**Exhibit 10.2**

 

**ExecutionCopy**

 

ConfidentialMaterials omitted and filed separately with theSecurities 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

 

----

 

**Tableof 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                                               |   |

 

i

----

 
|    | 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

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|    | 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                         |   |

 

iii

----

 
| **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

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| **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

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|    | 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

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| **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

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**New Ticketing Solution Project Agreement madeat Melbourne on July 26, 2005**

 

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

 

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

 

**Recitals**

** **

A.                 This agreement setsout the relationship between, and the rights and obligations of, the Principaland the Contractor for establishing a world’s best practice operating companyfor a smartcard based ticketing and payment solution, in a high quality, timelyand efficient manner as described in the Requirements Document and the SolutionDocumentation.

 

B.                  The smartcard basedticketing and payment solution will meet the Principal’s objectives andrequirements including:

 

•                   high levels of performance;

 

•                   timely delivery and smooth transition;

 

•                   flexibility for the system to evolve over time;

 

•                   value for money; and

 

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

 

C.                  The Principal hasselected the Contractor to design, develop, integrate, install, test andimplement the Solution and to develop, test and provide the Initial Servicesand the Core Services.

 

D.                 The Principal and theContractor have agreed to undertake the Project on the terms and conditions setout in this agreement.

 

**The parties agree**

 

# **1.**                  Definitions andinterpretation

 

## **1.1**                Definitions

 

Inthis agreement unless the context otherwise requires:

 

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

 

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

 

**“Acceleration Direction”** means a directionissued by the Principal to the Contractor to accelerate Solutionimplementation.

 

**“Access Charges”** means the access charges and training charges which have been paidto an Access Provider by the Contractor in accordance with an AccessCoordination Agreement but

 

1

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

 

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

 

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

 

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

 

(b)                 the Contractor failing to do all things reasonablyexpected 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 orcircumstance which unreasonably delays or prevents the Contractor fromobtaining Access under this agreement or an Access Coordination Agreement,including:

 

(a)                 a failure to provide, or a delay inproviding Access or Alternative Access (as that term is defined in and appliesto the Proforma Access Coordination Agreement or an Access CoordinationAgreement) in accordance with clauses 9.3(c) or 9.7(a) of thisagreement, clause 7.1(a) of the Proforma Access Coordination Agreement orthe equivalent clause of an Access Coordination Agreement; 

 

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

 

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

 

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

 

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

 

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

 

**“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 AccessProvider (and information and drawings relating to such property includingwiring diagrams) including the rolling

 

2

----

 

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

 

(b)                 personnel involved in the operation or use of theproperty referred to in paragraph (a), including the employees of the AccessProvider.

 

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

 

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

 

(d)                 the occurrence of Access Delay;

 

(e)                 industrial action, to the extent that it directlyaffects the Project and the Contractor is able to demonstrate that theindustrial action directly results from an act or omission of the Principal orof any employee of the Principal employed to work on the Project, and the actor 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 “AFCSystem” in the Consolidated Service Contract.

 

**“AFC System CompensationPayments”** hasthe same meaning as the defined term “Non-Availability Payments” in theConsolidated Service Contract.

 

**“AFC System Performance Levels”** means the “Approved Performance Standards” andthe “Maximum CDA Standards” each as defined in the Consolidated ServiceContract.

 

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

 

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

 

**“A-IFRS”** means Australian Equivalents toInternational Financial Reporting Standards.

 

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

 

**“Application Management Services”** means the servicesspecified 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 anyAuthority in connection with the Project or the performance by the Contractorof its obligations under this agreement.

 

**“APRA”**means the Australian Prudential Regulation Authority.

 

3

----

 

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

 

**“Ascom”** means Ascom (Switzerland) Limited Swiss Company Number CH035.3.000.058-6.  

 

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

 

**“Authority”** means any government department, local government council,government or statutory authority, or any other body, which has a right toimpose a requirement or whose consent is required in connection with the Workor 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 perannum to maturity) which is the buying rate for bank accepted bills quoted atapproximately 10:10 am (Melbourne time) on page ”BBSY” of the ReutersMonitor System on that day, having a term of 1 month; or

 

(b)                 if that rate is no longer available or if, in thereasonable opinion of the Principal, that rate becomes an inappropriate rate tobenchmark the Overdue Rate for the purposes of this agreement or becomesincapable of application, the Bank Bill Rate means the rate reasonablydetermined by the Principal to be the appropriate equivalent rate, havingregard 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 formaterials, equipment and software which the Contractor will provide as part ofthe Solution which is set out in Exhibit 2A.

 

**“Bond Security Account”** means an 11am call/money marketaccount or similar account at an Australian bank or other Australian FinancialInstitution with a credit rating of no less than A- (S&P) maintained by thePrincipal 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 thosetrade marks of a Contractor Stakeholder or a subcontractor of the Contractorwhich are used in their business generally and are applied by them to theDevices they supply, but which do not include, directly or indirectly, anybrands which are created or developed in connection with, the Solution or anypart of the Solution);

 

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

 

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

 

**“Bus AccessPlan”** means the Design Document whichincludes the times of access to the Bus Property to be developed by theContractor 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 Aof Schedule 19 as amended from time to time by agreement between thePrincipal and the Contractor.

 

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

 

**“Bus Operators”** means the organisations listed in Part Aof 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 (andinformation and drawings relating to such property including wiring diagrams)including the rolling stock, stops, terminals, stations, vehicles, computersystems and other facilities, systems and power supplies of each Bus Operator;and

 

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

 

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

 

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

 

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

 

**“Business Requirements Document”** means the documententitled “Business Requirements Document” set out in the NTS RequirementsDocument.

 

**“Capital Price”** means the amount identified as the Total Capital Price in thePayment Schedule as varied pursuant to clause 11, clause 20 and clause21.6, to be paid to the Contractor pursuant to clause 21. * *

 

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

 

**“Cardholder Support Services”**means the servicedspecified as such in the Requirements Document.

 

**“Cash Collection Services”** means the services specified assuch in the Requirements Document.

 

**“Category 1 Matters”**means the matters referred to in Part Aof Schedule 37.

 

**“Category 2 Matters”** means the matters referred to in Part Bof Schedule 37.

 

**“Category 3 Matters”**means the matters referred to in Part Cof Schedule 37.

 

**“Certificate of Completion”**means a certificategiven by the Principal’s Representative under clause 17.2 substantially in theform 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 chiefexecutive officer of the Contractor.  

 

5

----

 

**“Civil Works”** means all required pre-installation civil work for the Solution onall 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 thisagreement;

 

(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 negligentmisrepresentation; and

 

(iii)                in restitution, including restitution based on unjustenrichment.

 

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

 

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

 

**“Commencement Date”** means the date of thisagreement.

 

**“Commonwealth”** means the Commonwealthof Australia.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

6

----

 

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

 

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

 

**“Contractor’s Primary Response”**means: 

 

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

 

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

 

(c)                 the Project Timeline.

 

**“Contractor’sPrivacy Plan”** means the plan providedby the Contractor and reviewed and approved by the Principal that sets out theprivacy procedures the Contractor will adopt.

 

**“Contractor’s Representative”**means the person appointed by the Contractor in accordance withclause 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 andat any time thereafter.  

 

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

 

**“Core Services”**means the Core Services specified as such in the RequirementsDocument, and any Variations, changes or additions to the foregoing, suppliedby the Contractor.

 

**“Core Services Performance Requirements”** means the performance requirements relating to Core Servicesdeveloped 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 Regionaland Metropolitan Implementation Completion Phase and, subject to earlierexpiration or termination under provisions of this agreement, ending on thedate which is the 10 year anniversary of the final day of the calendar monthimmediately preceding the calendar month in which the Completion Date of theNTS Regional and Metropolitan Implementation Completion Phase falls, asextended 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 withthis agreement and to be set out in Schedule 31.

 

**“Deed of Amendment andRestatement”**means the deed of that name dated 21 October 2002 between PublicTransport Corporation, OLT and others.

 

**“Defect”** means any part of a Phase or the Solution which is not inaccordance with the requirements of this agreement, including the RequirementsDocument and the Solution Documentation.

 

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

 

**“Delay Costs”** means the reasonable direct incremental costs (excluding off-siteoverheads and any element of profit) incurred by the Contractor reasonablyinvolved with an event or circumstance delaying the Contractor in achievingCompletion of a Phase by the relevant Phase Date, plus:

 

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

 

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

 

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

 

**“Delivery”** means the design, development, integration, installation, testingand implementation of the Solution (but does not include the provision of theServices).

 

**“Delivery Services”**means any part of the Initial Services or Core Services which arerequired in order to support the Solution, or any part of the Solution which isoperating during the Delivery Services Term. 

 

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

 

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

 

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

 

**“Developed Intellectual Property**” means:

 

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

 

(b)                 all manuals and documentation specifically developedby G&D for the purposes of this agreement but not including modificationsor 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 ofdoubt, Intellectual Property, existing at the time of execution of thisagreement, of the Contractor, any Related Body Corporate, the ContractorStakeholders or any other subcontractor.

 

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

 

**“Device Management Services”** means the services specified assuch in the Requirements Document.

 

**“DirectAgreement”** means each directagreement entered into pursuant to clause 10.3(c).

 

**“Direct Costs”** means the sum of:

 

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

 

#### (i)                  a Variation; or

####  

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

####  

(excluding any element of margin whichaccrues to the Contractor, any Related Body Corporate or any consortium partnerother 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 tothe Contractor in respect of Device and other equipment, Software and labourand any other work by the Contractor in carrying out a Variation which is inwhole or in part an omission or deletion of Work (excluding any element ofmargin which accrues to the Contractor, any Related Body Corporate or anyconsortium 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’sRepresentative.

 

**“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 inthe physical data room (including any additional materials subsequently addedto the data room, materials marked in the data room index includingsupplementals and any supplementary information provided to a tenderer);

 

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

 

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

 

9

----

 

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

 

**“Emergency”** means a circumstance where there is a risk of a potential andimmediate 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 theWork takes place or the Solution is located,

 

ora circumstance exists where it may be necessary for the Principal to takeimmediate action to discharge its statutory duties or powers.

 

**“E-Purse”** means an application in a Smartcard ableto store and manipulate electronic value according to a standardised set of rules comprisingthe various data elements, algorithms, systems and back end operations requiredto support a highly secure electronic value payment mechanism suitable fordelivery via contactless or contact technology with security suitable forbanking purposes.

 

**“Equipment IP”** means Intellectual Property in alland part of:

 

(a)                 the Device;

 

(b)                 computer programs supplied as a component of, embedded in orforming part of the Device and without which such tangible items cannotoperate, such as Software, Firmware and Software in Devices; and

 

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

 

butexcluding 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 fallswithin 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 agentnominated by the Principal by written notice to the Contractor.

 

**“Escrow Agreement”** means the agreementbetween the Principal, the Contractor and the Escrow Agent substantially in theform of Schedule 16.

 

**“Escrow Material”** means:

 

(a)                 all the source code for the Software, contained or to becontained in the Solution other than Software contained in or used to operatethe 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 thePrincipal’s position would otherwise require, to modify, maintain, test,further develop or regenerate the

 

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

 

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

 

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

 

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

 

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

 

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

 

**“Event ofInsolvency”** means, in relation to aperson, any of the following events:

 

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

 

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

 

(c)                 any application (not being an application withdrawn ordismissed 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 personreferred to in paragraphs (a) or (b);

 

(ii)                 winding up a corporation;or

 

(iii)                proposing or implementing a scheme ofarrangement or composition in respect of the company other than for a solventreconstruction of the company;

 

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

 

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

 

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

 

(g)                 any writ of execution, garnishee order, marevainjunction 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 expertotherwise appointed pursuant to clause 2.3(f) or clause 49.5(d), to act asan expert for the purposes of and in accordance with clause 49.5.

 

**“Expert Deed”**means the deed soentitled in the form of Schedule 14, appointing the Expert to resolvedisputes 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 BusAccess Plan finalised in accordance with clause 12.4(k).

 

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

 

**“FinancialManagement Services”**means the services specified as such in theRequirements Document.

 

**“Firmware”** means a set of coded instructionsembedded within a device or component of a device that performs functions orprovides 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 therequirements referred to in this agreement, including the RequirementsDocument, the Performance Requirements, Industry Practice and openarchitecture;

 

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

 

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

 

(i)                  which are identifiedpursuant to clauses 11.1 and 11.7;

 

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

 

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

 

(“the **Victorian Requirements**”).

 

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

 

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

 

(ii)                 as it stands at theCompletion Date of the NTS Front Office Design and Hardware FAT Phase for anychanges to World’s Best Practice that are reasonably foreseeable at theCompletion 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 ofthe Principal, the Government, Governmental Agencies, Operators or Stakeholdersthat are reasonably foreseeable by the Contractor as at the Completion Date ofthe NTS Solution Requirements Phase;

 

(f)                  the Solution is able to be upgraded to be used as apayment system, to support a multipurpose payment instrument which can be usedfor retail or other payments at the outlets or devices of several serviceproviders for a range of purposes that are reasonably foreseeable by theContractor (or that would be reasonably foreseeable to a prudent, competent andexperienced contractor) as at the Completion Date of the NTS SolutionRequirements Phase.

 

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

 

**“Force Majeure”** means:

 

(a)                 lightning, earthquake, fire, explosion, cyclone,riots, industry wide industrial action which is not specific to, or attributableto the action of, the Contractor or any of its Related Bodies Corporate orsubcontractors and is not industrial action which falls within paragraph (e) ofthe 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 anoutbreak of an infectious disease which results in the Government, aGovernmental Agency or a government having jurisdiction over the personclaiming force majeure relief, issuing a general prohibition against personsentering the State of Victoria; and

 

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

 

but only if the Contractor could not haveprevented 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 066166. 

 

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

 

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

 

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**“Gunnebo”** means Gunnebo Entrance Control AB, Swedish registration number556086-5403.

 

**“Headstrong”** means Headstrong Australia PtyLtd ABN 71 061 818 906.

 

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

 

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

 

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

 

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

 

(b)                 with due expedition and without unreasonable or unnecessarydelay;

 

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

 

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

 

**“Initial Services”** means the Initial Servicesspecified as such in the Requirements Document, and any Variations, changes oradditions to the foregoing, supplied by the Contractor.

 

**“Initial Services Performance Requirements”** means the performancerequirements relating to Initial Services developed in accordance with thisagreement and to be set out in Schedule 30.

 

**“Initial Services Term”** means the period commencing on theCompletion Date of the NTS Regional and Metropolitan Implementation CompletionPhase 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 calendarmonth immediately preceding the calendar month in which the Completion Date ofthe NTS Regional and Metropolitan Implementation Completion Phase falls, asextended pursuant to this agreement.

 

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

 

**“Intellectual Property”** includes all copyrightand analogous rights, all rights in relation to inventions (including patentrights), plant varieties, registered and unregistered trade marks (includingservice marks), registered designs confidential information (including tradesecrets and know-how), circuit layouts and all other rights throughout theworld resulting from intellectual activity in the industrial, scientific orartistic fields.

 

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

 

**“Keane Inc”** means Keane, Inc., US federal identification number042437166.

 

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**“Key Contract”** means: 

 

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

 

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

 

**“Law”** means:

 

(a)                 common law; and

 

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

 

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

 

(a)                 all and any part of the Solution;

 

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

 

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

 

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

 

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

 

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

 

(a)                 name and releaseversion of the Software;

 

(b)                 owner anddistributor of the Software and, if relevant, the licensor and the licensee ofthat Software;

 

(c)                 whether theSoftware is Third Party Software;

 

(d)                 the duration ofany licence and maintenance agreements; and

 

(e)                 the licence andmaintenance fees and similar fees.

 

**“MonthlyInvoice”** means the invoice submittedby the Contractor pursuant to clause 27.3.

 

**“Moody’s”** means the ratings agency Moody’s Investors Service Pty Limited ACN003 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 otherlaw of the Commonwealth.

 

**“NTS Demonstration Suite”** means the set of Devices and Software to be developed by theContractor in accordance with this agreement, including the RequirementsDocument and the Solution Documentation and delivered to the Principal for useas a marketing and communication tool and to provide customers with a hands-onexperience of Smartcard technology.

 

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

 

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**“NTS Front Office Design and Hardware FATPhase”**means the phase specified assuch in this agreement and, in particular, Exhibit 4.

 

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

 

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

 

**“NTS Front Office Software FAT and BackOffice Release 1 and 2 Phase”**meansthe 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, inparticular, Exhibit 4.

 

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

 

**“NTS Regional and Metropolitan ImplementationCompletion Phase”**means the phasespecified as such in this agreement and, in particular, Exhibit 4.

 

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

 

**“NTS Requirements Specification”**means the document prepared by the Contractor and submitted to thePrincipal in accordance with this agreement, including the RequirementsDocument, in which the Contractor specifies all requirements and associatedbusiness rules of the Principal, the Operators, the Government, theGovernmental Agencies and Stakeholders in relation to the Solution.

 

**“NTS Solution Requirements Payment”** means $8,543,000, as referredto 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 thetransition from the AFC System to the Solution but does not include anyactivities relating to disengagement of the AFC System where those activitiesare not required for the implementation of the Solution.

 

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

 

**“NTS User Acceptance Test Phase”** means the phase specified as such in this agreement and, inparticular, 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 Contractorin accordance with this agreement and based on the outline plan set out in Schedule 23.  

 

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

 

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

 

**“Open Architecture Specification”** means the document based upon the Open Architecture RequirementsDocument prepared by the Contractor and submitted to the Principal inaccordance with this agreement.

 

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

 

**“Operational Support Services”** means the servicesspecified 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 setout 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 thoseorganisations listed in Part B of Schedule 17, as amended by noticein writing to the Contractor.

 

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

 

**“Overdue Rate”** means 2% per annum above the BankBill Rate.

 

**“Parent Company Guarantee”** means the indemnity andguarantee 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 setout in Schedule 8.

 

**“PerformanceRequirements”**means the levelsof performance and services the Solution and the Initial Services or CoreServices must meet, as described in the Requirements Document, the InitialServices Performance Requirements, the Core Services Performance Requirementsand the Customer Performance Requirements*.*

 

**“Personal Data”** means data or expressions of datain 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 ofcomplying with this agreement,

 

otherthan data which is owned by third parties (except the Contractor or its RelatedBody Corporate).

 

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

 

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**“Phase”** means any one of theNTS Mobilisation Phase, the NTS Solution Requirements Phase,  the NTS Release 0 and Prototyping Phase, theNTS Front Office Design and Hardware FAT Phase, the NTS Front Office SoftwareFAT and Back Office Release 1 and 2 Phase, the NTS Final Back Office ReleasePhase, the NTS Front Office User Acceptance Test Phase, the NTS User AcceptanceTest Phase, the NTS Front Office Implementation 1 Phase, the NTS Front OfficeImplementation 2 Phase, the NTS Regional and Metropolitan ImplementationCompletion Phase, and the NTS Operational Proving Phase as the context requiresand “Phases” means any 2 or more of the abovenamed Phases.

 

**“Phase Date”** means each of the dates for completion specified in Schedule 1applying 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 duringthe NTS Solution Requirements Phase in accordance with clause 11.1(b)(vi).

 

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

 

**“Principal’sRepresentative”** means the personappointed by the Principal in accordance with clause 7.4.

 

**“Privacy Obligations”** means:

 

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

 

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

 

(c)                 obligations imposed on private sector organisationsnot exempt from regulation by the PrivacyAct 1988 (Cth) (as amended by the Privacy(Private Sector) Amendment Act 2000);

 

(d)                 any privacy obligations generally imposed onnon-Government entities by the Government notified to the Contractor by thePrincipal from time to time prior to the Completion Date of the NTS SolutionRequirements Phase;

 

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

 

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

 

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

 

(a)                 paragraph (a);

 

(b)                paragraph (b);

 

(c)                 paragraph (c);

 

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(d)                paragraph (d);

 

(e)                 paragraph (e); and

 

(f)                 paragraph (f).

 

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

 

**“Product Management Services”** means the services specified assuch in the Requirements Document.

 

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

 

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

 

**“Project Control Group”** means the project control groupestablished under clause 7.1.

 

**“Project Director”** means the person referred to in Schedule 2that has been nominated and engaged by the Contractor in accordance with clause7.2.

 

**“Project Documents”** means:

 

(a)                 this agreement, includingthe Requirements Document;

 

(b)                 the VariationOrders;

 

(c)                 the EscrowAgreement;

 

(d)                 the Expert Deed;

 

(e)                 the Parent CompanyGuarantee;

 

(f)                  the AccessCoordination Agreements;

 

(g)                 the DirectAgreements; and

 

(h)                 the Key Contracts.

 

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

 

**“Project Master Schedule”** means the detailed planentitled the “Project Master Schedule” which is Exhibit 3A to this documentprepared by the Contractor and based on the Project Timeline as amended fromtime to time in accordance with this agreement.

 

**“ProjectQuality Assurance Plan”** means theplan entitled “Project Quality Assurance Plan” to be prepared by the Contractorin accordance with this agreement, including the Requirements Document.

 

**“Project Requirements Document”** means the document entitled “Project Requirements Document” set outin Exhibit 1.

 

**“Project Timeline”** means the documentwhich is Exhibit 3 to this agreement.

 

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

 

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**“Prototype”** means a simulator whichreplicates the proposed system architecture of the Solution.

 

**“Public Information Act”** means the Public Records Act 1973 (Vic), Freedom of Information Act1982 (Vic), Whistleblowers Protection Act 2001 (Vic), Financial Management Act1994 (Vic), Audit Act 1994 (Vic) and Ombudsman Act 1973 (Vic).

 

**“Quality Management System”** means the quality management system to be implemented by theContractor in accordance with this agreement, including the RequirementsDocument.

 

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

 

**“Reported Vandalism”** means Vandalism set out in a Monthly Invoice in accordance withclause 23.9.

 

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

 

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

 

**“Response Matrices”** means those parts of theContractor’s Primary Response which are tables which respond to the NTSRequirements Document and are identified as “Response Matrix”.

 

**“S&P”** means the ratingsagency Standard and Poor’s (Australia) Pty Limited, ACN 007 324 852, and itssuccessors and assigns.

 

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

 

**“Services”** means the InitialServices, the Core Services and the Other Services and any Variations, changesor additions to the foregoing.

 

**“Services Charge”**means the charge to be paid to the Contractor during the CoreServices Term and during the Initial Services Term in accordance with clause27.

 

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

 

**“Smartcard”** means a stored valuecard issued by a card issuer on which the Victorian Smartcard Application isresident which can be used in the Solution.

 

**“Smartcard Base Management Services”**means the servicesspecified as such in the Requirements Document.

 

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

 

**“Solution”** means the ticketing and payment system designed, and to beprovided by the Contractor as described in this agreement, including theRequirements Document, including all Solution Documentation, Device, computersoftware, computer hardware, Smartcards issued by or on behalf of thePrincipal, technical and system architecture, the Prototype and any

 

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

 

**“Solution Completion Date”** means the date specified in theCertificate of Completion in respect of the NTS Operational Proving Phase issuedby the Principal in accordance with clause 17.2.

 

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

 

**“Spate”** means Vandalism designated as “Spate” in accordance with clause23.9(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 TaxAssessment Act 1936 of Australia and associated regulations and, whereapplicable, any replacement legislation including, but not limited to, the Income Tax Assessment Act 1997 ofAustralia.

 

**“Technical Support Services”**means the services specified assuch in the Requirements Document.

 

**“Term”** means the period commencing on the Commencement Date and, subjectto earlier termination, expiring on the date which is the date on which theCore Services Term expires.

 

**“Territory”** means:

 

(a)                 Australia and New Zealand; and

 

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

 

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

 

**“Test Documents”** means the detailed testplans and procedures prepared by the Contractor and submitted to the Principalin 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 thisagreement and based on the requirements and the Test Strategy set out in Schedule 39.

 

**“Test Strategy”**means the strategy for testing setout in Schedule 39.

 

**“Third Party Licences”** means all licences, maintenanceand similar contracts for the Third Party Software.

 

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

 

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

 

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

 

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

 

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

 

**“Total Bus Access”** means the total access to the Bus Property as set out in the FinalBus 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, allinfrastructure used in the provision of the Initial Services or Core Services,(except to the extent that it is infrastructure of an entity other than theContractor which is also used by that entity to provide a material level ofservices not related to the Initial Services or Core Services and which theContractor, 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 athird party to:

 

(i)                  take over the operationof the Solution and the provision of the Initial Services and Core Services asa going concern; or

 

(ii)                 replace the Solution withanother system.

 

**“Transfer Plan”** means the plan entitled “Transfer Plan”******tobe developed by the Contractor in accordance with this agreement and theTransfer 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 SolutionTransition Amendment Deed dated 12 May 2005 between the Principal,OLT and others.

 

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

 

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

 

**“Value”** includes rights associated with any Product.

 

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

 

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### (a)                 results in a failure of thatequipment to perform its full range of functions;

###  

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

###  

### (c)                 results in damage to any part ofthat Device;

###  

but does not include:

 

### (d)                 any failure or fault in theequipment comprising the Solution related to mechanical or electronic breakdownof 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 itssubcontractors;

###  

### (g)                 any failure resulting from powerfailure 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 ReportedVandalism.

 

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

 

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

 

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

 

**“Variation”** means an alteration oraddition to, or reduction in, the Work, the Solution or the InitialServices or the Core Services.

 

**“Variation Notice”** means a noticeproposing a Variation issued by the Principal’s Representative to theContractor under clause 20.1(a).

 

**“Variation Order”** means an order in theform set out in Schedule 5 and issued under and in accordance withclause 20.3.

 

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

 

**“Version”**means a new edition of any Software which contains substantial newfunctionality 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

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

 

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

 

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

 

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

 

(g)                 the identity uniquely associated with the electronic recordslisted above;

 

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

 

(i)                  the executable components and associated descriptivedocumentation by which the electronic records listed above are created, read ormodified when the medium on which the electronic records listed above residentinteracts with a Device;

 

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

 

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

 

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

 

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

 

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

 

## **1.2**                Interpretation

## ** **

In this agreement:

 

### (a)                 headings are for convenienceonly and do not affect interpretation;

###  

and unless the context indicates a contraryintention:

 

### (b)                 an obligation or a liabilityassumed by, or a right conferred on, 2 or more persons binds or benefits themjointly and severally;

###  

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

###  

### (d)                 a reference to a party includesthat 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 orreplaced from time to time;

 

24

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

###  

### (g)                 a word importing the singularincludes the plural (and vice versa), and a word indicating a gender includesevery 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 areference to this agreement includes all recitals, schedules, exhibits,attachments and annexures to it;

###  

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

###  

### (j)                  “includes” in anyform is not a word of limitation; and

###  

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

###  

## **1.3**                Rule ofconstruction excluded

## ** **

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

 

## **1.4**                Orderof precedence

## ** **

### (a)                 If there is or arises anyinconsistency, ambiguity, or discrepancy between:

###  

#### (i)                  any of:

####  

##### A.                 clauses 1 to 50 ofthis agreement;

#####  

##### B.                  the Schedules;

#####  

##### C.                  the Exhibits;

#####  

##### D.                 the Design Documents;

#####  

##### E.                  the NTS RequirementsSpecification;

#####  

##### F.                  the SolutionDocumentation, other than the Design Documents; and

#####  

##### G.                  a Variation Order;or

#####  

#### (ii)                 this agreement andany other Project Documents,

####  

the following order of precedence will apply:

 

#### (i)                  the Variation Order;

####  

#### (ii)                 clauses 1 to 50 ofthis agreement;

####  

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

####  

#### (iv)               the Project Timeline;

####  

#### (v)                the NTS RequirementsSpecification;

 

25

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#### (vi)               subject to the order ofprecedence in clause 1.4(e), the NTS Requirements Document and the Contractor’sResponse (other than the Project Timeline);

####  

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

####  

#### (viii)             Exhibits 3A and 5;

####  

#### (ix)                any other ProjectDocument;

####  

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

####  

#### (xi)                the SolutionDocumentation, other than the Design Documents.

####  

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

###  

#### (i)                  Variation Orders;

####  

#### (ii)                 clauses 1 to 50 ofthis agreement;

####  

#### (iii)                the Schedules;

####  

#### (iv)               each Exhibit;

####  

#### (v)                the NTS RequirementsSpecification;

####  

#### (vi)               the Design Documents, otherthan the NTS Requirements Specification;

####  

#### (vii)              the SolutionDocumentation, other than the Design Documents; or

####  

#### (viii)             any other ProjectDocument,

####  

the Contractor must notify the Principal’sRepresentative, or the Principal’s Representative may notify the Contractor, inwriting within 10 Business Days of becoming aware of any suchinconsistency, ambiguity or discrepancy. The Principal’s Representative must determine the intention of theparties and notify the Contractor of the resolution of the inconsistency,ambiguity or discrepancy within 20 Business Days of the Principal’sRepresentative being so notified.  Nodirection by the Principal’s Representative under this clause 1.4 willconstitute a Variation.

 

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

###  

#### (i)                  the Contractor’sPrimary Response; 

####  

#### (ii)                 the Contractor’s SecondaryResponse; or 

####  

#### (iii)                the NTS RequirementsDocument, 

####  

the preferred standard or outcome within eachof clauses 1.4(c)(i), (ii) or (iii), as determined by the Principal’sRepresentative, will prevail.

 

### (d)                 If there is or arises anyinconsistency, ambiguity or discrepancy between the Contractor’s PrimaryResponse and the Contractor’s Secondary Response, then the Contractor’s PrimaryResponse will prevail.

 

26

----

 

### (e)                 If there is or arises anyinconsistency, ambiguity or discrepancy between the NTS Requirements Documentand the Contractor’s Response, the following order of precedence will apply:

###  

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

####  

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

####  

##### A.                 to the extent thatany aspect of the subject matter to which that “Q” applies is not qualified inthe Contractor’s Response, whichever of the Contractor’s Response and the NTSRequirements Document provides the preferred standard or outcome, as determinedby the Principal’s Representative, will prevail in relation to that subjectmatter; and 

#####  

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

#####  

#### (iii)                where the ResponseMatrix in the Column headed Minimum Requirement Compliance Level is marked “X”or blank space, then, subject to clause 1.4(d), the preferred standard oroutcome within the Contractor’s Response, as determined by the Principal’sRepresentative, 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 theinconsistency, ambiguity or discrepancy is not dealt with under the principlesin clauses 1.4(e)(i), (ii) or (iii), the preferred standard or outcome, asdetermined by the Principal’s Representative, will prevail.

