required to vest in the Principal’s Nominee full legal
and equitable title to any retention account, bank guarantee, performance bond,
letter of credit or other security held by the Access Provider to secure
obligations of the Contractor under this Agreement.


 


22.5                                        Obligations prior to
novation by Access Provider


 


Clause 22.4
will not operate to:


 


(a)                                                   require the Principal’s Nominee, to
assume any obligations under this Agreement which relate to the period or arise
prior to the date of the Novation Notice or which relate to any breach or
failure to perform in that period;


 


(b)                                                  vest in any person any rights against
the Principal’s Nominee, in respect of obligations which the Principal’s
Nominee is not required to assume; or


 


(c)                                                   release the Contractor or the Principal
in respect of its obligations under this Agreement or liability for any breach
of this Agreement or other liability on the part of the Contractor or the
Principal under this Agreement which relates to the period prior to the date of
the Novation Notice.


 


22.6                                        Set off in relation to
termination of Access Provider’s rights


 


The Contractor
and the Principal agree that no right of set off or counterclaim may be
exercised against the Principal’s Nominee in relation to this Agreement if:


 


(a)                                                   the Agreement is novated to the
Principal’s Nominee; and


 


(b)                                                  the right relates to a circumstance,
event, breach or failure occurring or arising prior to the date of the Novation
Notice.


 


23.                                               Confidentiality and
publicity


 


23.1                                        Confidential
information


 


(a)                                                   Each
Party will treat as confidential all information obtained from the other
Parties under or in connection with this Agreement and:


 


(i)                                                     will not disclose such information to any
third party without the prior written consent of the other Parties, except to
such persons and to such extent as may be necessary for the performance of this
Agreement or as otherwise required by law; and


 


(ii)                                                  will not use any of that information
otherwise than for the purposes of this Agreement.


 


(b)                                                  Each
Party will take all necessary precautions to ensure that all information
obtained from the other Parties under or in connection with this Agreement:


 


(i)                                                     is given to each member of staff and, in
the case of the Contractor, to its subcontractors, only to the extent necessary
for that member of staff’s or the subcontractor’s activities in relation to the
Project; and


 


(ii)                                                  is treated as confidential and not
disclosed (without prior written approval) or used by any member of staff or
subcontractor otherwise than for the purposes of this Agreement
or the Project.


 


31





















 


23.2                                        Exceptions


 


(a)                                                   The
provisions of clause 23.1 will not apply to any information:


 


(i)                                                     which is or becomes public knowledge
(otherwise than by breach of this condition); or


 


(ii)                                                  which was in the possession of the Party
concerned, without restriction as to its disclosure, before receiving it from
the disclosing Party.


 


(b)                                                  Nothing
in this clause 23 will prevent the Principal, the Access Provider or the
Contractor from disclosing any information obtained from the Principal, the
Contractor or the Access Provider to any other department, office, or agency of
the Commonwealth or State of Victoria, or to any person engaged by the
Principal in connection with this Agreement
or the Project, provided that in disclosing the information
the Principal has required that the information is treated as confidential,
including requiring confidentiality undertakings where appropriate.


 


(c)                                                   Nothing
in this clause 23 will prevent either Party from using, in the course of
its normal business, any techniques, ideas or know-how gained during the
performance of this Agreement,
to the extent that this does not result in a disclosure of contract-specific
information.


 


(d)                                                  The
Principal may publish on a government internet web site of the Principal the
contents of this Agreement.


 


23.3                                        Publicity


 


(a)                                                   Subject
to clause 23.3(b) and (c), the Contractor, the Access Provider and
their Related Bodies Corporate must not make any public statements or issue any
press releases in respect of or in any way in connection with the Project
without the prior written consent of the Principal.


 


(b)                                                  Where
the Contractor, the Access Provider or one of their Related Body Corporates is
required by law to disclose information to the public, the disclosing Party
must provide the Principal with a copy of such public statement prior to its
issue to a third party.


 


(c)                                                   The
Access Provider may, without the prior written consent of the Principal,
release information which relates to the Project where such information relates
to operational matters which impact on the Access Provider’s business and is
required for the safe and efficient operation of that business provided that
any such information must not reflect adversely on the Contractor, the
Principal or the Project.  Any public
statements or media releases relating to the Project generally or the impact of
the Project generally are not information in
relation to operational matters.


 


24.                                               General


 


24.1                                        Notices


 


All communications (including notices, consents, approvals, requests
and demands) under or in connection with this Agreement:


 


(a)                                                   must
be in writing;


 


32





















 


(b)                                                  must
be addressed as follows (or as otherwise notified by that Party to each other
Party from time to time):


 


Access Provider


 


	
  Name:

  	
  [Insert name for service on
  Party]

  
	
  Address:

  	
  [Insert address for service on
  Party]

  
	
  Fax:

  	
  [Insert fax number for service on
  Party]

  
	
  For the attention of:

  	
  [Insert person’s name to whom
  correspondence is directed]

  
	
   

  	
   

  
	
  Contractor

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  [Insert name for service on
  Party]

  
	
  Address:

  	
  [Insert address for service on
  Party]

  
	
  Fax:

  	
  [Insert fax number for service on
  Party]

  
	
  For the attention of:

  	
  [Insert person’s name to whom
  correspondence is directed]

  
	
   

  	
   

  
	
  Principal

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  [Insert name for service on
  Party]

  
	
  Address:

  	
  [Insert address for service on
  Party]

  
	
  Fax:

  	
  [Insert fax number for service on
  Party]

  
	
  For the attention of:

  	
  [Insert person’s name to whom
  correspondence is directed]

  



 


(c)                                                   must
be signed by the Party making the communication or (on its behalf) by the
solicitor for, or any attorney, director, secretary or authorised agent of,
that Party;


 


(d)                                                  must
be delivered or posted or prepaid post to the address, or sent by fax to the
number, of the addressee, in accordance with clause 24.1(b); and


 


(e)                                                   are
taken to be received by the addressee:


 


(i)                                                     in case of prepaid post, on the Business
Day that is the third Business Day after the date of posting to an address
within Australia, and on the fifth Business Day after the date of posting by
airmail to an address outside Australia.


 


(ii)                                                  in the case of fax, at the local time (in
the place of receipt of that fax) which then equates to the time that fax is
sent as shown on the transmission report produced by the machine from which
that fax is sent confirming transmission of that fax in its entirety, unless
that local time is not on a Business Day, or is after 5.00 pm on a
Business Day, when that communication is taken to be received at 9.00 am
on the next Business Day; and


 


(iii)                                               in the case of delivery by hand, on
delivery at the address of the addressee as provided in clause 24.1(b),
unless that delivery is made on a day that is not a Business Day, or after
5.00 pm on a Business Day, when that communication is taken to be received
at 9.00 am on the next Business Day.


 


33





















 


24.2                                        Stamp Duty


 


The Contractor:


 


(a)                                                   must pay all stamp duties and any
related fines and penalties in respect of this Agreement, the performance of
this Agreement and each transaction effected by or made under or pursuant to
this Agreement;


 


(b)                                                  must indemnify each other Party against
any liability arising from failure to comply with clause 24.2(a); and


 


(c)                                                   is authorised to make any application
for and retain the proceeds of any refund due in respect of stamp duty paid
under this clause.


 


24.3                                        Governing Law


 


This agreement is governed by and will be construed according to the law
applying in Victoria.


 


24.4                                        Jurisdiction


 


Each Party
irrevocably:


 


(a)                                                   submits to the non-exclusive jurisdiction
of the courts of Victoria, and the courts competent to determine appeals from
those courts, with respect to any proceedings which may be brought at any time
relating to this Agreement.


 


(b)                                                  waives any objection it may now or in
the future have to the venue of any proceedings, and any claim it may now or in
the future have that any proceedings have been brought in an inconvenient
forum, where that venue falls within clause 24.4(a).


 


[Note:  If
the Contractor or Access Provider, or their 
parent, is not an Australian company, additional service and enforcement
clauses will be required.]


 


24.5                                        Waiver


 


(a)                                                   Failure to exercise or enforce, or a
delay in exercising or enforcing or the partial exercise or enforcement of a
right, power or remedy provided by law or under this Agreement by any Party does not preclude, or operate as a
waiver of, the exercise or enforcement, or further exercise or enforcement, of
that or any other right, power or remedy provided by law or under this
Agreement.


 


(b)                                                  Any waiver or consent given by a Party under this Agreement is only effective
and binding on that Party if it is given or confirmed in writing by that Party.


 


(c)                                                   No waiver of a breach of any term of
this Agreement will operate as a waiver of another breach of that term or of a
breach of any other term of this Agreement.


 


24.6                                        No limitation


 


Without limiting
the generality of any other provision of this Agreement, any exercise by the
Principal of any rights under this Agreement will not relieve the Contractor or
the Access Provider of any of its obligations under this Agreement.


 


24.7                                        Consent or approval of
the Principal


 


In any case where
pursuant to this Agreement the doing or executing of any act matter or thing by
the Contractor or the Access Provider is dependent upon the approval or consent
of the Principal such approval or consent may be given or withheld, or may be
given subject to any conditions, by the Principal in its absolute discretion
unless this Agreement expressly provides otherwise.


 


34





















 


24.8                                        Measurements


 


All measurements
of physical quantities will be in Australian legal units of measurements in
accordance with the National Measurement Act
1960 (Cth).


 


24.9                                        Amendments


 


This Agreement
may only be varied by a document signed by or on behalf of each Party.


 


24.10                                 Further acts and documents


 


Each Party must promptly do and perform all further acts and sign,
execute and complete all additional documents which may be necessary to effect,
perfect, or complete the provisions of this Agreement and the transactions to
which it relates.


 


24.11                                 Counterparts


 


This Agreement
may be executed in any number of counterparts and by the Parties on separate
counterparts.  Each counterpart
constitutes an original of this Agreement, and all together constitute one
agreement.


 


24.12                                 Expenses


 


Except as
otherwise provided in this Agreement, each Party must pay its own costs and
expenses in connection with negotiating, preparing, executing, performing and
amending this Agreement.


 


24.13                                 Severability


 


If any part of this Agreement is or becomes illegal, invalid, or
unenforceable in any relevant jurisdiction, the legality, validity, or
enforceability of the remainder of the agreement will not be affected and this Agreement
will be read as if the part had been deleted in that jurisdiction only.


 


24.14                                 Entire agreement


 


To the extent
permitted by law, in relation to its subject matter, this Agreement and the
Project Agreement (as between the Principal and the
Contractor):


 


(a)                                                   embody the entire understanding of the
Parties, and constitutes the entire terms agreed by the Parties; and


 


(b)                                                  supersedes any prior written or other
agreement of the Parties.


 


24.15                                 Representations and
warranties


 


(a)                                                   Each representation and warranty in
this Agreement is a continuing representation and warranty and will be repeated
on each day while any obligation under this Agreement remains outstanding, with
reference to the facts and circumstances then subsisting.


 


(b)                                                  The Principal does not, by entering
into this Agreement, make any representation:


 


(i)                                                     to
the Access Provider to the effect that the Contractor will comply with this
Agreement; or


 


35





















 


(ii)                                                  to
the Contractor to the effect that the Access Provider will comply with this
Agreement.


 


24.16                                 Indemnities


 


(a)                                                   Each indemnity in this Agreement is a
continuing obligation, separate and independent from the other obligations of
the Parties, and survives termination, completion or expiration of this
Agreement.


 


(b)                                                  It is not necessary for a Party to
incur expense or to make any payment before enforcing a right of indemnity
conferred by this Agreement.


 


(c)                                                   A Party must pay on demand any amount
it must pay under an indemnity in this Agreement.


 


24.17                                 Non-merger


 


None of the terms
or conditions of this Agreement nor any act, matter or thing done under or by
virtue of or in connection with this Agreement will operate as a merger of any
of the rights and remedies of the Parties in or under this Agreement all of
which will continue in full force and effect until the respective rights and
obligations of the Parties under this Agreement have been fully performed and
satisfied.


 


24.18                                 Set-Off


 


(a)                                                   The Principal may deduct from money
otherwise due to the Contractor:


 


(i)                                                     any
debt or other money due from the Contractor to the Principal; or


 


(ii)                                                  any
Claim to money which the Principal may have against the Contractor whether for
damages (including liquidated damages) or otherwise,


 


whether under
this Agreement or otherwise at law relating to the Project.


 


(b)                                                  The Contractor must not deduct from
money otherwise due to the Principal:


 


(i)                                                     any
debt or other money due from the Principal to the Contractor; or


 


(ii)                                                  any
Claim to money which the Contractor may have against the Principal whether for
damages (including liquidated damages) or otherwise,


 


whether under
this Agreement or otherwise at law relating to the Project.


 


24.19                                 Survival


 


The Parties respective rights under clauses [Note:  To be
inserted]  survive the
termination or expiry of this Agreement on any basis other than to the extent
required or specifically contemplated under the provisions of those clauses.


 


25.                                               GST


 


25.1                                        Interpretation


 


(a)                                                   Except where the context suggests
otherwise, terms used in this clause 25 have the meanings given to those terms
by the A New Tax System (Goods and Services
Tax) Act 1999 (as amended from time to time).


 


36





















 


(b)                                                  Unless stated to the contrary, any
amount, payment or consideration referred to under or in connection with this
Agreement is exclusive of GST.  Any
consideration that is specified to be inclusive of GST must not be taken into
account in calculating the GST payable in relation to a supply for the purpose
of this clause 25.


 


(c)                                                   Any part of a supply that is treated as
a separate supply for GST purposes (including attributing GST payable to tax
periods) will be treated as a separate supply for the purposes of this clause
25.


 


25.2                                        Reimbursements and
similar payments


 


Any payment or
reimbursement required to be made under this Agreement that is calculated by
reference to a cost, expense, or other amount paid or incurred will be limited
to the total cost, expense or amount less the amount of any input tax credit to
which an entity (or its representative member) is entitled for the acquisition
to which the cost, expense or amount relates.


 


25.3                                        GST payable


 


If GST is payable
in relation to a supply made under or in connection with this Agreement then:


 


(a)                                                   any party (“Recipient”) that is required to provide consideration to
another party (“Supplier”) for
that supply must pay an additional amount to the Supplier equal to the amount
of that GST; and


 


(b)                                                  the additional amount is payable at the
same time as any other consideration is to be first provided for that supply
or, if later, within 14 days after the day on which the Supplier provides the
Recipient with a tax invoice for the supply.


 


25.4                                        Variation of GST


 


If the GST
payable in relation to a supply made under or in connection with this Agreement
varies from the additional amount paid by the Recipient under clause 25.3 such
that a further amount of GST is payable in relation to the supply or a refund
or credit of GST is obtained in relation to the supply, then the Supplier will
provide a corresponding refund or credit to, or will be entitled to receive the
amount of that variation from, the Recipient. 
Any payment, credit or refund under this clause 25.4 is deemed to be a
payment, credit or refund of the additional amount payable under clause 25.3.


 


37





















 


Schedule 25


 





 


Schedule 25


Pro-Forma Direct Agreement


 


(Clause 10.3)


 


 


Direct Agreement


 


Public
Transport Ticketing Body trading as Transport Ticketing Authority


73
595 242 024


Principal


 


Keane
Australia Micropayment Consortium Pty Ltd


ACN
114 334 600


Contractor


 


[Insert
name of subcontractor / supplier]


[Insert
ABN of subcontractor/supplier]


Subcontractor


 


The Clayton Utz contact for this document is


Brad Vann on + 61 3 9286 6000


 


Clayton Utz


Lawyers


Level 18 333 Collins Street Melbourne 
VIC  3000  Australia


T + 61 3 9286 6000  F + 61 3 9629
8488


 


www.claytonutz.com


 


Our
reference  155/80003545


 


38





















 


Tripartite deed made on


 


Parties                                                                                                Public Transport Ticketing Body trading as Transport Ticketing
Authority ABN 73 595 242 024 of Level 38, 55 Collins Street,
Melbourne, Victoria (“Principal”)


 


Keane Australia Micropayment Consortium Pty Ltd
ACN 114 334 600 of Level 50, Bourke Place,
600 Bourke Street, Melbourne, Victoria (“Contractor”)


 


[Insert name of subcontractor/supplier] ABN
[Insert ABN of subcontractor/supplier] of [insert address] (“Subcontractor”)


 


Background


 


A.                                                   The
Contractor and the Principal have entered into the Project Agreement pursuant
to which the Contractor agrees to, among other things, design, develop,
integrate, install, test and implement the Solution and provide the Initial
Services and Core Services.


 


B.                                                     The
Contractor has engaged the Subcontractor pursuant to the Subcontract to provide
certain services and/or products to assist in meeting its obligations under the
Project Agreement.


 


C.                                                     The
Subcontractor has agreed to undertake its obligations under the Subcontract on
the terms and conditions set out below.


 


Operative provisions


 


1.                                                      Definitions and
Interpretation


 


1.1                                               Project
Agreement


 


Any word,
expression, reference or term used in this Deed which is defined in the Project
Agreement and is not specifically defined in this Deed will, unless the context
otherwise requires, have in this Deed the same meaning as in the Project
Agreement.


 


[Note:
Alternatively, the relevant definitions will be inserted. ]


 


1.2                                               Definitions


 


In this Deed,
unless the context otherwise requires:


 


“Authorised Representative” means:


 


(a)                                                   in
respect of the Subcontractor, any person from time to time nominated as an
authorised representative of the Subcontractor for the purposes of this Deed by
notice in writing to the Principal, such notice to be accompanied by the
specimen signatures of any person so nominated;


 


(b)                                                  in
respect of the Principal, the Principal’s Representative; and


 


(c)                                                   in
respect of the Contractor, the person nominated under clause 7.3 of the Project
Agreement from time to time.


 


“Default Event”
means a default under, or the breach of, the Subcontract by the Contractor, or
the occurrence or subsistence of any event, as a result or consequence of which
the Subcontractor is or becomes entitled (whether upon the giving of notice or
lapse of time or otherwise):


 


39





















 


(a)                                                   to
terminate, rescind or accept the repudiation of the Subcontract; or


 


(b)                                                  to
suspend performance of any of its obligations under the Subcontract or to
otherwise not do a thing or things (whether temporarily or otherwise) which it
would otherwise be obliged to do under the Subcontract, where such suspension
or inaction has, or will have, a material adverse effect on the ability of the
Contractor to perform its obligations under the Project Agreement.


 


“Grace Period”
means, in relation to a Default Event, the period (if any) within which the
Contractor may (under the Subcontract) remedy the Default Event or otherwise
take steps the taking of which would prevent the exercise by the Subcontractor
of any Right it might have as a result or consequence of the Default Event.