####  

## **1.5**                Omissionsor misdescriptions of details

## ** **

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

 

## **1.6**                PracticeNotes

## ** **

ThePrincipal may from time to time issue practice notes to the Contractor inrelation to any provision of the Project Documents and may at any time vary orrevoke any such practice note.  Theparties agree that practice notes are intended to facilitate the administrationof the Project Documents but do not have contractual force and are notcontractually binding on the Principal or the Contractor.

 

27

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# **2.**                  Commencement Date requirements andConditions precedent

# ** **

## **2.1**                CommencementDate requirements

## ** **

Thisclause 2.1 records the intention of the parties that, prior to the Principalexecuting and dating this agreement and each other of the Project Documentsreferred to in clause 2.1 to which it is a party: 

 

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

###  

#### (i)                  original counterparts ofthe following Project Documents, duly executed by all parties and satisfactionof all conditions precedent to such documents:

####  

##### A.                 this agreement including theRequirements Document; and

#####  

##### B.                  the Parent CompanyGuarantee;

#####  

#### (ii)                 copies of the Insurance Policiesrequired under clause 36.1(a)(ii) and (iv), to be in place from theCommencement Date, and a certificate from an insurance broker as to thecurrency of each such policy, or, if the Contractor is bound by a duty ofconfidentiality to the issuer of any such policy prohibiting disclosure of itsterms, then instead of a copy of such policy, a letter from the insurancebroker to the Principal confirming that the policy complies with clause 36 andcontaining the principal terms of cover (including policy limits and keyinclusions), cross liability clauses, notice provisions, all the informationfrom the policy schedule and any endorsements in full, and also containinga statement acknowledging that the Principal is relying upon thoserepresentations;

####  

#### (iii)                the Security Bonds required underclause 34; and

####  

### (b)                 all of the Category 1 Matters have been agreed betweenthe Principal and the Contractor and this agreement has been amended andupdated 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 bythe Principal has been waived by the Principal, anditems the subject of such waivers are deemed to become Category 2 Matters witheffect from the date of waiver, to be dealt with under clause 2.2.

###  

Uponthese conditions having been so satisfied, or so waived, the Principal isentitled to and will execute and date this agreement and those ProjectDocuments referred to in this clause 2.1 to which it is a party.

 

## **2.2**                Category2 Mattersto be documented

## ** **

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

###  

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

####  

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

 

28

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#### (iii)                in accordance withthis clause and the process (if any) specified or referred to in each Category2 Matter.  

####  

### (b)                 In addition to any processreferred to in clause 2.2(a)(iii) the Contractor must meet with thePrincipal, make available staff and carry out all other tasks reasonablyrequested by the Principal as are necessary in order for the parties to agreethe 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 beagreed by the Phase Date for the NTS Mobilisation Phase or such later date asis agreed between the parties. 

###  

### (e)                 If any Category 2 Matters arenot agreed by the Phase Date for the NTS Mobilisation Phase or such later dateas is agreed by the parties then on the Phase Date for the NTS MobilisationPhase or such later date as has been agreed, or in the event that a later datecannot be agreed, on the Phase Date for the NTS Mobilisation Phase, thoseCategory 2 Matters which have not been agreed may be referred by either partyto the Expert for determination in accordance with clause 49.5 taking intoaccount:

###  

#### (i)                  the principles setout in the relevant Category 2 Matters or in the relevant documents referred toin the Category 2 Matters;

####  

#### (ii)                 the requirements ofthis agreement, including the Requirements Document; 

####  

#### (iii)                the Contractor’swarranties under this agreement, including that the Solution must be Fit ForSolution Purposes; and

####  

#### (iv)               Industry Practice as itapplies to the relevant Category 2 Matter,

####  

except that any determination of the Expertwill be final and binding on each party and clauses 49.5(l) and 49.5(m) willnot apply.

 

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

###  

## **2.3**                Conditionsprecedent

## ** **

Thepayment of the Milestone Payment due after the Completion Date for the NTSMobilisation Phase is subject to the Principal’s Representative beingreasonably satisfied that the following conditions have been met:

 

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

###  

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

 

29

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##### A.                 the Direct Agreements, and the KeyContracts to which they relate, to be entered into by Ascom, ERG, Headstrongand G&D; and

#####  

##### B.                  Deeds of Assurancerequired under clause 30.17(c)(i);

#####  

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

####  

##### A.                 a Key Contract; 

#####  

##### B.                  a Deed of Assurance (inthe case of Wayfarer and Gunnebo); and 

#####  

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

#####  

#### (iii)                copies of all the InsurancePolicies required under clause 36.1, and not already provided on theCommencement Date, and certificates from an insurance broker as to the currencyof each such policy, or if the Contractor is bound by a duty of confidentialityto the issuer of any such policy prohibiting disclosure of its terms, theninstead of a copy of such policy, a letter from the insurance broker to thePrincipal stating that the policy complies with clause 36 and containing theprincipal terms of cover (including policy limits and key inclusions), crossliability clauses, notice provisions, all the information from the policy schedule andany endorsements in full, and also containing a statement acknowledging thatthe Principal is relying upon those representations;

####  

### (b)                 the parties have:

###  

#### (i)                  subject to clause2.3(f), appointed an Expert on the terms of Schedule 14 with amendments inwriting as reasonably required by the Expert, or as otherwise agreed betweenthe parties and the Expert and the Expert Deed has been duly executed by theContractor and the Expert; and

####  

#### (ii)                 appointed an Arbitrator;

####  

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

###  

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

###  

### (e)                 the Principal has issued a Certificate of Completion inrespect of the NTS Mobilisation Phase;

###  

### (f)                  in the case where an Expert has not been appointed at thetime a party wishes to refer a Category 2 Matter for determination under clause2.2(e), the Principal will request the Australian Commercial Disputes Centre(ACDC) to nominate an Expert within 5 Business Days, following which thePrincipal will as soon as is reasonably practicable execute and procureexecution by the nominated Expert of an Expert

 

30

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### Deed. The Expert Deed will be on the terms of Schedule 14 with suchamendments to those terms as may be reasonably required by the nominated Expertand so as to reflect that the Expert Deed will terminate immediately after thedetermination by the Expert of any Category 2 Matter or Category 3 Matter whichis referred to the Expert.  TheContractor must within 2 Business Days after receipt from the Principal dulyexecute the Expert Deed; and

###  

### (g)                 all of the Category 2 Matters have been agreed between thePrincipal 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’sbenefit and waiver

## ** **

### (a)                 Each of the conditions precedent set out in clauses 2.3(a) to2.3(e) is for the sole benefit of the Principal and may only be waived, ordeferred, in writing by the Principal’s Representative (in its absolutediscretion).

###  

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

###  

## **2.5**                Notification

## ** **

TheContractor must notify the Principal’s Representative in writing as and when itconsiders that each condition precedent in clause 2.3 has been satisfied.

 

## **2.6**                Timefor satisfaction

## ** **

TheContractor must take all reasonable steps to satisfy the conditions precedentin clause 2.3 by: 

 

### (a)                 for the conditions precedent set out in each of clauses 2.3(a) to2.3(e), the Phase Date for the NTS Mobilisation Phase or such later date as thePrincipal’s Representative may otherwise (in its absolute discretion) notify tothe 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 dateby which the Expert has made determinations on all matters referred to theExpert under clause 2.2(e).

###  

## **2.7**                Failureto satisfy conditions precedent

## ** **

Ifthe conditions precedent in clause 2.3 are not satisfied or waived by therelevant 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 theconditions precedent set out in clauses 2.3(a) to 2.3(e) theContractor will indemnify the Principal against all costs, expenses, losses,damages, claims or liabilities suffered or incurred by the Principal arisingout of or in connection with:

###  

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

####  

#### (ii)                 the Project or this agreement; and

 

31

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

###  

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

####  

#### (ii)                 the Project or this agreement.

####  

# **3.**                  Fundamental obligations

# ** **

## **3.1**                Obligations

## ** **

TheContractor must design, develop, integrate, install, test and implement theSolution, conduct other testing and develop, test and provide the InitialServices and the Core Services in accordance with, and in compliance with, thefollowing:

 

### (a)                 this agreement, including the Requirements Document;

###  

### (b)                 the Solution Documentation, including the NTS RequirementsSpecification;

###  

### (c)                 the other Project Documents; and

###  

### (d)                 all Approvals, all laws and all applicable requirements ofany Authority.

###  

## **3.2**                DueDiligence

## ** **

The Contractor warrants that prior to thedate of this agreement:

 

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

###  

### (b)                 without limiting paragraph (a) ithas:

###  

#### (i)                  examined theproperty to which it requires access to carry out the Work and has satisfieditself fully as to the conditions and access which may affect its performanceof the Work;

####  

#### (ii)                 informed itselfcompletely of the nature of the Work and materials necessary for the Work;

####  

#### (iii)                informed itself of allregulatory requirements of the Government and any Authority in relation to theWork generally;

####  

#### (iv)               checked and carefullyconsidered the Due Diligence material;

####  

#### (v)                checked and carefullyconsidered the NTS Requirements Document; and

####  

### (c)                 obtained all appropriateprofessional and technical advice on all matters and circumstances in respectof the matters referred to in this clause 3.2.

###  

## **3.3**                Solutioncompliance with laws

## ** **

### (a)                 The Contractor must:

###  

#### (i)                  design the Solution tooperate; and 

####  

#### (ii)                 ensure the Solution operates, 

 

32

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incompliance with all Approvals, all requirements of any Authority and all lawsand industry codes, including all applicable banking, funds transfer, depositholding, privacy and related laws, regulations and directives, from time totime applicable to the operation of the Solution.

 

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

###  

## **3.4**                Assistance

## ** **

TheContractor must provide all reasonable assistance to enable the Principal, theBus Operators and the Access Providers to comply with all Approvals,requirements of any Authority and all laws and industry codes, including allbanking, funds transfer, deposit holding, privacy and related laws, regulationsand directives, from time to time applicable to the Principal, the BusOperators or the Access Providers in relation to any matter dealt with in orconnected with this agreement.  The costto the Contractor of providing such assistance will be relevant to, and will betaken into account in, determining whether it is reasonable in a particularinstance for the Contractor to provide assistance under this clause.

 

## **3.5**                Response Matrices

## ** **

Wherea Response Matrix in the column headed Minimum Requirement Compliance Level ismarked:

 

### (a)                 “F” the Contractor agrees to fully comply with all aspectsof the subject matter in the NTS Requirements Document and the Contractor’sResponse to which the “F” applies and agrees that the price of this complianceis included within the Capital Price, Services Charge or Delivery ServicesCharge; or

###  

### (b)                 “Q” the Contractor:

###  

#### (i)                  to the extent thatcompliance with any aspect of the subject matter to which that “Q” applies isnot qualified in the Contractor’s Response, agrees to fully comply with thoseaspects of the subject matter in the NTS Requirements Document and theContractor’s Response and agrees that the price of this compliance is includedwithin the Capital Price, Services Charge or Delivery Services Charge; and

####  

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

####  

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

###  

# **4.**                  Approvals

# ** **

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

 

33

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### (b)                 Prior to beginning any Phase for which any Approval referredto in clause 4(a) is required, the Contractor must furnish thePrincipal 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 ofthe State of Victoria or the Commonwealth of Australia;

###  

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

###  

### (c)                 any change in the interpretationor application of any Law of the State of Victoria or the Commonwealth ofAustralia resulting from a decision of a Governmental Agency (but not any otherchange in the way a Law is interpreted),

###  

which:

 

### (d)                 takes effect after the date ofthis agreement, which either:

###  

#### (i)                  applies solely tothe Contractor; or

####  

#### (ii)                 is directedspecifically or exclusively at the Project;

####  

and which:

 

#### (iii)                has a material effecton the Contractor carrying out the Work; and

####  

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

####  

or

 

### (e)                 takes effect after the SolutionCompletion Date; and

###  

#### (i)                  is directed specificallyor exclusively at the micropayment, automated fare collection or non-cashpayment facility industries; and

####  

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

####  

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

 

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

###  

### (g)                 any tax, levy, impost,deduction, charge, duty or withholding tax which is levied or imposed by aGovernmental Agency, including any income, capital gains, withholding, stampand transaction tax, duty or charge, together with interest,

 

34

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

###  

## **5.2**                Procedure

## ** **

### (a)                 If there is a Change in Law andeither party wishes clause 5.2(b) toapply, then that party must within 20 Business Days ofthe Change in Law, give a written notice to the other party stating that clause5.2(b) applies and containing:

###  

#### (i)                  details of theChange in Law; and

####  

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

####  

### (b)                 Subject to clause 5.2(c), thePrincipal and the Contractor will meet within 20 Business Days of a noticebeing given under clause 5.2(a) and will negotiate in good faith andendeavour to agree to any increase or decrease (as the case may be) in the Contractor’scosts of carrying out the Work in compliance with the Change in Law and wherethe parties agree the amount of the increase or decrease in costs referred toin clause 5.2(a)(ii):

###  

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

####  

##### A.                 in the case of adecrease in costs, will be decreased; and

#####  

##### B.                  in the case of anincrease in costs, will be increased; and

#####  

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

####  

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

#####  

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

#####  

##### C.                  where compliancewith 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 claimcompensation or adjustment under clause 5.2(b) unless and until theaggregate net increase in the costs of carrying out the Work in respect of oneor more Changes in Law occurring in a year exceeds $[**] for each year (a yearbeing each successive 12 month period calculated from the Commencement Date).

###  

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

 

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

####  

#### (ii)                 in the case of anincrease in the Contractor’s costs of carrying out the Work in compliance withthe Change in Law, the Principal’s Representative will reasonably determine andadvise the Contractor of the amount of the increased costs as they are actuallyincurred and, subject to the Contractor having taken all reasonable steps tomitigate those increased costs, the relevant component or components of theamounts payable by the Principal to the Contractor under this agreement willthen be increased by that amount or otherwise payable in the manner describedin clause 5.2(b).

####  

### (e)                 If the Contractor disputes adetermination by the Principal’s Representative under clause 5.2(d), it mustwithin 5 Business Days of receipt of notice of that determination give thePrincipal’s Representative notice of the dispute and if the matter is notresolved within 20 Business Days of that notice by the Principal’sRepresentative, the dispute will be determined by the Expert in accordance withclause 49.5.

###  

### (f)                  The Contractor mustcomply with any Change in Law.

###  

# **6.**                  Relationship betweenthe Principal and the Contractor

# ** **

## **6.1**                No Partnership, JointVenture or Other Fiduciary Relationship

## ** **

Nothing in, or contemplated by, the Project Documentswill be construed or interpreted as constituting a relationship between thePrincipal 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 fiduciaryrelationship.

 

## **6.2**                Statutory Functions

## ** **

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

###  

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

###  

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

###  

#### (i)                  contrary to an expressobligation of the Principal under this agreement; or

####  

#### (ii)                 inconsistent with, or that deprivesthe Contractor of, an express right or entitlement of the Contractor under thisagreement,

 

36

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andthe existence of such obligation, right or entitlement and the existence andamount of such Claim is to be assessed assuming clauses 6.2(a) and (b) donot apply.

 

## **6.3**                Review by thePrincipal

## ** **

Notwithstanding any other provision of thisagreement:

 

### (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 anyBus Operator’s advisers or any Stakeholder of any material, documents or otherinformation prepared or provided by the Contractor under orin connection with this agreement;

###  

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

###  

### (c)                 any information set out in any Schedule orExhibit,

###  

will not relieve the Contractor of its responsibility for such material, document orinformation or of its obligations or liabilities under this agreement.  A failure by the Principal or any of thePrincipal’s advisers to notify the Contractor of any defect in or concernassociated with any such material, document or information or following anysuch inspection will not relieve the Contractor of its liabilities, orconstitute 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 thatit is aware that the Principal has relied upon the warranties contained in thisagreement in entering into this agreement.

 

## **6.5**                No Representations bythe Principal or others

## ** **

The Contractor acknowledges:

 

### (a)                 that none of the Principal, theGovernment, the Governmental Agencies or any of the Access Providers, the BusOperators or Stakeholders have made or make any representation, assumed orassume any duty of care or made or make any warranty:

###  

#### (i)                  in respect ofpotential use of the Solution;

####  

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

####  

#### (iii)                that all relevantinformation or data in the Principal’s possession relating to the Operators hasbeen provided to the Contractor;

####  

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

###  

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

 

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### (d)                 and confirms that it did notrely upon any representation, information or data made available, or providedto it, by the Principal, the Government, the Governmental Agencies, the AccessProviders, the Bus Operators or any Stakeholder in entering into thisagreement; and

###  

### (e)                 and warrants that itdoes not rely on any representation or warranty made by or on behalf of thePrincipal, the Access Providers or the Bus Operators which is not set out inthis agreement.

###  

## **6.6**                PricingWarranty

## ** **

TheContractor warrants, for the benefit of the Principal, that as at the date ofthis agreement the pricing under this agreement, including the pricing ofcomponents of the Solution, is the same or lower than pricing offered by theContractor for similar products or services anywhere in the world whendetermined on a like for like basis and taking into account the supply of theSolution and the Services in Australia.

 

# **7.**                  Project Management

# ** **

## **7.1**                ProjectControl Group

## ** **

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

###  

#### (i)                  the Project Director andthe Principal’s Representative;

####  

#### (ii)                 2 persons from each party holdingsenior positions; and

####  

#### (iii)                such other members as the partiesmay from time to time agree.

####  

Thepersons referred to in clause 7.1(a)(ii) may appoint delegates toattend Project Control Group meetings in their absence and to otherwisedischarge their responsibilities in relation to the Project Control Group.

 

### (b)                 The objectives of the Project Control Group will be tomonitor and review the progress of the Project (and the monthly progressreports provided by the Contractor under clause 13.4), to assist in deliveryand operation and to consider matters referred to the Project Control Group byeither party.

###  

### (c)                 The Project Control Group will meet:

###  

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

####  

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

####  

#### (iii)                as required by the Principal toreview 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 theProject Control Group, prepare the minutes of all meetings and distribute theminutes signed by the Project Director and the Principal’s Representative tomembers of the Project Control

 

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

###  

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

###  

### (f)                  The Principal’s Representative may request the Contractor toprocure the attendance of representatives of any subcontractor, supplier orconsultant of the Contractor at any meeting of the Project Control Group andthe Contractor must comply with any such request at the Contractor’s cost.

###  

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

###  

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

###  

## **7.2**                KeyPersonnel

## ** **

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

###  

#### (i)                  engage on a full timebasis those people specified in Part A of Schedule 2 in the rolesspecified in Part A of Schedule 2 and for the period specified in Part Aof Schedule 2.

####  

#### (ii)                 only engage other people in theroles specified in Part A of Schedule 2 with the prior writtenapproval of the Principal;

####  

#### (iii)                not replace the people specified inPart A of Schedule 2 (or approved by the Principal pursuant to clause7.2(a)(ii)) without the approval of the Principal unless that person ceases tobe 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 equivalentability, expertise and experience who meets the relevant minimum qualificationsset out in Part B of Schedule 2 and is approved in writing by thePrincipal, with any such changeover handled to ensure the continuity of theProject;

####  

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

####  

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

####  

#### (vi)               if the Principal determines any personnelengaged by the Contractor or any subcontractor in the Project are notperforming their role adequately or are engaging or have engaged in improperconduct, the Contractor will within 20 Business Days of receiving writtennotice from the Principal’s Representative procure the removal of that personfrom the job and ensure that that person is not re-employed in any job which is

 

39

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#### partof the Project without the prior written approval of the Principal; and

####  

#### (vii)              indemnify the Principal in relationto any and all claims, demands or proceedings made or instituted by anypersonnel engaged by the Contractor or any subcontractor, including any claimsfor remuneration, accrued entitlements, termination entitlements (howsoeverdescribed and including any severance or redundancy entitlements), unfairdismissal claims or equal opportunity claims.

####  

### (b)                 The Contractor warrants that those people specified in Part Aof 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 Aof Schedule 2, meet the relevant minimum qualifications set out in Part Bof Schedule 2.

###  

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

###  

## **7.3**                Contractor’sRepresentative

## ** **

### (a)                 The Contractor must within 5Business Days of the Commencement Date give notice in writing to the Principal’sRepresentative of the person that will act as a representative of and beauthorised to act on behalf of it in discharging its functions under thisagreement.

###  

### (b)                 The Contractor must obtain thePrincipal’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 inwriting to the Principal’s Representative substitute a person appointed underclause 7.3(a) with another person, provided the Contractor hasobtained the prior written approval of the Principal, which must not beunreasonably withheld or delayed.

###  

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

###  

## **7.4**                Principal’s Representative

## ** **

### (a)                 The Principal:

###  

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

####  

#### (ii)                 may at any timereplace the Principal’s Representative, in which event the Principal mustappoint another person as the Principal’s Representative; and

####  

#### (iii)                will give writtennotice of all appointments made under clauses 7.4(a)(i) and 7.4(a)(ii) tothe Contractor.

 

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### (b)                 The Principal’s Representativemay:

###  

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

####  

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

####  

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

####  

### (c)                 The Principal’s Representativemay continue to exercise a function under this agreement despite appointinganother person to exercise the function under clause 7.4(b).

###  

### (d)                 The Principal and the Contractoracknowledge and agree that the Principal’s Representative and any appointee ofthe Principal’s Representative act at all times as agents of the Principal andare subject to the directions of the Principal and will act solely in theinterests of the Principal.

###  

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

###  

### (f)                  Where there is anyinconsistency, ambiguity or uncertainty between:

###  

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

####  

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

####  

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

 

# **8.**                  Compliance and quality

# ** **

## **8.1**                Industrial Relations

## ** **

### (a)                 The Contractor must ensure thatit carries out its obligations under this agreement, so as to minimiseindustrial relations disputes.

###  

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

###  

### (c)                 The Industrial Relations Plan musttake into account all relevant industrial relations policies and arrangementsincluding those of the Contractor, its subcontractors, any person whoundertakes work in relation to the Solution and the Operators.

###  

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

 

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

###  

### (f)                  Except as expresslyprovided in this agreement, no additional costs and no extensions of time willbe granted to the Contractor by the Principal as a result of costs incurred asa result of delays resulting from industrial action.

###  

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

###  

#### (i)                  breach of thisagreement by the Contractor; or

####  

#### (ii)                 an act or omission ofthe Contractor and such industrial relations dispute or industrial action isone which could have been prevented by the Contractor taking those steps whicha prudent, experienced and competent contractor would have taken in thecircumstances.

####  

## **8.2**                Occupational Health,Safety and Rehabilitation

## ** **

### (a)                 The Contractor must:

###  

#### (i)                  carry out the Workin a safe manner with the intent that no damage is caused to any person orproperty;

####  

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

####  

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

####  

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

####  

#### (v)                give to the Principalregular detailed proposals for ensuring that no damage is caused to any personor property in carrying out the Work.

####  

### (b)                 The Contractor must prepare andsubmit to the Principal for its approval an updated OH&S Plan at the sametime that it provides the Principal with its detailed financial forecasts underclause 47.2(b)(i)B.  The Principal may,within 10 Business Days of receipt of an updated OH&S Plan, advise the Contractorwhether or not it considers

 

42

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### suchplan to be in accordance with this agreement, including the RequirementsDocument and the Solution Documentation, or reject it and provide its comments(if any).  If an updated OH&S Plan isrejected, the Contractor must promptly, and in any event within 5 BusinessDays, submit to the Principal a redraft of the plan.  The Contractor must take into account anycomments of the Principal in finalising an updated OH&S Plan.

###  

### (c)                 Without derogatingfrom or limiting the Contractor’s control of the Project and the sites at whichthe Work is performed, where the Contractor is in default of its obligationsunder clause 8.2(a), the Principal may take whatever action it reasonablyconsiders necessary (at the Contractor’s cost) to protect any person orproperty, including any part of the Solution, which the Contractor fails totake.  Any costs incurred by thePrincipal in taking such action will be a debt immediately due and payable bythe Contractor to the Principal.

###  

### (d)                 The Contractor willensure that, in relation to any subcontractor or any other entity that performsany Work or any entity that supplies products (including Devices) to theContractor in relation to the Work (**“RelevantEntity”**), any subcontract or supply contract between the Contractorand a Relevant Entity must contain applicable provisions corresponding toclause 8.2(a)(i) to (iv) and which require such Relevant Entity to doeverything 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 aRelevant Entity to which it is not a party contains provisions corresponding toclause 8.2(a)(i) to (iv) and which require the relevant subcontractoror supplier to do everything necessary to enable the Relevant Entity to itselfdo everything necessary to enable the Contractor to comply with clause8.2(a)(v).

###  

## **8.3**                Quality ManagementSystem

## ** **

### (a)                 The Contractor must prior to theCompletion of the NTS Solution Requirements Phase provide to thePrincipal a certificate from a JAS/ANZ AccreditedCertification Agency that the Quality Management System developed by theContractor is in accordance with, and will enable the Contractor to complywith, the standards set out in ISO 9001:2000, including with respect to theDelivery of the Solution and the provision of the Initial Services and the CoreServices.

###  

### (b)                 The Contractor must implementand comply with the Quality Management System in carrying out the Work underthis agreement.

###  

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

###  

### (d)                 The Contractor must throughoutthe Term provide the Principal with the results of all internal CMM and PMMMactivities and audits that relate to the Project.

###  

## **8.4**                Quality AssurancePlans

## ** **

### (a)                 The Contractor must deliver tothe Principal:

###  

#### (i)                  prior to theCompletion of the NTSSolution Requirements Phase,****the Project Quality Assurance Plan; and

 

43

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#### (ii)                 20 Business Daysprior to commencement of the NTS Regional and Metropolitan ImplementationCompletion Phase, the Operational Quality Assurance Plan.

####  

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

###  

### (c)                 The Contractor must prepare andsubmit to the Principal for its approval an updated Project Quality AssurancePlan and an updated Operational Quality Assurance Plan at the same time that itprovides the Principal with its detailed financial forecasts under clause47.2(b)(i)B.  The Principal may, within10 Business Days of receipt of an updated Project Quality Assurance Plan orOperational Quality Assurance Plan, advise the Contractor whether or not itconsiders such plans to be in accordance with this agreement, including theRequirements Document, or reject them and provide its comments (if any).  If an updated Project Quality Assurance Planor Operational Quality Assurance Plan is rejected, the Contractor mustpromptly, and in any event within 5 Business Days, submit to the Principal aredraft of the plan(s).  The Contractormust take into account any comments of the Principal in finalising any updatedProject Quality Assurance Plan or Operational Quality Assurance Plan.

###  

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

###  

#### (i)                  have its compliancewith the Project Quality Assurance Plan audited at its cost by an independentauditor who holds current CMMI or ISO certification and who is acceptable tothe Principal;

####  

#### (ii)                 permitrepresentatives of the Principal to be present during such audit; and

####  

#### (iii)                deliver 2 copies ofsuch audit to the Principal’s Representative within 5 Business Days of itscompletion.

####  

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

###  

#### (i)                  have its compliancewith the Operational Quality Assurance Plan audited at intervals not exceeding12 months at its cost by an independent auditor who holds current CMMI or ISOcertification and who is acceptable to the Principal;

####  

#### (ii)                 permit representativesof the Principal to be present during such audit; and

####  

#### (iii)                deliver 2 copies ofsuch audit to the Principal’s Representative within 5 Business Days of itscompletion.

####  

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

###  

#### (i)                  the Contractor’scompliance with the Project Quality Assurance Plan, the Operational QualityAssurance Plan, ISO 9001:2000 (or any replacement standard) and any otherstandards specified in this agreement, including the Requirements Document andthe Solution Documentation;

 

44

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#### (ii)                 the compliance by theContractor’s subcontractors and their subcontractors with their respectivequality assurance plans which have been prepared to enable the Contractor tocomply with clause 8.4(b); and

 

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

####  

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

###  

#### (i)                  the Contractor isnot complying with the Project Quality Assurance Plan, the Operational QualityAssurance Plan, ISO 9001:2000 (or any replacement standard) or any otherstandards specified in this agreement, including the Requirements Document andthe Solution Documentation;

####  

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

####  

#### (iii)                the Contractor or itssubcontractors are not complying with this agreement, including theRequirements Document and the Design Documents and the Solution Documentation,

####  

the Contractor must:

 

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

####  

#### (v)                prepare and submit tothe Principal a corrective action plan to address any non-compliances with theProject Quality Assurance Plan, the Operational Quality Assurance Plan, ISO9001:2000 (or any replacement standard) or any other standards specified inthis agreement, including the Requirements Document and the SolutionDocumentation (including any non-compliances by the Contractor’s subcontractorswith their respective quality assurance plans and the standards referred to inthis clause), within 5 Business Days of the Contractor receiving notice fromthe Principal of the non-compliances discovered by the audit referred to inclause 8.4(f).

####  

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

###  

#### (i)                  compliance with thequality assurance requirements under this agreement; or

####  

#### (ii)                 anything which thePrincipal does or does not do with respect to the quality assurancerequirements under this agreement, including auditing the Contractor’scompliance with those requirements under clause 8.4(f).

####  

### (i)                  Within 10 BusinessDays of receipt of a corrective action plan from the Contractor under clause8.4(g)(v), the Principal’s Representative may give notice to the Contractorthat the whole or part of the corrective action plan does not address theconcerns of the Principal with respect to the non-compliances and direct theContractor to resubmit a revised corrective action plan under clause 8.4(g)(v) whichaddresses the Principal’s concerns, within 5 Business Days.

 

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### (j)                  The Contractor mustproceed to implement and carry out any corrective action plan or part of anycorrective action plan which has not been rejected by the Principal underclause 8.4(i).

###  

# **9.**                  Access

# ** **

## **9.1**                AccessGenerally

## ** **

### (a)                 The parties acknowledge theimportance of Access to the Contractor’s ability to perform its obligationsunder this agreement. Accordingly:

###  

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

####  

#### (ii)                 the Contractor agrees to use itsbest endeavours to cooperate with Access Providers and Bus Operators ininstalling Devices in a way which reasonably minimises adverse impacts toAccess Providers; 

####  

#### (iii)                the Principal shall use its bestendeavours to ensure that Access Providers and Bus Operators agree to use theirbest endeavours to cooperate with the Contractor in allowing the Contractor tohave Access in a way which reasonably minimises adverse impacts to theContractor; and

####  

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

####  

### (b)                 The Contractor will co-ordinateand manage all Access it requires to carry out the Work, including accessgranted under an Access Coordination Agreement.

###  

### (c)                 The Contractor willdevelop each Access Plan in accordance with the Solution Documentation and theProject Documents.

###  

## **9.2**                AccessCoordination Agreement

## ** **

### (a)                 The Contractor and the Principal will use their bestendeavours to amend the Access Principles and enter into an Access CoordinationAgreement with each Access Provider which incorporates and complies with therelevant Access Principles by theCompletion 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) isnot realised, in respect of each Access Provider that has not entered into anAccess Coordination Agreement, the Proforma Access Agreement will apply inrelation to the Principal and the Contractor on the basis that the Principal undertakesall obligations and has all rights of the Access Provider under that ProformaAccess Agreement.

###  

### (c)                 The Contractor will comply with its obligations in eachAccess Coordination Agreement.  

 

46

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### (d)                 If the Contractor does not enter into any AccessCoordination Agreement or the Access Principles are not amended to theContractor’s satisfaction by the date which is 3 months after the date of thisagreement the Principal may convene a meeting between the Contractor and theAccess Provider.  The Contractor mustattend the meeting and negotiate and participate in good faith in theresolution of any issues raised.  ThePrincipal must use all reasonable endeavours to ensure that the Access Provideragrees to also negotiate and participate in good faith in the resolution of anyissues raised.

###  

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

###  

#### (i)                  a copy of themonthly invoice, and any related information, received by the Contractor froman Access Provider;

####  

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

####  

#### (iii)                evidence of payment ofthe amount set out in an invoice received by the Contractor from an AccessProvider; and

####  

#### (iv)               information tosubstantiate that the access charges claimed in the Monthly Invoice are AccessCharges.

####  

### (f)                  Where the Contractorhas included details of the Access Charges in a Monthly Invoice and compliedwith the requirements set out in clause 9.2(e), the Principal will be liable topay those Access Charges in accordance with clause 27.4, subject to any rightsof the Principal under clause 27.5.

###  

### (g)                 The Contractor may seek theagreement by any Access Provider to reciprocal indemnities with a view toincorporating any such agreement in an Access Coordination Agreement, but theContractor may not rely on the failure to achieve any agreement on suchindemnities 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) andmust negotiate and participate in good faith in accordance with clause 9.2(d),notwithstanding that a relevant Access Provider has not agreed to reciprocalindemnities with the Contractor.

###  

## **9.3**                BusAccess Plan

## ** **

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

###  

### (b)                 The Principal may, at any time, direct the Contractor toamend 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 AccessPrinciples and this agreement,

 

47

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providedthat such amendment cannot reduce the Total Bus Access.

 

### (c)                 Subject to safety and security requirements, the Principalwill 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 BusAccess Plan as a result of the failure of any Bus Operator or Bus Operators tocooperate, and such cooperation is required by the Bus Access Principles, theContractor may request the Principal, by written notice, to assist theContractor in obtaining the relevant cooperation of the relevant Bus Operatoror Bus Operators to the Bus Access Plan, and the Principal will use its bestendeavours to do so.

###  

## **9.4**                Accessto Property

## ** **

### (a)                 The Contractor acknowledges andwarrants that prior to entering into this agreement, it carried out allinvestigations and examinations necessary in respect of the adequacy of theAccess Providers Property and Bus Property and it is satisfied that the AccessProviders Property and Bus Property is adequate and sufficient for the Projectand for it to carry out the Work and satisfy its obligations under thisagreement, including the Requirements Document and the Solution Documentation.

###  

### (b)                 The Principal makesno representation or warranty to the Contractor as to the adequacy orsufficiency of each Access Provider’s Property or each Bus Property.

###  

## **9.5**                Conditionsof Access

## ** **

### (a)                 The rights of access to be procured pursuant to clause 9.3(c) arefor the purpose only of carrying out the Work and the Contractor will obtain nolegal estate or other interest in the Bus Property.

###  

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

###  

## **9.6**                Disruptionto Bus Operators

## ** **

### (a)                 If any part of the Work will or might reasonably be expectedto interrupt or cause any other disruption of or disturbance to the conduct ofa 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 atleast 30 Business Days notice) to the Principal and the Bus Operator or thirdparty, as the case may be, of the details of the part of the Work and of itsproposals for reducing the likely interruption, disruption or disturbance, andwill not commence the carrying out of that part of the Work without first obtainingthe Principal’s and the relevant Bus Operator’s or third party’s approval to itand its timing (which Principal’s approval shall not be unreasonably withheldor delayed).

###  

### (b)                 The Contractor must:

###  

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

####  

#### (ii)                 at all times co-operate with andnot interfere with or obstruct any other contractor engaged by the Principal orthe Bus Operators to perform other works on or in the vicinity of the BusProperty; and

 

48

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

####  

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

###  

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

####  

#### (ii)                 at all times co-operate with andnot interfere with or obstruct the Contractor.

####  

## **9.7**                Additional Bus Access

## ** **

### (a)                 If, during Delivery, theContractor requires Access to Bus Property to carry out the Work, and does nothave sufficient rights of Access under clause 9.3, the Principal will, atthe Contractor’s cost, use reasonable endeavours to procure such Access for theContractor.

###  

### (b)                 If procurement of additionalAccess by the Principal in accordance with clause 9.7(a) representsaccess in excess of the Total Bus Access the Contractor will be liable for thecost of the additional Access, calculated on the basis of the Bus Access Rates. The amount will be a debt immediatelydue and payable by the Contractor to the Principal.

###  

## **9.8**                Access Delay Reporting

## ** **

### (a)                 The Principal and the Contractorrecognise the importance of early identification of the occurrence of AccessEvents to allow the Principal and the Contractor to take steps to mitigate theeffect of such Access Events upon the ability of the Contractor to achieveCompletion of a Phase by the relevant Phase Date. Accordingly the Contractorshall, during the relevant Phase, meet with the Principal on a weekly basis todiscuss Access Events, and at those meetings provide weekly reports on:

###  

#### (i)                  the occurrence of allrelevant Access Events and the impact of those Access Events on the ProjectMaster Schedule and the critical path for achieving Completion of therelevant Phase;

####  

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

####  

#### (iii)                the likelihood of the occurrence ofan Access Delay as a result of the relevant Access Events, and the ability forany Acceleration Direction to overcome the Access Delay.

####  

### (b)                 The Principal:

###  

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

####  

#### (ii)                 will pay the ContractorAcceleration Costs for complying with an Acceleration Direction, which will bepayable at the next Payment

 

49

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#### Milestoneto which the Work the subject of the Acceleration Direction relates.

####  

## **9.9**                Delay Costs

## ** **

### (a)                 Subject to clauses 9.9(b) and18.7, any Claim by the Contractor for Access Delay must be made as soon aspracticable after the Contractor considers that the occurrence of one or moreAccess Events is likely to cause an Access Delay having regard to the ProjectMaster Schedule and must be limited to Delay Costs.  For the avoidance of doubt Delay Costs areonly payable to the extent the event delaying the Contractor in achievingCompletion of a Phase by the relevant Phase Date is not attributable to:

###  

#### (i)                  the Contractorfailing to act in a timely and efficient way;

####  

#### (ii)                 the Contractorfailing to do all things reasonably expected of a prudent and experiencedcontractor undertaking the Work; or

####  

#### (iii)                a breach of anyProject Document by the Contractor.

####  

In these circumstances Delay Costs will beadjusted accordingly.

 

### (b)                 The Contractor must use allreasonable endeavours (including making any reasonable expenditure of funds) toavoid and mitigate the effect of any Access Event including:

###  

#### (i)                  complying with thenotice obligation in clause 9.6;

####  

#### (ii)                 complying with anyclause in an Access Coordination Agreement under which the Contractor has anobligation to give notice prior to access;

####  

#### (iii)                rearranging andrescheduling installation activities to the extent reasonably possible toaccommodate failures or delays in obtaining required access and amending theProject Master Schedule in accordance with clause 13.3;

####  

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

####  

#### (v)                notifying thePrincipal’s Representative as soon as the Contractor knows or ought reasonablyto have known that the Principal will not be able to comply withclause 9.3(c); 

####  

#### (vi)               takingall reasonable steps to assist the Principal to comply with clause 9.3(c) andto avoid or minimise the consequence of the Principal failing to comply withclause 9.3(c);

####  

#### (vii)              notifyingan Access Provider as soon as the Contractor knows or ought reasonably to haveknown that that Access Provider will not be able to comply with the relevantAccess Coordination Agreement; and

####  

#### (viii)             taking all reasonable stepsto assist the Access Providers to comply with the Access CoordinationAgreements to avoid or minimise the consequence of any non-compliance.

 

50

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### (c)                 The Principal shall pay to theContractor Delay Costs which are the subject of a Claim properly made underclause 9.9(a) .  Delay Costs payableby the Principal to the Contractor under this clause 9.9(c) will be paidat the time that payment is due in respect of the Phase in which the DelayCosts are incurred.  

###  

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

###  

## **9.10**             PrincipalAccess

## ** **

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

###  

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

###  

#### (i)                  subject to normal safetyand security constraints as notified by the Contractor, have the right ofaccess during business hours or on reasonable notice to:

####  

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

#####  

##### B.                  the sites where the Workis being carried out; and

#####  

##### C.                  all other areas relevantto the Work; and

#####  

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

####  

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

#####  

##### B.                  undertaking progressinspections of the Solution by the Principal; and

#####  

##### C.                  any other reasonrelating to the Solution or this agreement.

#####  

## **9.11**             Accessduring NTS Solution Requirements Phase

## ** **

### (a)                 Promptly after the CommencementDate, the Contractor and the Principal will commence, and will each use allreasonable endeavours to finalise an access regime for the NTS SolutionRequirements Phase, which contains reasonably acceptable access requirements inrelation to each Access Provider and the Bus Operators, and which will dealwith:

###  

#### (i)                  the details of thepeople, equipment, data and sites to which access is reasonably required by theContractor (**“Sites”**);

####  

#### (ii)                 the total amount ofaccess to each Site which is reasonably required; and

 

51

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#### (iii)                proposed dates andtimes for access to each Site,

####  

for the Contractor to carry out theobligations set out in clauses 11.1(a) and 11.1(b), taking intoaccount any relevant information provided to the Contractor about limitationsin relation to access to any Site.

 

### (b)                 Subject to safety and securityrequirements in relation to the Sites, the Principal will use all reasonableendeavours to arrange for the Contractor the access required, in accordancewith the access arrangements agreed under clause 9.11(a).

###  

# **10.**                Responsibility for Work

# ** **

## **10.1**             ContractorResponsible

## ** **

TheContractor will be responsible for:

 

### (a)                 carrying out the Work and implementing the Solution inaccordance 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 performedunder this agreement;

###  

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

###  

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

###  

## **10.2**             Workperformed by third parties

## ** **

### (a)                 Subject to this clause 10, theContractor may permit any entity in Part A of Schedule 9 to performpart of the Work and any entity in Part B of Schedule 9 to supplyproducts (including Devices) to the Contractor in relation to the Work.

###  

### (b)                 The Contractor must not permit:

###  

#### (i)                  any part of the Workto be performed by:

####  

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

#####  

##### B.                  any person otherthan itself where that Work is to be performed on any Access Providers’ Propertyor Bus Property;

#####  

#### (ii)                 any supply ofproducts (including Devices) to the Contractor in relation to the Work to bemade 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

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#### (iii)                in the case of clause10.2(b)(i), it has made prior application in writing to the Principal’sRepresentative:

####  

##### A.                 giving fullparticulars of the part of the Work it wishes to subcontract or have performedby an entity other than itself, the proposed subcontract and the proposedsubcontractor; and

#####  

##### B.                  including, in thecase of a subcontract for design work, providing a copy of the professionalindemnity insurance policy held by the proposed design subcontractor or acertificate of currency for such policy if the proposed design subcontractor isbound by a duty of confidentiality to the issuer of the policy, prohibitingdisclosure of its terms, such policy being in compliance with clause 36and a letter to the Principal from the insurance broker of the proposed designsubcontractor confirming that the policy conforms with the requirements of thisagreement and containing a statement acknowledging that the Principal isrelying on the representation, if it is prohibited from providing a copy of thepolicy; and

#####  

#### (iv)               in the case of clause10.2(b)(ii), it has made prior application in writing to the Principal’sRepresentative giving full particulars of the products to be supplied, theproposed supply contract and the proposed supplier; and

####  

#### (v)                the Principal’sRepresentative has not rejected the subcontractor or supplier within 20Business Days of receipt of the information referred to in clause 10.2(b)(iii) or10.2(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 orany entity that supplies products (including Devices) to the Contractor inrelation to the Work (**“Relevant Entity”**):

###  

#### (i)                  the Relevant Entityis a reputable entity which:

####  

##### A.                 has sufficientexperience, expertise and ability to perform its obligations to the standardsrequired by this agreement, including the Requirements Document and theSolution Documentation, and that it has experience and expertise insuccessfully designing, developing, integrating, installing, testing,implementing and providing similar Solutions or providing similar services orin providing products relating to similar Solutions;

#####  

##### B.                  has in placearrangements for ensuring the availability of the appropriate skills andresources to perform its obligations to the standards required by thisagreement, including the Requirements Document and the Solution Documentation;and

#####  

##### C.                  is of sufficientlyhigh financial and commercial standing to perform its obligations to thestandards required by this agreement, including the Requirements Document andthe Solution Documentation; 

 

53

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

####  

#### (iii)                the Principal’sRepresentative is provided with written details of the Relevant Entity and theterms and conditions of the contract with the Relevant Entity prior to theContractor entering into that contract; and

####  

#### (iv)               any subcontract orsupply contract between the Contractor and a Relevant Entity must containprovisions corresponding to this clause 10.2 and the Contractor mustprocure that any subcontract or supply contract with a Relevant Entity to whichit is not a party contains provisions corresponding to this clause 10.2.

####  

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

###  

### (e)                 Where, as a result of carryingout a criminal history investigation, the Principal is of the view that aRelevant Entity or any person associated with a Relevant Entity should not beinvolved in the Work or the supply of products (including Devices) in relationto the Work, the Principal may give notice to the Contractor requiring it toensure that the Relevant Entity or person associated with the Relevant Entityis 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 assoon as possible and, in any event, within 5 Business Days of receiving suchnotice.

###  

### (f)                  The Contractor mustnot terminate its contract with any Relevant Entity unless another person, inrespect of which clauses 10.2(b) and (c) has been complied with,is appointed to perform the obligations which were performed by that RelevantEntity.

###  

### (g)                 Despite theprovisions of this clause and notwithstanding any subcontract or supplycontract or approval to subcontract any part of the Work or enter into anysupply contract in relation to the Work, the Contractor remains bound by theContractor’s obligations under this agreement to perform the Work in accordancewith this agreement, including the Requirements Document and the SolutionDocumentation, and will be liable for all acts, omissions and defaults of itssubcontractors or suppliers relating to, or in any way connected with, theWork.

###  

## **10.3**             KeyContracts

## ** **

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

###  

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

####  

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

####  

#### (iii)                in the case of bothparagraphs (i) and (ii) is for the supply of services or productssolely for the purposes of the Project or the undertaking of all or part of theWork,

 

54

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

 

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

###  

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

####  

#### (ii)                 clause 10.3(e) applies.

####  

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

###  

#### (i)                  on terms acceptableto the Principal; and

####  

#### (ii)                 substantially in theform set out in Schedule 25,

####  

in respect of any Key Contract nominated bythe Principal under clause 10.3(a) and must procure that all other partiesto the Key Contract enter into that Direct Agreement.  The Contractor’s obligations under thisclause 10.3(c) will only apply in respect of each Key Contract to whichWayfarer and Gunnebo are party to the extent required pursuant to clause10.3(h).

 

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

###  

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

###  

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

###  

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

###  

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

 

55

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

####  

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

####  

#### (iv)               Deeds of Assurancerequired under clause 30.17(c)(ii).

####  

### (h)                 The Contractor must, with effectfrom the date on which Ascom enters into subcontracts with Wayfarer andGunnebo, enter into a valid enforceable direct agreement with each of Wayfarerand Gunnebo.  The Contractor will ensurethat Ascom is a party to each such direct agreement, and that the terms of suchdirect agreements include a right for the Contractor to require each ofWayfarer and Gunnebo to accept a novation of the relevant subcontract fromAscom to the Contractor at any time during the term of the relevantsubcontract.  In the event that theContractor exercises its rights under any such direct agreement to take anovation of the relevant subcontract from Ascom, the new subcontract therebycreated between the Contractor and Wayfarer or Gunnebo (as applicable) will bea Key Contract for the purposes of this agreement, and in respect of each suchKey Contract, the obligations of the Contractor under clause 10.3(c) willthen apply.

###  

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

###  

#### (i)                  the contractsbetween the Contractor and each of Ascom, ERG, Headstrong, G&D, HP, Chubband Optus; and

####  

#### (ii)                 the subcontractsbetween Ascom and each of Wayfarer and Gunnebo,

####  

in each case being in connection with theProject or the undertaking of the Work, the Initial Services or the CoreServices.

 

## **10.4**             Localcontent

## ** **

TheContractor must comply with the Victorian Industry Participation Plan.

 

# **11.**                NTS SolutionRequirements Phase

# ** **

## **11.1**             NTS SolutionRequirements Phase

## ** **

### (a)                 The Contractor must carry outthe 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 Contractormust:

###  

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

####  

#### (ii)                 develop and documentthe NTS Requirements Specification in accordance with this agreement includingclause 11.2 and the Requirements Document;

 

56

----

 

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

####  

##### A.                 determine allbusiness processes and data requirements;

#####  

##### B.                  determine allbusiness rules;

#####  

##### C.                  document the CivilWorks;

#####  

##### D.                 prepare acustomisation document describing the extent of work the Contractor mustundertake to its existing equipment and system in order to meet the Principal’srequirements; and

#####  

##### E.                  provide objectivetraceability from the NTS Requirements Specification to each parent documentitem (including the NTS Requirements Document and the Contractor’s Response).

#####  

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

####  

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

####  

##### A.                 are of professionalquality;

#####  

##### B.                  are technicallyadequate and accurate; and

#####  

##### C.                  will be completedand coordinated in a timely manner;

#####  

#### (vi)               document the Principal’srequirements in relation to the Pilot Trial, including:

####  

##### A.                 the location of thePilot Trial;

#####  

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

#####  

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

#####  

##### D.                 the conditions whichmust be met for the successful completion of the Pilot Trial; and

#####  

##### E.                  any other aspect ofthe Pilot Trial agreed between the parties.

#####  

## **11.2**             NTS RequirementsSpecification Warranty

## ** **

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

 

### (a)                 which are identified pursuant toclauses 11.1 and 11.7; and

###  

### (b)                 of which the Contractor is awareor which a prudent, competent and experienced contractor should have been awareif it had done those things which the Contractor is required to do underclauses 11.1 and 11.7.

 

57

----

 

## **11.3**             Development of NTSRequirements Specification

## ** **

### (a)                 The Contractor must prepare andsubmit to the Principal for its approval drafts of each part of the NTSRequirements Specification, prepared on the basis of: 

###  

#### (i)                  any outlinescontained in the Contractor’s Response; and 

####  

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

####  

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

###  

### (c)                 The Contractor must prepare andsubmit to the Principal for its approval a final version of each part of theNTS Requirements Specification prepared on the basis of the draft submitted underclause 11.3(a) and in accordance with, and at the times specified in,this agreement, including the Requirements Document and the Project MasterSchedule.

###  

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

###  

### (e)                 The Contractor must finalise theNTS Requirements Specification taking into account the comments of thePrincipal and in accordance with the requirements set out in this agreement, includingthe Requirements Document, as a condition precedent to Completion of the NTSSolution Requirements Phase.

###  

### (f)                  The Principal’sreceipt, review or approval of, or any comment, representation or statement(whether verbal or in writing) in relation to the NTS RequirementsSpecification or any part thereof will not relieve the Contractor of itsresponsibility for any errors, omissions or departures from, or failures tocomply with, this clause 11 or the other requirements of this agreement andwill not affect the rights or obligations of the Principal under thisagreement, including its payment obligations under clause 21.

###  

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

 

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## **11.4**             NTS SolutionRequirements Phase and Capital Price

## ** **

### (a)                 The Contractor will incorporatethe outcomes, requirements, policies, procedures, practices and business rules identifiedpursuant to clauses 11.1(a), (b) and 11.7 into the Solution or the InitialServices or the Core Services (as the case may be), and in the case of theCategory 3 Matters agreed or determined pursuant to clause 11.7 will documentthose matters in accordance with clause 11.7(c), without additional cost to thePrincipal and, notwithstanding any other provision of this agreement other thanclause 20A, will not be entitled to make any Claim in respect of suchincorporation.

###  

### (b)                 As a condition precedent toCompletion of the NTS Solution Requirements Phase, the Contractor must give thePrincipal a document which sets out:

###  

#### (i)                  any proposedreduction in the Capital Price or the Services Charge or both in respect of theitems of the Work or other matters set out in Schedule 26 and the basis ofcalculation of the reduction individually itemised for each item of the Work orother matter set out in Schedule 26; or

####  

#### (ii)                 if the Contractordoes not propose a reduction in the Capital Price and the Services Chargereasons for this individually itemised for each item of the Work or othermatter set out in Schedule 26.

####  

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

###  

## **11.5**             Civil Works

## ** **

The Contractor:

 

### (a)                 will conduct a tender process toobtain 3 separate quotes from experienced and capable contractors agreedto by the Principal (but failing agreement, as nominated by the Principal) tocarry out the Civil Works documented by the Contractor pursuant toclause 11.1(b)(iii)C within 2 months of Completion of the NTSSolution Requirements Phase or any other period reasonably nominated by thePrincipal;

###  

### (b)                 will be responsible forselecting a preferred subcontractor from this tender process but must permitthe Principal’s Representative to review all materials that are submitted inthe tender process and provide any other information that the Principalreasonably requires;

###  

### (c)                 must demonstrate to thereasonable satisfaction of the Principal that the preferred subcontractor isthe best choice having regard to:

###  

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

####  

#### (ii)                 the experience andcapability of that subcontractor; and

####  

#### (iii)                the ability of theContractor to carry out the Work if it subcontracts the Civil Works to thesubcontractor;

####  

### (d)                 must carry out the Civil Worksby entering into a subcontracting agreement with the preferred subcontractor onterms reasonably agreeable to the Principal and the

 

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

###  

#### (i)                  setting out anamount which it has paid to the preferred subcontractor pursuant to thesubcontract, together with a copy of the relevant invoice from thesubcontractor and such other information reasonably required by the Principalin relation to such payment; and

####  

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

####  

reimburse the Contractor for the amount setout in the notice in relation to the payment made to the subcontractor and payto the Contractor the direct costs set out in the notice plus a [**]% margin onthose direct costs of administration, except that where the Principal disputesany amount set out in the notice from the Contractor:

 

#### (iii)                the Principal must payany undisputed amounts within 20 Business Days of receipt of the notice fromthe Contractor; and

####  

#### (iv)               the Principal maydispute the notice received from the Contractor in accordance with the processset out in clause 27.5 as if references to Monthly Invoices in that clause werereferences to the written notice received by the Contractor. 

####  

## **11.6**             Termination

## ** **

### (a)                 As a condition precedent toCompletion of the NTS Solution Requirements Phase, the Contractor must provideto the Principal:

###  

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

####  

#### (ii)                 the daily amount of DelayCosts which will be incurred each day by the Contractor if it does not performthat part of the Work set out in the notice provided by the Contractor underclause 11.6(a)(i) for the 40 Business Days beginning on theCompletion Date for the NTS Solution Requirements Phase (the **“Daily Cost”**).

####  

### (b)                 The Contractor must not, withoutthe written approval of the Principal’s Representative underclause 11.6(c), undertake any further Work prior to the date which is 40Business Days after the Completion Date for the NTS Solution RequirementsPhase.

###  

### (c)                 The Principal may give a noticeto the Contractor to commence all or any part of the Work set out in the noticeprovided by the Contractor under clause 11.6(a)(i) in respect of theNTS Release 0 and Prototyping Phase or any other Phase at any time between theCompletion Date for the NTS Solution Requirements Phase and the date which is40 Business Days after the Completion Date for the NTS Solution RequirementsPhase.

###  

### (d)                 Despite any other provision ofthis agreement, the Principal may at its absolute discretion, terminate thisagreement by giving written notice to the Contractor in the period commencingon the Phase Date for the NTS Solution Requirements Phase

 

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### andending on the date which is 40 Business Days after the Completion Date of theNTS Solution Requirements Phase.

###  

### (e)                 If the Principal terminates thisagreement pursuant to clause 11.6(d) prior to the Completion Date for theNTS Solution Requirements Phase:

###  

#### (i)                  the Contractor must,within 5 Business Days of the date of termination, give the Principal the NTSRequirements Specification and any other documents specified in clause 11.1(b) and11.7, to the extent that they are in existence as at the date of termination;*** ***

####  

#### (ii)                 the Expert mustdetermine the value of all Work actually performed by the Contractor up to thedate of termination provided that the value of the Work performed prior to theCompletion Date of the NTS Solution Requirements Phase cannot exceed the NTSSolution Requirements Payment;

####  

#### (iii)                if the Principal hasreceived all documents referred to in clause 11.6(e)(i) in a fit andproper state consistent with quality guidelines and with content as expected ofa reasonable contractor, the Principal must pay the Contractor the amountdetermined by the Expert under clause 11.6(e)(ii) within 5 Business Daysof the Expert’s determination; and

####  

#### (iv)               notwithstanding anyother provision of this agreement, the Contractor will be entitled to have theEscrow Material returned to it.

####  

### (f)                  If the Principalterminates this agreement pursuant to clause 11.6(d) after the CompletionDate of the NTS Solution Requirements Phase the Principal will pay to theContractor: 

###  

#### (i)                  the NTS SolutionRequirements Payment; and

####  

#### (ii)                 if the Principalgives a notice under clause 11.6(c) and the Contractor has commencedthe work set out in the notice provided by the Contractor underclause 11.6(a)(i), the whole or the part of the Clause 11 TerminationAmount representing the Work set out in the notice provided by the Contractorunder clause 11.6(a)(i) which has been carried out by the Contractor.

####  

### (g)                 If the Principal:

###  

#### (i)                  does not give anotice under clause 11.6(c) or gives a notice under clause 11.6(c) ona day after the Completion Date for the NTS Solution Requirements Phase; and

####  

#### (ii)                 does not terminatethis agreement under clause 11.6(d),

####  

the Contractor will be entitled to claim anextension of time in accordance with clause 18.7 and the Principal willpay the Contractor the Daily Cost for each day for which the Contractor is notauthorised to undertake any further Work under clause 11.6(c) in theperiod between the Completion Date for the NTS Solution Requirements Phase andthe day 40 Business Days after that day.

 

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## **11.7**             Additional Matters

## ** **

### (a)                 Without limitingclause 11.1(a), and in addition to the matters set out inclause 11.1(b), prior to the Phase Date for the NTS Solution RequirementsPhase, the Contractor must: 

###  

#### (i)                  document in the NTSRequirements Specification the Principal’s requirements with respect to theCategory 3 Matters; and

####  

#### (ii)                 in respect of mattersdeemed to become Category 3 Matters under clause 2.4(b), use all reasonableendeavours to agree those matters and document them by way of amendments tothis agreement, 

####  

in each case:

 

#### (iii)                consistent with theprinciples or documents set out or referred to in the Category 3 Mattersin relation to the subject matter to be agreed;

####  

#### (iv)               to meet the requirementsof this agreement, including the Requirements Document; and

####  

#### (v)                in accordance with theprocess (if any) specified or referred to in each Category 3 Matter.

####  

### (b)                 In addition to any processreferred 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 thePrincipal as are necessary in order for the parties to agree the Category 3Matters prior to the Phase Date for the NTS Solution Requirements Phase.

###  

### (c)                 Where necessary, Category 3Matters will also be documented by way of appropriate amendments to thisagreement.

###  

### (d)                 If any Category 3 Matters arenot agreed by: 

###  

#### (i)                  the Phase Date forthe NTS Solution Requirements Phase; or 

####  

#### (ii)                 such later date as isagreed by the parties; or

####  

#### (iii)                in the case of any ofthe OH&S Plan, the Industrial Relations Plan or the Business ContinuityPlan, such earlier date at which the parties have been unable to finalise therelevant plan in accordance with the applicable completion process referred toin Schedule 37 in relation to those plans,

####  

then on the Phase Date for the NTS SolutionRequirements Phase or such earlier date in the case of the OH&S Plan, theIndustrial Relations Plan or the Business Continuity Plan (as the case may be) orsuch later date as has been agreed, or in the event that a later date cannot beagreed, on the Phase Date for the NTS Solution Requirements Phase, thoseCategory 3 Matters which have not been agreed may be referred by either partyto the Expert for determination in accordance with clause 49.5 taking intoaccount:

 

#### (iv)               the principles set outin the relevant Category 3 Matters or in the relevant documents referred to inthe Category 3 Matters;

####  

#### (v)                the requirements ofthis agreement, including the Requirements Document;

 

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#### (vi)               the Contractor’swarranties under this agreement, including that the Solution must be Fit ForSolution Purposes; and

####  

#### (vii)              Industry Practice as itapplies to the relevant Category 3 Matter,

####  

except that any determination of the Expertwill be final and binding on each party and clauses 49.5(l) and 49.5(m) willnot apply.