 


“Novation Notice” means a notice issued by the Principal
pursuant to clause 3.1 of this Deed.


 


“Project Agreement”
means the New Ticketing Solution Project Agreement entered into between the
Principal and the Contractor on [insert date]
relating to the supply of a Smartcard based ticketing and payment solution.


 


“Rights”
include authorities, benefits, powers, privileges, entitlements, remedies and
causes of action.


 


“Security
Interest” includes any mortgage,
pledge, hypothecation, lien or charge or any security or preferential interest
or arrangement of any kind, or any other right or arrangement with any creditor
to have its claims satisfied prior to other creditors with, or from the
proceeds of, any asset (including retention of title and any deposit of money
by way of security).


 


“Services”
means the services the Subcontractor is required to perform for the Contractor
under the Subcontract.  [Note:  This
definition will be amended if the Subcontract is for the supply of products]


 


“Subcontract” means the [insert name of Key
Contract] entered into between the Contractor and the Subcontractor
on [insert date] relating to [insert details].


 


“Subcontractor Default Event”
means a default under, or the breach of, the Subcontract by the Subcontractor,
or the occurrence or subsistence of any event, as a result or consequence of
which the Contractor is or becomes entitled (whether upon the giving of notice
or lapse of time or otherwise):


 


(a)                                                   to
terminate, rescind or accept the repudiation of the Subcontract; or


 


(b)                                                  to
suspend performance of any of its obligations under the Subcontract or to
otherwise not do a thing or things (whether temporarily or otherwise) which it
would otherwise be obliged to do under the Subcontract, where such suspension
or inaction has, or will have, a material adverse effect on the ability of the
Contractor to perform its obligations under the Project Agreement.


 


“Subcontractor Grace Period”
means, in relation to a Subcontractor Default Event, the period (if any) within
which the Subcontractor may (under the Subcontract) remedy the Subcontractor
Default Event or otherwise take steps the taking of which would prevent the
exercise by the Contractor of any Right it might have as a result or
consequence of the Subcontractor Default Event.


 


40





















 


1.3                                               Interpretation


 


In this Deed:


 


(a)                                                   headings
are for convenience only and will not affect the interpretation;


 


and unless the
context indicates a contrary intention:


 


(b)                                                  “person”
includes an individual, the estate of an individual, a corporation, an
authority, an association or a joint venture (whether incorporated or
unincorporated), a partnership, a trust and Governmental Agencies;


 


(c)                                                   a
reference to party includes that party’s executors, administrators, successors,
permitted substitutes and assigns, including persons taking by way of novation;


 


(d)                                                  a
reference to a document (including this Deed) is to that document as varied,
novated, ratified or replaced from time to time;


 


(e)                                                   a
reference to a statute includes its delegated legislation and a reference to a
statute or delegated legislation or a provision of either includes
consolidations, amendments, re-enactments and replacements;


 


(f)                                                     words
importing the singular will include the plural (and vice versa) and words
denoting a given gender will include all other genders;


 


(g)                                                  a
reference to a clause or Schedule is a reference to a clause of
or Schedule to this Deed, and references to paragraphs are references to
paragraphs within the clause of this Deed in which they are situated, in each
clause unless expressly stated otherwise;


 


(h)                                                  a
reference to a “day” is a reference to a calendar day (and includes weekends
and public holidays);


 


(i)                                                      where
any word or phrase is given a defined meaning any other part of speech or other
grammatical form in respect of such word or phrase has a corresponding meaning;


 


(j)                                                      the
word “including” or any other grammatical form of that word is not a word of
limitation; and


 


(k)                                                   a
reference to “$” or “dollar” is to Australian currency.


 


1.4                                               Business
Day


 


Where the day on
or by which anything is to be done under this Deed is not a Business Day it
shall be done on the next Business Day.


 


1.5                                               Inconsistencies


 


If there is any
inconsistency between the provisions of this Deed and the Subcontract, the
provisions of this Deed will prevail to the extent of the inconsistency.


 


2.                                                      Default Events


 


2.1                                               The
Contractor’s obligations


 


The Contractor
shall use its best endeavours to ensure that no Default Event occurs.  If, however, notwithstanding this
undertaking, a Default Event does occur, the Contractor shall ensure that if
the consequences of it for the Subcontractor are:


 


41





















 


(a)                                                   capable
of remedy, those consequences are remedied promptly and, in any event, within
any relevant Grace Period; and


 


(b)                                                  not
capable of remedy, but those consequences can be adequately compensated for by
the payment of money, money is paid to the Subcontractor which adequately
compensates for those consequences promptly and, in any event, within any
relevant Grace Period.


 


2.2                                               Notice


 


The Subcontractor
will notify the Principal promptly of any Default Event.  Any such notice must:


 


(a)                                                   include
reasonable details of the particular Default Event;


 


(b)                                                  specify
the paragraph of clause 2.3 which applies to the particular Default Event;


 


(c)                                                   if
the paragraph so specified is paragraph (a), specify the steps which the
Subcontractor considers need to be taken in order to remedy the particular Default
Event; and


 


(d)                                                  if
the paragraph so specified is paragraph (b), specify the amount of monetary
compensation for the particular Default Event which the Subcontractor considers
to be adequate.


 


2.3                                               Exercise
of Rights


 


If a Default
Event occurs, the Subcontractor shall not exercise any Right it might have as a
result or consequence of the Default Event unless it has given the Principal
notice of the Default Event in accordance with clause 2.2 and where the
consequences for the Subcontractor of the Default Event are:


 


(a)                                                   capable
of remedy, those consequences have not been remedied (whether by the
Contractor, the Principal or any other person) within a reasonable time (being,
in any event, not less than 20 Business Days from the date of the later of
expiry of the relevant Grace Period and receipt by the Principal of the
relevant notice);


 


(b)                                                  not
capable of remedy and clause 2.3(c) does not apply, monetary compensation
which is adequate having regard to those consequences has not been paid
(whether by the Contractor, the Principal or any other person) to the
Subcontractor within 20 Business Days of the later of expiry of the relevant
Grace Period and the Principal’s receipt of the relevant notice; and


 


(c)                                                   not
capable of remedy and the payment of money to the Subcontractor would not
adequately compensate the Subcontractor for those consequences, 20 Business
Days have expired since the later of expiry of the relevant Grace Period and
the Principal’s receipt of the relevant notice,


 


provided that if
the Default Event is:


 


(i)                                                     an
event described in paragraphs (e) and (f) of the definition of Event
of Insolvency, the time specified in paragraphs (a), (b) and (c) above
will be abridged to 5 Business Days; and


 


(ii)                                                  any
other event described in the definition of Event of Insolvency, the time
specified in paragraphs (a), (b) and (c) above will be abridged to 2
Business Days.


 


42





















 


2.4                                               Principal
action


 


(a)                                                   If a
Default Event occurs, each party agrees that the Principal may (but will not be
obliged to) take such action and make such payments as in the reasonable
opinion of the Principal is necessary to take or make in order to prevent or
reduce the risk of the Subcontractor exercising any Right it might have as a
result or consequence of the Default Event.


 


(b)                                                  The
Principal’s rights under paragraph (a) may (but need not) entail the
Principal taking the steps or paying the compensation specified in the relevant
notice under clause 2.2.


 


2.5                                               Remedial
action not novation


 


The taking of any
action or the making of any payment by the Principal under clause 2.4 will
not be construed as an assumption by the Principal of any obligations of the
Contractor under or in relation to the Subcontract.


 


2.6                                               Indemnity
for costs


 


If the Principal
takes action or makes any payment under clause 2.4, the Contractor
indemnifies the Principal (and will pay, on demand by the Principal) against
all reasonable costs, losses, expenses or liabilities incurred or payable by
the Principal as a result of its having taken the relevant action or made the
relevant payment.


 


3.                                                      Novation on
Termination


 


3.1                                               Novation


 


If the Project
Agreement has been terminated, or the Contractors’ rights and obligations with
respect to any part of the Services under the Project Agreement have been
terminated, and if the Principal gives written notice to the Subcontractor of
its intention to exercise its rights under this clause 3.1, then as from
the date of the Novation Notice:


 


(a)                                                   except
in respect of any rights of the Contractor that arise out of a breach of the
Subcontract or other liability on the part of the Subcontractor under the
Subcontract occurring or arising prior to the date of the Novation Notice the
Contractor releases the Subcontractor from its obligations under the
Subcontract and the Subcontractor shall perform for, and owe to the Principal,
or the Principal’s nominee, all its obligations under the Subcontract;


 


(b)                                                  except
in respect of the rights of the Contractor referred to in paragraph (a), the
Principal, or the Principal’s nominee, shall be entitled to exercise all of the
rights and, subject to clause 3.2, shall assume all of the obligations, of
the Contractor under the Subcontract;


 


(c)                                                   subject
to clause 3.2, the Subcontractor shall have the same rights against the
Principal, or the Principal’s nominee, as it had against the Contractor in
respect of obligations so assumed; and


 


(d)                                                  any
party to this Deed requested by the Principal to do so will:


 


(i)                                                     enter
into a deed in a form the same as or substantially similar to that annexed to
this Deed in Annexure A reflecting the novation of the Subcontract to the
Principal or the Principal’s nominee; and


 


43





















 


(ii)                                                  take
such other action as is required to vest in the Principal or the Principal’s
nominee full legal and equitable title to any retention account, bank
guarantee, performance bond, letter of credit or other security held by the
Contractor to secure obligations of the Subcontractor under the Subcontract.


 


3.2                                               Obligations
prior to novation


 


Clause 3.1
will not operate to:


 


(a)                                                   require
the Principal, or the Principal’s nominee, to assume any obligations under the
Subcontract which relate to the period or arise prior to the date of the
Novation Notice or which relate to any breach or failure to perform in that
period;


 


(b)                                                  vest
in any person any rights against the Principal, or the Principal’s nominee, in
respect of obligations which the Principal is not required to assume; or


 


(c)                                                   release
the Subcontractor or the Contractor in respect of its obligations under the
Subcontract or liability for any breach of the Subcontract or other liability
on the part of the Subcontractor or the Contractor under the Subcontract which
relates to the period prior to the date of the Novation Notice.


 


3.3                                               Set
off


 


The Subcontractor
agrees no right of set off or counterclaim may be exercised against the
Principal in relation to the Subcontract if:


 


(a)                                                   the
Subcontract is novated to the Principal, or the Principal’s nominee; and


 


(b)                                                  the
right relates to a circumstance, event, breach or failure occurring or arising
prior to the date of the Novation Notice.


 


3.4                                               No
liability unless novation


 


The Subcontractor
acknowledges and agrees that, to the maximum extent permitted by law, the
Principal has no liability to the Subcontractor (whether by way of indemnity,
damages or otherwise), arising out of or in connection with the Project or any
Project Document, except if the Principal exercises its rights under clause
3.1, and then, subject to clauses 3.2 and 3.3, only in respect of the
obligations assumed by the Principal under the Subcontract and on the terms of
the Subcontract.


 


4.                                                      Subcontractor Default
Event


 


4.1                                               The
Subcontractor’s obligations


 


The Subcontractor
shall use its best endeavours to ensure that no Subcontractor Default Event
occurs.  If, however, notwithstanding
this undertaking, a Subcontractor Default Event does occur, the Subcontractor
shall ensure that if the consequences of it for the Contractor are:


 


(a)                                                   capable
of remedy, those consequences are remedied promptly and, in any event, within
any relevant Subcontractor Grace Period; and


 


(b)                                                  not
capable of remedy, but those consequences can be adequately compensated for by
the payment of money, money is paid to the Contractor which adequately
compensates for those consequences promptly and, in any event, within any
relevant Subcontractor Grace Period.


 


44





















 


4.2                                               Notice


 


The Contractor
will notify the Principal promptly of any Subcontractor Default Event.  Any such notice must:


 


(a)                                                   include
reasonable details of the particular Subcontractor Default Event;


 


(b)                                                  specify
the paragraph of clause 4.3 which applies to the particular Subcontractor
Default Event;


 


(c)                                                   if
the paragraph so specified is paragraph (a), specify the steps which the
Contractor considers need to be taken in order to remedy the particular
Subcontractor Default Event; and


 


(d)                                                  if
the paragraph so specified is paragraph (b), specify the amount of monetary
compensation for the particular Subcontractor Default Event which the
Contractor considers to be adequate.


 


4.3                                               Exercise
of Rights


 


If a
Subcontractor Default Event occurs, the Contractor shall not exercise any Right
it might have as a result or consequence of the Subcontractor Default Event
unless it has given the Principal notice of the Subcontractor Default Event in
accordance with clause 4.2 and where the consequences for the Contractor of the
Subcontractor Default Event are:


 


(a)                                                   capable
of remedy, those consequences have not been remedied (whether by the
Subcontractor, the Principal or any other person) within a reasonable time
(being, in any event, not less than 20 Business Days from the date of the later
of expiry of the relevant Subcontractor Grace Period and receipt by the
Principal of the relevant notice);


 


(b)                                                  not
capable of remedy and clause 4.3(c) does not apply, monetary compensation
which is adequate having regard to those consequences has not been paid
(whether by the Subcontractor, the Principal or any other person) to the
Contractor within 20 Business Days of the later of expiry of the relevant
Subcontractor Grace Period and the Principal’s receipt of the relevant notice;
and


 


(c)                                                   not
capable of remedy and the payment of money to the Contractor would not
adequately compensate the Contractor for those consequences, 20 Business Days
have expired since the later of expiry of the relevant Subcontractor Grace
Period and the Principal’s receipt of the relevant notice,


 


provided that if
the Default Event is:


 


(i)                                                     an
event described in paragraphs (e) or (f) of the definition of Event
of Insolvency, the time specified in paragraphs (a), (b) and (c) above
will be abridged to 5 Business Days; and


 


(ii)                                                  any
other event described in the definition of Event of Insolvency, the time
specified in paragraphs (a), (b) and (c) above will be abridged to 2
Business Days.


 


4.4                                               Principal
action


 


(a)                                                   If a
Subcontractor Default Event occurs, each party agrees that the Principal may
(but will not be obliged to) take such action and make such payments as in the
reasonable opinion of the Principal is necessary to take or make in order to
prevent


 


45





















 


or reduce the
risk of the Contractor exercising any Right it might have as a result or
consequence of the Subcontractor Default Event.


 


(b)                                                  The
Principal’s rights under paragraph (a) may (but need not) entail the
Principal taking the steps or paying the compensation specified in the relevant
notice under clause 4.2.


 


4.5                                               Remedial
action not novation


 


The taking of any
action or the making of any payment by the Principal under clause 4.4 will
not be construed as an assumption by the Principal of any obligations of the
Subcontractor under or in relation to the Subcontract.


 


4.6                                               Indemnity
for costs


 


If the Principal
takes action or makes any payment under clause 4.4, the Subcontractor
indemnifies the Principal (and will pay, on demand by the Principal) against
all reasonable costs, losses, expenses or liabilities incurred or payable by
the Principal as a result of its having taken the relevant action or made the
relevant payment.


 


5.                                                      Temporary Step-In and
other Principal Rights


 


5.1                                               Rights
of the Principal


 


The Subcontractor
acknowledges the Rights of the Principal:


 


(a)                                                   in
respect to access and inspection under clauses 9.10 and 15.9 of the
Project Agreement;


 


(b)                                                  to
step in under clause 41.1 of the Project Agreement;


 


(c)                                                   to
suspend the Work under clause 41.2 of the Project Agreement; and


 


(d)                                                  to
conduct audits under clause 8.4(f) of the Project Agreement.


 


5.2                                               Subcontractor
to facilitate


 


The Subcontractor
agrees with the Principal that it will exercise its rights under the
Subcontract in a way which facilitates the effective exercise by the Principal
of the Rights referred to in clause 5.1.


 


5.3                                               Subcontractor’s
continued performance


 


During the period in which the Principal is
exercising a Right:


 


(a)                                                   referred to in clause 5.1(b) or
(c), the Principal may direct the suspension or continuation of performance by
the Subcontractor of its obligations under the Subcontract;


 


(b)                                                  referred to in clause 5.1(a) or
(d), the Principal may give the Subcontractor directions,


 


and the
Subcontractor agrees that it will comply with such directions, and with all
other reasonable directions of the Principal in relation to the performance of
the Subcontract by the Subcontractor during such period, provided that such
directions are not inconsistent with the Subcontract and are not inconsistent
with a direction given by the Principal under the Project Agreement.


 


46





















 


5.4                                               Principal
not liable


 


The requirement
of the Principal that the Subcontractor suspend or continue to perform its
obligations under the Subcontract and the giving of any direction under clause
5.3(a) by the Principal will not be construed as an assumption by the
Principal of any obligations of the Contractor under or in relation to the
Subcontract.


 


6.                                                      Other Undertakings by
Subcontractor


 


6.1                                               Subcontract


 


The Subcontractor
undertakes that:


 


(a)                                                   it
will duly and punctually perform and observe all its obligations under the
Subcontract; and


 


(b)                                                  that
it has the skill and experience to properly perform and observe all of its
obligations under the Subcontract.


 


6.2                                               Access
to books and records


 


(a)                                                   Subject to clause 6.2(b), on reasonable
notice being given by or on behalf of the Principal, the Subcontractor will
permit the Principal’s Authorised Representatives to have access to, and take
copies of, the books and records of the Subcontractor reasonably requested by
the Principal, relating to the Subcontract and the performance of the terms of
the Subcontract other than books or records subject to legal professional
privilege.


 


(b)                                                  The Subcontractor is not required to
give the Principal information or access to books of accounts or other records
of the Subcontractor if it is a publicly listed entity for the period during
which the Subcontractor is in a trading blackout period, under applicable
rules, regulations or policies of, the US Securities and Exchange Commission,
the New York Stock Exchange or another exchange or regulatory authority to
which the Subcontractor is subject.


 


6.3                                               Intellectual
Property


 


[Note:  Under clause 30.10 of the Project Agreement
the Contractor is obliged to secure IP rights for the Principle in relation to
Third Party Licences.  Where appropriate,
those provisions, as they apply to the subcontractor, will be reflected here.]


 


6.4                                               No
Retention of Ownership


 


The Subcontractor
confirms and undertakes that the Subcontract does not and will not include, and
will ensure that its sub-contracts or supply contracts do not and will not
include, any retention of ownership clauses or any clauses under which the
Subcontractor or the Subcontractor’s subcontractor or supplier retains any
security or other interest in any item which will become part of the Solution
which would prevent ownership of those items passing to the Principal in
accordance with clause 32.1 of the Project Agreement.