 

# **12.**                Design

# ** **

## **12.1**             Fundamentaldesign obligation

## ** **

TheContractor must design the Solution in accordance with:

 

### (a)                 the Project Documents including this agreement and theRequirements Document;

###  

### (b)                 the******SolutionDocumentation including the NTS Requirements Specification;

###  

### (c)                 the Project Timeline; and

###  

### (d)                 Industry Practice.

###  

## **12.2**             Designwarranty

## ** **

TheContractor warrants that:

 

### (a)                 it has checked and carefully considered the NTS RequirementsDocument and that the NTS Requirements Document is proper, adequate and fit forits purpose;

###  

### (b)                 it has checked and carefully considered the Contractor’sResponse and considers the Contractor’s Response is proper, adequate and fitfor its purpose;

###  

### (c)                 the design of the Solution will be completed in accordancewith this agreement and that:

###  

#### (i)                  such design will befit for its intended purpose;

####  

#### (ii)                 development,integration, installation and implementation in accordance with such designwill accord with the standards required by the NTS Requirements Specificationand this agreement, including the Requirements Document; and

####  

#### (iii)                if the Solution isdeveloped, installed, integrated, implemented, operated and maintained inaccordance with such designs the Solution will be Fit For Solution Purposes;

####  

### (d)                 the design and development ofthe Initial Services and the Core Services will be undertaken in accordancewith the requirements of the NTS Requirements Specification and this agreement,including the Requirements Document, and will enable the Initial Services andthe Core Services to be provided in accordance with this agreement, includingthe Requirements Document;

###  

### (e)                 no representation or warrantyhas been given or is given by or on behalf of the Principal or anyone for whomthe Principal is responsible, including any Governmental Agency, AccessProvider, Bus Operator or Stakeholder, as to:

###  

#### (i)                  the suitability,completeness or efficacy of any information or data supplied or made availableby any of them, including information or data

 

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#### forming part of this agreement, including theRequirements Document; or

####  

#### (ii)                 any other drawings,plans, design specifications, reports or other information or data which relatedirectly or indirectly to the Solution; 

####  

### (f)                  it has made its ownreview and evaluation of the suitability and accuracy of the information ordata referred to in this clause without reliance on the Principal.

###  

## **12.3**             Design Documents

## ** **

The Contractor must prepare the DesignDocuments in accordance with this agreement, including the RequirementsDocument.

 

## **12.4**             Development of Design Documents

## ** **

### (a)                 The Contractor must complete thedesign of the Solution and the design and development of the Initial Servicesand the Core Services in accordance with the NTS Requirements Specification andthis agreement, including the Requirements Document, by preparing the SolutionDocumentation including the preparation and finalisation of the DesignDocuments.

###  

### (b)                 The Design Documents must complywith this agreement, including the Requirements Document.

###  

### (c)                 The Contractor must include ineach Design Document an acknowledgment that the design of the Solution and thedesign of the Initial Services and the Core Services is solely theresponsibility of the Contractor and that the Contractor is responsible for anyerrors, omissions or departures from, or failures to comply with, theRequirements Document or the other requirements of this agreement.

###  

### (d)                 The final and all drafts of theDesign Documents will be prepared:

###  

#### (i)                  in accordance withIndustry Practice;

####  

#### (ii)                 in accordance withthis agreement, including the Requirements Document, the Project Timeline and the Project Master Schedule; and

####  

#### (iii)                in a manner and at arate which will give the Principal’s Representative a reasonable opportunity toprogressively review and comment on them without delaying the progress of theDelivery.

####  

### (e)                 The Contractor must prepare andsubmit to the Principal for its approval an outline of each of the DesignDocuments 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 bedeveloped in accordance with clause 11.3 and not clauses 12.4(e) to(q).  For the purposes of clauses12.4(f), (h) and (j), the reference to the “Required Response Time” willmean:

###  

#### (i)                  where the relevantDesign Document must be referred by the Contractor to Ascom to enable theContractor to redraft it, 7 Business Days; and

####  

#### (ii)                 in all other cases, 5Business Days.

####  

### (f)                  The Principal may,within 10 Business Days of receipt of the outline of each of the DesignDocuments, advise the Contractor whether or not it considers such plan to be inaccordance with this agreement, including the Requirements Document, or rejectit and provide its comments (if any) to the Contractor.  If the outline of a

 

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### DesignDocument is rejected, the Contractor must promptly, and in any event within theRequired Response Time, submit to the Principal a redraft of the outline of theDesign Document and such redraft will be dealt with by the Principal as if itwere submitted under clause 12.4(e).

###  

### (g)                 The Contractor must prepare andsubmit to the Principal for its approval a draft of each of the DesignDocuments, prepared on the basis of the outline submitted under clause 12.4(e) andin accordance with, and at the times specified in, this agreement, includingthe Requirements Document and the Project Master Schedule.

###  

### (h)                 The Principal may, within 10Business Days of receipt of the draft of each of the Design Documents, advisethe Contractor whether or not it considers such draft to be in accordance withthis agreement, including the Requirements Document, or reject it and provideits comments (if any) to the Contractor. If a draft of a Design Document is rejected, the Contractor mustpromptly, and in any event within the Required Response Time, submit to thePrincipal a redraft of the Design Document and such redraft will be dealt withby the Principal as if it were submitted under clause 12.4(g).

###  

### (i)                  The Contractor mustprepare and submit to the Principal for its approval final versions of each ofthe Design Documents prepared on the basis of the draft submitted under clause12.4(g) and in accordance with, and at the times specified in, thisagreement, 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 DesignDocuments, advise the Contractor whether or not it considers such final versionto 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 isrejected, the Contractor must promptly, and in any event within the RequiredResponse Time, submit to the Principal a redraft of the final version of theDesign Document and such redraft will be dealt with by the Principal as if itwere submitted under clause 12.4(i).

###  

### (k)                 The Contractor must finalise allDesign Documents taking into account the comments of the Principal inaccordance with the requirements set out in this agreement, including theRequirements Document, as a condition precedent to Completion of the relevantPhase.

###  

### (l)                  At any time duringthe process set out in clauses 12.4(a) to 12.4(k) the Principal may:

###  

#### (i)                  require theContractor to participate in a design meeting, including making a presentationto the Principal; or

####  

#### (ii)                 require theContractor to participate in the process set out in clause 12.7.

####  

### (m)                The Principal’s receipt, reviewor approval of, or any comment, representation or statement (whether verbal orin writing) in relation to the Design Documents or any part thereof will notrelieve the Contractor of its responsibility for any errors, omissions ordepartures from, or failures to comply with, the NTS Requirements Specificationor the other requirements of this agreement and will not affect the rights orobligations of the Principal under this agreement, including its paymentobligations under clause 21.

 

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### (n)                 Notwithstanding any otherprovision of this clause 12.4, the Contractor:

###  

#### (i)                  must submit theSolution Documentation to the Principal’s Representative in accordance with thedocumentation program referred to in clause 12.4(d) (and there must be nounsatisfied or unresolved notice from the Principal’s Representative underclause 12.4(o)) before commencing building of any part of the Solution to whichit relates; and

####  

#### (ii)                 will not be entitledto any extension of time under clause 18.7 if the Contractor submits the SolutionDocumentation in a manner or at a time (including in a quantity) which preventsthe Principal’s Representative from reviewing it in the time allowed under thisclause 12.4.

####  

### (o)                 If, at any time, in thePrincipal’s opinion, the Contractor is not undertaking the design of theSolution or design and development of the Initial Services and the CoreServices in accordance with the Project Master Schedule, the Principal’sRepresentative may give written notice to the Contractor requiring theContractor to submit to the Principal’s Representative within 5 Business Daysof such notice a plan and program for corrective action to correct the matterthe subject of the notice under this clause 12.4(o).  The Principal’s Representative may givenotice to the Contractor that the corrective action plan does notsatisfactorily address the concerns of the Principal, in which case, theContractor must amend the corrective action plan.  The Contractor must carry out the correctiveaction plan in a manner to ensure that it complies with the Project MasterSchedule.

###  

### (p)                 If the Contractor reasonablybelieves the Principal is being unreasonable in any review of, comment on orother action undertaken under clauses 12.4(f), 12.4(h), 12.4(j), 12.4(l) or12.4(o) in relation to a Design Document it must give written notice to thePrincipal’s Representative.  If thematter 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 ordraft of a Design Document set out in a schedule to this agreement or inthe Contractor’s Response, the Contractor will, subject to clause 12.4(r),further develop such Design Documents in accordance with this clause 12.4 basedon such outline or draft of the relevant Design Document.

###  

### (r)                  The NTS RequirementsSpecification will be developed in accordance with clause 11.3 and notclauses 12.4(e) to 12.4(q).  Ifany other clause or schedule in this agreement outlines a process for thedevelopment and review of a specific Design Document, to the extent that thereis an inconsistency with the process in this clause 12.4, the specified DesignDocument will be developed and reviewed in accordance with such other clause orschedule.

###  

## **12.5**             Prototype

## ** **

The Contractor must develop, install anddeliver the Prototype in accordance with this agreement, including theRequirements Document at a premises nominated by the Principal.

 

## **12.6**             Phase reviews

## ** **

### (a)                 The Contractor must conductphase reviews at the completion of each Phase including in accordance with thisagreement, including the Requirements Document and the Solution Documentation.

###  

### (b)                 The Contractor must give thePrincipal’s Representative 5 Business Days prior notice of any phasereview.

 

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### (c)                 The Principal has the right tobe present when any phase review is being conducted.

###  

## **12.7**             Design andNon-Compliance

## ** **

### (a)                 If, at any time prior to theSolution Completion Date, the Solution Documentation is incomplete,inadequate or does not comply with this agreement, including the RequirementsDocument, the Principal’s Representative may give a notice to the Contractorwhich:

###  

#### (i)                  specifies the partsof the SolutionDocumentation which are incomplete, inadequate or donot comply with this agreement, including the Requirements Document; and

####  

#### (ii)                 either:

####  

##### A.                 provides itscomments, if any, in relation to the relevant Solution Documentation;

#####  

##### B.                  requires theContractor to participate in a design meeting; or

#####  

##### C.                  recommends theContractor amend the Solution Documentation to correct such incompleteness,inadequacy or non-compliance.

#####  

### (b)                 If the Principal’sRepresentative gives a notice under clause 12.7(a)(ii)C and the Contractor doesnot give a notice in accordance with clause 12.7(d), the Contractor must amendthe Solution Documentation and resubmit the relevant SolutionDocumentation tothe Principal’s Representative within 10 Business Days (or such other periodagreed by the parties) after receipt of a notice from the Principal’sRepresentative.  Clause 12.7(a) willapply in respect of the resubmitted Solution Documentation,except that if the resubmitted Solution Documentation does not comply with thisagreement, including the Requirements Document, the Principal’s Representativemay in addition to its rights under clause 12.7(a), also give a notice to theContractor that clause 12.7(c) is to apply.

###  

### (c)                 Where this clause 12.7(c) appliesand 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 resultingdiminution in the value of the Solution having regard to factors such as (butnot limited to) loss of functionality and life cycle costs;

####  

#### (ii)                 the value of theWork, based on the rates and prices set out in Schedule 7, that theContractor will no longer be carrying out; and/or

####  

#### (iii)                the cost to thePrincipal of taking the necessary action to remedy the non-compliance,

####  

to determine a fair and reasonable recompenseto the Principal for the Contractor not remedying such non-compliance.  After this determination is made the greaterof the amounts determined by the Principal under clauses 12.7(c)(i), 12.7(c)(ii) or12.7(c)(iii) will be a debt due and payable by the Contractor to thePrincipal within 30 days.

 

### (d)                 If the Contractor disagrees withany notice made by the Principal’s Representative under clauses 12.7(a) or12.7(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 within10 Business Days of the receipt of such notice the dispute will bereferred to the Expert.

###  

### (e)                 The Principal will not be boundto review or comment upon the Solution Documentation or to check the Solution Documentation for errors, omissions orcompliance with the requirements of this agreement, including the RequirementsDocument.  The Principal’s receipt,review or approval of, or any comment, representation or statement (whetherverbal or in writing) in relation to the SolutionDocumentation,will not relieve the Contractor from responsibility for any errors, omissionsor departures from, or failures to comply with, the NTS RequirementsSpecification, or other requirements of this agreement and will not affect therights or obligations of the Principal under this agreement, including itspayment obligations under clause 21.

###  

## **12.8**             NTSDemonstration Suite

## ** **

### (a)                 The Contractor must develop theNTS Demonstration Suite in accordance with this agreement, including theRequirements Document.

###  

### (b)                 The Contractor agrees to deliverto the Principal:

###  

#### (i)                  on 1 August 2005,all Devices and Software forming part of the NTS Demonstration Suite as itthen exists, whether or not in final form, including all documentation requiredto operate the NTS Demonstration Suite and associated business rules;

####  

#### (ii)                 during the course of2006, Software and Devices updates to the NTS Demonstration Suite as theybecome available, in a form satisfactory to the Contractor, to improve thefunctionality and level of representation of the final form of the Solution,including an update to the documentation required to operate the NTSDemonstration 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 Softwarecomprising the final form of the NTS Demonstration Suite, including alldocumentation required to operate the NTS Demonstration Suite and acomplete set of associated business rules.

####  

### (c)                 The Contractor must install theNTS Demonstration Suite in accordance with this agreement, including theRequirements Document and the Solution Documentation, at either the Principal’spremises or another premise to be advised by the Principal.  The Contractor must provide the Principalwith sufficient resources to assist with the operation and maintenance of theNTS Demonstration Suite, including personnel trained in the installation andoperation of the NTS Demonstration Suite and copies of any documentationand other manuals required to relocate, install, operate and maintain the NTSDemonstration Suite.

###  

### (d)                 The Contractor must maintain theNTS Demonstration Suite in accordance with this agreement, including theRequirements Document and the Solution Documentation, until it is replaced orsuch 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 traceabilityfrom each requirement in the Requirements Document or the NTS RequirementsSpecification to relevant parts of the Design Documents, including:

 

### (a)                 ensuring that each relevantDesign Document includes cross-references to all applicable requirements in theRequirements Document or the NTS Requirements Specification;

###  

### (b)                 preparing, updating andmaintaining a log which records where in the Design Documents each requirementin the Requirements Document or the NTS Requirements Specification is dealtwith;

###  

### (c)                 providing the Principal with acopy of the current version of the log referred to in clause 12.9(b):

###  

#### (i)                  on each occasionthat an outline of a Design Document is submitted to the Principal underclause 12.4(e); and

####  

#### (ii)                 upon request by thePrincipal.

####  

## **12.10**           Proof of Design

## ** **

### (a)                 The Contractor must conductProof of Design in accordance with this agreement, including the RequirementsDocument, and the Solution Documentation at the times required by thisagreement, including the Requirements Document and the Solution Documentation,and at such other times as are reasonably required by the Principal.

###  

### (b)                 The Contractor must documenteach Proof of Design it conducts in accordance with clause 12.10(a) andprovide such documentation to the Principal within 5 Business Days ofconducting the Proof of Design.

###  

### (c)                 The Principal may, within10 Business Days of receiving a documented Proof of Design notify theContractor that in its opinion the Contractor has not satisfactorilydemonstrated the functionality of the Solution or part of the Solution thesubject of the Proof of Design and specify a time within which the Proof ofDesign must be conducted again.  Thenotice must provide the Contractor with particulars and may also specifyremedial action the Contractor must take prior to conducting the Proof ofDesign again.

###  

### (d)                 The Contractor must comply withany notification given to it pursuant to clause 12.10(c).

###  

# **13.**                Implementation

# ** **

## **13.1**             Implementation

## ** **

TheContractor must implement the Solution in accordance with the NTS RequirementsSpecification and this agreement, including the Requirements Document andProject Timeline.

 

## **13.2**             ProjectTimeline

## ** **

### (a)                 The Contractor must amend the Project Timeline to take intoaccount an extension of time granted in accordance with clause 18.7.

 

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### (b)                 If an extension of time is granted under clause 18.7, theContractor must promptly deliver to the Principal’s Representative an amendedProject Timeline for the Principal’s approval and the Principal must accept itif the amendment reflects that extension of time granted by the Principal underclause 18.7.

###  

### (c)                 The Principal’s Representative will notify the Contractorwithin 5 Business Days of receipt of the amended Project Timeline if thePrincipal does not agree with the amendments and the Contractor must amend theProject Timeline accordingly.

###  

## **13.3**             ProjectMaster Schedule

## ** **

### (a)                 The Contractor must implement the Solution in accordancewith the Project Master Schedule, which must comply with the Project Timelineand the Phase Dates,including any updates or modifications to it.

###  

### (b)                 The Contractor must:

###  

#### (i)                  monthly;

####  

#### (ii)                 as a precondition tothe Completion of a Phase; and

####  

#### (iii)                whenever there is asignificant change in the progress of the Work,

####  

submit to the Principal’s Representativeupdates of the Project Master Schedule which must nonetheless comply withthe Project Timeline and the Phase Dates.

 

### (c)                 The Principal’s Representativemay review any such updated Project Master Schedule and if the Principal’sRepresentative reasonably considers that the Project Master Schedule doesnot comply with the Project Timeline, the Phase Dates or this agreement, thePrincipal’s Representative may request the Contractor to modify the Project MasterSchedule and the Contractor must modify the Project Master Schedule inaccordance with the Principal’s Representative’s request.

###  

### (d)                 Any review of or comments uponor request to modify a Project Master Schedule under clause 13.3(c) bythe Principal will not:

###  

#### (i)                  relieve theContractor from or alter its liabilities or obligations under this agreement,including the Requirements Documents, in particular (without limitation) theobligation to achieve Completion of a Phase by the relevant Phase Date;

####  

#### (ii)                 evidence orconstitute 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 forperformance of the Principal’s obligations under this agreement, including theRequirements Document including oblige the Principal to do anything earlierthan is necessary to enable the Contractor to achieve Completion of a Phase bythe relevant Phase Date.

####  

## **13.4**             Progress Reports

## ** **

TheContractor must, within 2 Business Days after the end of each calendar month,submit to the Principal’s Representative a monthly progress report inaccordance with this agreement, including the Requirements Document, whichprovides such information that the Principal may from time to time request inorder 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

## ** **

TheContractor must develop, integrate and install the Solution:

 

### (a)                 in accordance with Industry Practice;

###  

### (b)                 in accordance with the Solution Documentation (including theNTS Requirements Specification) and the Project Documents including thisagreement and the Requirements Document; and

###  

### (c)                 so that it is Fit For Solution Purposes.

###  

## **14.2**             Warranties

## ** **

TheContractor warrants that:

 

### (a)                 it will develop, integrate, install and implement theSolution in accordance with Industry Practice and this agreement, including theRequirements Document and the Solution Documentation; and

###  

### (b)                 the Solution will, when developed, integrated, installed andimplemented:

###  

#### (i)                  be Fit For SolutionPurposes;

####  

#### (ii)                 comply with all requirements of theNTS Requirements Specification and this agreement,including the Requirements Document and the Solution Documentation;

####  

#### (iii)                without limitingclauses 14.2(b)(i) or (ii):

####  

##### A.                 enable the Contractor at all timesduring the Initial Services Term to provide the Initial Services so that theInitial Services comply with this agreement, including the RequirementsDocument and the Solution Documentation; and

#####  

##### B.                  enable the Contractor atall times during the Core Services Term to provide the Core Services so thatthe Core Services comply with this agreement, including the RequirementsDocument and the Solution Documentation; and

#####  

##### C.                  enable the provision ofthe Other Services; and

#####  

#### (iv)               permit the Contractor to complywith its obligations under clause 44.

####  

## **14.3**             Review

## ** **

### (a)                 Without limiting the Principal’s rights under any otherclause in this agreement, the Principal may review the development, integrationand installation of the Solution to determine whether the obligations of theContractor as to development, integrating and installing of the Solution arebeing 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 SolutionDocumentation, including in a time which is in accordance with the ProjectTimeline and Project Master Schedule.

 

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### (b)                 If the Principal believes that the Contractor is notdeveloping, integrating and installing the Solution in accordance with this agreement includingthe Requirements Document and the Solution Documentation, the Principal’s Representative may give a written noticeto the Contractor in which it specifies the areas of non-compliance.

###  

### (c)                 Unless the Contractor gives a notice in accordance withclause 14.3(h), the Contractor must develop and submit to the Principal’sRepresentative within 10 Business Days after receipt of a notice from thePrincipal’s Representative under clauses 14.3(b) or (d), as the case maybe, a plan and program for corrective action to correct the matters the subjectof the notice under clauses 14.3(b) or (d).

###  

### (d)                 Within 10 Business Days of receipt of the corrective actionplan from the Contractor, the Principal’s Representative may give notice to theContractor that the whole or part of the corrective action plan does notsatisfactorily address the concerns of the Principal and subject to clause 14.3(h) directthe Contractor to resubmit a revised corrective action plan under clause 14.3(c) (savethat the reference to 10 Business Days in clause 14.3(c) will be read as areference to 2 Business Days) which addresses the Principal’s concerns.  If the resubmitted corrective action plandoes not satisfactorily address the concerns of the Principal, the Principalmay either:

###  

#### (i)                  direct the Contractor toresubmit a further revised corrective action plan underclause 14.3(c) which addresses the Principal’s concerns; or

####  

#### (ii)                 direct that clause 14.3(g) willapply.

####  

### (e)                 The Contractor must proceed to implement and carry out anycorrective action plan or part of any corrective action plan which has not beenrejected by the Principal under clause 14.3(d).

###  

### (f)                  If the Contractor fails to implement and carry out the wholeor part of the corrective action plan in a manner or within a time reasonablysatisfactory to the Principal, the Principal’s Representative may give writtennotice to the Contractor that either:

###  

#### (i)                  the Contractor mustcomply with the corrective action plan within a specified period of time; or

####  

#### (ii)                 clause 14.3(g) willapply.

####  

### (g)                 Where this clause 14.3(g) applies, the Principal maymake a determination on any or all of:

###  

#### (i)                  the resulting diminutionin the value of the Solution having regard to factors such as (but not limitedto) loss of functionality and life cycle costs;

####  

#### (ii)                 the value of the work, based on therates and prices set out in Schedule 7, that the Contractor will no longerbe carrying out; and/or

####  

#### (iii)                the cost to the Principal of takingthe necessary action to remedy the non-compliance,

####  

todetermine a fair and reasonable recompense to the Principal for the Contractornot remedying such non-compliance.  Afterthis determination is made the greater of the amounts determined by thePrincipal under clauses 14.3(g)(i), (ii) or (iii) will be a debt dueand payable by the Contractor to the Principal within 30 days.

 

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### (h)                 If the Contractor disagrees with any notice issued by thePrincipal’s Representative under clause 14.3(b), 14.3(d) or 14.3(f) itmust within 5 Business Days of receipt of such a notice give a written noticeto the Principal’s Representative.  Ifthe matter is not resolved within 10 Business Days of receipt of that notice bythe Principal’s Representative the dispute will be referred to the Expert.

###  

# **15.**                Testing and Inspection

# ** **

## **15.1**             Testing

## ** **

### (a)                 The Contractor must develop testplans and testing procedures and conduct testing, (including the testsidentified in accordance with clause 11.7), in accordance with the SolutionDocumentation (including the NTS RequirementsSpecification), thisagreement (including the Requirements Document) and the Test Plan.

###  

### (b)                 The Contractor must give thePrincipal’s Representative 5 Business Days prior notice of any testingconducted.

###  

### (c)                 The Principal has the right tobe present when any testing is being conducted.

###  

## **15.2**             Test Plan

## ** **

### (a)                 At any stage prior to theSolution Completion Date the Principal can require modifications, additions orvariations to the Test Plan if it is not adequate to meet the objectives orstrategies for testing set out in this agreement, including the RequirementsDocument and the Solution Documentation. The Contractor must amend the Test Plan in accordance with any suchmodifications, additions or variations unless it is manifestly unreasonable todo so and any such amended Test Plan must be approved by the Principal.

###  

### (b)                 Any dispute in relation to amodification, addition or variation to the Test Plan submitted by theContractor to the Principal’s Representative for approval or to an approvedTest Plan is to be determined in accordance with the Dispute ResolutionProcedures.

###  

## **15.3**             Test Documents

## ** **

### (a)                 The Contractor must prepare andsubmit to the Principal’s Representative a Test Document for each test to beperformed in accordance with this agreement, including the RequirementsDocument and the Solution Documentation and complying with the objectives andstrategies for testing set out in this agreement and in particular the TestPlan, the relevant Design Documents and the Requirements Document.  The Test Document must be submitted to thePrincipal’s Representative by the time provided for in the Project MasterSchedule.

###  

### (b)                 The Principal’s Representativemust within 20 Business Days of submission of each Test Document pursuant toclause 15.3(a), or such longer period as the Principal determines is reasonablyappropriate in the circumstances, review that Test Document and, at itsdiscretion, may propose modifications, additions or variations.  The Contractor must accept any such modifications,additions or variations unless they are inconsistent with the objectives orstrategies for testing set out in this agreement, including the RequirementsDocument and the Solution Documentation, or are unreasonable.

###  

### (c)                 At any stage prior to theSolution Completion Date, the Principal can require modifications, additions orvariations to a Test Document if the Test Document is

 

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### notadequate to meet the objectives or strategies for testing set out in thisagreement, including the Requirements Document and the Test Plan.  The Contractor must amend that Test Documentin accordance with any such modifications, additions or variations unless it isunreasonable to do so and any such amended Test Document must be approved bythe Principal.

###  

### (d)                 Any dispute in relation to amodification, addition or variation to a Test Document for a particular test tobe performed submitted by the Contractor to the Principal’s Representative forapproval or to an approved Test Document for a particular test to be performedis to be determined by the Expert in accordance with clause 49.5.

###  

## **15.4**             Testing of Services

## ** **

The Contractor must include in its Test Planand Test Documents for each test to be performed, the testing interface withthe Other Services and the Initial Services and the Core Services in such a wayas to ensure the Services comply with the Solution Documentation and thisagreement, including the Requirements Document.

 

## **15.5**             Conduct of tests

## ** **

The Contractor must conduct testing andinspection in accordance with this agreement, including the RequirementsDocument and the Test Plan and Test Documents.

 

## **15.6**             Test Data and results

## ** **

All Test Data and results must be submittedby the Contractor to the Principal’s Representative within 5 Business Daysafter the relevant testing is completed.

 

## **15.7**             Testing by thePrincipal

## ** **

### (a)                 The Principal may itself conducttesting in accordance with the Test Plan at the times provided for in theProject Master Schedule.

###  

### (b)                 At any time prior to theSolution Completion Date, the Principal may itself conduct such additionaltesting as it determines is necessary to verify that the Solution operates inaccordance with this agreement, including the Requirements Document and theSolution Documentation.  The Principalwill use reasonable endeavours to conduct such testing in such a manner and atsuch times so as to not unduly interfere with the performance of the**Work.

###  

### (c)                 The Contractor, at no charge tothe Principal, must render such assistance to the Principal as the Principal requiresin order to perform any testing conducted by the Principal in accordance withclause 15.7(a) and the Contractor will not be entitled to any costs orextensions of time in connection with the testing carried out by the Principalin accordance with clause 15.7(a).

###  

### (d)                 The Contractor must render suchassistance to the Principal as the Principal requires in order to perform anytesting 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 ofwhich the Principal will issue a Variation Order under clause 20.3,notwithstanding that the value of the Variation may not at that time have beenagreed.  

###  

### (e)                 The Contractor will not beentitled to any costs or extensions of time in connection with testing carriedout by the Principal under clause 15.7(b) where:

 

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#### (i)                  a non-compliance ordefect is discovered as a result of the Principal’s testing provided that theexact nature of such non-compliance or defect was not known by the Principalprior to the Principal conducting the relevant testing; or

####  

#### (ii)                 the relevant testingis otherwise required to be carried out by the Contractor under this agreement.

####  

### (f)                  The Principal shall payto the Contractor Delay Costs to the extent to which testing which is conductedunder clause 15.7(b) entitles the Contractor to an extension of time underclause 18.7.  Subject to clause 15.7(d) thePrincipal shall not be liable for any other costs incurred by the Contractor asa result of such testing.  Delay Costspayable by the Principal to the Contractor under this clause 15.7(f) willbe paid at the time that payment is due in respect of the Phase to which theextension of time relates.

###  

## **15.8**             Non-compliancediscovered 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 aTest Document or does not or will not comply with any of the requirements ofthis agreement, including the Requirements Document and the Solution Documentation, the Principal’s Representativemay, within 20 Business Days (or such other period of not less than 5 BusinessDays set out in the Test Plan) of receipt of the test results, give a notice tothe Contractor which specifies the extent of non-compliance, and:

###  

#### (i)                  requires theContractor to take all action that is necessary to ensure compliance.  The Principal’s Representative may, at itsdiscretion, specify some or all of the modifications, changes, additions orcorrections the Contractor must make or any other action the Contractor musttake; or

####  

#### (ii)                 specifies the extentof non-compliance that the Principal accepts and requires the Contractor totake all action that is necessary to ensure compliance other than to the extentof the non-compliance that is accepted. The Principal’s Representative may, at its discretion, specify some orall of the modifications, changes, additions or corrections the Contractor mustmake or any other action the Contractor must take.

####  

### (b)                 If the Principal’sRepresentative gives a notice under clauses 15.8(a)(i) or 15.8(a)(ii) andthe Contractor does not give a notice in accordance with clause 15.8(d), theContractor must commence undertaking the specified action within 10 BusinessDays after receipt of a notice from the Principal’s Representative.  Once that action is taken all relevanttesting must again be conducted in accordance with this agreement, except thatif at the conclusion of the testing all relevant non-compliances have not beenremedied (including non-compliance that the Principal accepts specified in anotice under clause 15.8(a)(ii)), the Principal’s Representative may inaddition to its rights under clause 15.8(a), also give a notice to theContractor that the Principal accepts the non-compliance.

###  

### (c)                 If the Principal’sRepresentative gives a notice under clauses 15.8(a)(ii) or 15.8(b) andthe Contractor does not give a notice in accordance with clause 15.8(d), thePrincipal may make a determination on any or all of:

###  

#### (i)                  the resultingdiminution in the value of the Solution having regard to factors such as (butnot limited to) loss of functionality and life cycle costs;

 

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#### (ii)                 the value of thework, based on the rates and prices set out in Schedule 7, that theContractor will no longer be carrying out; and/or

####  

#### (iii)                the cost to thePrincipal of taking the necessary action to remedy the non-compliance,

####  

to determine a fair and reasonable recompenseto the Principal for the Contractor not remedying such non-compliance.  After this determination is made the greaterof 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 Principalwithin 30 days.

 

### (d)                 If the Contractor disagrees withany notice issued by the Principal’s Representative under clause 15.8(a), itmust, within 5 Business Days of receipt of such a notice, give written noticeto the Principal’s Representative.  Ifthe matter is not resolved within 10 Business Days of the receipt of thatnotice by the Principal’s Representative, the dispute will be referred to theExpert for determination in accordance with clause 49.5.

###  

### (e)                 The Contractor is responsiblefor 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 ofthe Work after giving the Contractor reasonable prior notice, being at least 24hours.  Any inspection of the Workcarried out on the premises of subcontractors will be with the prior agreementof the Contractor.

 

## **15.10**           Acknowledgement

## ** **

The Contractor acknowledges that thePrincipal owes no duty to the Contractor to:

 

### (a)                 carry out any testing underclause 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 theRequirements Document and the Solution Documentation, if it does conductinspection or testing.

###  

## **15.11**           Integrated TestFacility

## ** **

### (a)                 The Contractor must develop anIntegrated Test Facility in Melbourne in accordance with this agreement,including the Requirements Document and the Solution Documentation.

###  

### (b)                 The Contractor must, prior tothe Completion Date of the NTS Front Office Design and Hardware FAT Phase,commence the installation of the Integrated Test Facility at a premisesnominated by the Principal in accordance with this agreement, including theRequirements Document and the Solution Documentation.

###  

### (c)                 The Contractor must use theIntegrated Test Facility to carry out testing under this agreement including:

###  

#### (i)                  all subsystemtesting, system integration testing and user acceptance testing; and

####  

#### (ii)                 to test anyVariations 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 anddocumentation required to operate the test facility in accordance with thisagreement, including the Requirements Document and the Solution Documentation;and

####  

#### (ii)                 ensure that at alltimes throughout the Term there is sufficient available personnel with adequatetraining and experience in the operation of the Integrated Test Facility andtesting generally to conduct the testing required under this agreement,including the Requirements Document and the Solution Documentation.

####  

## **15.12**           Traceability ofTesting

## ** **

The Contractor will provide objective traceabilityfrom each requirement in the Requirements Document or the SolutionDocumentation (as the case may be) to relevant parts of the Test Documents,including:

 

### (a)                 ensuring that each relevant TestDocument includes cross-references to all applicable:

###  

#### (i)                  design elements inthe Design Documents; and

####  

#### (ii)                 requirements in theRequirements Document or the Solution Documentation;

####  

### (b)                 preparing, updating andmaintaining a log which records where in the Test Document each requirement inthe Requirements Document or the Solution Documentation is dealt with;

###  

### (c)                 providing the Principal with acopy of the current version of the log referred to in clause 15.12(b):

###  

#### (i)                  whenever amodification, addition or variation is made to a Test Document under clause 15.3;and

####  

#### (ii)                 upon request by thePrincipal.

####  

# **16.**                Hold Points

# ** **

## **16.1**             NTSUser Acceptance Test Phase

## ** **

TheContractor must not, without the prior written approval of the Principal’sRepresentative, commence the further installation and implementation of any Devicewhich may affect the public other than the installation or implementation ofany Devices which was scheduled to be completed prior to the date forcompletion of the NTS User Acceptance Test Phase, as set out in the ProjectMaster Schedule, until after the Principal’s Representative issues theCertificate of Completion for the NTS User Acceptance Test Phase.

 

## **16.2**             PilotTrial

## ** **

TheContractor must not, without the prior written approval of the Principal’sRepresentative, commence any further installation and implementation of anyDevice which may affect the public other than the installation orimplementation of any Devices which was scheduled to be completed prior to thedate 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 Completionfor the Pilot Trial.

 

# **17.**                Completion

# ** **

## **17.1**             Completionprocess

## ** **

### (a)                 The Contractor must give thePrincipal’s Representative at least 20 Business Days written notice of the dateupon which it expects Completion of a Phase to take place.  When the Contractor reasonably considers thatsuch Completion has occurred the Contractor must give a second written noticeto the Principal’s Representative.  Thesecond written notice must set out each condition precedent to completion ofthe relevant Phase, including those set out in Schedule 3, and confirm thecompletion and/or satisfaction of each such condition precedent.

###  

### (b)                 After receipt of the secondnotice under clause 17.1(a) the Principal’s Representative must either:

###  

#### (i)                  within 10 BusinessDays commence inspecting the relevant Phase with the Contractor and within20 Business Days after completion of such inspection the Principal’s Representativemust determine whether Completion has occurred and either issue:

####  

##### A.                 if Completion hasoccurred, a Certificate of Completion under clause 17.2; or

#####  

##### B.                  if Completion hasnot occurred, a notice of work remaining to be performed to achieve Completion;or

#####  

#### (ii)                 within 10 BusinessDays issue to the Contractor a written notice that the Phase is so far fromCompletion that it is not practicable to issue a notice under clause 17.1(b)(i) andrequiring the Contractor to continue with the execution of the Phase.

####  

### (c)                 If the Contractor does not issuea notice under clause 17.1(e):

###  

#### (i)                  immediately uponreceipt of a notice given under clause 17.1(b)(i)B, the Contractor must performthe work specified in that notice; and

####  

#### (ii)                 the Contractor mustgive a notice to the Principal’s Representative when it has completed the listof 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) willapply in respect of the Contractor’s notice under clause 17.1(c)(ii) inthe same way as if it were the original second notice under clause17.1(a).  Without limiting this clause17.1(d), the Principal’s Representative will, in making its determination onwhether Completion has occurred:

###  

#### (i)                  not be restricted bya list which it previously provided to the Contractor under clause 17.1(b)(i)B;and

####  

#### (ii)                 be entitled to raiseany other items of work as a ground for determining that Completion has notoccurred.

####  

### (e)                 If the Contractor disagrees witha notice by the Principal’s Representative under clause 17.1(b), it must within10 Business Days of receipt of such a notice, give written notice to thePrincipal’s Representative.  If thematter is not resolved within

 

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### 20Business Days of receipt of that notice by the Principal’s Representative, thedispute will be referred to the Expert for determination in accordance withclause 49.5.

###  

## **17.2**             Certificates

## ** **

Subject to clause 17.1, where Completion hasoccurred, the Principal’s Representative must issue to the Contractor aCertificate of Completion within the time required by clause 17.1 certifyingthat Completion of the Phase has taken place and the date this occurred.

 

## **17.3**             Effectof Certificate

## ** **

AnyCertificate of Completion issued under this clause 17 is not an approval by thePrincipal of the Contractor’s performance of its obligations under this agreement or that all or any part of the Solution or the Works is inaccordance with this agreement.

 

## **17.4**             PilotTrial

## ** **

Clause17.1 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 conditionswhich must be met for completion, referred to in clause 11.1(b)(vi)D anddocumented in accordance with that clause 11.1(b)(vi).

 

# **18.**                Time

# ** **

## **18.1**             Completion

## ** **

TheContractor must:

 

### (a)                 promptly start to perform the Work from the CommencementDate;

###  

### (b)                 furnish sufficient resources to ensure the Delivery takesplace in accordance with the Project Timeline and the Project Master Schedule;

###  

### (c)                 expeditiously and diligentlyprogram the Work to achieve Completion of each Phase on or before itsrespective Phase Date;

###  

### (d)                 implement the Solution and commence provision of the InitialServices and Core Services in accordance with the Project Timeline and theProject Master Schedule; and

###  

### (e)                 achieve Completion of each Phaseon or before its respective Phase Date.

###  

## **18.2**             Delay

## ** **

Ifthe Contractor falls behind or becomes aware ofany matter which will, or is likely to, cause it to fall behind, in:

 

### (a)                 the Delivery specified in the Project Timeline and theProject Master Schedule;

###  

### (b)                 achieving Completion of any Phase on or before itsrespective Phase Date,

###  

theContractor 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 particularsof the delay;

#####  

##### B.                  the corrective action which the Contractor proposes to take toovercome the effects of the delay; and

#####  

#### (ii)                 take such steps as may be necessaryto improve its progress so that performance of the Work accords with theapproved Project Timeline and Project Master Schedule,

####  

andthe Principal may require rescheduling of the Project Timeline and ProjectMaster Schedule as it sees fit without waiving any rights that thePrincipal has against the Contractor because the Contractor has fallen behindin the performance of the Work as indicated in the Project Timeline and ProjectMaster Schedule.

 

## **18.3**             Risksof delays

## ** **

Exceptas otherwise provided in this agreement, the Contractor willbear the risk of all delays to Delivery and all costs, losses, liabilities, expenses, payments, outgoings and damages arising from suchdelay.

 

## **18.4**             Failure to Meet PhaseDates

## ** **

If Completion of a Phase does not occur bythe relevant Phase Date, the Contractor will provide the Principal’sRepresentative with written details of its proposed program of work to completethe Phase and thereafter diligently carry out such program to ensure that thePhase is completed as soon as possible.

 

## **18.5**             LiquidatedDamages

## ** **

### (a)                 The Contractor acknowledges and agrees that time is of theessence to its obligation to perform the Work and that it may be liable forliquidated damages for delay in accordance with this clause 18.5.

###  

### (b)                 Subject to clauses 18.5(d) and18.5(f), if the Completion of the NTS Operational Proving Phase does not occurprior to the Phase Date for the NTS Operational Proving Phase, the Contractormust pay to the Principal by way of liquidated damages $50,000 per day (or partthereof) in the period:

###  

#### (i)                  commencing on thePhase Date for the NTS Operational Proving Phase; and

####  

#### (ii)                 ending on the earlierof:

####  

##### A.                 the SolutionCompletion Date; or

#####  

##### B.                  the date of terminationof this agreement.

#####  

### (c)                 For the purposes of thisagreement, the parties:

###  

#### (i)                  agree that theliquidated damages provided for in this clause 18.5 constitute a reasonable andgood faith pre-estimate of the anticipated or actual losses, liabilities,costs, expenses, payments, outgoings or damage which will be incurred by thePrincipal as a result of the Completion of the NTS Operational Proving Phasenot occurring on or before the relevant Phase Date for the NTS OperationalProving Phase;

####  

#### (ii)                 desire to avoid thedifficulties of proof of damages in connection with such failure and agree thatthe liquidated damages payable by the

 

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#### Contractor in accordance with this clause18.5 are reasonable and are not intended as a penalty; and

####  

#### (iii)                agree that the amount of liquidated damages payable by theContractor under this clause 18.5 will be a debt immediately due and payable bythe Contractor to the Principal.

####  

### (d)                 The Contractor’s liability to pay liquidated damages to thePrincipal under clause 18.5(b) is limited to, and in no event shallexceed, an amount equal to the Liquidated Damages Limitation.

###  

### (e)                 Until this agreement is terminated by the Principal inaccordance with clause 42.2, the liability of the Contractor to pay thePrincipal liquidated damages under clause 18.5(b) will be the sole andexclusive remedy of the Principal to damages or to any other claim for thepayment of money in relation to or arising out of or in connection with delayby the Contractor in achieving:

###  

#### (i)                  Completion of the NTSOperational Proving Phase by the Phase Date for the NTS Operational ProvingPhase; and

####  

#### (ii)                 Completion of any other Phase bythe relevant Phase Date,

####  

butthis does not limit any other right or action the Principal may have whetherunder this agreement or at Law, arising out of or in connection with thatdelay.

 

### (f)                  The Contractor will not be liable for liquidated damages inrelation to a Phase under this clause 18.5 to the extent that for any dayon or after the Phase Date for such Phase the Contractor is delayed by beingunable to obtain access to Access Providers’ Property in any period between thetime the Contractor first requires Alternative Access (as that term is definedin the relevant Access Coordination Agreement) and being provided with suchAlternative Access.

###  

## **18.6**             Prepaymentof Liquidated Damages

## ** **

### (a)                 The parties acknowledge that in the event the Contractorfails to achieve Completion of any Phase prior to the NTS Operational ProvingPhase by the relevant Phase Date for that Phase, it is reasonable to assumethat Completion of the NTS Operational Proving Phase will be delayed by thenumber of days between the relevant Phase Date and the Completion Date for thatPhase.

###  

### (b)                 If the Completion of a Phase(other than the NTS Operational Proving Phase) does not occur prior to thePhase Date for that Phase, the Contractor must pay to the Principal on accountof the liquidated damages which the Principal reasonably expects will becomepayable under clause 18.5, an amount calculated in accordance with thefollowing formula:

###  

AmountPayable = (DL × $50,000) – PLD

 

Where:

 

DL                is the number of days from therelevant Phase Date to the Completion Date for that Phase.

 

PLD              is the amount (if any) already heldon account by the Principal as a result of payments previously made by theContractor under this clause in

 

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relation to a failure to Complete a previousPhase by its Phase Date.

 

Wherethe result of the application of the formula is a negative number, then suchamount shall be refunded by the Principal to the Contractor.

 

### (c)                 Any payments required to be made under clause 18.6(b) (includingany refunds by the Principal to the Contractor) must be made on the CompletionDate for the relevant Phase.

###  

### (d)                 All payments made by the Contractor to the Principal underclause 18.6(b) and all deductions from the Security Bonds for amountspayable under clause 18.6(b) will be:

###  

#### (i)                  deposited by thePrincipal into the Delay Security Account and held by the Principal on accountpending Completion of the NTS Operational Proving Phase; and

####  

#### (ii)                 either:

####  

##### A.                 paid to the Principal and deductedfrom the amount for which the Contractor is liable to the Principal underclause 18.5; or

#####  

##### B.                  refunded to theContractor to the extent to which the amount held on account exceeds the amountfor which the Contractor is liable to the Principal under clause 18.5.

#####  

### (e)                 Any interest earned on money deposited into the DelaySecurity Account until the earlier of:

###  

#### (i)                  the day on which theamount the Contractor is liable to the Principal under clause 18.5 equals theamount in the Delay Security Account; or

####  

#### (ii)                 the Completion Date for the NTSOperational Proving Phase,

####  

willbe paid to the Contractor by the Principal as part of the payment due for theCompletion of the NTS Operational Proving Phase.

 

## **18.7**             Extensionof time

## ** **

### (a)                 The Contractor may claim an extension of time to a PhaseDate 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 onbehalf of the Principal pursuant to clause 15.7(b) which:

####  

##### A.                 does not reveal a non-compliance ordefect, the exact nature of which was not known by the Principal prior to thePrincipal conducting the relevant testing; and

#####  

##### B.                  is not testing which isotherwise to be carried out by the Contractor under this agreement;

 

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#### (v)                an Emergency which occurs prior tothe Completion Date of the NTS Regional and Metropolitan ImplementationCompletion Phase and is not caused by the Contractor, where the Principal has: 

####  

##### A.                 exercised its rights under clause41.1(a); or

#####  

##### B.                  exercised its rightsunder clause 41.2(a); or

#####  

#### (vi)               each day for which the Contractoris not authorised to undertake any further work in the period between theCompletion Date for the NTS Solution Requirements Phase and the day 40 BusinessDays after that day.

####  

### (b)                 In order to claim an extension of time to a Phase Date:

###  

#### (i)                  the Contractor mustsubmit a written notice to the Principal’s Representative:

####  

##### A.                 in the case of Access Delay, as soonas practicable after the Contractor reasonably considers that the occurrence ofone or more Access Events is likely to cause the Access Delay having regard tothe Project Master Schedule; or

#####  

##### B.                  in any case, within 10Business Days of the commencement of the delay; and

#####  

whichgives detailed particulars of the delay (to the extent then known to theContractor having made all reasonable enquiries or which the Contractor, havingmade all reasonable enquiries, should reasonably have known by that time) and theeffect 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 compliedwith all of its obligations under this agreement or the relevant ProjectDocument which concern the cause of the delay;

####  

#### (iii)                the Contractor must have taken allreasonable steps both to prevent the cause of the delay and to avoid orminimise the consequences of the delay;

####  

#### (iv)               the Contractor musthave complied with all reasonable instructions of the Principal’sRepresentative with respect to the delay including the steps available toovercome or minimise the effect of the Act of Prevention, Force Majeure eventor Change in Law;

####  

#### (v)                Completion of the Phase must haveactually been delayed by one of the matters described in clause 18.7(a) ina manner which:

####  

##### A.                 will prevent the Contractor fromachieving Completion of a Phase by the Phase Date; or

#####  

##### B.                  if the delay occursafter the relevant Phase Date, will delay the Contractor in achievingCompletion,

#####  

and wherethe cause of the delay is the occurrence of Access Delay, the delay must be inrelation to a critical path and the Contractor must have

 

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provided adraft of the relevant Access Plan or Bus Access Plan to overcome the effect ofthe delay.

 

#### (vi)               where the cause of the delay is aVariation ordered by the Principal the Contractor has complied with anyAcceleration Direction issued; and

####  

#### (vii)              where the delay is caused by aForce Majeure event, the event, when aggregated with all other delays caused byForce Majeure events, has caused or will cause a delay of a minimum of 14 daysand any extension will be calculated from the expiry of those 14 days.

####  

### (c)                 Where the conditions in clause 18.7(b) have beensatisfied, the relevant Phase Date will be extended by a period reasonablydetermined by the Principal’s Representative and notified to the Contractorwithin 10 Business Days of the later of the Contractor’s notice under clause 18.7(b) andthe end of the effects of the delay but that period will be reduced to theextent that the Contractor caused or contributed to the delay.

###  

### (d)                 Whether or not the Contractor has made, or is entitled tomake, a claim for an extension of time under this clause 18.7, thePrincipal’s Representative may, in the Principal’s Representative’s absolutediscretion at any time and from time to time by written notice to theContractor, unilaterally extend a Phase Date.

###  

### (e)                 Any delay or failure by the Principal to grant an extensionof time claimed will not cause a Phase Date to be set at large.

###  

### (f)                  If the Contractor does not agree with the extension of timegranted (if any) by the Principal under this clause 18.7, the Contractormay refer the dispute to the Expert for determination in accordance withclause 49.5.

###  

# **19.**                Defects LiabilityPeriod

# ** **

If at any time during a Defects LiabilityPeriod there are any Defects in a Phase, or the Solution, then:

 

### (a)                 the Principal’s Representativemay issue an instruction to the Contractor during the Defects Liability Periodwhich must state in what respect there are Defects in the Phase, or theSolution and may state a reasonable time within which the Contractor mustcomplete the making good of those Defects;

###  

### (b)                 the Contractor must promptlymake good such Defects by appropriate rectification work and must complete suchwork within any time stipulated in such instruction;

###  

### (c)                 such making good by theContractor will be at no cost to the Principal whether or not such Defects aredue to materials and/or workmanship not being in accordance with thisagreement;

###  

### (d)                 if any Defect is not made goodwithin a reasonable time the Principal may have the Defect made good by othersat the expense of the Contractor; and

###  

### (e)                 the Principal may bynotice in writing to the Contractor fix a second defects liability period inrespect of the work constituting the making good of a Defect required under theprovisions of this clause, which will be effective for a period commencing onthe completion of such making good and not exceeding 24 months and thereuponthe Defects Liability Period in respect of that work constituting the makinggood of the Defect will be extended so that it will expire at the end of suchsecond defects liability period.

 

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# **20.**                Variations

# ** **

## **20.1**             Variations proposed bythe Principal

## ** **

### (a)                 The Principal’s Representativemay, by issuing a Variation Notice, request the Contractor to provide it with:

###  

#### (i)                  a quote for thecosts or savings calculated in accordance with clause 20.4(a) of;

####  

#### (ii)                 applicable details ofcosts of any Work or Device replaced or no longer required as a consequence of;

####  

#### (iii)                a quote for theincrease or decrease in the Services Charge (including any impact on thePerformance Requirements which will affect the level of the Services Charge)arising from;

####  

#### (iv)               the likely amount ofdelay or advance to achieving Completion of a Phase caused by;

####  

#### (v)                the time frame withinwhich work will be carried out in relation to;

####  

#### (vi)               proposed designinformation and any other information the Principal’s Representative requiresin relation to; and

####  

#### (vii)              details of the work andactivities it proposes to carry out for;

####  

a proposed Variation.

 

### (b)                 Within 5 Business Days of receipt of a Variation Notice, theContractor must provide the Principal’s Representative with an estimate of thelikely value of the Variation (taking into account clause 20.4(a)) and thelikely reasonable direct incremental costs of providing a Variation Responseunder clause 20.2(a) (the **“Rough Orderof Magnitude Estimate”**).

###  

### (c)                 Within 5 Business Days of receipt of the Rough Order ofMagnitude Estimate, the Principal’s Representative must:

###  

#### (i)                  confirm the VariationNotice;

####  

#### (ii)                 withdraw the Variation Notice;

####  

#### (iii)                notify the Contractor that it doesor does not agree with the Rough Order of Magnitude Estimate; or

####  

#### (iv)               withdraw the Variation Notice andnotify the Contractor that:

####  

##### A.                 it requires the Contractor toconduct a tender process under clause 20.9(a) to obtain quotes withrespect to the proposed Variation the subject of the Variation Notice; or

#####  

##### B.                  the Principal proposesto conduct a tender process itself under clause 20.9(c) to obtain quoteswith respect to the proposed Variation the subject of the Variation Notice.

#####  

Ifthe Principal’s Representative does not withdraw or confirm the VariationNotice within the time required by this clause 20.1(c), it will be deemed tohave withdrawn the Variation Notice unless otherwise agreed between theparties.

 

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### (d)                 The Principal will beresponsible for the Contractor’s reasonable direct incremental costs ofresponding to a Variation Notice under clauses 20.1(a), as notified underclause 20.1(b) and providing a Variation Response under clause 20.2(a) wherethese costs exceed $50,000 or where a number of Variation Notices deal with thesame subject matter in substance, the aggregate of these costs exceeds $50,000.

###  

## **20.2**             VariationResponse

## ** **

### (a)                 Within 10 Business Days (or suchlonger period as is agreed) of confirmation of a Variation Notice under clause20.1(c)(i) or completion of a tender process under clause 20.9 theContractor must provide the Principal’s Representative with a VariationResponse containing:

###  

#### (i)                  a quote of costs orsavings calculated in accordance with:

####  

##### A.                 clause 20.4(a); or

#####  

##### B.                  where a tenderprocess 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 theVariation Notice;

 

#### (ii)                 the time frame withinwhich the proposed Variation will be carried out including the procurement leadtimes for each item of equipment to be supplied as part of that proposedVariation, which will not exceed any applicable maximum procurement lead timesset out in Part 7 of Schedule 7;

####  

#### (iii)                where the Contractorconsiders that the Variation may result in a delay to achieving Completion of aPhase by its Phase Date for which the Contractor would be entitled to anextension of time under clause 18.7, details (including substantiation)of:

####  

##### A.                 the period by whichthe Variation will delay it in achieving Completion of the relevant Phasebeyond the Phase Date;

#####  

##### B.                  its estimate of theAcceleration Costs on the basis that it is required to overcome all of thedelay; and

#####  

##### C.                  its estimate of theDelay Costs arising out of or in connection with the Variation to the relevantPhase; 

#####  

#### (iv)               applicable details ofcosts or savings of any work or Device replaced or no longer required as aconsequence of the Variation;

####  

#### (v)                details of the effect(if any) which the proposed Variation will have on:

####  

##### A.                 farebox revenue;

#####  

##### B.                  the Operators andStakeholders;

#####  

##### C.                  the Operators’customers;

#####  

##### D.                 the functionalintegrity of the Solution including what impact the Variation will have on thePrincipal’s ability to exploit the Solution for commercial purposes asenvisaged by clause 31;

 

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##### E.                  the residual valueof the Solution;

#####  

##### F.                  the warranties givenby the Contractor under this agreement; and

#####  

##### G.                  any other matterswhich the Contractor considers of importance in the context of the Project;

#####  

#### (vi)               a written statementstating that the proposed Variation:

####  

##### A.                 will not adverselyaffect the Contractor’s ability to meet its obligations under this agreement orthe Performance Requirements;

#####  

##### B.                  will not adverselyaffect the functional integrity of any of the elements of the Solution; and

#####  

##### C.                  will not adverselyaffect the quality standards required under this agreement,

#####  

other than as specified by the Contractor inaccordance with clause 20.2(a)(v);

 

#### (vii)              except where a tenderprocess has been conducted in accordance with clause 20.9, a written statement****that the quote for the cost of the proposedVariation is no less competitive than a quote the Contractor would give toanother person for an equivalent variation to be performed by the Contractorunder contract in similar circumstances in the international market; and

####  

#### (viii)             any other information andsupporting documentation which the Principal reasonably requires.

####  

### (b)                 Upon receipt of the VariationResponse under clause 20.2(a) the Principal may:

###  

#### (i)                  request theContractor to:

####  

##### A.                 consider ways ofovercoming or minimising the effect of the proposed Variation on all or any ofthe matters set out in clause 20.2(a)(v); and

#####  

##### B.                  provide thePrincipal with a revised quote for the cost of the proposed Variation whichtakes into account the cost of taking action to overcome or minimise the effectof the proposed Variation on all or any of the matters set out in clause20.2(a)(v); or

#####  

#### (ii)                 if a tender processhas not already been conducted, request the Contractor to conduct a tenderprocess under clause 20.9(a) to obtain quotes with respect to the proposedVariation and to submit a revised quote; or

####  

#### (iii)                conduct a tenderprocess itself under clause 20.9(c) to obtain quotes with respect to theproposed Variation.

 

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## **20.3**             Variation Order

## ** **

### (a)                 The Principal may require theContractor to carry out a Variation by issuing a Variation Order.  The Variation Order must specify theconditions which must be complied with in order for there to be completion ofthe Variation.

###  

### (b)                 The Principal may, together withthe Variation Order, give the Contractor an Acceleration Direction requiringthe Contractor to accelerate Delivery by taking those reasonable measures whichare necessary to overcome or minimise the extent and effects of some or all ofthe delay including, if required, in order to achieve Completion of a Phase bythe relevant Phase Date.

###  

### (c)                 The Contractor must carry out aVariation directed in accordance with clause 20.3(a) whether or not thevalue of the Variation (including the Delay Costs or Acceleration Costs (ifany)) or an extension of time (if any) has been agreed or determined inaccordance with clause 20.4(a) or clause 18.7 respectively.

###  

### (d)                 The Contractor must not beginwork and will not have any entitlement to make any Claim against the Principalin respect of a Variation until the Principal’s Representative issues theContractor with a Variation Order in accordance with clause 20.3(a).

###  

## **20.4**             Valuation of Variation

## ** **

### (a)                 A Variation will be valued onthe basis of the sum of:

###  

#### (i)                  if the value of theVariation is agreed in writing, then on that basis;

####  

#### (ii)                 if the Principal’sRepresentative determines at its discretion that:

####  

##### A.                 Schedule 7 is toapply, 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’sRepresentative on the basis of the schedule of prices and the rates whichappear in Schedule 7; or

#####  

##### B.                  Schedule 7 isnot to apply, the Direct Costs or Direct Savings of the Variation.  If the Contractor and the Principal areunable to agree on this amount, it will be as determined under the DisputeResolution Procedures where a notice underclause 20.4(c) is given; or

#####  

#### (iii)                either:

####  

##### A.                 where the Principal’sRepresentative gives the Contractor an Acceleration Direction under clause 20.3(b) theAcceleration Costs incurred by the Contractor in complying with theAcceleration Direction, as determined by the Principal or as determined underthe Dispute Resolution Procedures where a notice under clause 20.4(c) isgiven; or

#####  

##### B.                  where the Principal’sRepresentative does not give the Contractor an Acceleration Direction underclause 20.3(b) and the Contractor is actually delayed by the Variation inachieving Completion of a Phase and is entitled to an extension of time underclause 18.7, the Delay Costs.

 

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### (b)                 Any claim for an extension oftime by the Contractor as a result of the Variation will be determined inaccordance with clause 18.7.

###  

### (c)                 Where Schedule 7 is notused for valuing a Variation and the Principal’s Representative and theContractor are unable to agree upon the Direct Costs or Direct Savings andDelay Costs relating to the Variation within 5 Business Days of receipt ofa Variation Response under clause 20.2(a) either party may give writtennotice to the other requiring the dispute to be referred to the DisputeResolution Procedures.

###  

### (d)                 Where the Principal’sRepresentative makes a determination under clause 20.4(a) as towhether Schedule 7 should or should not apply, the determination will beconclusive and binding on the Contractor in the absence of a manifest error bythe Principal.

###  

### (e)                 If the application of Schedule 7is the subject of a dispute, the actual rates and prices set out in Schedule 7can not be altered by the Expert.

###  

## **20.5**             Payment for Variations

## ** **

### (a)                 The Principal must pay theContractor the value as determined under clause 20.4(a), or clause 20.9 (wherea tender process has been conducted), of a Variation directed in accordancewith clause 20.3(a):

###  

#### (i)                  if the payment termsare agreed in writing, then on that basis; or

####  

#### (ii)                 if payment terms arenot agreed then:

####  

##### A.                 prior to the SolutionCompletion Date, at the time that payment is due in respect of the PaymentMilestone to which the Variation relates;

#####  

##### B.                  after the SolutionCompletion Date, at the time of payment of the next Monthly Invoice;

#####  

##### C.                  in the case of aVariation to the Initial Services and the Core Services, by an increase ordecrease in the Services Charge paid each month after commencement of theVariation,

#####  

after completion of the Variation inaccordance with the Variation Order to the reasonable satisfaction of thePrincipal.

 

### (b)                 If the effect of a Variation isto reduce the costs of the Project, the Direct Savings will be deducted fromthe amount payable in respect of the Variation and if no amount is payable inrespect of the Variation or the Direct Savings exceed the amount payable inrespect of the Variation, then such amount will be a debt due and payable bythe Contractor to the Principal on the date of, and will be deducted from:

###  

#### (i)                  in respect of aVariation directed prior to the Solution Completion Date, the next PaymentMilestone to which the Variation relates; and

####  

#### (ii)                 in respect of aVariation directed after the Solution Completion Date, the next Monthly Invoiceor Monthly Invoices to which the Variation relates.

####  

### (c)                 If the value of the Variation orany of the Direct Costs, Delay Costs or Acceleration Costs (if any) in relationto a Variation have not been determined in accordance

 

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### withclause 20.4(a) or 20.9 at the time payment is due, the Principal will uponthat date pay such amount as it considers represents the value of theVariation, the Direct Costs, Delay Costs or Acceleration Costs (if any) payableby virtue of 20.4(a) in relation to the Variation, pending determinationof the value of the Variation or the Direct Costs, Delay Costs or AccelerationCosts in accordance with this agreement.