 


47





















 


7.                                                      Undertakings by the
Contractor and Subcontractor


 


7.1                                               Amendments


 


Each of the
Subcontractor and the Contractor undertake to the Principal that it will not
consent to, or make any material amendment to, or materially supplement any
provision of the Subcontract without the prior written consent of the
Principal.


 


7.2                                               Waiver


 


Each of the
Subcontractor and the Contractor undertake to the Principal that it will not
expressly or impliedly waive, or extend or grant time or indulgence in respect
of, any material provision of or material obligation under the Subcontract
without the prior written consent of the Principal (such consent not to be
unreasonably withheld).


 


7.3                                               Disposal
or rights


 


Each of the
Subcontractor and the Contractor undertake to the Principal that other than as
provided for under clause 3 of this Deed, it will not transfer, assign, novate
or otherwise dispose of any of its rights, obligations under or interest in the
Subcontract without the prior written consent of the Principal.


 


7.4                                               Termination
and release


 


Notwithstanding
any other provision of this Deed, each of the Subcontractor and the Contractor
undertake to the Principal that, it will not:


 


(a)                                                   avoid,
release, surrender, terminate, rescind, discharge (other than by performance)
or accept the repudiation of; or


 


(b)                                                  suspend
the performance of any of its obligations under,


 


the Subcontract
without the prior written consent of the Principal.


 


7.5                                               Restriction
on dealings


 


Each of the
Subcontractor and the Contractor undertakes to the Principal that it will not
grant, permit to be created or allow to subsist any Security Interest on or
affecting its interest in the Subcontract without the prior written consent of
the Principal which consent will not be unreasonably withheld or delayed.


 


8.                                                      Warranties of
Subcontractor and Contractor


 


Each of the
Subcontractor and the Contractor makes the following continuing warranties for
the benefit of the Principal:


 


(a)                                                   no
Default Event subsists;


 


(b)                                                  no
Subcontractor Default Event subsists; and


 


(c)                                                   the
Subcontract (and the documents referred to therein) sets out all the terms and
conditions of the agreement between the Contractor and the Subcontractor in
respect of the Project.


 


48





















 


9.                                                      Dispute Resolution,
Equitable Relief and Liability


 


9.1                                               Expert
determination


 


(a)                                                   If any dispute arises between the
parties under or in respect of this Deed, any party may give to the other parties
a notice adequately identifying the matters the subject of the dispute together
with detailed particulars of it and refer the dispute to the Expert for
determination in accordance with this clause 9.1.


 


(b)                                                  A matter referred to the Expert will be
determined by the Expert and administered in accordance with this clause 9.1.


 


(c)                                                   The parties must comply with the terms
of the Expert Deed.


 


(d)                                                  The Expert will be appointed in
accordance with the Project Agreement. 
If the Expert Deed is terminated, a new Expert will be appointed in
accordance with clause 49.5(d) of the Project Agreement.


 


(e)                                                   The Expert must:


 


(i)                                                     act
as an expert and not as an arbitrator;


 


(ii)                                                  proceed
in any manner he or she thinks fit without being bound to observe the rules of
evidence;


 


(iii)                                               take
into consideration all documents, information and other material which the
parties give the Expert which the Expert in his or her absolute discretion,
considers relevant to the determination of the dispute;


 


(iv)                                              not
be expected or required to obtain or refer to any other documents, information
or material but may do so if he or she so wishes;


 


(v)                                                 act
in good faith and make his or her decision within 15 Business Days (or within a
time otherwise agreed between the parties);


 


(vi)                                              give
his or her determination in writing (including a statement of the value of the
determination) and give written reasons for the determination.


 


(f)                                                     The Expert may, with prior written
approval from each of the Contractor, the Subcontractor and the Principal,
commission his or her own advisers or consultants, including lawyers,
accountants, bankers, engineers, surveyors, transport consultants or other
technical consultants, to provide information to assist the Expert in his or
her decision.


 


(g)                                                  The Expert must appoint any advisers or
consultants nominated in writing by both the Principal and the Contractor to
provide information to assist the Expert in his or her decisions.


 


(h)                                                  The parties will indemnify the Expert
for the cost of retaining those advisers or consultants.


 


(i)                                                      The Contractor must provide the Expert
with copies of minutes of meetings and all reports relevant to the Work within
5 Business Days of them being prepared, and all other information required
to keep the Expert informed and able to carry out his or her function under
this clause.


 


49





















 


(j)                                                      The Principal may provide the Expert
with any relevant information it considers necessary to keep the Expert
informed and able to carry out his or her function under this clause.


 


(k)                                                   A copy of all information provided by
one party under clause 9.1(i) or 9.1(j) must be sent to each other party.


 


(l)                                                      The determination of the Expert will be
final and binding on each party unless:


 


(i)                                                     the
value of the determination is greater than $[**];  and


 


(ii)                                                  a
party gives notice of appeal to the other party within 10 Business Days of the
determination requiring the dispute to be referred to arbitration.


 


(m)                                                Where a dispute is referred to the
Expert for determination and the Expert does not make a determination within 15
Business Days of the dispute being referred to him or her, or within a time otherwise
agreed between the parties, any party may refer the dispute to arbitration.


 


(n)                                                  The parties are to give effect to the
determination of the Expert unless and until it is reversed, overturned, or
otherwise changed by any subsequent arbitration under clause 9.2.


 


(o)                                                  Subject to clause 9.1(e), the
Principal, the Subcontractor and the Contractor will each pay one-third of the
costs of the Expert.


 


9.2                                               Arbitration


 


(a)                                                   If a notice of appeal is given under
clause 9.1(l)(ii) or a dispute is referred to arbitration under clause
9.1(m), the parties agree to refer the dispute to arbitration administered by
the Australian Commercial Disputes Centre (ACDC), or the Australian Centre for
International Commercial Arbitration (ACICA) if this is the basis on which arbitration
under the Project Agreement is then referred.


 


(b)                                                  The arbitration will be conducted in
accordance with the ACDC arbitration rules which are operating at the time
the dispute is referred to ACDC (or the ACICA arbitration rules if the
dispute is referred to ACICA), and which terms are herewith deemed to be
incorporated into this agreement subject to this clause 9.2.


 


(c)                                                   The seat of the arbitration will be
Melbourne, Victoria.


 


(d)                                                  The dispute will be decided by a sole
arbitrator.


 


(e)                                                   The arbitrator will be appointed in
accordance with clause 49.6(e) of the Project Agreement.  If at the time the dispute is referred to
arbitration the arbitrator is or declares not to be capable of performing its
duties as arbitrator under this Deed, another arbitrator shall be appointed in
accordance with clause 49.6(e) of the Project Agreement.


 


(f)                                                     The parties agree to the following
general principles in relation to the conduct of the arbitration:


 


(i)                                                     that
they have chosen arbitration for the purposes of achieving a just, quick and
cheap resolution of any dispute;


 


50





















 


(ii)                                                  that
any arbitration conducted pursuant to this clause shall not mimic court
proceedings and the practices of those courts will not regulate the conduct of
the proceedings before the arbitrator;


 


(iii)                                               that
in conducting the arbitration, the arbitrator must take into account the
matters set out above, particularly in deciding issues such as:


 


A.                                                   how
many written submissions will be allowed;


 


B.                                                     how
much time the parties shall have for preparing written submissions;


 


C.                                                     where
appropriate, the length of written submissions;


 


D.                                                    the
extent of document discovery permitted, if any;


 


E.                                                      the
length of any hearing; and


 


F.                                                      the
number of experts, if any, each party is allowed to appoint.


 


(g)                                                  The arbitrator will conduct the
arbitration as expeditiously as possible and no party will unnecessarily delay
the arbitration proceedings.


 


(h)                                                  The arbitrator will have the power to
grant all legal, equitable and statutory remedies, and will be entitled to
review and substitute any determination made by the Expert under clause 9.1.


 


(i)                                                      The arbitration will be private and
confidential, and no party or arbitrator will, without prior written consent of
all parties to the arbitration, disclose any matter relating to the
arbitration.


 


(j)                                                      This clause 9.2 sets out a separate and
several agreement to this agreement. 
Accordingly, if this agreement is void or voidable for any reason the
dispute resolution agreement set out in this clause will be unaffected and will
survive any determination that this agreement is void or has been avoided.


 


9.3                                               Equitable
Relief


 


(a)                                                   Each
party to this Deed acknowledges that damages may not be an adequate remedy for
any breach of, or failure by it to comply with, this Deed.


 


(b)                                                  Each
party to this Deed agrees that, without limiting any other right, remedy or
action it has in connection with any actual or threatened breach of, or failure
to comply with, this Deed by the other party, it is entitled to seek equitable
relief (including specific performance or injunctive or declaratory relief) to
restrain any actual or threatened breach of, or failure to comply with, this
Deed by the other party and the other party must not oppose the granting of
such relief on the basis that the party seeking such relief has not or will not
sustain any actual loss or damage.


 


9.4                                               Liability


 


Despite any other
provision of this Deed, the maximum aggregate liability of the Subcontractor
under this Deed and the Subcontract will be no greater than the liability of
the Subcontractor under the Subcontract.


 


51





















 


10.                                               Stamp Duty and
expenses


 


10.1                                        Stamp Duty


 


The Contractor:


 


(a)                                                   must
pay all stamp duties and any related fines and penalties in respect of this
agreement, the performance of this agreement and each transaction effected by
or made under or pursuant to this agreement;


 


(b)                                                  must
indemnify each other party against any liability arising from failure to comply
with clause 10.1(a); and


 


(c)                                                   is
authorised to make any application for and retain the proceeds of any refund
due in respect of stamp duty paid under this clause.


 


10.2                                        Expenses


 


Except as
otherwise provided in this agreement, each party must pay its own costs and
expenses in connection with negotiating, preparing, executing, performing and
amending this agreement.


 


11.                                               GST


 


(a)                                                   In
addition to any other consideration, the recipient of a Taxable Supply made
under or in connection with this Deed (the “Recipient”)
must pay to the party making the Taxable Supply (the “Supplier”)
the amount of GST in respect of the Taxable Supply. This subclause does not
apply if the consideration specified for the Taxable Supply is expressly agreed
to be GST inclusive.


 


(b)                                                  If
the amount paid by the Recipient to the Supplier in respect of GST (whether
because of an Adjustment or otherwise):


 


(i)                                                     is
more than the GST on the Taxable Supply, then the Supplier shall refund the
excess to the Recipient;


 


(ii)                                                  is
less than the GST on the Taxable Supply, then the Recipient shall pay the
deficiency to the Supplier.


 


(c)                                                   The
Recipient is not obliged to pay any amount in respect of GST to the Supplier
unless and until the Supplier issues a Tax Invoice to the Recipient in respect
of the Taxable Supply. If an Adjustment has occurred, the Supplier must issue
an Adjustment Note to the Recipient.


 


(d)                                                  The
amount of a party’s entitlement under this Deed to recovery or compensation for
any of its costs, expenses or liabilities is reduced by the Input Tax Credits
to which that party (or the Representative Member of a GST Group of which the
party is a member) is entitled in respect of such costs, expenses or
liabilities.


 


(e)                                                   In
this Deed, amounts which are calculated by reference to revenue or profits are
calculated on the GST-exclusive component of that revenue or those profits
unless expressly provided to the contrary.


 


(f)                                                     For
the purposes of this clause:


 


52





















 


(i)                                                     “GST Law” has the same meaning as in the A New Tax
System (Goods and Services Tax) Act 1999;


 


(ii)                                                  “Adjustment”,
“Adjustment Note”, “GST”, “GST Group”, “Input Tax Credits”, “Representative
Member” and “Tax Invoice” have the meanings given to them in the GST Law; and


 


(iii)                                               “Taxable
Supply” has the meaning given to it in the GST Law, excluding section 84-5
of  A
New Tax System (Goods and Services Tax) Act 1999.


 


12.                                               Notices


 


All notices,
requests, demands, consents, approvals, agreements or other communications to
or by a party to this Deed shall:


 


(a)                                                   be
in writing addressed to the address of the recipient shown in the Schedule or
to such other address as it may have notified the sender;


 


(b)                                                  be
signed by an Authorised Representative of the sender; and


 


(c)                                                   be taken to be received by the addressee:


 


(i)                                                     in case of prepaid post, on the Business
Day that is the third Business Day after the date of posting to an address
within Australia, and on the fifth Business Day after the date of posting by
airmail to an address outside Australia;


 


(ii)                                                  in the case of fax, at the local time (in
the place of receipt of that fax) which then equates to the time that fax is
sent as shown on the transmission report produced by the machine from which
that fax is sent confirming transmission of that fax in its entirety, unless
that local time is not on a Business Day, or is after 5.00 pm on a Business
Day, when that communication is taken to be received at 9.00 am on the next
Business Day; and


 


(iii)                                               in the case of delivery by hand, on
delivery at the address of the addressee as provided in clause 12(a), unless
that delivery is made on a day that is not a Business Day, or after 5.00 pm on
a Business Day, when that communication is taken to be received at 9.00 am on
the next Business Day.


 


13.                                               Governing Law and
Jurisdiction


 


13.1                                        Governing Law


 


This agreement is governed by and will be construed according to the laws
applying in the State of Victoria.


 


13.2                                        Jurisdiction


 


Subject to clause
9.2, each party irrevocably:


 


(a)                                                   submits
to the non-exclusive jurisdiction of the courts of Victoria, and the courts
competent to determine appeals from those courts, with respect to any
proceedings which may be brought at any time relating to this Deed; and


 


53





















 


(b)                                                  waives
any objection it may now or in the future have to the venue of any proceedings,
and any claim it may now or in the future have that any proceedings have been
brought in an inconvenient forum, where that venue falls within clause 13.2(a).


 


13.3                                        Enforcement


 


The Subcontractor
agrees that, subject to any rights of appeal which the Subcontractor may have
in Victoria or to the High Court of Australia, a judgment or order of a
Victorian court in connection with this Deed:


 


(a)                                                   is
conclusive and binding on the Subcontractor; and


 


(b)                                                  may
be enforced against the Subcontractor in the courts of any other jurisdiction.


 


13.4                                        Agent
for Service


 


The Subcontractor
agrees that service of process in any proceedings in the courts of Victoria
relating to this Deed will be
sufficiently served on it by service (in any manner permitted by law) on [                     ]
at [                     ],
Victoria, or at another address or on another agent for service at the
address in Victoria, as the Subcontractor last notified the other parties
before that service to be its agent for service (or to be the current address
for service on that agent).


 


This clause does
not affect service of process on the Subcontractor in any other manner
permitted by law.


 


14.                                               Assignment


 


(a)                                                   The
Principal may assign or transfer all or any of its rights or obligations under
this Deed to any person to whom the Principal has assigned or transferred all
or any of its rights or obligations under, and in accordance with, the Project
Agreement.


 


(b)                                                  The
Contractor and Subcontractor may not assign or transfer all or any of their
rights or obligations under this Deed without the prior written consent of the
Principal.


 


(c)                                                   The
Contractor and Subcontractor will provide all assistance reasonably required by
the Principal (including entering into agreements), in order for the Principal
to exercise its rights under paragraph (a) of this clause.


 


15.                                               Attorneys


 


Each attorney
executing this Deed states that it has no notice of the revocation of the power
under which the attorney executes this Deed.


 


16.                                               Counterparts


 


This Deed may be
executed in any number of counterparts and all such counterparts taken together
will be deemed to constitute one and the same instrument.


 


Executed as a deed.


 


[Appropriate execution clauses to be
inserted]


 


54





















 


The Schedule – Details for Notices (clause 12)


 


Insert address for delivery for each party


 


 


	
  Name:

  	
  Principal’s Representative, Transport Ticketing Authority

  
	
   

  	
   

  
	
  Address:

  	
  Level 38, 55 Collins Street, Melbourne, Victoria

  
	
   

  	
   

  
	
  Fax:

  	
  +61 3 9651 7578

  
	
   

  	
   

  
	
  Name:

  	
  [Contractor]

  
	
   

  	
   

  
	
  Address:

  	
  [                                 ]

  
	
   

  	
   

  
	
  Fax:

  	
  [                                 ]

  
	
   

  	
   

  
	
  Name:

  	
  [Subcontractor/Supplier]

  
	
   

  	
   

  
	
  Address:

  	
  [                                 ]

  
	
   

  	
   

  
	
  Fax:

  	
  [                                 ]

  



 


 


55





















 


	
  

  	
   

  	
  Annexure
  A – Deed of Novation (clause 3.1(d)(i))

  



 


 


Novation Deed


 


Keane
Australia Micropayment Consortium Pty Ltd


ACN
114 334 600


Original
Contractor


 


Public
Transport Ticketing Body trading as Transport Ticketing Authority


73
595 242 024


Substituted Contractor


 


[Insert
name of subcontractor/supplier]


[Insert
ABN of subcontractor /supplier]


Subcontractor


 


56





















 


Novation Deed made at
                                on


 


Parties                                                                                         Keane Australia Micropayment Consortium Pty Ltd ACN 114 334 600
of Level 50, Bourke Place, 600 Bourke Street, Melbourne, Victoria (“Original Contractor”)


 


Public Transport Ticketing Body trading as
Transport Ticketing Authority ABN 73 595 242 024 of
Level 38, 55 Collins Street, Melbourne, Victoria (“Substituted Contractor”)


 


[Insert name of subcontractor/supplier] ABN
[Insert ABN of subcontractor/supplier] of [insert
address] (“Continuing Sub-contractor”)


 


Recitals


 


A.                                                   The
Original Contractor and the Continuing Sub-contractor are parties to a
Subcontract dated [insert date] (“Subcontract”).


 


B.                                                     The
Original Contractor, the Substituted Contractor and the Continuing
Sub-contractor are parties to the Direct Agreement dated [insert date] (“Deed of Covenant”).


 


C.                                                     Clause
3.1 of the Direct Agreement envisages that the Substituted Contractor may, on
the occurrence of certain events, at the option to the Substituted Contractor,
replace the Original Contractor as a party to the Subcontract.


 


D.                                                    The
Original Contractor has agreed to enter into this Deed for substitution of the
Substituted Contractor for the Original Contractor as a party to the
Subcontract on the terms and conditions contained in this Deed, in consideration
of the Substituted Contractor accepting in all respects the obligations of the
Original Contractor under the Subcontract from the Effective Date.


 


This deed provides


 


1.                                                      Definitions and
interpretation


 


1.1                                               Definitions


 


In this Deed:


 


“Effective
Date” means [insert date] [Note:  the date of the Novation Notice will be
inserted].


 


1.2                                               Interpretation


 


In this Deed:


 


(a)                                                   headings
are for convenience only and will not affect the interpretation;


 


and unless the
context indicates a contrary intention:


 


(b)                                                  “person”
includes an individual, the estate of an individual, a corporation, an
authority, an association or a joint venture (whether incorporated or
unincorporated), a partnership, a trust and Governmental Agencies;


 


(c)                                                   a
reference to party includes that party’s executors, administrators, successors,
permitted substitutes and assigns, including persons taking by way of novation;


 


57





















 


(d)                                                  a
reference to a document (including this Deed) is to that document as varied,
novated, ratified or replaced from time to time;


 


(e)                                                   a
reference to a statute includes its delegated legislation and a reference to a
statute or delegated legislation or a provision of either includes
consolidations, amendments, re-enactments and replacements;


 


(f)                                                     words
importing the singular will include the plural (and vice versa) and words
denoting a given gender will include all other genders;


 


(g)                                                  a
reference to a clause or Schedule is a reference to a clause of
or Schedule to this Deed, and references to paragraphs are references to
paragraphs within the clause of this Deed in which they are situated, in each
clause unless expressly stated otherwise;


 


(h)                                                  a
reference to a “day” is a reference to a calendar day (and includes weekends
and public holidays);


 


(i)                                                      where
any word or phrase is given a defined meaning any other part of speech or other
grammatical form in respect of such word or phrase has a corresponding meaning;


 


(j)                                                      the
word “including” or any other grammatical form of that word is not a word of
limitation; and


 


(k)                                                   a
reference to “$” or “dollar” is to Australian currency.


 


2.                                                      Novation


 


2.1                                               Subcontract


 


Subject to
clause 2.2 and with effect from the Effective Date:


 


(a)                                                   the
Substituted Contractor is substituted for the Original Contractor as a party to
the Subcontract and will perform the terms and conditions of the Subcontract;


 


(b)                                                  the
Substituted Contractor will be bound by the Subcontract and be entitled to the
benefit thereof as if the Substituted Contractor was a party to the Subcontract
in lieu of the Original Contractor; but will not be entitled to the benefit of,
or to exercise any rights of the Original Contractor that arise out of a breach
of the Subcontract or other liability on the part of the Continuing
Sub-contractor under the Subcontract occurring or arising prior to the
Effective Date; and


 


(c)                                                   the
Original Contractor is released and discharged from all obligations and
liabilities, and from all claims (whether for costs, damages, fees, expenses or
otherwise), arising under the Subcontract.


 


2.2                                               Liability before Effective Date


 


Notwithstanding
clause 2.1, the Original Contractor is not released, relieved or
discharged from liability for and the Substituted Contractor will not assume
any liability accrued under the Subcontract before the Effective Date, for any
breach which the Original Contractor may have committed before the Effective
Date of any provision of the Subcontract.


 


58





















 


3.                                                      Affirmation of the
Subcontract


 


The Subcontract
will be read and construed subject to this Deed, and in all other respects the
provisions of the Subcontract are ratified and confirmed, and, subject to the
variation and novation contained in this Deed, the Subcontract will continue in
full force and effect.


 


4.                                                      Stamp duty and costs


 


The Original
Contractor:


 


(a)                                                   must
pay all stamp duties and any related fines and penalties in respect of this
agreement, the performance of this agreement and each transaction effected by
or made under or pursuant to this agreement;


 


(b)                                                  must
indemnify each other party against any liability arising from failure to comply
with clause 4.1(a); and


 


(c)                                                   is
authorised to make any application for and retain the proceeds of any refund
due in respect of stamp duty paid under this clause.


 


5.                                                      Further acts


 


Each party will
promptly do and perform all further acts and execute and deliver all further
documents (in form and content reasonably satisfactory to that party) required
by law or reasonably requested by any other party to give effect to this Deed.


 


6.                                                      Jurisdiction


 


6.1                                               Governing Law


 


This agreement is governed by and will be construed according to the law
applying in Victoria.


 


6.2                                               Jurisdiction


 


Each party
irrevocably:


 


(a)                                                   submits
to the non-exclusive jurisdiction of the courts of Victoria, and the courts
competent to determine appeals from those courts, with respect to any
proceedings which may be brought at any time relating to this Deed; and


 


(b)                                                  waives
any objection it may now or in the future have to the venue of any proceedings,
and any claim it may now or in the future have that any proceedings have been
brought in an inconvenient forum, where that venue falls within clause 6.2(a).


 


6.3                                               Enforcement


 


The Continuing
Sub-contractor agrees that, subject to any rights of appeal which the
Continuing Sub-contractor may have in Victoria or to the High Court of
Australia, a judgment or order of a Victorian court in connection with this
deed:


 


(a)                                                   is conclusive
and binding on the Continuing Sub-contractor; and


 


(b)                                                  may
be enforced against the Continuing Sub-contractor in the courts of any other
jurisdiction.


 


59





















 


6.4                                               Agent for Service


 


The Continuing
Sub-contractor agrees that service of process in any proceedings in the courts
of Victoria relating to this deed
will be sufficiently served on it by service (in any manner permitted by law)
on [                   ]
at [                   ],
Victoria, or at another address or on another agent for service at the
address in Victoria, as the Continuing Sub-contractor last notified the other
parties before that service to be its agent for service (or to be the current
address for service on that agent).


 


This clause does
not affect service of process on the Continuing Sub-contractor in any other
manner permitted by law.


 


7.                                                      Counterparts


 


This Deed may be
executed in any number of counterparts and by the parties on separate
counterparts.  Each counterpart
constitutes an original of this Deed, all of which together constitute one
deed.


 


Executed as a deed.


 


60





















 


Schedule 26


 


Schedule 26


Repricing Schedule


 


The following schedule sets
out the items of Work, for which the Contractor must give to the Principal, as
a condition precedent to the Completion of the NTS Solution Requirements Phase,
any proposed reduction to the Capital Contract Price and the Service Charges
where relevant in accordance with Clause 11.4.


 


	
  Item of Work

  	
   

  	
  Pricing Template

  Reference

  	
   

  	
  Amount reflected in

  Capital Contract

  Price

  	
   

  	
  Amount reflected in

  Core Services

  Charge

  (per annum)

  	
   

  	
  Amount reflected

  in Delivery

  Services Charge

  	
   

  	
  Amount reflected

  in Initial

  Services during

  Operations

  (per annum)

  	
   

  
	
  Pre-Implementation Costs

  	
   

  	
  Capital – Initial (Metro): row 50

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Equipment Pricing

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  •     Ticket Office Terminal (TOT)

  	
   

  	
  Capital – Initial (Metro): row 232

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  •     Ticket Office Terminal mobile (TOT-m)

  	
   

  	
  Capital – Initial (Metro): row 241

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  •     Secondary Agent Terminals

  	
   

  	
  Capital – Initial (Metro): row 743

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  •     Metropolitan
  Primary Agent Terminal (MPAT)

  	
   

  	
  Capital – Initial (Metro): row 725

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  •     Primary
  V/Line Agent Terminal (VPAT)

  	
   

  	
  Capital – Initial (Metro): row 734

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  •     Handheld Devices

  	
   

  	
  Capital – Initial (Metro): row 691

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Device Installation Costs

  	
   

  	
  Capital – Initial

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Device Maintenance

  	
   

  	
  Services –Operations (Metro) row: 304

  	
   

  	
  [**]

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Hosting/DR

  	
   

  	
  Services-Operations (Metro Row:58 Services-Delivery
  (Metro) Row:46

  	
   

  	
  [**]

  	
   

  	
  $[**]

  	
   

  	
  $[**]

  	
   

  	
  [**]

  	
   

  
	
  Cash Collection

  	
   

  	
  Services –Operations (Metro) row: 382

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  Year ended 30 June[**]2007 –
  $[**]2008 – $[**]2009 – $[**]2010 – $[**]2011 –
  $[**]2012 – $[**]

  	
   

  
	
  Cardholder Support Services

  	
   

  	
  Services – Operations (Metro) row: 388

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  Year ended 30 June: 2007 –
  $[**]2008 – $[**]2009 – $[**]2010 – $[**]2011 –
  $[**]2012 – $[**]

  	
   

  
	
  Long Term Variations

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  



 


61





















 


Schedule 27


 


Schedule 27

Deed of Assurance


 


(Clause 30.17)


 


THIS DEED is made
the                                                     day
of                                                     
2005


 


BETWEEN                                                                                    [Insert details of the owner of the
Licensed Intellectual Property] (the “Licensed IP Owner”)


 


AND                                                                                                                     Public Transport Ticketing Body trading as Transport Ticketing
Authority ABN 73 595 242 024 of Level 38, 55 Collins Street,
Melbourne, Victoria (the
“Principal”)


 


AND                                                                                                                     Keane Australia
Micropayment Consortium Pty Ltd ACN 114 334 600 of Level 50, Bourke
Place, 600 Bourke Street, Melbourne, Victoria (the “Contractor”)


 


 


RECITALS


 


A.                                                   The Principal has entered into, or may
in future enter into the New Ticketing Solution Project Agreement (the “Project Agreement”) with the Contractor.


 


B.                                                     Part of
the Contractor’s obligations under the Project Agreement include the licensing
of the Intellectual Property described in Schedule 1 (all and every part
of which is referred to as the “Licensed Intellectual Property”) to the Principal, with the
right to sublicense (the “Project Agreement
Licence”).


 


C.                                                     The
Licensed IP Owner owns all Intellectual Property in the Licensed Intellectual
Property, and has authorised the Contractor to grant the Project Agreement
Licence to the Principal.


 


D.                                                    By
this Deed, the Licensed IP Owner assures the Principal that the Principal may
continue exercising its rights under the Project Agreement Licence,
notwithstanding any change affecting the Licensed IP Owner’s direct or indirect
relationship with the Contractor.


 


THIS DEED PROVIDES


 


1.                                                       The
Licensed IP Owner warrants that it owns all Intellectual Property in the
Licensed Intellectual Property and is entitled to enter into this Deed.


 


2.                                                       If
any circumstances occur whereby the Licensed IP Owner’s direct or indirect
relationship with the Contractor concerning the Licensed Intellectual Property
changes, or is likely to change, then:


 


62





















 


(a)                                                   the
Licensed IP Owner and the Contractor shall immediately notify the Principal in
writing, which notice shall describe, with a reasonable level of detail, the
nature of those circumstances and their effect or likely effect on the
Principal; and


 


(b)                                                  notwithstanding
those circumstances, the Principal may continue exercising its rights under the
Project Agreement Licence as if such circumstances do not occur, or as the case
requires, had not occurred.


 


Such circumstances include termination of any
licensing arrangement or circumstances involving an inability to pay debts.


 


3.                                                       The
Licensed IP Owner shall ensure that any entity which succeeds to, is assigned
or otherwise becomes the owner of, any of the Intellectual Property in respect
of the Licensed Intellectual Property agrees to be bound by the terms of this
Deed as if it were named in this Deed as the Licensed IP Owner.


 


4.                                                       The
Licensed IP Owner shall at its cost and expense immediately, on demand by the
Principal, perform all acts and execute all agreements, assurances and other
documents and instruments as the Principal reasonably requests to perfect or
give effect to the rights and powers of the Principal created or intended to be
created by this Deed.


 


5.                                                       This
Deed shall be governed by the laws in force in the State of Victoria,
Australia.


 


6.                                                       The
Licensed IP Owner irrevocably submits to and accepts, generally and
unconditionally, the non-exclusive jurisdiction of the courts and appellate
courts of Victoria with respect to any legal action or proceedings which may be
brought at any time relating in any way to this Deed.


 


7.                                                       The
Licensed IP Owner irrevocably waives any objection it may now or in the future
have to the venue of any action or proceeding, and any claim it may now or in
the future have that any action or proceeding has been brought in any
inconvenient forum.


 


8.                                                       The
Licensed IP Owner agrees that, subject to any rights of appeal which the Licensed
IP Owner may have in Victoria or to the High Court of Australia, a judgment or
order of a Victorian court in connection with this Deed is conclusive and
binding on the Licensed IP Owner and may be enforced against the Licensed IP
Owner in the courts of any other jurisdiction.


 


9.                                                       The
Licensed IP Owner irrevocably appoints the Contractor as its agent to receive
service of process or other documents in any action in connection with this
Deed and irrevocably agrees that service on the Contractor as agent will be
sufficient service on it.  [This paragraph may be deleted if the Licensed IP
Owner has its registered office in Australia.]


 


10.                                                 Each
warranty in this Deed is a continuing warranty for the benefit of the
Principal.


 


11.                                                 The
Principal may at any time assign or otherwise transfer all or any part of its
rights under this Deed to the entity the Principal assigns its rights under the
Project Agreement to, under clause 45 of the Project Agreement.


 


12.                                                 For the purposes of this Deed “Intellectual Property” means all copyright and analogous
rights, all rights in relation to inventions (including patent rights),
registered and unregistered trade marks (including service marks), registered
designs, confidential information (including trade secrets and know-how),
circuit layouts and all other rights throughout the world resulting from
intellectual activity in the industrial, scientific or artistic fields.


 


EXECUTED as a Deed


 


[Insert
appropriate execution clauses]


 


63





















 


SCHEDULE 1:


 


[insert a
description of the component of the Licensed Intellectual Property (as defined
in the Project Agreement) in which the Licensed IP Owner owns the Intellectual
Property]


 


64





















 


Schedule 28


 


Schedule 28


Business Continuity Plan


 


I.              Completion Process


 


The business continuity strategy document included in this Schedule 28
is incomplete and represents an outline of the Business Continuity Plan that
the Contractor must prepare and implement in accordance with clause 38.4
of the agreement.


 


The Contractor must undertake the following process to complete a draft
of the Business Continuity Plan, prior to the Phase Date for the NTS Solution
Requirements Phase, to the reasonable satisfaction of the Principal:


 


•              the Contractor must develop
a Business Continuity Plan which must be consistent with any business
continuity plan of the Principal and reasonably acceptable to the Principal.


 


•              the Contractor must prepare
and submit its proposed draft Business Continuity Plan to the Principal for its
approval within 60 Business Days after the Commencement Date; and


 


•              the Principal may, within
10 Business Days of receipt of the Contractor’s proposed draft Business
Continuity Plan, advise the Contractor whether or not it considers such plan to
be in accordance with this agreement, including the Requirements Document and
the Solutions Documentation, or reject it and provide its comments (if any). If
the proposed draft Business Continuity Plan is rejected, the Contractor must
promptly, and in any event within 10 Business Days, submit to the
Principal a redraft of the plan and such draft will be dealt with by the
Principal as if it were the initial draft submitted. The Contractor must take
into account any comments of the Principal in finalising the Business
Continuity Plan.


 


65





















 


Schedule 29


 


Schedule 29


Core Services Performance Requirements


 


(Clause 28)


 


1.                                                      Completion Process


 


1.1                                               Generally


 


Except where expressly
specified otherwise, the Contractor and the Principal have agreed that the
principles and requirements set out in Schedules 29, 30 and 31 and the annexure
to those schedules (the Performance Principles Document and Schedule 42 -
Design Targets) are the minimum position with respect to the performance regime
and design target regime to be completed during the NTS Solution Requirements
Phase.  In particular:


 


•         the
Contractor and the Principal have agreed that the final regime will be no worse
than the regime currently represented by the principles and requirements set
out in Schedules 29, 30 and 31 (including the annexure to those schedules); and


 


•         in
the event that the performance regime has not been completed by the Principal
and the Contractor or, if referred to the Expert, determined by the Expert by
the time any of the Services to which the regime applies are first provided by
the Contractor or any Devices are first put into revenue service (as defined in
Part 1 of Schedule 31) then the performance requirements currently
set out in Schedules 29, 30 and 31 (including the annexure to those schedules),
and in particular the Performance Indicators (“PIs”) for the Initial Services
and Core Services set out in sections 2 and 3 of the Performance Principles
Document and the agreed PIs for Customer Performance, being the availability
benchmarks set out in section 2.14 of Schedule 31, will apply until
such time as the regime is agreed or determined.


 


Schedule 29
and Schedule 30 will be completed as a Category 3 matter based on:


 


1.                                        the
Performance Indicators (PIs) that will apply to the performance of the Core
Services by the Contractor (Core Services Performance) and the performance of
the Initial Services by the Contractor (Initial Service Performance) as set out
in sections 2 and 3 of the Performance Principles document annexed to this
schedule, subject to the process set out below;


 


2.                                        the
process and principles set out below; and


 


3.                                        where
relevant, Schedule 31.


 


Amendments to the
Project Agreement will also be made to reflect that the Services Charges will
be subject to adjustments in accordance with the final form of this Schedule 29
and Schedule 30.


 


In completing Schedule 29
and Schedule 30 the following principles shall apply:


 


•                    The
Principal and the Contractor have agreed that the performance of the Core
Services and Initial Services shall be subject to a points based measurement
system. This system has been designed to encourage the Contractor to provide
the Initial Services and Core Services at high levels of performance, while
identifying the relative importance of each measurable PI.


 


66





















 


•                    Each
PI will accrue points as specified where that PI has not been met, as set out
in sections 2 and 3 of the Performance Principles. These points accrue to an
aggregate number of points for the Core Services and Initial Services on a
monthly basis. The aggregate points accrued across both the Initial Services
and the Core Services above the Points Threshold Amount will be used to
calculate the adjustment to the Service Charges that are payable.  The total points are converted by the Points
Conversion Factor in order to calculate the adjustment to the Service Charges.  The Points Conversion Factor equals: 1.00
(i.e. 1 point is equal to AUD $1.00) 
Subject to Section 1.2 below, the Points Threshold Amount (for both
Core Services Performance and Initial Services Performance) will be 500 points
($500), reset on a monthly basis.


 


1.2                                               Specific Process


 


At Risk Amounts
(amount by which the Services Charges may be adjusted) relating to the
performance regime will initially be [**]% for Customer Performance (device
availability and Core Services supporting device availability) regime (schedule 31)
and [**]% for Initial Services Performance and Core Services Performance (other
than those supporting device availability) of the average Services Charges (as
further set out in section 2.7(d) of Schedule 31), subject to
the following paragraph and the bullet points set out in the rest of this
section.


 


Prior to the
Phase Date for the NTS Solution Requirements Phase the Principal or the
Contractor may agree to further refine Schedule 29, Schedule 30 and Schedule 31
(required as changes to 29 & 30 may impact on 31, however only insofar
as creating additional PIs for insertion into Schedule 31), by proposing
amendments in relation to the performance regime. Amendments to Schedule 29,
Schedule 30 and Schedule 31 may be proposed as follows:


 


Schedule 31
contains agreed principles between the Principal and the Contractor. If, as a
result of changes to Schedules 29 and 30 arising from the process set out
below, changes are proposed to Schedule 31, the Principal may consider
these changes but is not bound or obliged in any way to accept such changes.  The Contractor acknowledges that the
principles set out in Schedule 31 are agreed between the parties and it is
not the intention of either party to change those principles as a result of the
process set out below, except to insert additional PIs which do not alter the
existing PIs contained within Schedule 31.