###  

### (d)                 To the extent that the amountpaid by the Principal under clause 20.5(c) exceeds the amount towhich the Contractor is entitled to as determined under clause 20.4(a) or20.9 the Contractor must repay the excess to the Principal as a debt due andpayable by the Contractor to the Principal within 30 days after the dateof the determination.

###  

## **20.6**             Notice of VariationClaim

## ** **

### (a)                 As a condition precedent to theContractor making a Claim against the Principal arising out of or in connectionwith any notice, direction or instruction which the Principal’s Representativegives or purports to give under this agreement, whether written or oral, otherthan a Variation Order (for the purpose of this clause only referred to as a **“direction”**), the Contractor must prior tocomplying with the direction, and in any case within 20 Business Days ofreceipt by the Contractor of the direction, give written notice to thePrincipal’s Representative setting out:

###  

#### (i)                  details of thedirection;

####  

#### (ii)                 that compliance withthe direction is considered to involve a Variation; and

####  

#### (iii)                an estimate of thelikely time and costs of carrying out the direction.

####  

### (b)                 Within 10 Business Days ofreceiving a notice from the Contractor under clause 20.6(a), the Principalmust either:

###  

#### (i)                  issue a VariationOrder;

####  

#### (ii)                 issue a VariationNotice;

####  

#### (iii)                instruct theContractor to comply with the direction on the basis that the direction doesnot constitute a Variation; or

####  

#### (iv)               withdraw or revoke thedirection.

####  

### (c)                 If the Principal does not givean instruction under clause 20.6(b)(i), 20.6(b)(ii) or 20.6(b)(iii) withinthe time required under clause 20.6(b), the direction the subject of theContractor’s notice under clause 20.6(a) will be deemed to have beenrevoked******and theContractor must notify the Principal’s Representative within 5 Business Days ofa deemed revocation of a direction pursuant to this clause.

###  

### (d)                 If the Contractor has givennotice under clause 20.6(a) and the Principal has given an instructionunderclause 20.6(b)(iii), the Contractor may refer the matter to the DisputeResolution Procedures.  If instructed tocommence by the Principal, the Contractor must carry out any direction given bythe Principal underclause 20.6(b)(iii) whether or not the Contractor has referred the matterto the Dispute Resolution Procedures.

###  

### (e)                 If the Contractor fails tocomply with clauses 20.6(a) or 20.6(d) in relation to a direction thePrincipal will not be liable upon any Claim by the Contractor arising out of orin connection with the direction.

 

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## **20.7**             Exclusion of Liability

## ** **

Except where and as expressly provided forunder this clause 20, the Principal will not (insofar as it is possible toexclude 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 connectionwith any Variation, Variation Notice, Variation Order, Acceleration Directionor any delay arising out of or in connection with any Variation.

 

## **20.8**             Variations proposed bythe Contractor

## ** **

### (a)                 The Contractor may propose aVariation by giving written notice to the Principal’s Representative withdetails of the proposed Variation.

###  

### (b)                 On receiving a notice underclause 20.8(a), the Principal’s Representative may give written notice to theContractor requiring it to give the Principal’s Representative:

###  

#### (i)                  details of:

####  

##### A.                 the proposedVariation (including any relevant design information) and any information itwould be required to provide to the Principal, if it were required to prepare aVariation Response under clause 20.2(a);

#####  

##### B.                  the reason for theproposed Variation;

#####  

##### C.                  the effect of theproposed Variation on the Delivery and the Project Timeline and Project MasterSchedule;

#####  

##### D.                 the effect of theproposed Variation on achieving Completion of a Phase by the relevant PhaseDate;

#####  

##### E.                  the effect (if any)of the proposed Variation on the provision of the Services;

#####  

##### F.                  the cost effect ofthe proposed Variation including any Direct Savings arising from the Variation,calculated in accordance with clause 20.4(a);

#####  

#### (ii)                 a written statementstating that the proposed Variation:

####  

##### A.                 will not adverselyaffect the Contractor’s ability to meet its obligations under this agreement orthe Performance Requirements;

#####  

##### B.                  will not adverselyaffect the functional integrity of any of the elements of the Solution; and

#####  

##### C.                  will not adverselyaffect the quality standards required under this agreement; and

#####  

#### (iii)                any other informationand supporting documentation the Principal’s Representative reasonablyrequires.

####  

### (c)                 The Principal’s Representative:

###  

#### (i)                  may give a writtendirection to the Contractor: 

 

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##### A.                 approving any Variationthe Contractor proposes by issuing a Variation Order; or

#####  

##### B.                  rejecting anyVariation the Contractor proposes.

#####  

#### (ii)                 will be under noobligation 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 toconduct a tender process under clause 20.9(a) to obtain quotes withrespect to the proposed Variation; or

#####  

##### B.                  it proposes to conduct a tender process itself under clause 20.9(c) toobtain quotes with respect to the proposed Variation.

#####  

### (d)                 If:

###  

#### (i)                  the Principal’sRepresentative gives a direction approving the Variation under clause20.8(c)(i);

####  

#### (ii)                 following a tenderprocess conducted in accordance with clause 20.9 the Principal approves theVariation,

####  

the Contractor must perform its obligationsunder this agreement in accordance with the approved Variation.

 

### (e)                 With respect to any Variationapproved by the Principal under clause 20.8(c)(i) or following a tenderprocess conducted under clause 20.9, [**]% of the Direct Savings notified bythe Contractor under clause 20.8(b)(i)F will be a debt immediately due andpayable from the Contractor to the Principal within 30 days of:

###  

#### (i)                  the date of thePrincipal’s Representative’s direction under clause 20.8(c)(i) (or fromsuch other date as may be agreed between the parties prior to the Principal’sRepresentative’s direction under clause 20.8(c)(i)); or,

####  

#### (ii)                 where following atender process conducted under clause 20.9, the date of approval of theVariation.

####  

### (f)                  The Contractor will:

###  

#### (i)                  bear all costs:

####  

##### A.                 associated withproposing a Variation under clause 20.8(a);

#####  

##### B.                  associated withproviding details under clause 20.8(b); and

#####  

##### C.                  associated withcarrying out the proposed Variation where it is approved by the Principal’sRepresentative unless otherwise specified in the Variation notice given by theContractor and approved by the Principal; and

#####  

#### (ii)                 unless otherwiseagreed, not be entitled to make any Claim against the Principal arising out ofor in connection with the Variation.

 

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## **20.9**             Variations performedby a subcontractor

## ** **

### (a)                 The Principal may require theContractor to conduct a tender process to obtain up to 3 separate quotes fromexperienced and capable contractors agreed by the Principal and the Contractor(but failing agreement, as nominated by the Principal) to carry out workrequired for a proposed Variation the subject of a Variation Notice underclause 20.1(a) or a Variation Response under clause 20.2(a) orproposed by the Contractor under clause 20.8(a).

###  

### (b)                 If the Principal requires theContractor to conduct a tender process under clause 20.9(a):

###  

#### (i)                  the Contractor mustcomplete the tender process within******2months or any period otherwise reasonably nominated by the Principal;

####  

#### (ii)                 the Contractor willbe responsible for selecting a subcontractor from this process, but must permitthe Principal’s Representative to review all materials that are submitted inthe tender process and provide any other information that the Principalreasonably requires; and

####  

#### (iii)                the Contractor mustdemonstrate to the reasonable satisfaction of the Principal that thesubcontractor it intends to select is the best choice having regard to:

####  

##### A.                 the price quoted inthe prevailing market conditions;

#####  

##### B.                  the experience andcapability of that subcontractor; and

#####  

##### C.                  the ability of theContractor to carry out the Variation in the manner required by this agreementif it subcontracts the Variation to that subcontractor.

#####  

### (c)                 The Principal reserves the rightto conduct a tender process at any time to obtain quotes with respect to anyVariation proposed by either party.  Ifthe Principal, through a tender process, selects a party other than the Contractorto perform a Variation, the Contractor agrees to enter into a subcontractingagreement with that party on reasonable terms agreeable to the Principal andthe Contractor.  Under this arrangement,the Principal must pay the Contractor the direct costs of administering such acontract plus a margin of [**]% on those direct costs of administration.

###  

## **20.10**           Updated documentation

## ** **

The Contractor must provide to the Principal’sRepresentative promptly following implementation of a Variation copies of alldocumentation used to implement the Variation. The Contractor must amend, and deliver to the Principal’sRepresentative, the Solution Documentation and Services Documentation toreflect any changes resulting from a Variation.

 

**20A**              Options

** **

## **20A.1**          Nature and expiry ofOptions

## ** **

(a)                 The Principal mayrequire the Contractor to carry out an Option by issuing a written order at anytime up to the Expiry Date for that Option and the Contractor shall not beentitled to any extension of time as a result of carrying out an Option underthis clause 20A.1.

 

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(b)                 If the Principalrequires an Option to be carried out after its Expiry Date the Contractor shallcarry out the work as a Variation in accordance with clause 20 and clauses20A.2, 20A.3 and 20A.4 shall not apply.

 

## **20A.2**          Valuation of Option

## ** **

(a)                 The cost of an Optioncarried out pursuant to a notice issued by the Principal under clause 20A.1(a) shallbe the corresponding Option Price to that Option set out in Schedule 34.

 

### (b)                 (i)                 The Contractor shall not beentitled to any costs in relation to an Option carried out pursuant to a noticeissued by the Principal under clause 20A.1(a) apart from the Option Pricefor that Option calculated in accordance with this clause 20A.2.

###  

(ii)                 Without derogating from clause 20A.2(b)(i), the Option Price isdeemed to cover:

 

A                  all labour,materials, on and off-site overheads and profit required to perform all workthe subject of the Option and comply with the Contractor’s obligations underthis agreement; and

 

B.                  all costs andexpenses which will be incurred by the Contractor arising out of or inconnection with the Option delaying the Contractor.

 

## **20A.3**          Payment for Options

## ** **

(a)                 The Principal shallpay the Contractor the Option Price of an Option carried out pursuant to a noticeissued by the Principal under clause 20A.1(a) at the time that payment isdue in respect of the Phase to which the Option relates. 

 

(b)                 If the effect of anOption carried out pursuant to a notice issued by the Principal under clause20A.1(a) is to reduce the cost of the Project, the relevant components ofthe amounts payable by the Principal to the Contractor under this agreementwill be decreased.

 

## **20A.4**          Exclusion of Liability

## ** **

Except where and as expressly provided forunder this clause 20A, the Principal will not (insofar as it is possible toexclude such liability) be liable to the Contractor, whether for costs, losses,expenses, damages, liabilities, payments, outgoings, extensions of time orotherwise upon any Claim arising out of the execution or carrying out of anyOption pursuant to a notice by the Principal under clause 20A.1(a) or anydelay arising out of or in connection with such Option.

 

# **21.**                Payments of CapitalPrice

# ** **

## **21.1**             Payment Obligation

## ** **

Subject to the terms of this agreement and anyright of set-off which the Principal may have, the Principal must pay to theContractor 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 PaymentMilestones, being those parts of the Work which must be completed before theContractor 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 theformat 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 itspayment claim.

###  

## **21.3**             Payment Claims andPayments

## ** **

### (a)                 The Contractor is entitled togive to the Principal’s Representative a payment claim in respect of a PaymentMilestone on the date which is 5 Business Days after the date on which aCertificate of Completion has been issued in respect of each of the Phases inthe Payment Milestone.

###  

### (b)                 A payment claim must be inaccordance with the Payment Schedule and must:

###  

#### (i)                  identify the PaymentMilestone to which the payment claim relates;

####  

#### (ii)                 identify the Workwhich was carried out in relation to each of the Phases relevant to the PaymentMilestone;

####  

#### (iii)                identify the amount ofpayment the Contractor is claiming in respect of the Work carried out inrelation to the Payment Milestone; and

####  

#### (iv)               be in the formatrequired and include all the information and data specified in Schedule 12.

####  

### (c)                 The Principal’s Representativemust give to the Contractor (with a copy to the Principal) a payment noticewithin 10 Business Days after the Principal’s Representative receives a paymentclaim.  The payment notice must includethe details set out in clause 21.3(d).

###  

### (d)                 The payment notice issued underclause 21.3(c) must state:

###  

#### (i)                  the amount (if any)which the Principal’s Representative believes to be then payable by thePrincipal to the Contractor on account of the Capital Price and otherwise underthis agreement, and which the Principal proposes to pay to the Contractor inrespect of the Payment Milestone; and

####  

#### (ii)                 if the amount inparagraph (i) is less than the amount claimed in the payment claim:

####  

##### A.                 the reason why theamount in paragraph (i) is less than the amount claimed in the paymentclaim; and

#####  

##### B.                  if the reason forthe difference is that the Principal has retained, deducted, withheld orset-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 bythe Principal’s Representative does not constitute approval of any Work norwill it be taken as an admission or evidence that the part of the Work coveredby the payment notice has been satisfactorily carried out in accordance withthis agreement.

###  

### (f)                  Where the paymentnotice refers to an amount that constitutes consideration for a taxable supplyin respect of which a recipient created tax invoice can be issued by thePrincipal pursuant to clause 50.21, the payment notice will, provided thatit satisfies the requirements of the GST law, also constitute a recipientcreated tax invoice for GST purposes.

###  

### (g)                 The Principal’s Representativemay, in any payment notice to the Contractor correct any error or omission inany previous payment notice or payment issued by the Principal’sRepresentative.

###  

### (h)                 Within 15 Business Days of thePrincipal’s Representative giving the payment notice to the Contractor underclause 21.3(c), the Principal will, subject to the Payment Schedule, payto the Contractor the amount due to the Contractor, as shown in the paymentnotice.

###  

## **21.4**             Conditions Precedentto Entitlement to Payment

## ** **

If, at the time the Contractor purports tosubmit a payment claim under clause 21.3(a), the Contractor has not:

 

### (a)                 provided the Principal’sRepresentative with the Security Bonds required under clause 34;

###  

### (b)                 effected and maintained theinsurances required by clause 36 and (if requested) provided evidence ofthis to the Principal’s Representative;

###  

### (c)                 provided all informationrequired to be submitted with the payment claim in accordance with Schedule 12;

###  

### (d)                 fulfilled all conditionsprecedent to payment; or

###  

### (e)                 complied with its obligationsunder clauses 20 (to the extent that the payment relates to a Variation) and47,

###  

then:

 

### (f)                  the Contractor willnot be entitled to submit a payment claim under clause 21.3(a) in respectof payment of;

###  

### (g)                 the Principal’s Representativewill not be obliged to include in any payment notice under clause 21.3(c); and

###  

### (h)                 the Principal will not beobliged to pay,

###  

any amount included in the payment noticeuntil 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), thePrincipal may, but is not obliged to, in its absolute discretion, make apayment or a part payment in respect of a Phase under this clause, irrespectiveof whether:

 

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#### (i)                  the Contractor hasachieved Completion of the Phase; or

####  

#### (ii)                 the conditionsprecedent to payment have been satisfied by the Contractor,

####  

in accordance with this clause 21.

 

### (b)                 No payment or partpayment made by the Principal to the Contractor pursuant to clause 21.5(a) willconstitute an approval by the Principal of the Contractor’s performance of itsobligations under this agreement or that all or any part of the relevant Phaseor the Solution is in accordance with this agreement, including that Completionhas occurred in respect of the relevant Phase.

###  

## **21.6**             CapitalPrice Adjustments

## ** **

### (a)                 The column headed “ExpectedQuantity” in Schedule 36 sets out the expected quantity of certain Devicesrequired to be provided by the Contractor as part of the Solution (**“the Expected Quantity”**).

###  

### (b)                 The column headed “MinimumQuantity” in Schedule 36 sets out the quantity of certain Devices requiredto be provided by the Contractor as part of the Solution under this agreementwhich the Principal has indicated it will require as a minimum (**“the Minimum Quantity”**).

###  

### (c)                 Within 40 Business Days of theCompletion Date of the NTS Solution Requirements Phase, the Principal willprovide the Contractor with a written notice setting out the quantitiesrequired 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 theActual Quantity of the relevant Devices and must deliver the Actual Quantity ofthe relevant Devices as part of the performance of its obligations under thisagreement.

###  

### (e)                 Where the Actual Quantity is:

###  

#### (i)                  greater than theExpected Quantity, the Capital Price will be increased by an amount equal tothe difference between the Actual Quantity and the Expected Quantity multipliedby the relevant unit cost for the relevant Devices set out in Schedule 36;

####  

#### (ii)                 less than theExpected Quantity, but greater than the Minimum Quantity, the Capital Pricewill be reduced by an amount equal to the difference between the ExpectedQuantity and the Actual Quantity multiplied by the relevant unit cost for therelevant Devices set out in Schedule 36; or

####  

#### (iii)                less than the MinimumQuantity, the Capital Price will be reduced by an amount equal to thedifference between the Expected Quantity and the Minimum Quantity multiplied bythe relevant unit cost for the relevant Devices set out in Schedule 36.

####  

### (f)                  Any increase ordecrease in the Capital Price as a result of the operation of this clause 21.6will be effected by adjusting the payment due in respect of the PaymentMilestone or Payment Milestones to which the increase or decrease relates. 

###  

### (g)                 In the event that the differencebetween the Expected Quantity and the Actual Quantity for any of the Devicesset out in Schedule 36 is more than [**]% of the

 

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### ExpectedQuantity, the parties agree to negotiate in good faith to agree adjustments tothe Services Charges to reflect any consequential change in the level of theInitial Services or Core Services arising from the change in the quantity ofthe Devices to be provided as part of the Solution. 

###  

### (h)                 In the event that the ActualQuantity is less than the Minimum Quantity, the parties agree to negotiate ingood faith to agree adjustments to the Performance Requirements for theavailability of Fare Payment Devices to reflect the change in the quantity ofsuch Devices to be provided as part of the Solution.

###  

**21A**              Delivery Services

** **

**21A.1**          Provision of Delivery Services

** **

Subjectto clause 21A.3, the Contractor must provide the Delivery Services inaccordance with this agreement, including the Requirements Document, theSolution Documentation and the Project Documents throughout the DeliveryServices Term. 

 

**21A.2**          General Obligation

** **

### (a)                 The Contractor must provide the Delivery Services during theDelivery Services Term in accordance with the following:

###  

#### (i)                  this agreement,including the Requirements Document and the Solution Documentation;

####  

#### (ii)                 all Approvals, all Laws and allapplicable requirements of any Authority;

####  

#### (iii)                any conditions imposed by theinsurance policies effected and maintained in accordance with this agreement; and

####  

#### (iv)               the Project Documents.

####  

### (b)                 Without limiting the generality of clause 21A.2(a), theContractor 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,

####  

whichare required at any time during the Delivery Services Term to support theSolution 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 Regionaland Metropolitan Implementation Completion Phase has not been achieved within 3months of the Phase Date for the NTS Regional and Metropolitan ImplementationCompletion Phase , the Principal may provide the Contractor withwritten notice to cease provision of the Delivery Services and, in the eventthat the Principal provides such notice, the Contractor must cease provision ofthe Delivery Services within 30 days of receiving that notice.  In the event that the Principal provides awritten notice in accordance with this clause, the Principal may cease paymentof the Delivery Services Charge from the date of that notice and will have nofurther obligation to pay the Contractor the Delivery Services Charge from thattime.

###  

# **22.**                Initial Services

# ** **

## **22.1**             Provisionof Initial Services

## ** **

TheContractor will provide the Initial Services in accordance with this agreement,including the Requirements Document, the Initial Services PerformanceRequirements, the Solution Documentation and the Project Documents throughoutthe Initial Services Term.

 

## **22.2**             GeneralObligation

## ** **

### (a)                 The Contractor must provide the Initial Services during theInitial Services Term in accordance with the following:

###  

#### (i)                  the Initial ServicesPerformance Requirements;

####  

#### (ii)                 this agreement, including theRequirements Document;

####  

#### (iii)                the Solution Documentation, includingthe NTS Requirements Specification;

####  

#### (iv)               all Approvals, all Laws and allapplicable requirements of any Authority;

####  

#### (v)                any conditions imposed by theinsurance policies effected and maintained in accordance with this agreement; and

####  

#### (vi)               the Project Documents.

####  

### (b)                 Without limiting the generality of clause 22.2(a), theContractor must provide:

###  

#### (i)                  Distribution Services;

####  

#### (ii)                 Cash Collection Services; and

####  

#### (iii)                Cardholder Support Services.

####  

inaccordance with this agreement.

 

## **22.3**             Compliance

## ** **

Subjectto clause 5, in providing the Initial Services, the Contractor must comply withall applicable banking, funds transfer, deposit holding, privacy and relatedlaws, regulations, directives, industry codes, and Solution rules fromtime to time applicable to the provision of the Initial Services, including thePrivacy Obligations.

 

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## **22.4**             Operatingpolicy

## ** **

Allpolicy decisions regarding the Initial Services will rest with thePrincipal.  Such matters as the stationsor facilities to be serviced, hours of service, levels of service, public andmedia information, and interfacing with the public at large will be determinedas provided in the Project Documents or as otherwise directed by the Principal.

 

## **22.5**             Warranties

## ** **

TheContractor warrants that:

 

### (a)                 it has carefully checked this agreement and in particular the Requirements Document and they arefit for the purpose of enabling the Contractor to provide the Initial Servicesand to perform the Initial Services in accordance with the PerformanceRequirements; and

###  

### (b)                 the Initial Services will:

###  

#### (i)                  be fit and adequate forthe 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 complywith its obligations under clause 44.

####  

## **22.6**             Records

## ** **

TheContractor must:

 

### (a)                 keep detailed records and reports of the Initial Servicesprovided in accordance with this agreement including the Requirements Document and the SolutionDocumentation;

###  

### (b)                 permit the Principal to inspect and copy such records andreports during normal business hours on reasonable notice; and

###  

### (c)                 if requested to by the Principal, provide copies of suchrecords and reports to the Principal.

###  

## **22.7**             Extensionof Initial Services Term

## ** **

### (a)                 The Principal may, in its absolute discretion, elect toextend the Initial Services Term for a period of at least 6 months, up to amaximum of 3 years, for any or all of the Initial Services.

###  

### (b)                 If the Principal elects to extend the Initial Services Termin accordance with this clause 22.7, it must give written notice of suchelection to the Contractor no less than 3 months prior to the expiry of theInitial Services Term, setting out the period of extension and the InitialServices to be extended.

###  

### (c)                 If the Principal has elected to extend the Initial ServicesTerm under this clause for a period of less than 3 years, it may at any timeduring an extension (including any subsequent extension under this clause22.7(c)), elect to increase the period of the extension for a further period upto the maximum of 3 years, provided that it gives written notice of suchelection to the Contractor no less than 3 months prior to the expiry of theextension previously notified to the Contractor.

 

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### (d)                 If the Principal elects to extend the Initial Services Termin accordance with this clause 22.7, the Contractor and the Principal will bebound by the terms of this agreement in relation to the Initial Services forthe extended period.

###  

## **22.8**             SmartcardIssuance

## ** **

### (a)                 The Initial Services include the Contractor using its bestefforts to ensure that there is a legally binding and enforceable contractbetween the Principal and each Cardholder in relation to the Smartcard and itsuse, in a form approved by the Principal.

###  

### (b)                 The Contractor, its subcontractors, agents and consultantscannot, without the prior written approval of the Principal, enter into acontract with, or cause any contract to be entered into by, a Cardholder inrelation to the Smartcard and its use other than a contract referred to inclause 22.8(a).

###  

## **22.9**             InitialServices spares inventory

## ** **

### (a)                 During the Initial Services Term, the Contractor mustmaintain spare parts and replacement parts required for the provision of theInitial Services at a location in Melbourne (**“sparesinventory”**) in accordance with this agreement, including theRequirements Document and the Solution Documentation.

###  

### (b)                 The Principal will own the spares inventory.

###  

### (c)                 If at the expiration or earlier termination of the InitialServices Term, the spares inventory is not at the levels required by thisagreement, including the Requirements Document and the Solution Documentation,the Contractor must either:

###  

#### (i)                  restock the sparesinventory to the levels required at no expense to the Principal; or

####  

#### (ii)                 pay to the Principal an amountequal to the cost of restocking the spares inventory to the levels required,

####  

within10 Business Days of the expiration or earlier termination of the InitialServices Term.

 

### (d)                 Upon commencement of the Initial Services Term and on thesame date in each subsequent month which corresponds to that date, theContractor must provide a list of the spares inventory to the Principal.

###  

# **23.**                Core Services

# ** **

## **23.1**             Provisionof Core Services

## ** **

TheContractor will provide the Core Services in accordance with this agreement,including the Requirements Document, the Core Services PerformanceRequirements, the Solution Documentation and the Project Documents throughoutthe Core Services Term.

 

## **23.2**             GeneralObligation

## ** **

### (a)                 The Contractor must provide the Core Services during theCore Services Term in accordance with the following:

###  

#### (i)                  the Core ServicesPerformance Requirements;

 

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#### (ii)                 this agreement, including theRequirements 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 theinsurance policies effected and maintained in accordance with this agreement;and

####  

#### (vi)               the Project Documents.

####  

### (b)                 Without limiting the generality of clause 23.2(a), theContractor must provide:

###  

#### (i)                  Smartcard BaseManagement 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,

####  

inaccordance with this agreement.

 

## **23.3**             Compliance

## ** **

Subjectto clause 5, in providing the Core Services, the Contractor must comply withall applicable banking, funds transfer, deposit holding, privacy and relatedlaws, regulations, directives, industry codes, and Solution rules fromtime to time applicable to the provision of the Core Services, including thePrivacy Obligations.

 

## **23.4**             OperatingPolicy

## ** **

Allpolicy decisions regarding the Core Services will rest with the Principal.  Such matters as the stations or facilities tobe serviced, hours of service, levels of service, public and media information,and interfacing with the public at large will be determined as provided in theProject Documents or as otherwise directed by the Principal.

 

## **23.5**             Warranties

## ** **

TheContractor warrants that:

 

### (a)                 it has carefully checked this agreement and in particularthe Requirements Document and they are fit for the purpose of enabling theContractor to provide the Core Services and to perform the Core Services inaccordance with the Performance Requirements; and

###  

### (b)                 the Core Services will:

###  

#### (i)                  be fit and adequate forthe 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 complywith its obligations under clause 44.

####  

## **23.6**             Records

## ** **

TheContractor must:

 

### (a)                 keep detailed records and reports of the Core Servicesprovided in accordance with this agreement including the Requirements Document and the SolutionDocumentation;

###  

### (b)                 permit the Principal to inspect and copy such records andreports during normal business hours on reasonable notice; and

###  

### (c)                 if requested to by the Principal, provide copies of suchrecords and reports to the Principal.

###  

## **23.7**             Earlytermination of Core Services

## ** **

### (a)                 At least six months prior to the 5 year anniversary of thecommencement of the Core Services Term the Principal may notify the Contractorthat the Core Services Term will expire either on the 5 year anniversary of thecommencement of the Core Services Term or six months after that date and theCore Services Term will be deemed to expire on the date specified in thenotice.

###  

### (b)                 If the Principal has extended the Initial Services Termunder clause 22.7 and at the date of the notice given by the Principal underclause 23.7(a), the Initial Services are being provided by the Contractor underthis agreement, the Principal may also notify the Contractor in that noticethat the Initial Services Term will expire either on the 5 year anniversary ofcommencement of the Core Services Term or six months after that date and theInitial Services Term will be deemed to expire on the date specified in thenotice.

###  

### (c)                 The Contractor acknowledges that in considering whether toissue 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-tenderfor the provision of the Services.

###  

## **23.8**             CoreServices spares inventory

## ** **

### (a)                 During the Core Services Term, the Contractor must maintainspare parts and replacement parts required for the provision of the CoreServices at a location in Melbourne (**“sparesinventory”**) in accordance with this agreement, including theRequirements Document and the Solution Documentation.

###  

### (b)                 The Principal will own the spares inventory.

###  

### (c)                 If at the expiration or earlier termination of the CoreServices Term, the spares inventory is not at the levels required by this agreement,including the Requirements Document and the Solution Documentation, theContractor must either:

###  

#### (i)                  restock the sparesinventory to the levels required at no expense to the Contractor; or

 

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#### (ii)                 pay to the Principal an amountequal to the cost of restocking the spares inventory to the levels required,

####  

within10 Business Days of the expiration or earlier termination of the Core ServicesTerm.

 

### (d)                 Upon commencement of the Core Services Term and on the samedate in each subsequent month which corresponds to that date, the Contractormust provide a list of the spares inventory to the Principal.

###  

## **23.9**             Vandalism

## ** **

### (a)                 The Contractor must notify thePrincipal, as soon as reasonably practicable after it becomes aware and in eachMonthly Invoice, of any act of Vandalism and, in relation to each act ofVandalism: 

###  

#### (i)                  the Device affected;

####  

#### (ii)                 the VandalismCategory into which the Vandalism falls;

####  

#### (iii)                the Vandalism Costs;

####  

#### (iv)               information and documentsto substantiate the Vandalism Costs; and

####  

#### (v)                the EquivalentIncident Units,

####  

and the total Equivalent Incident Units forthe relevant month.  

 

### (b)                 Each of the Operators and thePrincipal may notify the Contractor of any item of equipment which it believeshas been damaged as a result of Vandalism. 

###  

### (c)                 Subject to clause 23.9(e),during the Core Services Term****aspart of the Device Management Services the Contractor must, in respect of anyDevice which has been damaged as a result of Vandalism:

###  

#### (i)                  inspect the Device;and

####  

#### (ii)                 repair, rectify orreplace the Device (as appropriate),

####  

at the Contractor’s cost.

 

### (d)                 The parties acknowledge thatthere may occur: 

###  

#### (i)                  within the twelvemonth period commencing on the Completion Date for the NTS Regional andMetropolitan Implementation Completion Phase, a concentrated attack on theSolution which involves a significant number of incidents of the same orsimilar type which could not reasonably have been foreseen as at thecommencement of that twelve month period by the Contractor as acts ofVandalism; or 

####  

#### (ii)                 a significantincrease in multiple occurrences of any one Vandalism Category which causes asignificant down time of all or any part of the Solution.  