 


•                    Performance
matrices that support the business outcomes will be developed during the NTS
Solution Requirements Phase by the Contractor, in conjunction with the TTA. The
steps include:


 


1.                                the
starting point for the development of Schedules 29 and 30 are the PIs set out
in Sections 2 and 3 of the Performance Principles;


 


2.                                the
Contractor may in the course of its role in the development of the performance
matrices refer to its own Board of Experts (Kamco Board of Experts);


 


3.                                the
matrices will be provided to the Principal for comment prior to the Kamco Board
of Experts consulting in relation to the performance matrices;


 


4.                                the
Contractor after consulting with the Kamco Board of Experts will then propose
appropriate changes to the PIs to be inserted into Schedules 29, 30 and 31,
where the Contractor considers that, as a result of this process, a more
appropriate Performance Indicator or measure has been identified;


 


5.                                the
Principal will assess the proposed amendments in light of the relevant business
outcomes and the overall performance regime (including the PIs set


 


67





















 


out in the Performance Principles) and either
agree amendments to the PIs or not agree the amendments and refer to the Expert
for determination in accordance with clause 49.5 of this agreement, except that
the determination of the Expert will be final and binding upon each party and
clauses 49.5(l) and 49.5(m) shall not apply. The Principal will not be bound in
anyway to accept or reject the proposed amendments of the Kamco Board of
Experts; and


 


6.                                upon
agreement or determination of the amendments by the Expert, the At Risk Amount
for Initial Services Performance and Core Services Performance will increase to
[**]%.


 


The intention of
this clause is not to reduce the total aggregate value of currently identified
PI’s rather it is to allow for performance matrices to be developed by the
Contractor and amendments to the performance regime proposed by the Contractor
for the Principal’s consideration in light of the business outcomes identified
and confirmed during the NTS Solution Requirements Phase of the NTS Project.


 


•                    As
part of the process discussed above, 
either the Contractor or the Principal may propose amendments to the
performance measures including:


 


•                                                                              measurement
levels;


 


•                                                                              Payment
Reductions, such as removal, increase or decrease;


 


•                                                                              removal
of existing performance measures (PIs) or creation of new performance measures;
and


 


•                                                                              changing
the structure of the PIs based on business outcomes or continuous improvement.


 


Such proposals
for amendment will be considered and agreed where it is demonstrated that all
relevant and required PIs (including the PIs currently set out in the
Performance Principles) are at least
actively monitored, and the existing financial and performance outcomes for the
PIs in aggregate are maintained.


 


2.                                                      Performance Principles


 


•         Core
Services Performance and Initial Services Performance will apply as follows:


 


•                                                                              During
the period commencing on the date of the first provision of Delivery Services
to the Completion Date for NTS Operational Proving Phase, the Core Services
Performance PIs and Initial Service Performance PIs will apply. During this
period, the Points Threshold Amount of 500 points per month, which applies to
adjustments to the Services Charges arising from Initial Services Performance
and Core Services Performance in aggregate, will be increased by a factor of
100% to 1,000 points per month.  Adjustments during this period will be made to
the Delivery Services Charges or Services Charges, depending on which is being
paid at the relevant point in time.


 


•                                                                              After
the Completion Date for NTS Operational Proving Phase, Core Services
Performance and Initial Services Performance will apply and the Threshold level
will revert to 500 points per month.


 


•         The
Contractor and the Principal have agreed that the following principles are
fundamental to the Principal and must as a minimum form part of the final
performance regime which is agreed between the parties:


 


68





















 


•                                                                              the
Contractor is responsible for the collection and processing of all data
available for collection for the operating day;


 


•                                                                              all
available data must be delivered to the central processing system each day by
the agreed cut-off time and must be processed in the appropriate Settlement
window;


 


•                                                                              all
available data received by the central processing system must be 100% accurate
and 100% complete;


 


•                                                                              any
data exceptions identified are to be reported, investigated and if appropriate,
actioned, within 24 hours of receipt by the central processing system;


 


•                                                                              cash
reconciliation will occur on the next business day;


 


•                                                                              all
cash received shall be counted (processed) and banked by the next business day
in accordance with TTA requirements.  The
Contractor must ensure all collected cash is banked accordingly;


 


•                                                                              change
floats must be replenished according to the operational needs of the Operator
and in accordance with the Operator’s delivery schedule and the Contractor
must ensure that change floats for booking office are never out of cash if
ordered in accordance with the Operator’s delivery schedule;


 


•                                                                              Network
Availability – industry standard of 99.999%; and


 


•                                                                              Disaster
Recovery – the Contractor must ensure that the NTS has an expeditious ‘return
to service’ (i.e. cutover to back up central processing system) in the order of
15 minutes.  The Contractor must ensure
that its Service Level Agreement with its Data Centre services supplier allows
for an expeditious ‘return to service’ (i.e., cutover to back up central
processing system) in the order of 15 minutes.


 


•         Proposals
where there is a change in risk allocation may have a financial impact to the
parties. In such cases, agreement to the proposed amendment will be conditional
on the parties agreeing the price changes (if any) resulting from the proposed
amendments.


 


•         Any
proposed amendments to PIs and Device performance measures offered by the
Contractor must be capable of measurement. The Principal and the Contractor
shall cooperate to ensure that all performance measures are able to be measured
in a manner that will provide transparent analysis and data relating to the
performance of the Solution.


 


•         From
the time that the Customer Performance (device availability) PIs in Schedule 31
apply, the Contractor will monitor and track individual device performance and
identify and if appropriate, replace any devices or components of such devices,
that fail to achieve consistent availability performance.


 


•         Entry
/ Exit Points (“EEPs”) performance is critical to customer service. Accordingly
the return to service of EEPs is paramount to the Principal. Set out below are
target times relating to EEP return to service.


 


69





















 


Target
Entry/Exit Points (EEP) Return to Service Time


 




	
  Location

  	
   

  	
  Return to Service

  Time

  High Usage

  (Time of Day/Day of

  week)

  	
   

  	
  Return to Service

  Time

  Medium Usage

  (Time of Day/Day of

  week)

  	
   

  	
  Return to Service

  Time

  Low Usage

  (Time of Day/Day of

  week)

  
	
  CBD and High Usage Locations

  	
   

  	
  30 minutes

  	
   

  	
  45 minutes

  	
   

  	
  60 minutes

  
	
  Metro and Regional Town
  Centres (Bus/V/Line)

  	
   

  	
  30 minutes

  	
   

  	
  45 minutes

  	
   

  	
  60 minutes

  
	
  Regional Coach V/Line Remainder

  	
   

  	
  30 minutes

  	
   

  	
  45 minutes

  	
   

  	
  60 minutes

  






 


•         For
individual devices (not EEPs), there is an implied aggregate effort (in terms
of time and resources) required to meet PIs 26 to 41 of the Performance
Principles (which specifically relate to response and repair times of devices).  That aggregate will be used as the base for
the calibration and finalisation of the return to service times in the
following table.  In particular, the
implied amount of effort required to meet the response times in the final form
of the table must be equivalent to the implied effort required to meet current
PIs 26 to 41.  Prior to the finalisation
of the final form of the table, the times within this table will be considered
as targets:


 


Target
Individual Device Return to Service Time


 




	
  Location

  	
   

  	
  Return to Service

  Time

  High Usage

  (Time of Day/Day of

  week)

  	
   

  	
  Return to Service

  Time

  Medium Usage

  (Time of Day/Day of

  week)

  	
   

  	
  Return to Service

  Time

  Low Usage

  (Time of Day/Day of

  week)

  
	
  CBD and High Usage Locations

  	
   

  	
  30 minutes

  	
   

  	
  60 minutes

  	
   

  	
  90 minutes

  
	
  Metro and Regional Town
  Centres (Bus/V/Line)

  	
   

  	
  60 minutes

  	
   

  	
  90 minutes

  	
   

  	
  120 minutes

  
	
  Regional Coach V/Line Remainder

  	
   

  	
  90 minutes

  	
   

  	
  120 minutes

  	
   

  	
  180 minutes

  






 


The calibration
and application of the above table shall exclude those remote locations which
are not regional centres.  The parties
will agree as a separate matter response times for remote locations which are
not regional centres.


 


•         For
the purposes of the Performance Regime exclusively, the concept of a transit
service day will be introduced to recognize the operational reality that there
are periods of time, generally after midnight and prior to 4am, when there are
no operational services across the Solution. 
The term transit service day refers to the time in which transport
services are operational.  It is noted
that this term may vary according to the location and transport mode. The
definition of transit service day will be determined during the NTS Solution
Requirements Phase and may be amended by the Principal for each mode, as and
when required.


 


Periods of time
outside the transit service day will not incur a performance adjustment by the
Contractor. For example only:


 


70





















 


	
  Transit Service Day

  5am — 11:59pm

  	
   

  	
  Outside Transit Service Day

  12pm — 4am

  	
   

  	
  Next Transit Service

  4:01am — 11:59pm

  
	
  Return to service concept applies

  	
   

  	
  Penalty free period

  	
   

  	
  Return to Service concept applies

  



 


In the above
example, if a device goes out of service at 10pm of an evening at a Regional
Coach location (and say for instance that 2 hours is the allowed Return to
Service time for that location)) the Contractor effectively has until the
commencement of the next transit service day to return the device to
operational service. These principles apply to Schedules 29, 30 and 31.


 


•         The
principles within Schedules 29, 30 and 31 are premised on access being
available and granted to the Contractor in a timely manner.


 


The Performance
Principles document is annexed to Schedule 31.


 


71





















 


Schedule
30


 


Schedule 30


Initial Services Performance Requirements


 


This schedule will be completed in accordance with the completion
process set out in schedule 29.


 


72





















 


Schedule 31


 


Schedule 31


Customer Performance Requirements


 


(Clause 28)


 


1.                                                      Completion Process


 


Except where
expressly specified otherwise, the Contractor and the Principal have agreed
that the principles and requirements set out in Schedules 29, 30 and 31 and the
annexure to those schedules (the Performance Principles Document, CDA and Schedule 42
- Design Targets) are the minimum position with respect to the performance
regime and design target regime to be completed during the NTS Solution
Requirements Phase.  In particular:


 


•         the
Contractor and the Principal have agreed that the final regime will be no worse
than the regime currently represented by the principles and requirements set
out in Schedules 29, 30 and 31 (including the annexures to those schedules);
and


 


•         in
the event that the performance regime has not been completed by the Principal
and the Contractor or, if referred to the Expert, determined by the Expert by
the time any of the Services to which the regime applies are first provided by
the Contractor or any Devices are first put into revenue service (as defined
below) then the performance requirements currently set out in Schedules 29, 30
and 31 (including the annexure to those schedules) and in particular the
Performance Indicators (“PIs”) for the
Initial Services and Core Services set out in parts 2 and 3 of the Performance
Principles document and the agreed PIs for Customer Performance, being the
availability benchmarks set out in section 2.14 of this schedule, will
apply until such time as the regime is agreed or determined.


 


The performance
regime that will apply to the operation of the Solution and to the provision of
the Initial and Core Services will be completed as a Category 3 matter.
Schedules 29 and 30, relating to the Initial Services Performance Requirements
and Core Services Performance Requirements, will be completed in accordance
with the process set out in Schedule 29, recognising that changes to those
Schedules may result in changes to this Schedule 31. Changes to Schedule 31
will be limited to the creation of PIs additional to those existing PIs within Schedule 31.


 


This Schedule sets
out the process and principles which will apply to the completion of the
performance regime and design targets generally including with respect to the
Customer Performance PIs (the device availability benchmarks set out in part
2.14 of this schedule).


 


Part 2 of
this schedule sets out the principles which have been agreed between the
Principal and the Contractor with respect to the performance regime which will
be completed and documented (both by way of completion of schedules 29, 30 and
31, amendments to the Project Agreement and any other documentation required)
during the NTS Solution Requirements Phase. 
In completing and documenting the performance regime, including this Schedule 31,
the following additional principles shall also apply:


 


•         Customer
Performance (device availability) will apply as follows:


 


•                                              During
the period commencing on the first date that an NTS Solution Device is placed
in revenue service in the existing automated ticketing system operated by
Onelink Transit Systems Pty Limited (“AFC System”)
and ending on the date that the NTS Device is placed in Smartcard transit
revenue service in the NTS Solution, the performance of such Devices as part of
the AFC System shall be required as a minimum to meet the Customer Defined
Availability (CDA) levels of the current ticketing system, as set out in the
Service Contract between the TTA and Onelink Transit


 





















 


Systems Pty Ltd as amended and restated on 21 October 2002 and as
further amended or varied since that time up to the date of this agreement. The
CDA levels of the AFC System as at the date of this agreement are set out in
Annexure 2.   Revenue
service means the point where equipment or services related to the Solution are
used operationally or for operational purposes either in the AFC System or in
the Solution.


 


•                                              During
the period commencing on the first date that a NTS Device is placed in
Smartcard transit revenue service in the Solution to the Completion Date of the
NTS Operational Proving Phase, the Customer Performance PIs will apply to such
Devices as they are in transit revenue service.


 


•                                              During
the period commencing on the first date that an NTS Solution Device is placed
in revenue service in the AFC System and ending on the Completion Date of the
NTS Operational Proving Phase , the Threshold Level of $[**] per month will be
increased by a factor of [**]% to $[**] per month. Adjustments will be made to
the Delivery Services Charge or Services Charge depending on which is being
paid at the relevant time.


 


•         After
the Completion Date of NTS Operational Proving Phase, the Customer Performance
PIs will apply and the Threshold Level will revert to $[**] per month.


 


•         Undetected
Faults - If a deviation in transaction volume for any device varies by [**]%
for a given period the Contractor will:


 


•                                              identify
if the deviation is due to a undetected fault. 
If so standard Customer Performance availability calculations will
apply; and


 


•                                              if
no fault is present, advise the Principal of the change in device usage
pattern.


 


•         Based
on the principles in this schedule, specific additional areas to be drafted
into final form for this schedule and other parts of this agreement
include (but are not limited to):


 


•                                              all
drafting required to reflect the matters set out in Part 2 of this
Schedule;


 


•                                              minimum
obligation of the Contractor to perform better than current ticketing device
equivalent availability performance in the AFC System, by a margin of a minimum
[**]% reduction in downtime from the current AFC System CDA performance figures
as specified in Annexure 2;


 


•                                              formulae
relating to the adjustment of Services Charges based on the Contractor’s
performance measured against the Initial Services Performance Requirements,
Core Services Performance Requirements and Customer Performance Requirements;


 


•                                              definition
of transit service day by mode to be agreed between the parties; and


 


•                                              design
targets – the Design Targets set out in the Schedule 42 annexed to this schedule 31
provide key indicators around device interactions that the Principal believes
to be critical.  The Contractor will be
required to demonstrate for all phases up to and including NTS Solution Final
Back Office Release Phase that the Devices can meet these Design Targets and
will be required to achieve these Design Targets during testing. Obligations
with respect to these requirements will be inserted into the agreement,
including that the design targets will form part of the Phase Deliverables for
relevant Phases.


 





















 


Prior to the
Completion Date of the NTS Solution Requirements Phase the Principal and the
Contractor agree to adjust the design targets set out in Schedule 42 where
the Contractor can clearly demonstrate that the operating environment
identified during the NTS Solution Requirements Phase is materially different
to the operating environment which the Contractor reasonably anticipated would
apply to the Solution as at the date of this agreement and, that solely as a
result of the difference in the operating environment, it is practically impossible
to reach certain design targets.


 


2.                                                      Agreed Performance
Principles [Schedules 29, 30 & 31]


 


2.1                                               Obligations to Maintain Performance Levels


 


The Contractor
must maintain the performance levels set out in this schedule and
schedules 29 and 30 (as they are finally completed). In order for this to be
measured, the Contractor must provide a robust and reliable means of monitoring
and reporting to the Principal in relation to the Performance Requirements, and
illustrate its understanding of these measurement requirements.


 


The Contractor
must provide a detailed plan that describes the methodology of capturing and
processing the data to be used to measure the Initial Services Performance
Requirements, Core Services Performance Requirements and Customer Performance
Requirements.  This plan is subject to
review and approval by the Principal. 
The Contractor may add Devices or increase system redundancy levels such
as back-up data servers or additional Distribution Devices in order to meet or
exceed Customer Performance requirements. 
Such Devices must be provided at no additional cost to the Principal.


 


In the event that
Solution Devices do not meet these requirements, the Contractor must identify
and implement remedial action, including, as necessary, modification of the
Devices, on-site engineering services, on-site technical services, or other
related action at no additional cost to the Principal.  The Contractor will be required to prepare
various annual reporting plans in accordance with the Requirements Document.


 


These annual
plans are in addition to the reporting requirements for measuring performance
contained in this document.


 


2.2                                               At Risk Amount


 


Subject to the
process set out in Schedule 29, the Contractor agrees that the At Risk
Amount is calculated in accordance with clause 2.7(d) and is subject to
the Monthly Cap calculated in accordance with clause 2.7(d). As discussed
below, the Principal may withhold the monthly payment where the performance
reduction amounts exceed the Monthly Cap.


 


2.3                                               Service Charges


 


As discussed
below, where the adjustment to the Services Charges for a particular month
reaches the maximum At Risk Amount of the Monthly Cap, the Principal may
withhold the adjusted monthly Service Charges (the Service Charges less the
adjustments in the amount of the Monthly Cap) until the Contractor has provided
and complied with the Corrective Action Plan submitted in accordance with the
Project Agreement, and in any event until the payment date for the following
monthly Service Charges after the Contractor has complied with the Corrective
Action Plan. Where the payment of the adjusted monthly Service Charges is
withheld and the Contractor subsequently complies with the Corrective Action
Plan (in other words restores performance to a level which does not cause the
At Risk Amount to be exceeded), the adjusted Service Charges withheld will be
paid.


 





















 


2.4                                               Threshold Amounts


 


Subject to Part 1
of this Schedule, for Customer Performance (Device) there is a threshold amount
of $500 per month. Subject to Schedule 29, for Services Performance (Core
Services and Initial Services), the Threshold level is 500 points per month,
reset each month.


 


2.5                                               Bonuses


 


The Principal
wishes to encourage consistent achievement of the Performance Requirements,
including the Customer Performance device availability regime and the Core
Services Performance Requirements and Initial Services Performance
Requirements.  The Principal considers
this measure better correlates to the Contactor’s control, as opposed to
historical bonus measures such as transport growth, which is primarily
influenced by a number of factors outside of the Contractor’s control.


 


In acknowledging
this the following bonuses will be available to the Contractor in recognition
of certain NTS targets being achieved:


 


1.                                        Smartcard
activation and use bonus – scalable up to $[**][**][**] may be accrued based on
targets achieved;


 


2.                                        farebox
growth bonus – $[**] lump sum where [**]% real growth in Farebox revenue is
achieved during the Implementation phases; and


 


3.                                        performance
bonus – up to $[**] each operating year where both Customer Performance PIs and
the Core Service and Initial Service PIs are met consistently.


 


The way in which
these bonuses will operate is set out in more detail in the remainder of this
section:


 


(a)                                                   Performance
Bonus


 


The Contractor’s
performance will be monitored monthly. 
Where the Contractor has achieved the performance levels required for
the highest level of Services Charge (ie. there are no adjustments to the
Services Charges either as a result of the availability of Devices or Services
Performance), for a period of six (6) consecutive months, the Contractor
will receive a consistency based bonus of $[**]. From that point the bonus will
be paid as a monthly performance bonus of $[**] for as long as the required
performance levels are maintained. Accordingly the Contractor has the potential
to receive $[**][**][**] in consistency bonuses each year. The bonus is in
nominal dollars (that is, it will not be adjusted for CPI).


 


Where the
Contractor is receiving the monthly bonus, and fails to meet the performance
levels required for the highest level of Service Charges in a subsequent month,
the mechanism is reset such that the Contractor must achieve a further six (6) consecutive
months of the required performance levels (and receive the bonus) before
becoming entitled to the rolling monthly bonus.


 


(b)                                                  Smartcards
Activation and Use Bonus


 


The Principal has
recognised that the Contractor will not completely control the uptake / issue
of Smartcards by Customers. However the Contractor’s performance of services
such as Smartcard Base Management Services, Distribution Services and
Cardholder Support Services will materially influence the level of Smartcard
issuance.  On this basis the Principal is
incentivising the Contractor during the Implementation by way of a once off
bonus. This material influence is of major


 





















 


importance to the
Principal. The Principal may independently verify the quantum of cards on
issue.


 


The calculation
of Smartcard issuance will exclude Operators’ staff and free passes.  Issuance will encompass both activation and
having been used at least once.


 


(i)                                                     NTS
Regional and Metropolitan Implementation Completion Phase- Regional


 


The Contractor
will be incentivised to assist the Principal in maximising the number of cards
on issue during the year following the commencement of NTS Regional and
Metropolitan Implementation Completion Phase.  If the number of Smartcards issued
in regional areas up to the end of 12 months immediately following the period
15 months from the commencement of this agreement, is less than [**] then no
incentive will be paid. Alternatively, on an aggregate basis, where the
Contractor has issued cards in excess of [**] in regional areas, a bonus will be
paid at $[**] per card over and above this number.


 


The bonus is
limited to a maximum amount of $[**] payable in relation to the 12 months
immediately following the period 15 months from the commencement of this
agreement and will be payable at the end of those 12 months. Smartcards issued
for regional areas and counted towards the Regional Bonus will not be counted
for metropolitan areas below.


 


(ii)                                                  NTS
Regional and Metropolitan Implementation Completion Phase - Metropolitan


 


The Contractor
will be incentivised to assist the Principal in maximising the number of cards
on issue during the year following the commencement of NTS Regional and
Metropolitan Implementation Completion Phase. If the number of Smartcards
issued in metropolitan areas up to the end of 12 months immediately following
the period 15 months from the commencement of this agreement is less than [**]
then no incentive will be paid. If the number issued in metropolitan areas
exceeds [**], the bonus will be paid at $[**] per card for each card over and
above this number.


 


The bonus is
limited to a maximum amount of $[**] payable in relation to the 12 months
immediately following the period 15 months from the commencement of this
agreement, and will be payable at the end of those 12 months. Smartcards issued
for metropolitan areas will not be counted for regional areas above.


 


(c)                                                   Farebox
Incentive (Once Only)


 


The Contractor
will receive an incentive based on the total farebox for metropolitan services.
The Contractor will receive a bonus of $[**] if the farebox growth remains at
or above the long term real growth level of [**]% per annum. This bonus will be
a lump sum payable based on 12 calendar months commencing from the period 15
months from the commencement of this agreement. This incentive is to reward the
Contractor for minimising the Customer affects of NTS Regional and Metropolitan
Implementation Completion Phase.  The
definition of farebox revenue for metropolitan areas and the method of
calculation for determining the real growth level will be specified by the
Principal.  The Principal will determine
whether the real farebox growth remains at or above [**]% per annum.


 


73





















 


2.6                                               Monitoring Methods


 


The Contractor’s
performance of the Core and Initial Services will be monitored by a number of
different methods. The following table summarises and classifies the common
methods referred to in this document, but is not exhaustive and unique
monitoring methods may apply to certain PI measurement.


 


	
  Monitoring

  Method

  	
   

  	
  Description

  
	
  Type 1

  	
   

  	
  Contractor self monitoring.

  

  This may involve the logging of events by a dedicated helpdesk

  
	
  Type 2

  	
   

  	
  Review by Principal. The review may be
  conducted by the Principal or representatives of the Principal.

  
	
  Type 3

  	
   

  	
  Operator Reports. The transit operators
  will provide various feedback for some of the Services where appropriate

  
	
  Type 4

  	
   

  	
  Third party audit. This will be an
  independent process by a party or statutory body.

  



 


2.7                                               General Assumptions


 


(a)                                                   Weighting


 


In line with the
customer focused approach the Principal has removed all weighting relating to
Packages, days of the week and location. The Principal believe that each of
these parameters should be treated as equal and any weighting would create an
unnecessary bias.


 


(b)                                                  Time
Periods


 


The Principal has
calculated Device availability across a 24 hour day for a period of 365 days –
representing a calendar year. The Principal believes that this is a true
representation of the Solution Operating requirement. The Principal and the
Contractor agree to develop this principle further to reflect revenue service
of the Devices.


 


It is recognised,
for the Core Services, the current Operators’ business day commences at
approximately 4am and concludes at approximately 2am the next day, but the
proposed Solution must have the ability to perform in a continuous business
day.


 


(c)                                                   Reporting


 


The Principal
requires all performance measures to be collected daily and reported to the
Principal on a monthly basis.  The
monthly report will be used as the basis of calculation for any adjustment
payments due.


 


(d)                                                  Methodology
of Adjustment Caps


 


Subject to Schedule 29,
the adjustment to the Services Charges as a result of adjustment points
accruing in respect of the Initial Services PIs and Core Services PIs will be
subject to a monthly cap based on [**]% of the Services Charge. The


 





















 


adjustment cap
for Device availability (Customer Performance) will be set at [**]% of the
Services Charge. Based on this, the Principal notes that the combined effect of
these two caps produces an overall cap of [**]% of the Services Charge for
adjustments.


 


The Service
Charge fluctuates from year to year during the Delivery Services Term and the
Core Services Term. The Principal will use Schedules 32 and 10 respectively to
calculate the Average Monthly Delivery Services Charge and the Average Monthly
Services Charge. The Monthly Cap during the Delivery Services Term will be
[**]% of the Average Monthly Delivery Services Charge. The Monthly Cap during
the Core Services Term will be [**]% of the Average Monthly Services Charge.


 


Where some or all
of the Initial Services are contracted to be performed by a party other than
the Contractor or its Subcontractors, then the overall adjustment cap will
progressively reduce and will be recalculated by the Principal as Variations to
Schedules 32 and 10 are agreed.


 


2.8                                               Withholding Payment


 


The Contractor
and Principal agree that the maximum reduction to the Service Charge will be
capped at the Monthly Cap referred to in clause 2.7. This Monthly Cap applies
to total reductions for both Customer Performance and Services Performance.


 


Where the Monthly
Cap (noting that reductions will be those amounts above the Threshold Amounts
described above) is reached and applied to reduce the Service Charge, the
Principal may withhold the adjusted Service Charge subject to successful
corrective action.


 


The Corrective
action will be considered successful where the Contractor improves performance
to a level where the maximum Monthly Cap will no longer be deducted in the
following performance month.


 


Accordingly, the
Contractor has clarity around what is required for the Principal to release
withheld Service Charge payments.


 


In a given month,
the Contractor may believe that the monthly At Risk amount will be exceeded as
a result of poor performance. In this circumstance, and prior to the Principal
deciding what portion of the adjusted Service Charges to withhold, the
Contractor may request a meeting with the Chief Executive Officer of the Principal
to discuss the circumstances of the poor performance.


 


2.9                                               Device Availability Assumptions & Principles


 


(a)                                                   Customer
Performance Benchmark


 


The Principal has
derived a Customer Performance indicator that takes into account:


 


•                                                              Corrective
Maintenance: as a function of the Raw Availability;


 


•                                                              Preventative
Maintenance: as an estimated monthly duration;


 


•                                                              Vandalism:
As an estimated monthly duration. Note that this does not include “spate” or in
the case of a TVM, CVM or gate, this does not account for major acts of
vandalism that would require the removal of the device; and


 


•                                                              Revenue
Collection: Where applicable the Principal has incorporated estimation for cash
collection.


 





















 


(b)                                                  Device
Out of Service


 


The Principal
reiterates this principle to define a Device that is either in service or out
of service. There are only two outcomes, for instance a device cannot be partly
out of service.


 


A Device will be
considered out of service (and therefore unavailable) where it fails to provide
the level of functionality for that Device as required by the Requirements
Document. In addition, a Device will be considered out of service where it
fails to meet the Design Targets set out in Schedule 42 (as it is finally
completed).


 


In most cases,
Devices will have alerts and alarms where key functionality has failed. In
other cases, other sources of information may be used to determine out of
service.


 


As set out above,
the Device benchmarks are inclusive of all scheduled downtime, and all
unscheduled downtime (refer above).


 


(c)                                                   Availability Time Calculation


 


Actual
performance will be compared to the benchmarks. The calculation of device type
benchmarks will initially be based on the actual transit service day as defined
for each mode. The term transit service day refers to the time in which
transport services are operational.  It
is noted that this term may vary according to the location and transport
mode.  For example in relation to Rail
(including V/Line) the definition could vary on a station by station basis
recognising the variability of the first service and last service across this
mode of transport.  The parties will also
agree mechanisms for defining the transit service day for Tram, Bus, Hand-Held
and Retail services.


 


It is recognised
that within the NTS there is a concept of a 24 hour operating day, however
exclusively for the purposes of the Performance Regime the transit service day
has been introduced to recognise the operational reality that there are periods
of time, generally after midnight and prior to 4am, when there are no
operational services across the system. 
As a result the definition of transit service day may be amended by the,
Principal for each mode, as and when required.


 


Over the term of
this agreement, there will be no entitlement to increased Service Charge
payments to the Contractor resulting from changes in the period of time for the
definition of transit service days.


 


The Principal has
used the following time assumptions to generate its Performance model:


 


	
  Days in a year

  	
   

  	
  Implied Minutes/year

  	
   

  	
  Min in a Month

  
	
  365

  	
   

  	
  525600

  	
   

  	
  43800

  



 


	
  Raw % Availability

  	
   

  	
  Implied Minutes

  Unavailable in a year

  	
   

  	
  Implied Minutes

  Unavailable in a month

  
	
  99.900%

  	
   

  	
  526

  	
   

  	
  43.8

  
	
  99.990%

  	
   

  	
  53

  	
   

  	
  4.4

  
	
  99.999%

  	
   

  	
  5.3

  	
   

  	
  0.44

  



 





















 


	
  Ave Response Time

  	
   

  	
  Average Mean Time To

  Repair

  	
   

  	
  Mean Time To Restore

  
	
  60

  	
   

  	
  15

  	
   

  	
  75

  



 


(d)                                                  Entry/Exit Points


 


The Principal has
defined the concept of entry/exit points to reflect the customer view of the
system. The following definition has been applied to entry/exit points:


 


•                                                              Entry
/ Exit Points are any physical exit or entry point to any of the public
transport services operated by the Operators (including points of exit or entry
on train station platforms or station subways, tram doors and bus doors) which
consists of 2 or greater Fare Payment Devices or Gates and are considered to
carry the most critical functionality for the NTS. The Principal has rated
these devices as being twice as important as other devices.


 


•                                                              Raw
availability for entry/exit points is considered to be 99.9995%.


 


The Contractor
agrees to meet this benchmark for each entry/exit point within the Solution.


 


2.10                                        Device Performance Calculations (Schedule 31)


 


2.11                                        Minimum Obligation


 


The Contractor
agrees that Device availability of the NTS will be an improvement from the
availability (known as Customer Defined Availability or CDA) of device types in
the current ticketing system. For instance, the average availability
performance of NTS CVMs will be better than the average of current TVM device
types.  In particular, the Contractor has
committed to achieving a minimum [**]% reduction in downtime from the current
AFC System CDA levels as set out in Annexure 2.


 


This will apply
across all device types of the NTS.


 


The following
process will be used in order for raw NTS Device performance data to be
compared to CDA reported availability to determine whether the Contractor has
met its obligation to improve Device availability levels:


 


1.                                        the
Contractor provides raw NTS device performance data to the Principal;


 


2.                                        the
Principal identifies those formulae and adjustments that are applied to the raw
availability data of the current ticketing system to derive the CDA reported
availability;


 


3.                                        the
Principal applies those formulae and adjustments (as identified above) to the
raw NTS device performance to arrive at adjusted NTS device performance;


 


4.                                        the
adjusted NTS device performance is then compared to CDA reported availability
to determine if the Contractor has met the minimum performance obligations; and


 


5.                                        subject
to agreement with the Contractor, the Principal may during the term of this
agreement provide the software relating to the formulae and adjustments to the
Contractor so that the Contractor can calculate and report the comparison of
adjusted NTS and CDA data to the Principal.


 





















 


2.12                                        Specific Principles


 


Performance shall
be calculated by as an average over each device type population.


 


The exception to
this is Entry/ Exit Points, which will be calculated on an individual
Entry/Exit Point basis.


 


Reduction in the
Service Charges will apply on an hourly basis, where the monthly availability
of that device type falls below its agreed benchmark. In other words, a device
benchmark may imply an average 90 minutes of downtime, and each hour over and
above that (or part thereof) for each device will attract a reduction at an
hourly rate, as described below.


 


The Reductions in
relation to Customer Performance will remain capped at [**]% of the monthly
Services Charge.


 


Benchmarks have
been agreed by device type (and are set out in section 2.14 below).


 


There are three
device categories being:


 


1.                                        availability
of Exit / Entry Points within the NTS (EEP);


 


2.                                        availability
of devices types within Exit Entry Points within the NTS (device entry exit or
DEE); and


 


3.                                        availability
of other device types within the NTS, whose function is distribution / selling
device (DSD).


 


The ramification
of failing to meet the benchmark for these categories is as follows:


 


	
  Type

  	
   

  	
  Reduction per hour

  (prorated)

  	
   

  	
  Maximum Reduction per month

  
	
  EEP

  	
   

  	
  $[**] per
  EEP

  	
   

  	
  [**]%
  Service Charge

  
	
  DEE

  	
   

  	
  $[**] per
  device*

  	
   

  	
  [**]%
  Service Charge

  
	
  DSD

  	
   

  	
  $[**] per
  device*

  	
   

  	
  [**]%
  Service Charge

  



 


Where the device
population benchmark is not met, the actual Customer Performance percentage
will be converted to a number of hours in excess of the benchmark, for that
whole device type population. The number of hours will attract a payment
reduction of $[**] per hour as set out above. For instance, if CVM (rail)
performance implies that there were a total 300 hours in excess of the
benchmark across the CVM (rail) population, then the monthly payment reduction
for that PI shall be:


 


$[**] * [**] =
$[**]


 


The intention of
the above mechanism is to have an increased impact where an entire EEP is out
of service. This is very important to the Principal.


 


The maximum
reduction of [**]% of Services Charge applies to the sum of reductions across
all Device types. This amount will remain for the Term.


 


Where the
calculated reduction exceeds [**]% of Services Charge, the reduction is capped
at [**]% of Service Charge.


 





















 


2.13                                        Device Performance Calculation After One Year of NTS Operations


 


After the first
year from the Solution Completion Date the 3 types of Customer Performance
(EEP, DEE and DSD) will continue to be measured by the relevant benchmarks. In
addition to this Entry/Exit Points (EEP) and device types at those Entry/Exit
Points (DEE) will be weighted according to scan on and scan off
transactions.  The data used for a day
will compare the average of the same day of the previous week, and data 52
weeks prior on the same day.


 


This average will
represent a fraction or percentage of total transactions on that measurement
day.


 


For distribution
and or selling devices (DSD), the same approach will apply as per above,
however revenue will be used.


 


The total weighting
impact within the categories will have the same impact in aggregate as the
mechanisms described above.


 


For instance,
there may be around 15,400 validation type devices (DEE). If each one was down
for 5 minutes more than the benchmark allowed in a month, the reduction in the
first year, using no weightings might be:


 


15,400 times
$[**], then apply a time factor of 5/60 minutes =  $[**] in that month.


 


The Principal’s
use of NTS data will ensure that the aggregate impact of the calculated
weightings will be neutral to the total reduction calculated.


 


Specifically, for
fare payment device types (DEE) the calculation weighting will be:


 





 


This calculation
produces the same $[**] result assuming all FPDs are down for 5 minutes as
above.


 





















 


2.14                                        Device Availability Benchmark


 


The Contractor
has agreed that the benchmark for the availability of all Entry/Exit Points is
99.9995% (EEP).


 


The Contractor
has also agreed that the benchmarks for availability of individual Device types
will be the percentages set out in the Customer Performance Indicator column in
the following table.  The other
information in the table has only been included as background information.