####  

If the Contractor reasonably considers thatsuch acts of Vandalism have occurred, it will refer the specified acts to thePrincipal.  If the Principal agrees thatsuch acts of Vandalism have occurred such acts of Vandalism will be designated “Spate”.  If the Principal does not agree that suchacts of Vandalism have occurred, the Contractor

 

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may refer the matter to the Expert to make adetermination as to whether such acts of Vandalism have occurred.  If the Expert determines that such acts ofVandalism have occurred such acts of Vandalism will be designated as “Spate”.

 

### (e)                 Subject to clause 23.9(f), thePrincipal will pay:

###  

#### (i)                  the Vandalism Costsin relation to any Device damaged by Spate; and

####  

#### (ii)                 half of the VandalismCosts in relation to any Device damaged by Vandalism which occurs after theVandalism Cap is reached in any Vandalism Year. 

####  

### (f)                  The Principal willnot be liable to pay any Vandalism Costs:

###  

#### (i)                  under clause23.9(e)(i), for an amount exceeding $[**] in relation to any one Device unless thePrincipal approves the Vandalism Costs before they are incurred;

####  

#### (ii)                 under clause23.9(e)(ii), for an amount exceeding $[**] in relation to any one Device unlessthe Principal approves the Vandalism Costs before they are incurred; and

####  

#### (iii)                if the Contractor hasnot provided information to substantiate such Vandalism Costs in accordancewith 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 thecorresponding Equivalent Incident Units for that new category.

###  

## **23.10**           Replacement andRefurbishment

## ** **

### (a)                 Except as otherwise provided inthis agreement, as part of the provision of the Device Management Services theContractor is responsible for replacing Devices as required in order to ensurethat: 

###  

#### (i)                  the Contractorcontinues to meet its obligations; and 

####  

#### (ii)                 the Solutioncontinues to operate, 

####  

in accordance with this agreement, includingthe Requirements Document and the Performance Requirements.

 

### (b)                 The Contractor must at least onemonth prior to the commencement of each of the periods specified in Schedule 33,provide the Principal with a detailed written proposal for a program ofreplacement of Devices for the relevant period (the **“Period Replacement Program”**) based upon the replacementprogram set out in Schedule 33 for the relevant period and the Contractor’sobligations under this agreement.  

###  

### (c)                 The Principal and the Contractormust use all reasonable endeavours to agree the Period Replacement Programsubmitted under clause 23.10(b) within 20****Business Days of the proposal or such longer period as is agreedbetween the parties based upon:

###  

#### (i)                  the program for therelevant period set out in Schedule 33, and in particular, the cost of thePeriod Replacement Program cannot exceed the Total Cost for the period set outin Schedule 33; and

 

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#### (ii)                 the Contractor’sobligations under this agreement.

####  

### (d)                 In the event that the partiescannot agree the Period Replacement Program within 20 Business Days of aproposal under clause 23.10(b) or such longer period as is agreed betweenthe parties, the Period Replacement Program will be as reasonably determined bythe Principal based upon the program set out in Schedule 33 for therelevant period and in light of the Contractor’s obligations under thisagreement.

###  

### (e)                 Without derogating from:

###  

#### (i)                  the Contractor’sobligations referred to in clause 23.10(a); or

####  

#### (ii)                 the Contractor’sobligation to provide the Core Services, 

####  

the Contractor must replace the components ofthe Solution in accordance with the Period Replacement Program agreed underclause 23.10(c) or as determined under clause 23.10(d).  

 

### (f)                  Where the Contractorreplaces a component of the Solution under clause 23.10(e), the Principal mustpay the Contractor the lower of: 

###  

#### (i)                  the price for thatcomponent specified in Schedule 33; or 

####  

#### (ii)                 the Direct Costs ofreplacing that component,

####  

in accordance with this clauseand clauses 27.4 and 27.5.  

 

### (g)                 The Contractor is entitled tomake a claim for an amount payable under clause 23.10(f) for a componentreplaced in accordance with clause 23.10(e) in the first Monthly Invoicethat the Contractor issues after the date on which the component is replaced.  The Monthly Invoice must include details of:

###  

#### (i)                  the specificcomponent replaced (including the type of component and its location);

####  

#### (ii)                 the component whichwas installed as a replacement; 

####  

#### (iii)                the date and time thatthe replacement took place; 

####  

#### (iv)               the price of thereplacement, in accordance with Schedule 33; and

####  

#### (v)                the Direct Costs ofreplacing the component, including full details of all costs of any equipment,materials and labour costs associated with the replacement.

####  

Notwithstanding any other provision of thisagreement, the Principal is not obliged to pay the Contractor for any amountclaimed under this clause 23.10 unless the Monthly Invoice complies with thisclause 23.10(g).

 

### (h)                 Either party may, at any timeduring the Term, give the other party written notice of the details of aproposed amendment to Schedule 33. That notice must:

###  

#### (i)                  provide full detailsof the proposed amendment, including, where applicable, details of anycomponents listed in Schedule 33 which the party believes do not need tobe replaced and the reason why they do not need to be replaced;

 

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#### (ii)                 provide details ofany components which the party believes should now be replaced and the reasonwhy they need to be replaced;

####  

#### (iii)                for any componentswhich the party is now proposing be replaced, provide details of the cost percomponent for that replacement; and

####  

#### (iv)               provide details of theoverall change to the price of the replacement program set out in Schedule 33arising from the proposed amendment, subject to the limitation that the overallcost cannot exceed the maximum refresh amount set out in Schedule 33.

####  

### (i)                  The parties agree tonegotiate in good faith to agree any amendment to Schedule 33 proposed pursuantto a notice given under clause 23.10(h).  

###  

## **23.11**           Versions and updates

## ** **

The Contractor must as part of the CoreServices provide Software support in respect of the Solution including:

 

### (a)                 ensuring that all improvements,modifications, fixes, updates, additions to or alterations to Software that ispart 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, areincorporated into the Solution;

###  

### (b)                 ensuring that all Third PartySoftware that is part of the Solution is supported by its supplier;

###  

### (c)                 if any Third Party Software thatis part of the Solution becomes more than two Versions behind the currentVersion of that Third Party Software, the Contractor must notify the Principalwithin 10 Business Days of that fact happening and provide the Principal withthe Contractor’s recommendation as to whether the current Version should beincorporated into the Solution;

###  

### (d)                 without derogating from clause23.11(b), incorporating, at the Principal’s request and cost, the currentVersion of Third Party Software into the Solution.  For the avoidance of doubt, any request madeby the Principal under this clause 23.11(d) will be at the Principal’sdiscretion, notwithstanding any recommendation made by the Contractor underclause 23.11(c); and

###  

### (e)                 supplying all necessaryimprovements, modifications, fixes, updates, additions or alterations to theSoftware to enable it to operate on the current Version of any platform onwhich it operates.

###  

# **24.**                Documentation

# ** **

## **24.1**             DocumentationRequirements

## ** **

### (a)                 The Contractor must accurately clearly and conciselydocument all business and other processes, including properly documentedoperating manuals, in relation to the Initial Services and the Core Services.

###  

### (b)                 The Contractor must, to the extent that such documentationhas not already been provided, provide the relevant Services Documentation tothe Principal’s Representative prior to commencing to provide the Services towhich that Services Documentation relates.

 

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### (c)                 The Contractor must provide amended Services Documentationto the Principal’s Representative at 6 monthly intervals after commencing toprovide the Services to which that Services Documentation relates or within 20Business Days of a significant change to business rules or business orother processes in relation to the Initial Services and the Core Services(whichever occurs first).

###  

### (d)                 The Contractor must to the extent that such documentationhas not already been provided, by the Solution Completion Date, provide to thePrincipal’s Representative any documentation apart from source code (which isto be provided in escrow under clause 30.6)****whichthe Principal or any third party nominated by the Principal might reasonablyneed to operate the Solution and provide the Initial Services and the CoreServices.

###  

### (e)                 Within 20 Business Days of any significant change to theSolution after the Solution Completion Date, the Contractor must, to the extentthat such documentation has not already been provided, provide to the Principal’sRepresentative all relevant Solution Documentation amended to reflect allchanges to the Solution since the documentation was last provided to thePrincipal’s Representative.

###  

## **24.2**             Warranties

## ** **

TheContractor warrants that:

 

### (a)                 the Solution Documentation will sufficiently, adequately andaccurately document the Solution, the operation of the Solution and how tointerface with the Solution;

###  

### (b)                 the Solution Documentation will be sufficient, adequate andaccurate so as to enable the Principal or a third party to operate and maintainthe 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 SolutionDocumentation, the Solution will be Fit For Solution Purposes.

###  

# **25.**                TechnologicalDevelopments

# ** **

### (a)                 If during the Term theContractor becomes aware of:

###  

#### (i)                  any significanttechnological development; or

####  

#### (ii)                 any means ofproviding the Initial Services and the Core Services at a reduced cost or to ahigher standard whether through technological innovation, a reduction in thirdparty price or otherwise,

####  

the Contractor must notify the Principal’sRepresentative within 30 Business Days of becoming aware, giving full detailsand its anticipated benefits.

 

### (b)                 The Principal may, at any timeduring the Term, notify the Contractor of any significant technologicaldevelopment or any means, of which the Principal is aware, of providing theInitial Services and the Core Services at a reduced cost or to a higherstandard whether through technological innovation, a reduction in third partyprice or otherwise.

 

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### (c)                 The Principal may:

###  

#### (i)                  following notificationby the Contractor under clause 25(a) of any technological development orany proposed means of providing the Initial Servicesand the Core Servicesat a reduced cost or to a higher standard; or

####  

#### (ii)                 where the Principal has notifiedthe Contractor under clause 25(b) of any technological development or anyproposed means of providing the Initial Services andthe Core Servicesat a reduced cost or to a higher standard,

####  

requirethe Contractor to utilise the technological development or improved means ofproviding the Initial Services and the Core Services as notified under thisclause 25.  The parties agree to meet andnegotiate in good faith and cooperatively to implement any technological developmentsor improved means of providing the InitialServices and the Core Services, including the sharing of any costs savings arising fromany new developments notified to the other party under this clause 25.

 

# **26.**                Option to extend Core Services Term

# ** **

### (a)                 The Principal may elect toextend the Core Services Term for a period of up to 2 years, or such otherperiods agreed by the parties.

###  

### (b)                 If the Principal elects toextend the Core Services Term in accordance with this clause 26, it must givewritten notice of such election to the Contractor no less than 3 months priorto the expiry of the Core Services Term.

###  

### (c)                 If the Principal elects toextend the Term in accordance with this clause 26, the Contractor and thePrincipal agree to be bound by the terms and conditions of this agreement forthe extended period, except that in the event that an extension under clause 26(a) isfor a period longer than 2 years, the Services Charge for the first 2 yearswill be calculated in accordance with Schedule 10, and the parties agreeto negotiate in good faith to agree the Services Charge that will apply duringthe period after the first 2 years of the extension.

###  

### (d)                 The Principal may terminate theCore Services at any time during an extended period under this clause by givingat least 3 months written notice to the Contractor.

###  

# **27.**                Services Charges and Delivery ServicesCharges

# ** **

## **27.1**             Services Charges andDelivery Services Charges

## ** **

Subject to the other provisions of thisagreement, the Principal will:

 

### (a)                 during the Delivery ServicesTerm, pay to the Contractor the charges calculated in accordance with Schedule 32in 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 ServicesTerm, 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 otherprovisions of this agreement, including as adjusted in accordance with aVariation Order made under clause 20 and in accordance with the provisionsof this clause 27 and clause 28.2 where relevant.

 

## **27.2**             Other Fees and Charges

## ** **

The Contractor and its servants and agentsmust not, without the prior written approval of the Principal, impose fees andcharges or conditions of use in connection with the issuing of Smartcards, theuse 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 ServicesTerm and the Core Services Term, the Contractor must submit to the Principal’sRepresentative a Monthly Invoice within 10 Business Days of the end of eachmonth.

###  

### (b)                 Each Monthly Invoice must setout full details of the calculation of the Delivery Services Charge or ServicesCharge (as applicable), including full details of any adjustments under thisagreement and the invoice substantiation data required under Schedule 12and in the format set out in Schedule 12 or as otherwise reasonablyrequired by the Principal to verify the calculation of the Delivery ServicesCharge or Services Charge. Notwithstanding any other provision in this agreement (includingclause 27.4), the Principal is not required to pay a Monthly Invoiceunless the Monthly Invoice complies with this clause 27.3(b).

###  

### (c)                 The Monthly Invoice must be avalid tax invoice for GST purposes. However, if the Principal has notified theContractor under clause 50.21(e) that the Principal will issue recipientcreated 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 includedin the Monthly Invoice to that effect.

###  

## **27.4**             Payment

## ** **

### (a)                 If the Principal does notdispute any aspect of a Monthly Invoice in accordance with clause 27.5, it mustwithin 20 Business Days after receipt of the Monthly Invoice pay to theContractor the amount set out in the Monthly Invoice.

###  

### (b)                 If the Principal disputes anyaspect of a Monthly Invoice in accordance with clause 27.5, it must within 20Business Days after receipt of the Monthly Invoice pay to the Contractor allundisputed amounts in respect of that Monthly Invoice.

###  

## **27.5**             Non-Acceptance ofMonthly Invoice

## ** **

### (a)                 If the Principal disputes anyaspect of a Monthly Invoice, it must within 10 Business Days after receipt ofthe Monthly Invoice notify the Contractor in writing of:

###  

#### (i)                  any amount in theMonthly Invoice which it disputes and, to the extent that it is able tocalculate them, details of the adjustments it requires; and

 

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#### (ii)                 such furtherinformation as it reasonably requires to determine the amounts of theadjustments it requires.

####  

### (b)                 Within 5 Business Days afterreceipt of the notification under clause 27.5(a), the Contractor must:

###  

#### (i)                  resubmit the MonthlyInvoice, amended to reflect:

####  

##### A.                 any of theadjustments notified by the Principal with which it agrees;

#####  

##### B.                  where the Principalwas unable to specify the adjustment required for an amount, any adjustmentwhich the Contractor believes the Principal is entitled to in relation to adisputed amount;

#####  

#### (ii)                 provide the Principalwith any information requested in accordance with clause 27.5(a)(ii); and

####  

#### (iii)                provide the Principalwith written reasons of why it believes any of the disputed amounts arecorrect.

####  

### (c)                 If the Principal does notdispute any aspect of the amended Monthly Invoice provided under clause27.5(b)(i), it must within 10 Business Days after receipt of the amendedMonthly Invoice, pay to the Contractor such amount owing under the amendedMonthly Invoice that has not otherwise been paid in accordance with clause27.4(b).

###  

### (d)                 If within 25 Business Days afterreceipt by the Contractor of the notice from the Principal pursuant to clause27.5(a) the parties have not agreed the amounts in dispute in respect ofthe Monthly Invoice, the matter must be resolved in accordance with the DisputeResolution Procedures.

###  

## **27.6**             BenchmarkingInformation

## ** **

### (a)                 On the 4th anniversary and 9thanniversary of the commencement of the Core Services Term, the Contractor mustprovide the Principal with a written report detailing all costs incurred by anyperson involved in the provision of the Core Services and written supportingdocumentation in relation to those costs.

###  

### (b)                 The Contractor must, uponrequest by the Principal, provide the Principal with copies of all records,reports and other information reasonably required by the Principal in order toverify the costs incurred in providing the Core Services.

###  

### (c)                 The Contractor agrees tonegotiate with the Principal in good faith to agree to amendments to theServices Charges if the Principal, after reviewing any report provided underclause 27.6(a), reasonably believes the Services Charges exceed the prevailingmarket costs for the provision of the services comparable in nature and size tothe Core Services.

###  

## **27.7**             Exit Costs

## ** **

### (a)                 In respect of the InitialServices, the Principal must upon the expiry of the Initial Services Term ofeach Initial Service pay to the Contractor exit costs in respect of therelevant 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 theCore Services Term; or

####  

#### (ii)                 upon termination ofthe Core Services under clause 26(d),

####  

pay to the Contractor exit costs calculatedin accordance with Part B of Schedule 21.

 

## **27.8**             Smartcard costs

## ** **

### (a)                 The Contractor must acquireSmartcards for supply under this agreement for the lowest price reasonablyobtainable for the supply of smartcards to or in Australia at the time ofacquisition.

###  

### (b)                 The Contractor must, at therequest of the Principal, provide the Principal with such written evidence asthe Principal reasonably requires of the prices obtainable for smartcardsidentical to or similar to Smartcards that are supplied by the Contractor underthis agreement.

###  

### (c)                 The Services Charge will beadjusted so that the amount payable for the supply of Smartcards included inthe Services Charge cannot exceed the lesser of:

###  

#### (i)                  the applicable amountset out in Schedule 10; and

####  

#### (ii)                 the price paid by theContractor for the Smartcards plus a margin of [**]%.

####  

## **27.9**             Banking Arrangements

## ** **

### (a)                 The Contractor must do allthings reasonably necessary to ensure that the Solution interfaces with theAustralian Payments System in accordance with all relevant industry standards.

###  

### (b)                 The Contractor must at its owncost provide all assistance reasonably required by the Principal to choose theprovider of the transactional banking services and relevant deposit accountswhich will be required in relation to the Solution. 

###  

### (c)                 The Principal will consult withthe Contractor in relation to its choice of the provider of the transactionalbanking services and relevant deposit accounts which will be required in relationto the Solution.

###  

### (d)                 The Contractor must do allthings necessary to interface the Solution with the provider chosen by thePrincipal pursuant to clause 27.9(b), including entering into any agreementsthe Principal reasonably requires it to enter into.

###  

### (e)                 The Contractor is responsibleand liable for all costs relating to the services and activities set out in Part Bof Schedule 40.

###  

### (f)                  The Banking Chargeswill be payable by the Principal.  To theextent that the Banking Charges are for any reason charged directly to theContractor rather than the Principal, the Contractor must pay the BankingCharges on behalf of the Principal.  

###  

### (g)                 In the event that there are anyfees or charges or other costs associated with the transactional bankingservices and relevant deposit accounts which will be required in relation tothe Solution that are:

 

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#### (i)                  not Banking Charges;and

####  

#### (ii)                 not costs relating tothe services and activities set out in Part B of Schedule 40,

####  

#### the Principal and the Contractor mustnegotiate in good faith to agree which party should be responsible and liablefor those fees, charges or other costs. 

####  

### (h)                 The Contractor must:

###  

#### (i)                  design the Solutionto operate; and

####  

#### (ii)                 provide the Initial Servicesand Core Services so that the Solution operates;

####  

#### in a manner that allows the Principal tocomply with any rules and regulations of payment schemes within theAustralian Payments System which may apply to the Principal. 

####  

### (i)                  The Contractor must:

###  

#### (i)                  design the Solutionto operate; and

####  

#### (ii)                 provide the InitialServices and Core Services so that the Solution operates,

####  

#### in a manner that minimises, in the context ofthe Principal’s requirements, the propensity and extent of any chargebacks tothe Principal in relation to its activities as a merchant in any paymentschemes within the Australian Payments System. 

####  

### (j)                  The Contractor mustinclude details of any Banking Charges which it has paid under clause 27.9(f) inthe first Monthly Invoice the Contractor issues after it makes payment to therelevant financial institution(s) for the Banking Charges.  

###  

### (k)                 The Contractor must provide allrelevant information, data and other supporting information reasonablyrequested by the Principal in relation to any Banking Charges included in aMonthly Invoice.

###  

### (l)                  Where the Contractorhas included details of the Banking Charges which it has paid on behalf of thePrincipal under clause 27.9(f) in a Monthly Invoice, the Principal will beliable to pay those Banking Charges in accordance with clause 27.4, subject toany rights of the Principal under clause 27.5.

###  

### (m)                The Contractor must keep anyfinancial institution relationships, agreements, accounts and charges operatedby it and related to the Contractor’s dealings with the Principal separate fromall other dealings the Contractor has with any financial institutions.  

###  

### (n)                 The Contractor agrees to submitto periodic audits by the Principal in relation to its obligations under thisclause.

###  

# **28.**                Performance Requirements

# ** **

## **28.1**             PerformanceRequirements

## ** **

### (a)                 From the date on which the Contractor first commencesproviding the Delivery Services the Contractor must, to the extent they areapplicable to the Delivery

 

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### Services, measure and report on thePerformance Requirements in accordance with this agreement, including theRequirements Document and the Solution Documentation.

###  

### (b)                 Throughout the Core Services Term, the Contractor mustmeasure and report on the applicable Performance Requirements in accordancewith this agreement, including the Requirements Document and the SolutionDocumentation.

###  

### (c)                 The Contractor must ensure that, at all times during theCore Services Term:

###  

#### (i)                  the Solution achievesthe Performance Requirements;

####  

#### (ii)                 each Device achieves thePerformance Requirements specified for the relevant Device; and

####  

#### (iii)                the Initial Services and the CoreServices are delivered by the Contractor in a manner which achieves thePerformance Requirements.

####  

## **28.2**             Actsof Prevention and Change in Law

## ** **

### (a)                 If the Contractor seeks an allowance in respect of an Act ofPrevention or a Change in Law, which the Contractor considers will or is likelyto affect its ability to achieve a Performance Requirement, the Contractor mustsubmit a written notice to the Principal’s Representative:

###  

#### (i)                  as soon as possible, andin any event not later than: 

####  

##### A.                 in the case of an Act ofPrevention, 10 Business Days after the commencement of such an Act ofPrevention; and 

#####  

##### B.                  in the case of a Changein Law, not later than 20 Business Days after the occurrence of such a Changein Law; and

#####  

#### (ii)                 which gives detailed particulars ofthe Act of Prevention or Change in Law and the effect this will have on theContractor’s ability to meet the Performance Requirements.

####  

### (b)                 Subject to clause 28.2(c), if the Principal’s Representativereceives a notice in accordance with clause 28.2(a), the Principal’sRepresentative will:

###  

#### (i)                  determine a reasonableallowance to be taken into account in measuring the Contractor’s performanceagainst the Performance Requirements for the purposes of this clause 28.2 as aresult of the occurrence of the Act of Prevention or Change in Law.  If the Contractor disagrees with anydetermination made by the Principal’s Representative it must, within 5 BusinessDays of receipt of such a notice, give written notice to the Principal’sRepresentative.  If the matter is notresolved within 10 Business Days of the receipt of such notice, the disputewill be referred to the Expert; or

####  

#### (ii)                 where the Act of Prevention orChange in Law is or necessitates a Variation Order in respect of which theallowance has been agreed to by the Contractor and the Principal’sRepresentative under clause 20, then make that allowance.

 

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### (c)                 It is a condition precedent to the Contractor’s entitlementto the determination of an allowance under28.2(b) that:

###  

#### (i)                  the Contractor musthave given the notice and information required by clause 28.2(a);

####  

#### (ii)                 the cause of theContractor being prevented from achieving the relevant Performance Requirementsmust have been an Act of Prevention or Change in Law;

####  

#### (iii)                the Contractor musthave actually been prevented from achieving the relevant PerformanceRequirements by the Act of Prevention or Change in Law;

####  

#### (iv)               the Contractor musthave taken all possible steps to overcome or minimise the effect of the Act ofPrevention orChange in Law including taking all such positive stepsto reschedule, reprogram, expedite and adjust activities, sequences and theperformance of the******InitialServices and the Core Services and deploying all such additional resources inthe performance of the Initial Services and the Core Services as may berequired to ensure that the relevant Performance Requirements are achieved; and

####  

#### (v)                the Contractor musthave complied with all instructions of the Principal’s Representative withrespect to the Act of Prevention or Change in Law including the stepsavailable to overcome or minimise the effect of the Act of Prevention or Change in Law.

####  

### (d)                 Other than as expressly providedin clauses 28.2(a) to (c) and clause 37, the Contractor:

###  

#### (i)                  bears the risk ofall delays, disruptions, events or circumstances affecting the Initial Servicesand the Core Services which could prevent it from achieving any PerformanceRequirements; and

####  

#### (ii)                 will remain obligedto achieve the Performance Requirements notwithstanding any such delay,disruption, event or circumstance.

####  

### (e)                 Whether or not theContractor has given, or would be required to give, a notice under clause28.2(a), the Principal’s Representative may, in its absolute discretion at anytime and from time to time by providing written notice to the Contractordetermine an allowance to be taken into account in measuring the Contractor’sperformance against the Performance Requirements.

###  

## **28.3**             CorrectiveAction

## ** **

Wherethe Contractor fails to comply with its obligations under clause 28.1, theContractor must promptly provide to the Principal for its approval, a writtencorrective action plan providing details of how it intends to rectify suchfailures in the future.  If in thePrincipal’s opinion the corrective action plan does not satisfactorily addressthe failure, the Principal may require the Contractor to provide a further moredetailed plan.  The Contractor mustpromptly implement any such corrective action plan which is approved by thePrincipal.

 

## **28.4**             Reviewof Performance Requirements

## ** **

### (a)                 The Principal reserves the right to review the PerformanceRequirements at any time to ensure that they provide a representative model ofthe intended overall

 

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### performance of the Solution and the Initial Services andthe Core Services.  The Principal must allow the Contractor toparticipate in the review.

###  

### (b)                 If consequent upon a review under clause 28.4(a), thePrincipal considers that the Performance Requirements need to be changed toprovide a representative model of the measurement of the intended overallperformance of the Solution and the Initial Services and the Core Services,the Principal must give written notice to the Contractor of the details of theproposed amendment and the outcome of the review relevant to the proposedamendment.  The Contractor agrees to negotiatewith the Principal to agree the proposed amendment or such other change as willensure that the data gathering and measurement of KPIs, benchmarks, benchmarkvalues and the performance standards provide a representative model of theintended 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 orother change within 20 Business Days of receipt of the notice by theContractor, the Principal or Contractor may refer the dispute or difference tothe Dispute Resolution Procedures to determine the proposed amendment or suchother change as will ensure that the data gathering and measurement of KPIs,benchmarks, benchmark values and the performance standards provide arepresentative model of the intended overall performance of the Solution andthe InitialServices and the Core Services without making aVariation.

###  

## **28.5**             AFCSystem performance

## ** **

### (a)                 ThePrincipal and the Contractor acknowledge that:

###  

#### (i)                  the Contractor is responsible for NTSTransition and for managing the NTS Transition Plan under this agreement; and

####  

#### (ii)                 OLT is responsible for managing the AFCTransition Plan under the Transition Deed.

####  

### (b)                 OLT hasobligations under the Consolidated Service Contract in relation to theperformance levels of the AFC System.  Inparticular, OLT must meet or exceed the AFC System Performance Levels and isliable to pay the AFC System Compensation Payments if the AFC SystemPerformance Levels are not met or exceeded.

###  

### (c)                 ThePrincipal has advised the Contractor that OLT has agreed to facilitate NTSTransition by complying with OLT’s obligations under the Transition Deed whichinclude:

###  

#### (i)                  allowing the Principal and the Contractor touse or modify the AFC Equipment or AFC Software; and

####  

#### (ii)                 to enter into and comply with the AFCTransition Plan.

####  

### (d)                 Duringthe NTS Solution Requirements Phase, the Contractor will develop the NTSTransition Plan in accordance with clause 12.4. The NTS Transition Plan will include:

###  

#### (i)                  full details of all transition requirements andcooperation reasonably required to be provided by OLT for NTS Transition andrequired to be incorporated in the AFC Transition Plan;

 

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#### (ii)                 the timetable for the undertaking of activitiesunder the NTS Transition Plan;

####  

#### (iii)                the Principal’s requirements and the Contractor’sapproach to installation and implementation of the Solution during the NTSTransition Plan; and

####  

#### (iv)               analysis of reasonably known likely impacts ofthe activities to be undertaken as part of NTS Transition, upon the AFC System.

####  

### (e)                 TheContractor must assist the Principal to review, finalise and agree on therequirements and cooperation referred to in clause 28.5(d)(i) to beincluded in the AFC Transition Plan.  ThePrincipal is not obliged to agree on such requirements and cooperation, andaccordingly has the discretion to reject the NTS Transition Plan under clause12.4, to the extent that the Principal is unable to procure OLT to agree toprovide such requirements and cooperation.

###  

### (f)                  ThePrincipal will procure OLT to undertake an analysis of reasonably known likelyimpacts of the activities to be undertaken as part of NTS Transition, upon theAFC System.  A copy of the analysis willbe provided to the Contractor.

###  

### (g)                 ThePrincipal agrees that a failure by OLT to comply with the AFC Transition Planwill be deemed to be the occurrence of an Access Event.

###  

### (h)                 If theContractor is or becomes aware, or ought reasonably to be aware, that any partof NTSTransition has or may have any adverse or negative impact on the AFC System oron OLT meeting or exceeding the AFC System Performance Levels, the Contractormust provide the Principal with details, either in the impact analysis formingpart of the NTS Transition Plan or by separate notice, of the relevantactivities or actions to be undertaken by the Contractor and the nature of thepotential adverse or negative impact to the AFC System or the AFC SystemPerformance Levels (as the case may be) and must not implement that part of NTSTransition except with the prior approval of the Principal.  If the impact is set out in the impactanalysis forming part of the NTS Transition Plan, the finalisation of the NTSTransition Plan in accordance with clause 12.4 to the satisfaction of thePrincipal is deemed to constitute the prior approval of the Principal.

###  

### (i)                  TheContractor:

###  

#### (i)                  will carry out NTS Transition, other than thatpart of NTS Transition specifically approved by the Principal underclause 28.5(g), so as not to have any adverse or negative impact on theAFC System;

####  

#### (ii)                 will carry out NTS Transition so as to minimiseany adverse or negative impact on OLT meeting or exceeding the AFC SystemPerformance Levels; and

####  

#### (iii)                will not use or modify any AFC Equipment or AFCSoftware in revenue service other than in accordance with the NTS TransitionPlan.