 


	
  PI#

  	
   

  	
  Device

  Name

  	
   

  	
  Category

  	
   

  	
  Raw

  Avail.%

  	
   

  	
  Preventative

  Maint

  	
   

  	
  Corrective

  Maint

  	
   

  	
  Vandalism

  	
   

  	
  Revenue

  Collection

  	
   

  	
  Min Per

  Month

  	
   

  	
  Customer

  Performance

  Indicator

  	
   

  
	
  1

  	
   

  	
  FPD-Tram

  	
   

  	
  DEE (Entire
  Device Population over month)

  	
   

  	
  99.990

  	
  %

  	
  10

  	
   

  	
  4.4

  	
   

  	
  20

  	
   

  	
  0

  	
   

  	
  34.38

  	
   

  	
  99.92

  	
  %

  
	
  2

  	
   

  	
  Tram Driver
  Console

  	
   

  	
  DEE (Entire
  Device Population over month)

  	
   

  	
  99.990

  	
  %

  	
  10

  	
   

  	
  4.4

  	
   

  	
  20

  	
   

  	
  0

  	
   

  	
  34.38

  	
   

  	
  99.92

  	
  %

  
	
  3

  	
   

  	
  FPD - Rail

  	
   

  	
  DEE (Entire
  Device Population over month)

  	
   

  	
  99.990

  	
  %

  	
  10

  	
   

  	
  4.4

  	
   

  	
  20

  	
   

  	
  0

  	
   

  	
  34.38

  	
   

  	
  99.92

  	
  %

  
	
  4

  	
   

  	
  Gate Array

  	
   

  	
  DEE (Entire
  Device Population over month)

  	
   

  	
  99.990

  	
  %

  	
  20

  	
   

  	
  4.4

  	
   

  	
  40

  	
   

  	
  0

  	
   

  	
  64.38

  	
   

  	
  99.85

  	
  %

  
	
  5

  	
   

  	
  FPD - Bus

  	
   

  	
  DEE (Entire
  Device Population over month)

  	
   

  	
  99.990

  	
  %

  	
  10

  	
   

  	
  4.4

  	
   

  	
  20

  	
   

  	
  0

  	
   

  	
  34.38

  	
   

  	
  99.92

  	
  %

  
	
  6

  	
   

  	
  Bus Driver
  Console

  	
   

  	
  DSD/DEE
  (Entire Device Population over month)

  	
   

  	
  99.990

  	
  %

  	
  10

  	
   

  	
  4.4

  	
   

  	
  20

  	
   

  	
  0

  	
   

  	
  34.38

  	
   

  	
  99.92

  	
  %

  
	
  7

  	
   

  	
   

  	
   

  	
  Not Required

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8

  	
   

  	
  CVM - Tram

  	
   

  	
  DSD (Entire
  Device Population over month)

  	
   

  	
  99.900

  	
  %

  	
  20

  	
   

  	
  56.3

  	
   

  	
  40

  	
   

  	
  60

  	
   

  	
  176.43

  	
   

  	
  99.60

  	
  %

  
	
  9

  	
   

  	
  CVM – Inter/
  Superstops

  	
   

  	
  DSD (Entire
  Device Population over month)

  	
   

  	
  99.900

  	
  %

  	
  20

  	
   

  	
  43.8

  	
   

  	
  60

  	
   

  	
  60

  	
   

  	
  183.83

  	
   

  	
  99.58

  	
  %

  



 





















 


	
  PI#

  	
   

  	
  Device

  Name

  	
   

  	
  Category

  	
   

  	
  Raw

  Avail.%

  	
   

  	
  Preventative

  Maint

  	
   

  	
  Corrective

  Maint

  	
   

  	
  Vandalism

  	
   

  	
  Revenue

  Collection

  	
   

  	
  Min Per

  Month

  	
   

  	
  Customer

  Performance

  Indicator

  	
   

  
	
  10

  	
   

  	
  SA Enquiry
  Device - Interchanges & Superstops

  	
   

  	
  DSD (Entire
  Device Population over month)

  	
   

  	
  99.900

  	
  %

  	
  10

  	
   

  	
  43.8

  	
   

  	
  60

  	
   

  	
  0

  	
   

  	
  113.83

  	
   

  	
  99.74

  	
  %

  
	
  11

  	
   

  	
  AVM -
  Interchanges and Super Stops

  	
   

  	
  DSD (Entire
  Device Population over month)

  	
   

  	
  99.900

  	
  %

  	
  20

  	
   

  	
  43.8

  	
   

  	
  60

  	
   

  	
  60

  	
   

  	
  183.83

  	
   

  	
  99.58

  	
  %

  
	
  12

  	
   

  	
  CVM - Rail

  	
   

  	
  DSD (Entire
  Device Population over month)

  	
   

  	
  99.900

  	
  %

  	
  20

  	
   

  	
  43.8

  	
   

  	
  60

  	
   

  	
  60

  	
   

  	
  183.83

  	
   

  	
  99.58

  	
  %

  
	
  13

  	
   

  	
  AVM - Rail

  	
   

  	
  DSD (Entire
  Device Population over month)

  	
   

  	
  99.900

  	
  %

  	
  20

  	
   

  	
  43.8

  	
   

  	
  60

  	
   

  	
  60

  	
   

  	
  183.83

  	
   

  	
  99.58

  	
  %

  
	
  14

  	
   

  	
  TOT - Rail

  	
   

  	
  DSD (Entire
  Device Population over month)

  	
   

  	
  99.900

  	
  %

  	
  20

  	
   

  	
  43.8

  	
   

  	
  0

  	
   

  	
  60

  	
   

  	
  123.83

  	
   

  	
  99.72

  	
  %

  
	
  15

  	
   

  	
  Gate
  Attendant Controller

  	
   

  	
  DSD (Entire
  Device Population over month)

  	
   

  	
  99.900

  	
  %

  	
  20

  	
   

  	
  43.8

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  63.83

  	
   

  	
  99.85

  	
  %

  
	
  16

  	
   

  	
  Stand Alone
  Enquiry Device – Rail

  	
   

  	
  DSD (Entire
  Device Population over month)

  	
   

  	
  99.900

  	
  %

  	
  20

  	
   

  	
  43.8

  	
   

  	
  40

  	
   

  	
  0

  	
   

  	
  103.83

  	
   

  	
  99.76

  	
  %

  
	
  17

  	
   

  	
  SAT

  	
   

  	
  DSD (Entire
  Device Population over month)

  	
   

  	
  99.900

  	
  %

  	
  10

  	
   

  	
  43.8

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  53.83

  	
   

  	
  99.88

  	
  %

  
	
  18

  	
   

  	
  PAT

  	
   

  	
  DSD (Entire
  Device Population over month)

  	
   

  	
  99.900

  	
  %

  	
  10

  	
   

  	
  43.8

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  53.83

  	
   

  	
  99.88

  	
  %

  
	
  19

  	
   

  	
  Handhelds

  	
   

  	
  DSD (Entire
  Device Population over month)

  	
   

  	
  99.900

  	
  %

  	
  10

  	
   

  	
  43.8

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  53.83

  	
   

  	
  99.88

  	
  %

  
	
  20

  	
   

  	
  Handhelds

  	
   

  	
  Not Required

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 





















 


3.                                                      Annexures


 


The Performance
Principles document is annexed as Annexure 1 to this schedule.  The CDA levels of the AFC System referred to
in this schedule are set out as Annexure 2 to this schedule.  Schedule 42 in relation to Design
Targets is annexed as Annexure 3 to this schedule.


 





















 


Schedule 32


 


Schedule 32


Delivery Services


 


(Clause 21A and 27) 


 


Completion
Process


 


A.
Card Drafting


 


The Smartcard
procurement and payment principles below have been agreed by the parties and
will be drafted for incorporation into the Project Agreement as a
Category 2 Matter.


 


•             Prior
to each Smartcard order by the Contractor, the Principal will meet with the
Contractor to discuss Smartcard procurement for the coming period and provide
information in respect of its marketing (including special editions) and other
requirements which may impact demand for Smartcards and/or mix of Smartcard
types required (including the Smartcard type, printing, Personalisation and
design features required for the Smartcards).


 


•             The
Contractor will then determine the requirements for all Smartcard types and
seek relevant pricing and delivery information from its suppliers in light of
the Principal’s requirements discussed under the previous point.  Prior to confirming any order with its
suppliers, the Contractor must seek the Principal’s approval of the details of
its proposed order including details of volume, pricing and projected monthly
issue profile for each type of Smartcard.


 


•             The
Principal may either approve the order (subject to requiring potential
variation of proposed delivery program, ie. the Principal may require the
Contractor to hold greater or less volumes of stock than planned or to vary the
order to ensure it reflects the Principal’s requirements with respect to
marketing, Smartcard type and Smartcard mix) or seek a deal for better terms
and conditions in the market (the Contractor must assist the Principal with
this procurement process and then adopt the resulting supply arrangement).


 


•             The
Principal will pay the Contractor based on volume of Smartcards issued (on a
first in first out basis) multiplied by the lower of the “capped rate”  (being the amounts set out in this Schedule)
and “actual Smartcard cost plus agreed margin” (in accordance with the margins
set out in Schedule 10I).


 


•             The
issue of a Smartcard is defined to be the point of time at which Smartcards
have been issued to the end user of the Smartcard (ie. the customer). For
clarity the following table summarises the point of issue for each Smartcard
under the various possible scenarios in the NTS:


 





















 


Schedule 33


 


Schedule 33


Replacement and Refurbishment


 


Year ended 30 June 2007


 


Not applicable


 


Year ended 30 June 2008


 


Not applicable


 


Year ended 30 June 2009


 


	
  Work

  Package

  	
   

  	
  Description of Device,

  Component, Software

  being replaced

  	
   

  	
  Description of replacement

  Device, Component, Software

  (type, brand)

  	
   

  	
  Quantity of

  replacement

  Device,

  Component,

  Software

  	
   

  	
  Price per unit

  of replacement

  Device,

  Component,

  Software

  $

  	
   

  	
  Cost of

  replacement

  $

  	
   

  
	
  Rail

  	
   

  	
  Head Office and Station Computing
  Equipment

  	
   

  	
  Head Office Server (all replaced)

  Station Server (50% replaced)

  	
   

  	
  2

   

  142

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Bus

  	
   

  	
  Head Office and Depot Computing
  Equipment

  	
   

  	
  Head Office Server (all replaced)

  Depot Server (50% replaced)

  	
   

  	
  32

   

  26

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Tram (including Stony Point)

  	
   

  	
  Head Office and Depot Computing
  Equipment

  	
   

  	
  Head Office Server (all replaced)

  Depot Server (all replaced)

  	
   

  	
  2

   

  8

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Total Cost

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $[**]

  	
   

  



 


Year ended 30 June 2010


 


Not applicable


 


Year ended 30 June 2011


 


Not applicable


 


Year ended 30 June 2012


 


Not applicable


 





















 


Schedule 34


 


Schedule 34


Options


 


(Clause 20A)


 


The following will be considered as Category 3 Matters:


 


•                                                          Keane to revise expiry
date of options in light of actual ordering process;


 


•                                                          Keane is required to
price the SmartBus functionality option in the table below: and


 


•                                                          Keane and TTA will work
together to clarify and document Keane’s proposal in respect of the VLP
reservation system.


 





















 


Schedule 35


 


Schedule 35


Vandalism


 


(Clause 23.9)


 


	
  Codes

  	
   

  	
  Vandalism Category

  	
   

  	
  Equivalent Incident Units

  	
   

  
	
  VA

  	
   

  	
  Foreign
  Matter in Ticket Slot

  	
   

  	
  [**]

  	
   

  
	
  VC

  	
   

  	
  Foreign
  Matter in Note Slot

  	
   

  	
  [**]

  	
   

  
	
  VD

  	
   

  	
  Foreign
  Matter in EFTPOS

  	
   

  	
  [**]

  	
   

  
	
  VE

  	
   

  	
  Graffiti

  	
   

  	
  [**]

  	
   

  
	
  VF

  	
   

  	
  Damage

  	
   

  	
  [**]

  	
   

  
	
  VQ

  	
   

  	
  Liquid
  Damage causing less than $1,000 damage to an individual Device

  	
   

  	
  [**]

  	
   

  
	
  VO

  	
   

  	
  Liquid
  Damage causing at least $1,000 damage to an individual Device

  	
   

  	
  [**]

  	
   

  
	
  VB

  	
   

  	
  Foreign
  Matter in Coin Slot

  	
   

  	
  [**]

  	
   

  
	
  VX

  	
   

  	
  Theft
  Attempts not Break-Ins (Paper Loop)

  	
   

  	
  [**]

  	
   

  
	
  VK

  	
   

  	
  Attempt/Successful
  Break-ins

  	
   

  	
  [**]

  	
   

  



 





















 


Schedule 36


 


Schedule 36


Capital Price Adjustments


 


	
  Device(1)

  	
   

  	
  Minimum

  Quantity

  	
   

  	
  Expected

  Quantity

  	
   

  	
  Device and

  Installation cost

  per unit $

  	
   

  
	
  Rail

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rail Head Office Requirement (HOR)

  	
   

  	
  2

  	
   

  	
  2

  	
   

  	
  [**]

  	
   

  
	
  Station Requirement (SR)

  	
   

  	
  214

  	
   

  	
  283

  	
   

  	
  [**]

  	
   

  
	
  Rail Card Vending Machine/ Add Value
  Machine (CVM/AVM)

  	
   

  	
  240

  	
   

  	
  432

  	
   

  	
  [**]

  	
   

  
	
  Add-Value Machines (AVM)

  	
   

  	
  37

  	
   

  	
  40

  	
   

  	
  [**]

  	
   

  
	
  Ticket Office Terminal (TOT)

  	
   

  	
  88

  	
   

  	
  123

  	
   

  	
  [**]

  	
   

  
	
  Mobile

  	
   

  	
  5

  	
   

  	
  10

  	
   

  	
  [**]

  	
   

  
	
  Electronic Gates (EG)

  	
   

  	
  208

  	
   

  	
  253

  	
   

  	
  [**]

  	
   

  
	
  Gate Attendant Control (GAC)

  	
   

  	
  16

  	
   

  	
  23

  	
   

  	
  [**]

  	
   

  
	
  Station Fare Payment Device (FPD)

  	
   

  	
  945

  	
   

  	
  1,070

  	
   

  	
  [**]

  	
   

  
	
  Interchanges and Superstops

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rail Card Vending Machine/ Add Value
  Machine (CVM/AVM)- Interchanges

  	
   

  	
  20

  	
   

  	
  52

  	
   

  	
  [**]

  	
   

  
	
  Rail Card Vending Machine/ Add Value
  Machine (CVM/AVM) - Superstops

  	
   

  	
  10

  	
   

  	
  20

  	
   

  	
  [**]

  	
   

  
	
  Smartcard Service Office

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smartcard Service Office Requirement

  	
   

  	
  5

  	
   

  	
  10

  	
   

  	
  [**]

  	
   

  
	
  Smartcard Service Office Terminal

  	
   

  	
  5

  	
   

  	
  10

  	
   

  	
  [**]

  	
   

  
	
  Enquiry Device

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Standalone Enquiry Machine (SEM)

  	
   

  	
  142

  	
   

  	
  403

  	
   

  	
  [**]

  	
   

  
	
  Bus

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Head Office Requirement - Bus (HOB)

  	
   

  	
  29

  	
   

  	
  32

  	
   

  	
  [**]

  	
   

  
	
  Depot Requirement Bus (DB) - Small
  Depot

  	
   

  	
  22

  	
   

  	
  26

  	
   

  	
  [**]

  	
   

  
	
  Depot Requirement Bus (DB) - Medium
  Depot

  	
   

  	
  13

  	
   

  	
  15

  	
   

  	
  [**]

  	
   

  
	
  Depot Requirement Bus (DB) - Large
  Depot

  	
   

  	
  10

  	
   

  	
  10

  	
   

  	
  [**]

  	
   

  
	
  Bus Driver Console (BDC)

  	
   

  	
  1,500

  	
   

  	
  1,650

  	
   

  	
  [**]

  	
   

  
	
  Fare Payment Device (FPD)

  	
   

  	
  1,500

  	
   

  	
  6,240

  	
   

  	
  [**]

  	
   

  
	
  Tram

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Head Office Requirement - Tram (HOT)

  	
   

  	
  1

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  
	
  Depot Requirement - Tram (DR -
  T)

  	
   

  	
  8

  	
   

  	
  8

  	
   

  	
  [**]

  	
   

  
	
  Tram Driver Console (TDC) - Primary

  	
   

  	
  450

  	
   

  	
  480

  	
   

  	
  [**]

  	
   

  



 





















 


	
  Device(1)

  	
   

  	
  Minimum

  Quantity

  	
   

  	
  Expected

  Quantity

  	
   

  	
  Device and

  Installation cost

  per unit $

  	
   

  
	
  Tram Driver Console (TDC) -
  Secondary

  	
   

  	
  450

  	
   

  	
  480

  	
   

  	
  [**]

  	
   

  
	
  Rail Card Vending Machine/ Add Value
  Machine (CVM/AVM)

  	
   

  	
  450

  	
   

  	
  480

  	
   

  	
  [**]

  	
   

  
	
  Fare Payment Device (FPD)

  	
   

  	
  2,500

  	
   

  	
  5,648

  	
   

  	
  [**]

  	
   

  
	
  Stony Point

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stony Point Business Requirements

  	
   

  	
  0

  	
   

  	
  1

  	
   

  	
  [**]

  	
   

  
	
  Carriage Console

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  [**]

  	
   

  
	
  Rail Card Vending Machine/ Add Value
  Machine (CVM/AVM)

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  [**]

  	
   

  
	
  Fare Payment Device (FPD)

  	
   

  	
  16

  	
   

  	
  16

  	
   

  	
  [**]

  	
   

  
	
  Hand-Held

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Depot Requirement - Hand-Held (DR-H)

  	
   

  	
  15

  	
   

  	
  37

  	
   

  	
  [**]

  	
   

  
	
  Hand-Held Device (HHD-s) - Selling

  	
   

  	
  532

  	
   

  	
  566

  	
   

  	
  [**]

  	
   

  
	
  Retail

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Metropolitan Primary Agent Terminal
  (MPAT)

  	
   

  	
  50

  	
   

  	
  80

  	
   

  	
  [**]

  	
   

  
	
  Primary V/Line Agent Terminal (VPAT)

  	
   

  	
  50

  	
   

  	
  80

  	
   

  	
  [**]

  	
   

  
	
  Secondary Agent Terminal (SAT)

  	
   

  	
  400

  	
   

  	
  800

  	
   

  	
  [**]

  	
   

  



 










(1)                                                  Devices represent the devices as described in the BOM and
Requirements Document.


 





















 


Schedule 37


 


Schedule 37


Category 1, 2 and 3 Matters


 


(Clauses 2.1, 2.2 and 11.7)


 


Completion
Process


 


The matters contained in this Schedule 37 have not been agreed or
completed as at the time of execution of the agreement by the Contractor, and
are to be resolved in accordance with the applicable timeframes and processes
set out below.


 


PART A
– Category 1 Matters


 


The following items will be agreed and/or completed and the agreement
amended and updated accordingly, prior to execution of the agreement by the
Principal:


 


1.               Finalisation of Schedule 41
of the agreement.


 


PART B
– Category 2 Matters


 


The following items will be agreed and/or completed prior to the Phase
Date for the NTS Mobilisation Phase in accordance with clause 2.2 of the
agreement:


 


1.               The Completion
Pre-Conditions completed in accordance with the process described in Schedule 3
for the NTS Release 0 and Prototyping Phase, NTS Front Office Design and
Hardware FAT Phase, NTS Front Office Software FAT and Back Office Release 1 and
2 Phase, NTS Final Back Office Release Phase, NTS Front Office User Acceptance
Test Phase, NTS User Acceptance Test Phase, NTS Front Office Implementation 1
Phase, NTS Front Office Implementation 2 Phase.


 


2.               Incorporation of ACICA Rules to
replace the ACDC rules contained in clause 49 (dispute resolution) of the
agreement if the ACICA Rules have been finalised prior to the Phase Date
for the NTS Mobilisation Phase.


 


3.               The process for
ordering Smartcards and the Smartcard pricing mechanism to be incorporated into
Schedule 10 and Schedule 32.


 


4.               The Glossary to the RFT
is to be reviewed by the Principal and the Contractor and will be amended to be
consistent with the defined terms used in the agreement.  The Glossary to the RFT, as so amended, will
be the glossary for the Requirements Document. 
This process will be undertaken through discussion with the Contractor.  The RFT means the Request for Tender relating
to the Solution released by the Principal on 30 July 2004 as supplemented
and varied by Errata, Addenda and the Revised Offer Brief released by the
Principal on 20 December 2004.


 


5.               All Category 1 Matters deemed
to be Category 2 Matters under clause 2.1(b) of the agreement, to be
agreed in accordance with the principles and processes described in Part A
of this Schedule 37 for the relevant item.


 


Agreement of the items set out in this Part B will be a Completion
Pre-Condition for the NTS Mobilisation Phase (refer to Schedule 3).


 





















 


PART C
– Category 3 Matters


 


The following items will be agreed and/or completed prior to the Phase
Date for the NTS Solution Requirements Phase:


 


1.               The Design Documents
list and contents to be developed in accordance with the completion process
described in Schedule 38.


 


2.               Exhibit 2B is to
be reviewed by the Principal and the Contractor for the purpose of deleting
redundant or superseded documents. Only those documents that assist in
describing or clarifying the Contractor’s Response will remain as part of Exhibit 2B.
This process will be undertaken through discussion with the Contractor.


 


3.               The Test Plan, to be
prepared and finalised in accordance with the completion process described in Schedule 39.


 


4.               The Industrial
Relations Plan to be prepared in accordance with the completion process
described in Schedule 22.


 


5.               The OH&S Plan to be
prepared in accordance with the completion process described in Schedule 23.


 


6.               The draft Business
Continuity Plan to be prepared in accordance with the completion process
described in Schedule 28.


 


7.               Provision of the draft
Access Plans in accordance with and as required by Schedule 24.


 


8.               The Transfer Plan
developed in accordance with the Transfer Principles.


 


9.               The completion of Schedule 7
in regard to Part 1 - Hand Held Device Selling Equipment, Part 3 -
Device maintenance charges, Part 5 - the labour rate for ERG –
Installation Technician, Part 6 - Transaction Volume Increases and Parts 1
and 2 - installation and de-installation hours and costs required to complete
Parts 1 and 2.


 


10.         The contractual mechanism and
extent of ownership of Intellectual Property (“IP”) in the Solution
incorporating the following principles:


 


a.               The Principal to own
the Developed IP within the Territory;


 


b.              The Principal to own
Contractor Licensed IP in the Solution within the Territory;


 


c.               The Principal to have
rights akin to ownership for Headstrong IP in the Solution within the Territory
through a broad licensing regime;


 


d.              Identification of
Licensed IP in the Solution to remain outside (a) and (b) (e.g. Ascom
IP);


 


e.               The Contractor to own
the Developed IP in the Solution outside the Territory.


 


11.         Completion of Schedules 29,
30 and 31 will be based on the Performance Principles and the process set out
in Schedules 29 to 31 as at the Commencement Date.  Similarly, completion of Schedule 42 in
relation to design targets and drafting of obligations with respect to those
design targets will be based on the principles set out in schedule 31 and
the form of Schedule 42 which is annexed to Schedule 31 as at the
Commencement Date.  It is expected that
consequential changes will need to be made to the agreement to reflect the
final agreement in regards to performance and design targets.


 





















 


12.         The insurance policy terms
and conditions, individual claim limits, aggregate claim limits and exclusions
remain subject to review and approval by the Principal.


 


13.         The wording of clause 29.7 to
be agreed in accordance with the following principles:


 


The Contractor shall take
responsibility for shortfalls arising out of errors in reconciliation, subject
to:


 


a.               the cause of the error in reconciliation being determined through a
root cause analysis process;


 


b.              the errors being true errors in reconciliation;


 


c.               the issue of whether or not there is an error in reconciliation is to
be determined over a period of time and not on a daily basis; and


 


d.              the Contractor’s liability for shortfalls does not cut across other
relief which the Contractor has under the agreement, and in particular is
subject to the liability cap to the Principal.


 


14.         Amendment of Schedule 12
(Invoice Substantiation) in light of agreement reached on Schedules 10, 29-31,
32 etc.


 


15.         The completion of Schedule 34
in regard to:


 


a.               the expiry dates of
Options;


 


b.              the pricing of Smartbus
functionality; and


 


c.               clarification and
documentation of the VLP reservation system.


 


16.         All Category 2 Matters deemed
to be Category 3 Matters under clause 2.4(b) of the agreement, to be
agreed in accordance with the principles and processes described in Part B
of this Schedule 37 for the relevant item.


 


Agreement of the items set out in this Part C will be a Completion
Pre-Condition for the NTS Solution Requirements Phase (refer to Schedule 3).


 





















 


Schedule 38


 


Schedule 38


Design Documents


 


Part A


 


1.                                                       Architecture Definition (Modelling Tool)


 


2.                                                       Business Architecture (Modelling Tool)


 


3.                                                       usiness Process Model (Modelling Tool)


 


4.                                                       Workflow Description (Modelling Tool)


 


5.                                                       Application Architecture (Modelling Tool)


 


6.                                                       Logical Data Model (Modelling Tool)


 


7.                                                       Distributed System Architecture (Modelling Tool)


 


8.                                                       User Interface Definition (Modelling Tool)


 


9.                                                       Business Rules Orchestration (Modelling Tool)


 


10.                                                 Technical Architecture (Modelling Tool)


 


11.                                                 Physical Data Design (Modelling Tool)


 


12.                                                 System Design (Modelling Tool)


 


13.                                                 Network and Communications Plan (Document)


 


14.                                                 Performance and Load Test Plans (Test Director)


 


15.                                                 Front Office Functional Specification (Document)


 


16.                                                 Front Office Technical Specification (Document)


 


17.                                                 Device Configuration Specifications (Document)


 


18.                                                 Equipment SW Specification document (Modelling Tool)


 


19.                                                 Equipment HW Specification document (Document)


 


20.                                                 NTS Requirements Specification


 


21.                                                 Open Architecture Specification


 


22.                                                 Bus Access Plan


 


23.                                                 Access Plans


 


24.                                                 Asset Management Plan


 


25.                                                 Business Change Management Plan


 


26.                                                 Business Continuity Plan


 


27.                                                 Cardholder and Operator Website Plan


 





















 


28.                                                 Cardholder Management Plan


 


29.                                                 Cardholder Support Services Plan


 


30.                                                 Cash Collection and Management Plan


 


31.                                                 Civil Works Management Plan


 


32.                                                 Communications Plan


 


33.                                                 Configuration Management Plan


 


34.                                                 Corrective Maintenance Plan


 


35.                                                 Device Management Plan


 


36.                                                 Distribution Management Plan


 


37.                                                 Environmental Management Plan


 


38.                                                 Facilities Management Plan


 


39.                                                 Fraud Management Plan


 


40.                                                 Hardware Development Plan


 


41.                                                 Implementation Plan


 


42.                                                 Industrial Relations Plan


 


43.                                                 Issues Management Plan


 


44.                                                 Key Management Plan


 


45.                                                 Local Industry Participation Plan (VIPP)


 


46.                                                 Occupational Health, Safety and Rehabilitation Plan


 


47.                                                 OH&S and Rehabilitation Plan


 


48.                                                 Operational Quality Assurance Plan


 


49.                                                 Operations Plan


 


50.                                                 Overall Inspection and Test Plan


 


51.                                                 Preventative Maintenance Plan


 


52.                                                 Contractor’s Privacy Plan


 


53.                                                 Progress Reporting Plan


 


54.                                                 Project Management Plan


 


55.                                                 Project Quality Assurance Plan


 


56.                                                 Repair and Maintenance Plan


 


57.                                                 Required Manuals Plan


 





















 


58.                                                 Resource Management Plan


 


59.                                                 NTS Transition Plan


 


60.                                                 Risk Management Plan


 


61.                                                 Security Analysis Plan


 


62.                                                 Service Management Plan


 


63.                                                 Smartcard Base Management Services Plan


 


64.                                                 Software Development Plan


 


65.                                                 System development Plan


 


66.                                                 System Integration Plan


 


67.                                                 System Management and Administration Plan


 


68.                                                 System Performance Plan


 


69.                                                 Technical Support and Maintenance Plan


 


70.                                                 Technical Support and Management Plan


 


71.                                                 Test Plan


 


72.                                                 The Test Documents


 


73.                                                 Training Programme Plan


 


74.                                                 Transfer Plan (in accordance with clause 44.3 of PA)


 


75.                                                 Transition Plan


 


76.                                                 Website Management Plan


 


77.                                                 Bus Work Package Development Plan


 


78.                                                 Central Body Operation Development Plan


 


79.                                                 Central Body System Development Plan


 


80.                                                 Handheld Devices Work Package Development Plan


 


81.                                                 Rail Work Package Development Plan


 


82.                                                 Third Party Retail Work Package Development Plan


 


83.                                                 Tram Work Package Development Plan


 


84.                                                 Central System Maintenance Procedures


 


85.                                                 Electronic Gate and Attendant Controller Maintenance Procedures


 


86.                                                 Headquarters Computers Maintenance Procedures


 


87.                                                 Station Control Computer Maintenance Procedures


 





















 


88.                                                 System Architecture Policy and Procedures


 


89.                                                 Rail Solution Equipment Maintenance Procedures


 


90.                                                 Interchanges & Super stops Equipment Maintenance Procedures


 


91.                                                 Bus Solution Equipment Maintenance Procedures


 


92.                                                 Tram Solution (Including Stony Point Solution) Equipment Maintenance
Procedures


 


93.                                                 Hand-Held Device Solution Equipment Maintenance Procedures


 


94.                                                 Third Party Agents Solution Equipment Maintenance Procedures


 


95.                                                 Bus Solution Business Requirements Specification


 


96.                                                 Front Office Devices Civil Works Design Requirements Document


 


97.                                                 Hand-Held Device Solution Business Requirements Specification


 


98.                                                 Interchanges & Super stops Business Requirements
Specification


 


99.                                                 Rail Solution Business Requirements Specification


 


100.                                           Third Party Agents Solution Business Requirements Specification


 


101.                                           Tram Solution (Including Stony Point Solution) Business Requirements
Specification


 


102.                                           Bus Solution Equipment HW Specification document


 


103.                                           Bus Solution Equipment SW Specification document


 


104.                                           Clearing House Services and Functions Specification


 


105.                                           Data Architecture and Definitions Specification


 


106.                                           Distributor Report Formats Specification


 


107.                                           EFT Payment Services Specification


 


108.                                           Front Office Devices Device Configuration Specifications Document


 


109.                                           Front Office Devices Functional Specification Document


 


110.                                           Front Office Devices Technical Specification Document


 


111.                                           Hand-Held Device Solution Equipment HW Specification document


 


112.                                           Hand-Held Device Solution Equipment SW Specification document


 


113.                                           Interchanges & Super stops Equipment HW Specification
document


 


114.                                           Interchanges & Super stops Equipment SW Specification
document


 


115.                                           Interfaces Specification


 


116.                                           NTS Business Architecture Specification


 


117.                                           Operator Report Formats Specification


 





















 


118.                                           Principal Report Formats Specification


 


119.                                           Rail Solution Equipment HW Specification document


 


120.                                           Rail Solution Equipment SW Specification document


 


121.                                           Reporting System Specification


 


122.                                           Smartcard and Transit Issuance Specification


 


123.                                           Smartcard Specification


 


124.                                           System Technical and Software Architecture Specification


 


125.                                           Technical Architecture Specification


 


126.                                           Third Party Agents Solution Equipment HW Specification document


 


127.                                           Third Party Agents Solution Equipment SW Specification document


 


128.                                           Tram Solution (Including Stony Point Solution) Equipment HW
Specification document


 


129.                                           Tram Solution (Including Stony Point Solution) Equipment SW
Specification document


 


130.                                           Central Systems Operations Specification


 


131.                                           Depot Operation  & FLM of Depot Computer & WDTS
Specification


 


132.                                           Services Operations Specifications


 


133.                                           System Administration Operations Specification


 


134.                                           Rail Solution Operations Specification


 


135.                                           Interchanges & Super stops Operations Specification


 


136.                                           Bus Solution Operations Specification


 


137.                                           Tram Solution (Including Stony Point Solution) Operations
Specification


 


138.                                           Hand-Held Device Solution Operations Specification


 


139.                                           Third Party Agents Solution Operations Specification


 





















 


Part B


 


Completion Process


 


The Design
Documents to be developed in accordance with clause 12.4 will be based on
the Principal’s indicative list of minimum design documents included in Part A
of this Schedule 38. The Design Documents need not be the precise
documents referred to in Part A of this Schedule 38 but must cover
the subject matter implied by the name of those documents.


 


The Contractor
shall ensure that its proposed Design Document list prepared in accordance with
this Schedule 38 reflects the Contractor’s design, development and
delivery methodology for the Solution and its obligations in the previous
paragraph.


 


The Contractor
must provide to the Principal a list of all Design Documents that are required
to be developed in accordance with the agreement, prior to the Phase Date for
the NTS Solution Requirements Phase.


 


The Design
Document list must include the following details:


 


•                                                          the type and name of each document;


 


•                                                          a description of the content and purpose of the document;


 


•                                                          the proposed author of the document;


 


•                                                          cross-referencing of the document with any other Design Document;


 


•                                                          the Phase in which the document will be delivered to the Principal;


 


•                                                          the proposed versions/releases to be provided to the Principal and
indicative timing;


 


•                                                          the proposed Contractor internal review process in relation to the
development of each document; and


 


•                                                          a version control descriptor for each document.


 


Approval by
the Principal of the Design Document list will be a Completion Pre-Condition to
the NTS Solution Requirements Phase (refer to Schedule 3).


 


This
completion process does not apply to the Industrial Relations Plan (refer to Schedule 22),
the OH&S Plan (refer to Schedule 23), the Business Continuity Plan
(refer to Schedule 28) or the Test Plan (refer to Schedule 39).


 





















 


Schedule 39


 


Schedule 39


Test Plan


 


(Clause 15.1)


Completion Process


 


The Contractor
must prepare and implement, in accordance with clause 15.1 of the
agreement, the Test Plan based on the test strategy document included in this Schedule 39.


 


The Contractor
must undertake the following process to develop and complete the Test Plan:


 


•                                                          The Contractor must develop a Test Plan, based on the strategy
document included in this Schedule 39, which describes and documents the
tests required to prove that the Solution complies with the requirements of the
agreement including the Requirements Document.


 


•                                                          The Test Plan will provide for sub-component testing, component and
Device testing, system testing, integration testing and overall Solution
testing and will include:


 


•                                                          a list of all tests to be undertaken by the Contractor;


 


•                                                          a detailed description of each test including the objectives for
each test;


 


•                                                          a test schedule including tests to be conducted by the
Principal in accordance with clause 15.7(a);


 


•                                                          testing protocols and procedures;


 


•                                                          proposed testing techniques for each test;


 


•                                                          resource and facility requirements;


 


•                                                          test monitoring requirements for each test;


 


•                                                          pass / fail criteria including the definition of test success for
each test; and


 


•                                                          test reporting requirements for each test.


 


•                                                          The Contractor’s Test Plan will include integration of the Device
testing regime by subcontractors so that the test results will demonstrate the
complete seamless integration of all Device components, including hardware,
software and supportive infrastructure, with other components/systems
comprising the Solution.


 


•                                                          The Contractor must prepare and finalise the Test Plan in accordance
with clause 12.4, except that reference to the Project Master Schedule shall
be taken to mean by not later than the Phase Date for the NTS Solution
Requirements Phase.


 


Acceptance of
the Test Plan by the Principal will be a Completion Pre-Condition for the NTS
Solution Requirements Phase.


 





















 


Schedule 40


 


Schedule 40


Banking Arrangements


 


(Clause 27.9)


 


Part A


 


•                       Fees or charges
imposed on the Principal for transactions, including fees and charges for
disputed and dishonoured transactions, fees for the depositing of cash and any
taxes, in respect of the Principal’s use of the Australian Payments System in
relation to the Solution.


 


•                       Chargebacks  and related fees payable by the Principal
under any agreement in relation to its activities as a member of any payment
scheme within the Australian Payments System.


 


•                       Any periodic
account keeping fee howsoever described imposed on the Principal for the bank
account or accounts in which the Float is held.


 


Part B


 


•                       Financial
Management


 


•                       Data
communication services


 


•                       EFTPOS terminal
and target specification


 


•                       EFTPOS terminal
and target vendor selection


 


•                       EFTPOS terminal
and target funding


 


•                       EFTPOS terminal
and target software development costs


 


•                       EFTPOS terminal
and target certification costs


 


•                       EFTPOS terminal
and target installation and training


 


•                       EFTPOS terminal
and target support (1st & 2nd level)


 


•                       Operation of
Interactive Voice Recognition and internet payment services (excluding fees and
charges set out in Part A)


 


•                       Cash handling
fee


 


•                       Reasonable
costs of tender for acquiring bank (compilation & selection)


 





















 


Schedule 41


 


Schedule 41


Intellectual Property excluded from Equipment IP


 





















 


Schedule 42


 


Schedule 42


Design Targets


 


This schedule will be completed in accordance with the
completion process set out in Schedule 31.


 





















 


List
of Exhibits


 


 


 


Exhibit
1


 


NTS
Requirements Document


 


 


Exhibit
2A


 


Contractor's
Primary Response


 


 


Exhibit
2B


 


Contractor's
Secondary Response


 


 


Exhibit
3


 


Project
Timeline


 


 


Project
3A


 


Project
Master Schedule


 


 


Exhibit
4


 


Description
of Phase Deliverables


 


 


Exhibit
5


 


Victorian
Industry Participation