####  

### (j)                  If as aresult of NTS Transition, OLT is entitled under clause 17 of theTransition Deed to exclude any adverse or negative impact on the AFC System orAFC System Performance Levels:

###  

#### (i)                  the Principal will give the Contractor writtennotice of the amount of the reduction in the AFC System Compensation Paymentsreasonably determined by the Principal to be a result of NTS Transition andwhich would have been payable by OLT if clause 17 of the Transition Deed

 

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#### had not applied, to the extentthat it is not attributable to a failure by OLT to comply with the AFCTransition Plan (**“Reduction Amount”**);

####  

#### (ii)                 subject to any obligations in relation toconfidentiality, if requested by the Contractor, the Principal will give theContractor all information reasonably required by the Contractor to verity thePrincipal’s calculation of the Reduction Amount;

####  

#### (iii)                subject to clause 28.5(k), the Contractor mustpay the Principal the Reduction Amount; and

####  

#### (iv)               subject to clause 28.5(k), the Reduction Amountis a debt due and payable by the Contractor to the Principal within 20 BusinessDays of the notice given by the Principal under clause 28.5(j)(i).

####  

### (k)                 TheReduction Amount in each month, shall not exceed $[**].

###  

# **29.**                Legal and Financial Relationships

# ** **

## **29.1**             LegalRelationships

## ** **

### (a)                 A Cardholder will be entitled to use value loaded onto theVictorian Smartcard Application as redemption for services provided by theOperators in accordance with this agreement, including the RequirementsDocument and any Solution Documentation, but will not have any interest inmoney represented by value loaded by that Cardholder onto the VictorianSmartcard Application.

###  

### (b)                 A Cardholder will not be entitled to redeem value loadedonto the Victorian Smartcard Application for cash unless the Cardholder alsoforfeits his or her Smartcard and any account associated with that Smartcard isclosed. 

###  

## **29.2**             Entitlementto Floats

## ** **

ThePrincipal will own the Float.  The Floatmust be held in a bank account owned by the Principal.

 

## **29.3**             Contractualrelationships

## ** **

The Contractor must ensure that allcontractual 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 Act1959 (Cth);

####  

#### (ii)                 subject to clause 5,to comply with the terms of the PaymentSystems (Regulation) Act 1998 (Cth) and the Banking Act 1959 (Cth) asthey 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 Principalor 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 allreasonable assistance to enable the Principal and the Operators to comply withthe Payment Systems (Regulation) Act 1998(Cth) and the Banking Act 1959 (Cth).

####  

### (b)                 Without derogating from clause29.4(a), the parties agree and acknowledge that to the extent that the Solutionis a purchased payment facility for the purpose of the Payment Systems(Regulation) Act 1998 (Cth), the Principal is the holder of stored value andthat the Principal can assign, novate or otherwise transfer the benefit of allor any of its obligations as the holder of stored value or its rights orobligations as the holder of stored value in accordance with clause 45.2.

###  

## **29.5**             Unclaimed moneys

## ** **

If any stored value on a Victorian SmartcardApplication is subject to the UnclaimedMoneys Act 1962 (Vic) as amended by the Unclaimed Moneys (Amendment) Act2004 (Vic), the Contractor agrees to:

 

### (a)                 comply with that Act and any regulations made pursuant to it,including:

###  

#### (i)                  entering allunclaimed moneys in a register kept at the Contractor’s principal office orplace of business in Victoria in the prescribed form;

####  

#### (ii)                 where applicable,advertising entries in the register in the Government gazette at the times andin the manner determined by the registrar of unclaimed moneys; and

####  

#### (iii)                paying any unclaimedmoney to the registrar of unclaimed moneys to be placed in the consolidatedfund; 

####  

### (b)                 design the Solution to operateand ensure the Solution operates in compliance with that Act and in a mannerwhich allows the Principal and the Operators to comply with their obligations(if any) under that Act;

###  

### (c)                 provide all reasonableassistance to enable the Principal and the Operators to comply with theirobligations (if any) under that Act.

###  

## **29.6**             Audittrail

## ** **

Inaddition to meeting the requirements imposed by this agreement including theRequirements Document, the Contractor must implement and maintain appropriatesystem capabilities to log and preserve an audit trail for all material eventsoccurring as part of transactions involving Cardholders.  The Contractor will provide a record of thoseaudit events relating to the Initial Services and Core Services to thePrincipal’s Representative in a mutually agreed format on a monthly basis.

 

## **29.7**             Reconciliation

## ** **

To the extent that during the Core ServicesTerm there are reconciliation discrepancies in the Solution:

 

### (a)                 resulting in a loss of cash orvalue; or

###  

### (b)                 caused by a failure by theContractor to comply with the Solution Documentation, and 

###  

excluding reconciliation discrepanciesarising as a result of services not provided by the Contractor or a personproviding services on behalf of the Contractor, the Contractor:

 

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### (c)                 is liable to pay to thePrincipal 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 paymentsunder paragraph (c) are made, will not be further liable for any servicecharge adjustments for failure to meet the Performance Requirements in respectof such reconciliation discrepancies.

###  

# **30.**                Intellectual Property

# ** **

## **30.1**             Warranty by Contractor

## ** **

The Contractor represents and warrants that:

 

### (a)                 it has all appropriate licencesof or title to all Intellectual Property that is required by it for the purposeof its obligations under this agreement;

###  

### (b)                 any other entity that performsobligations under this agreement on behalf of the Contractor has allappropriate licences of or title to all Intellectual Property that is requiredfor that purpose;

###  

### (c)                 the Developed IntellectualProperty, the Licensed Intellectual Property, the Intellectual Property in theThird Party Software and the Equipment IP are all the Intellectual Propertythat 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 grantedto the Principal under this agreement;

###  

### (e)                 every item of the Software usedor to be used in the Solution is contained in the List of Software or lateridentified in accordance with clause 30.8(e); and

###  

### (f)                  it has the authorityto undertake the obligations concerning the Third Party Software and EquipmentIP contained in clauses 30.10 and 30.11.

###  

## **30.2**             Contractor’s Indemnity

## ** **

### (a)                 Subject to clause 30.2(f), theContractor will indemnify the Principal and the Operators and anyone receivinga right through the Principal to exercise any Intellectual Property assigned,granted or licensed to the Principal under this agreement and any of theirofficers, employees, agents and contractors against:

###  

#### (i)                  all claims which maybe brought or made against either or both of the Principal and any Operator byany person in respect of:

####  

##### A.                 any allegedinfringement of Intellectual Property by the Contractor, its subcontractors orany of their officers, employees, agents, contractors, sub-licensees, or assigneesor any Related Body Corporate in the course of, or incidental to performing anyobligations under this agreement or in the course of, or incidental to,exercising the Intellectual Property the subject of the licences granted underclause 30.5(c) ;

#####  

##### B.                  any allegedinfringement of Intellectual Property by the use by the Principal or anyOperator of any Intellectual Property that is assigned or licensed to thePrincipal under clauses 30.4

 

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##### or 30.5 of this agreement except to theextent that the claim arises out of any modification (other than the act itselfof modifying) to the Intellectual Property without the prior written consent ofthe 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 orincurred by the Principal or any Operator in connection with any such claim,

####  

except to the extent that such claim iscaused by a breach of this agreement by the Principal.

 

### (b)                 The Contractor is not liable toindemnify the parties indemnified as provided in this clause 30.2 to the extentthat the claim, costs, expenses or damages results from any actions taken,defended or compromised by a party indemnified after having become aware of theclaim.

###  

### (c)                 A party indemnified must, assoon as is reasonably practicable after it becomes aware of a claim:

###  

#### (i)                  notify theContractor in writing of the alleged infringement;

####  

#### (ii)                 give the Contractor atthe 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 thedefence of such claim.

####  

### (d)                 Clause 30.2(b) and clause30.2(c)(ii) do not apply where:

###  

#### (i)                  interlocutoryproceedings are commenced against a party indemnified on an urgent basis;

####  

#### (ii)                 the party indemnifiedreasonably considers that there is insufficient time to notify the Contractorand for the Contractor to commence defence of such proceedings on behalf of theparty indemnified;

####  

#### (iii)                the party indemnifiedinitially defends such proceedings; and

####  

#### (iv)               as soon as practicableafter the commencement of the proceedings gives the Contractor the option toconduct the defence of such proceedings.

####  

### (e)                 Clause 30.2(c)(ii) does notapply to claims which would or may prevent the continued operation of theSolution and the party indemnified:

###  

#### (i)                  to the extentreasonably practicable, consults in good faith with the Contractor with respectto such claims; and

####  

#### (ii)                 does not in thecourse of defending or compromising such claims make admissions which maymaterially affect the validity of the Licensed Intellectual Property withoutthe written consent of the Contractor (such consent not to be unreasonablywithheld).

####  

### (f)                  To the extent thatthe indemnity in clause 30.2(a) applies to claims, costs, expenses ordamages 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 byGovernmental Agencies

 

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### receivinga right through the Principal to exercise any Intellectual Property assigned,granted or licensed to the Principal under this agreement, to the extent theclaims relate to:

###  

#### (i)                  automated farecollection;

####  

#### (ii)                 micropaymentprocessing; or

####  

#### (iii)                business processesused at any time by the Contractor in carrying out the Work.

####  

## **30.3**             Contractor to RectifyInfringements

## ** **

Notwithstanding clauses 30.1 and 30.2, if asa result of any alleged infringement or threatened infringement of IntellectualProperty rights the Principal, Operator, Contractor, or any other entityperforming Work is stopped (whether by court order or otherwise) fromexercising Intellectual Property it had been exercising or was proposing toexercise to perform the Work, the Contractor, at the Contractor’s sole cost andexpense must:

 

### (a)                 secure for the Principal theright to continue exercising such Intellectual Property; or

###  

### (b)                 replace such IntellectualProperty with non-infringing Intellectual Property; or

###  

### (c)                 modify any materials, Device orother equipment, Software or processes so that they become non- infringing orremove any materials, Device or other equipment, Software or processes that areinfringing and refund sums paid for them without prejudice to any other rightsof the Principal.

###  

If the amount of time necessary to proceedwith one of these options is deemed excessive by the Principal, the Principalmay direct the Contractor to select another option and the Contractor mustcomply with that direction.

 

## **30.4**             Rights Granted to thePrincipal

## ** **

### (a)                 The Contractor grants to thePrincipal a permanent, irrevocable, royalty-free, non-exclusive licence toexercise the Licensed Intellectual Property. The Principal may exercise: 

###  

#### (i)                  in the Territory,the Licensed Intellectual Property including that part of the LicensedIntellectual Property which is Intellectual Property in the SolutionDocumentation;

####  

#### (ii)                 anywhere outside theTerritory, that part of the Licensed Intellectual Property which isIntellectual Property in the Solution Documentation, provided that suchexercise is not, at the time of such exercise, to the competitive detriment ofthe Contractor or for the purpose of commercialising such IntellectualProperty.

####  

### (b)                 The licence granted in clause30.4(a):

###  

#### (i)                  arises in respectof: 

####  

##### A.                 each component of theLicensed Intellectual Property upon payment by the Principal of the amountpayable at the end of the Phase which payment includes that component; and

 

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##### B.                  the LicensedIntellectual Property, to the extent that it has not already arisen under30.4(b)(i)A, upon payment by the Principal of the amount payable at the end ofthe NTS Operational Proving Phase, 

#####  

however if the Principal makes the paymentreferred to in clause 30.5(b), that licence arises in respect of all theLicensed Intellectual Property which:

 

###### 1)                  subsists in theSolution;

######  

###### 2)                  comprises the EscrowMaterial; and

######  

###### 3)                  is Software which isused by, or on behalf of, the Contractor to interface the Initial Services orthe Core Services with the Solution,

######  

as it stands at that date (provided that, forthe avoidance of doubt, the release of such Escrow Material will remaingoverned by clause 30.6);

 

#### (ii)                 may be sub-licensed,provided that the Principal shall be liable to the Contractor for all acts oromissions of the sub-licensee in relation to the Licensed Intellectual Propertyas if they were acts or omissions of the Principal; and

####  

#### (iii)                will survive expiry ofthis agreement and termination of this agreement on any basis.

####  

## **30.5**             Developed IntellectualProperty

## ** **

### (a)                 All Developed IntellectualProperty will be owned by the Principal.  The ownership of: 

###  

#### (i)                  [**]% of eachcomponent of the Developed Intellectual Property vests in the Principal on thedate of payment by the Principal of the amount payable at the end of the Phasein which that part of the Solution in which the relevant component of theDeveloped Intellectual Property subsists has been created; and

####  

#### (ii)                 [**]% of theDeveloped Intellectual Property to the extent that it has not already vestedunder clause 30.5(a)(i) vests in the Principal on the date of payment bythe Principal of the amount payable at the end of the NTS Operational ProvingPhase.

####  

### (b)                 In relation to any DevelopedIntellectual Property partially owned by the Principal under clause 30.5(a), atany time prior to the date of payment by the Principal of the amount payable atthe end of the NTS Operational Proving Phase, the Principal may make a paymentof the lesser of: 

###  

#### (i)                  [**]% of the valueof 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 theContractor and its sub-contractors a non-exclusive, royalty free licence duringthe Term to exercise such of the Intellectual Property referred to in clauses30.5(a), 30.13(a) and 30.14 as the Contractor and its sub-contractorsreasonably requires to perform its obligations under this agreement.

###  

### (d)                 The Principal grants to theContractor a licence to exercise the Developed Intellectual Property outsidethe Territory (**“the Contractor Licence”**)on the following terms:

###  

#### (i)                  the ContractorLicence is exclusive;

####  

#### (ii)                 the ContractorLicence is permanent and irrevocable;

####  

#### (iii)                during the Term, theContractor must pay the Principal $[**] each time:

####  

##### A.                 all or any part ofthe Developed Intellectual Property or Licensed Intellectual Property isinstalled outside the Territory other than on a development environment;  or

#####  

##### B.                  the Contractor orany of its Related Bodies Corporate supplies the whole or a substantial part ofa transit ticketing system or micro payments system outside the Territory ofthe same or similar nature to the Solution;

#####  

#### (iv)               the Principal may,through an independent auditor reasonably acceptable to the Contractor, auditthe records of the Contractor to ascertain if the Contractor has complied withits obligations under paragraphs (iii) and (vi);

####  

#### (v)                the Contractor mustnotify the Principal if any claim is or is likely to be brought against it, itssubcontractors or any of their officers, employees, agents, contractors, sub-licenseesor 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 Licencemay be sublicensed to any entity the Contractor thinks appropriate with whomthe Contractor enters into a valid enforceable agreement which requires thesublicensee to take reasonable security precautions to prevent unauthorised copying,use or disclosure of the Intellectual Property being sublicensed; and

####  

#### (vii)              except where asub-licence is granted to a sub-contractor of the Contractor to undertake workfor or provide services to the Contractor, the Contractor shall give the Principalnotice of the fact of entering into a sublicense, the identity and contactdetails of the sublicensee and the purpose of the sublicense as soon as isreasonably practical after the sublicense is entered into.

####  

### (e)                 During the Term, the Contractormust supply Software upgrades and enhancements, incorporating all improvementsand functionality developed by or on behalf of the Contractor or its RelatedBodies Corporate for systems outside the Territory and relevant to theSolution, to the Principal free of charge.

###  

### (f)                  The Contractor must,in consultation with the Principal, take such reasonable steps as the Principalreasonably requests in order to confirm or monitor the Principal’s ownership ofthe Developed Intellectual Property.

 

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### (g)                 The Contractor will indemnifythe Principal against all claims which may be brought or made against thePrincipal by any person in respect of:

###  

#### (i)                  any allegedinfringement of Intellectual Property arising out of any exercise by theContractor of the Contractor Licence; and

####  

#### (ii)                 any costs, expensesor damages (including legal fees on an indemnity basis) that may be suffered orincurred by the Principal in connection with any such claim,

####  

except to the extent that such claim iscaused by a breach of this agreement by the Principal.

 

## **30.6**             Escrow

## ** **

### (a)                 The Contractor must prior to thepayment of the Milestone Payment due after the Completion Date for the NTSMobilisation Phase, and at all times thereafter, maintain a copy of the EscrowMaterial for the current or proposed configuration of the Solution, and itsimmediately preceding version, in escrow with the Escrow Agent on the terms ofthe Escrow Agreement.  For the purposesof this sub-clause, version means a new edition of the Software which containssubstantial new functionality or incorporates substantial internalrestructuring of the Software or any other improvement, modification, fixed,update, additional alteration to Software.

###  

### (b)                 Subject to paragraph (e) thePrincipal will be entitled, at no cost to the Principal, to be provided withthe 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 thefollowing events occur:

###  

#### (i)                  the Principalterminates this agreement as provided in clause 42;

####  

#### (ii)                 the Term expires(after all and any extensions pursuant to clause 26);

####  

#### (iii)                the Principal givesthe Contractor a written request for Escrow Material in accordance with clause30.6(d); or

####  

#### (iv)               the Principalterminates this agreement as provided in clause 43 after the payment by thePrincipal of the amount due under this agreement as a consequence of thePrincipal issuing a Certificate of Completion in respect of the NTS OperationalProving Phase.

####  

Where a written request is made under clause30.6(b)(iii), the Principal is only entitled to be provided with that part ofthe Escrow Material which is the subject of the written request.  

 

### (c)                 Subject to paragraph (e), if anyor all of the Devices supplied by Ascom are no longer manufactured by or onbehalf of Ascom and: 

###  

#### (i)                  such event occursafter the term of this agreement; or

####  

#### (ii)                 if such event occursduring the term of this agreement, the Contractor commits an Event of Defaultin failing to support, maintain or supply those Devices in accordance with thisagreement, 

 

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the Principal will be entitled upon givingwritten notice to the Contractor, at no cost to the Principal to be providedwith that part of the material referred to in paragraph (c) of thedefinition of Escrow Material.

 

(ca)                Subject to paragraph(e), if any or all of the Devices supplied by Wayfarer are no longermanufactured by or on behalf of Wayfarer and:

 

#### (i)                  such event occurs afterthe term of this agreement; or

####  

#### (ii)                 if such event occursduring the term of this agreement, the Contractor commits an Event of Defaultin failing to support, maintain or supply those Devices in accordance with thisagreement, 

####  

the Principal will be entitled upon givingwritten notice to the Contractor, at no cost to the Principal to be providedwith that part of the material referred to in paragraph (d) of thedefinition of Escrow Material.

 

(cb)                Subject to paragraph (e) ifany or all of the Devices supplied by Gunnebo are no longer manufactured by oron behalf of Gunnebo and:

 

#### (i)                  such event occursafter the term of this agreement; or

####  

#### (ii)                 if such event occursduring the term of this agreement, the Contractor commits an Event of Defaultin failing to support, maintain or supply those Devices in accordance with thisagreement, 

####  

the Principal will be entitled upon givingwritten notice to the Contractor, at no cost to the Principal to be providedwith that part of the material referred to in paragraph (e) of thedefinition of Escrow Material.

 

### (d)                 A written request under clause30.6(b)(iii) must only be made where the Principal has a reasonable needfor the Escrow Material and must be limited to that part of the Escrow Materialfor which the Principal has a reasonable need.

###  

### (e)                 The Principal will be entitled once every 12 months (at its cost) to have anauditor review, analyse and conduct tests in relation to materials maintainedin escrow with the Escrow Agent for the purposes of:

###  

#### (i)                  verifying that theContractor is complying with clause 30.6(a); and

####  

#### (ii)                 to review the qualityof the material in escrow to ensure there has been no degradation to thematerial in escrow.

####  

### (f)                  The Contractor must, within 10 Business Days of receipt of a written notice fromthe Principal specifying that an audit pursuant to clause 30.6(e) hasdetermined that the Contractor is not complying with clause 30.6(a) orthere has been degradation to the material in escrow, remedy suchnon-compliance or replace such material as the case may be.

###  

### (g)                 Notwithstanding any otherprovision of this agreement: 

###  

#### (i)                  the Contractor isnot required to deposit and maintain in escrow any material that it has alreadygiven to the Principal on a permanent basis; and

####  

#### (ii)                 if the Principal hasterminated this agreement under clause 43 prior to the Solution CompletionDate, the Principal is not entitled to make a written request under clause30.6(b)(iii) unless the request is for that part

 

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#### of the Escrow Material that relates to a partof the Solution which the Principal owns.

####  

## **30.7**             Moral Rights

## ** **

The Contractor must indemnify thoseindemnified against all Claims which arise in relation to an infringement ofMoral Rights resulting from the use, operation, maintenance or modification ofthe Solution or any part of it.  Thoseindemnified for the purpose of this clause 30.7 are the Principal, anyonereceiving a right through the Principal to exercise any Intellectual Propertyassigned, granted or licensed to the Principal under this agreement and any oftheir officers, employees, agents and contractors.

 

## **30.8**             Physical Material andSoftware

## ** **

### (a)                 The Contractor must deliver,from time to time, during the Term and upon termination or expiry of thisagreement, such physical media embodying the:

###  

#### (i)                  DevelopedIntellectual Property;

####  

#### (ii)                 Licensed IntellectualProperty; and

####  

#### (iii)                Third Party Softwareand Equipment IP which the Contractor or any Related Body Corporate owns or hasappropriate rights to provide,

####  

as the Principal reasonably requests toenable it to fully exercise its ownership and rights under this agreement.  The following provisions of this clause 30.8do not limit the generality of this clause 30.8(a).

 

### (b)                 The Contractor must, to theextent that it has not already been provided, create and deliver to thePrincipal prior to the Solution Completion Date one copy of the object code forthe 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 anychange to the object code for the Solution (excluding the object code inrespect of any Third Party Software) or the source code for the DevelopedIntellectual Property, the Contractor must deliver a copy of it to thePrincipal.

###  

### (d)                 Immediately after execution ofthis agreement, the Contractor must deliver the List of Software to thePrincipal.

###  

### (e)                 Within 5 Business Days of theuse by the Contractor, a Related Body Corporate or any of its subcontractors ofany Software which is not specified on the List of Software, the Contractormust provide the Principal with the following information:

###  

#### (i)                  name of theSoftware;

####  

#### (ii)                 owner of theSoftware;

####  

#### (iii)                details of the basisupon which the Contractor, a Related Body Corporate or any of itssubcontractors has the use of that Software;

####  

#### (iv)               confirmation that theSoftware is the subject of the warranty in clause 30.1.

####  

### (f)                  The obligations inthis clause 30.8 do not derogate from any other obligations the Contractor hasunder this agreement.

 

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### (g)                 As a condition precedent toCompletion of each Phase the Contractor must provide a list which specifies: 

###  

#### (i)                  the licences forwhich payment is included in the payment due at the Completion of the Phase;and

####  

#### (ii)                 the DevelopedIntellectual Property that will vest in the Principal when the payment due uponcompletion of that Phase is made.

####  

## **30.9**             Copyright and CircuitLayout Act

## ** **

Notwithstanding any other provision of thisagreement, this agreement does not exclude or limit, or have the effect ofexcluding or limiting, the operation of subsection 47B(3) or sections47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth) or Part II, Division3 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, orcause a novation of the Contractor’s rights and obligations under, or assistthe Principal to obtain direct rights to, Third Party Licences to thePrincipal:

###  

#### (i)                  on termination orexpiry of this agreement for whatever reason;

####  

#### (ii)                 at the Principal’srequest during the Term; or

####  

#### (iii)                after the Term.

####  

This clause will be of no application to theextent that it affects Third Party Software that is required by the Contractorto perform its obligations under this agreement and the Principal is unable toobtain for the Contractor necessary rights to continue to use such Third PartySoftware.

 

### (b)                 In respect of any suchsub-licence, assignment, novation or any such direct rights:

###  

#### (i)                  each Party will bearits own costs of effecting the assignment or novation or obtaining directrights, except for any fee charged by a relevant Third Party (not being theContractor or a Related Body Corporate of the Contractor) which shall be paidby the Principal; 

####  

#### (ii)                 the Principal will pay all costs and expenses referable to any period after the date oftheir assignment or novation;

####  

#### (iii)                without derogating fromclause 30.1, the Contractor must do all acts and things reasonably requested bythe Principal to enable the Principal to:

####  

##### A.                 obtain copies of, andotherwise be appraised of all the terms of, and communications and informationconcerning, the Third Party Licences and their performance;

#####  

##### B.                  exercise and enforceall rights and perform all obligations under the Third Party Licences as ifnamed as the Contractor; and

#####  

##### C.                  obtain suchsub-licence, assignment, novation or direct rights on the same or substantiallysimilar terms (including the remaining duration of any term) as the Contractorhas

 

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##### acquired for itself as enables it to fulfilits obligations under the agreement; and

#####  

#### (iv)               on and from the date ofthe assignment or novation of such Third Party Licences, the Principal must:

####  

##### A.                 assume allobligations of the Contactor under such Third Party Licences; and

#####  

##### B.                  indemnify theContractor against all claims in respect of such Third Party Licences whicharise on or from the date of assignment or novation of such Third PartyLicences.

#####  

## **30.11**           Equipment IP

## ** **

The parties agree that ownership of theEquipment IP does not vest in the Principal pursuant to clause 32.  The Contractor must ensure, however, that atthe time ownership of tangible items (including computer hardware) forming partof the Solution vests in the Principal pursuant to clause 32, the Principal hassuch perpetual, royalty free transferable licences of the Equipment IP as willenable the Principal to fully and effectively use and deal with the tangibleitems as owner of the tangible items, and to permit others to use thosetangible items (including computer hardware) under contract with the Principal.

 

## **30.12**           Perfecting licencesand ownership

## ** **

### (a)                 Without limiting any otherprovision of this agreement, including clause 30.17, the Contractor mustdo all things necessary to perfect the licences and ownership granted to thePrincipal in this clause 30 and otherwise to give effect to the Contractor’sobligations regarding Third Party Software and Equipment IP under this clause30.

###  

### (b)                 The Contractor irrevocablyappoints the Principal, or such other person as the Principal nominates fromtime to time, as the Contractor’s attorney to do such acts and things, in theContractor’s name, as the Principal reasonably requires in order to exercisethe rights under this clause.

###  

## **30.13**           System Data and Logo

## ** **

### (a)                 Notwithstanding any otherprovision of this agreement, the Contractor agrees and acknowledges that thePrincipal owns or, where appropriate, holds the lawful registration of:

###  

#### (i)                  the Brand;

####  

#### (ii)                 the Open ArchitectureSpecification;

####  

#### (iii)                the SolutionDocumentation (other than the Open Architecture Specification) except to theextent of Intellectual Property in such Solution Documentation which is notDeveloped Intellectual Property;

####  

#### (iv)               the work referred to inclause 35(h), and the System Data;

####  

#### (v)                all modifications tothe Open Architecture Requirements Document (irrespective of whether suchmodifications were made by the Contractor, its agents, subcontractors orconsultants);

 

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#### (vi)               all system andcomponent interfaces developed by the Contractor, its Related Bodies Corporateor its agents, subcontractors or consultants,

####  

including all Intellectual Property in thesematters.

 

This ownership vests in the Principal uponpayment by the Principal of the amount payable at the end of the Phase in whichthat matter is required to be delivered pursuant to this agreement or upon thecreation of the matter (whichever is the later).

 

### (b)                 The Contractor must ensure thatall of its contractual relationships reflect clause 30.13(a).

###  

## **30.14**           Acknowledgement

## ** **

### (a)                 The Contractor acknowledges thatthe Contractor, its Related Bodies Corporate, its subcontractors, agents andconsultants do not own any Intellectual Property in the NTS RequirementsDocument and can only exercise such Intellectual Property to the extentpermitted or authorised under this agreement.

###  

### (b)                 The Contractor acknowledges that the Principal, or any partyauthorised by the Principal, may publish the Open Architecture RequirementsDocument, or the Open Architecture Specification, as varied, updated ormodified.

###  

## **30.15**           Patent validity

## ** **

If any component of any Intellectual Propertywhich is licensed or assigned under this agreement expires through theeffluxion of time or is or becomes invalid, then, without limiting thePrincipal’s rights in respect of that expiry or invalidity, that componentwill, to that extent only, be deemed to be excluded from the IntellectualProperty licensed or assigned under this agreement and this agreement willotherwise continue in full force and effect.

 

## **30.16**           Subcontractors

## ** **

The Contractor must ensure that all of itscontracts in relation to this agreement reflect the rights and obligations setout in this clause 30 and must make such contracts available to thePrincipal for inspection upon request.

 

## **30.17**           Assurance

## ** **

### (a)                 Subject to 30.17(c), theContractor will use reasonable endeavours to procure that if any circumstancesoccur whereby the direct or indirect relationship between the Contractor andthe owner of any Licensed Intellectual Property, Third Party Software orEquipment IP not owned by the Contractor concerning the Licensed IntellectualProperty, Third Party Software or Equipment IP changes or is likely to change,then:

###  

#### (i)                  the owner of theLicensed Intellectual Property, Third Party Software or Equipment IP (asapplicable) and the Contractor will immediately notify the Principal inwriting, which notice must describe, with a reasonable level of detail, thenature of those circumstances and their effect or likely effect on thePrincipal;

####  

#### (ii)                 notwithstanding thosecircumstances, the owner of the Licensed Intellectual Property, Third PartySoftware or Equipment IP (as applicable) permits the Principal to continueexercising its rights to the Licensed Intellectual Property, the IntellectualProperty 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 theLicensed Intellectual Property, Third Party Software or Equipment IP (asapplicable) and the Contractor will do all such acts and things as thePrincipal reasonably requests in order to give effect to this clause 30.17.

####  

### (b)                 Circumstances referred to inclause 30.17(a) include termination of any licensing arrangement orcircumstances involving an inability to pay debts.

###  

### (c)                 To give full effect to thisclause, the Contractor will ensure that: 

###  

#### (i)                  each of Headstrong,ERG, Ascom and G&D****enter intoa Deed of Assurance in the form of Schedule 27 in relation to any LicensedIntellectual Property, Third Party Software and Equipment IP owned byHeadstrong, ERG, Ascom and G&D (as applicable) as a condition precedent tothe payment of the Milestone Payment due after the Completion Date for the NTSMobilisation Phase; and

####  

#### (ii)                 each of Wayfarer andGunnebo enter into a Deed of Assurance in the form of Schedule 27 inrelation to any Licensed Intellectual Property, Third Party Software andEquipment IP owned by Wayfarer and Gunnebo (as applicable) at the same timethat each of them enters into a Key Contract.

####  

# **31.**                Commercial rights

# ** **

### (a)                 TheContractor acknowledges that the Principal has all rights and benefits itrequires in order to exploit the Solution for commercial purposes.

###  

### (b)                 The Contractor agrees andacknowledges that, in the absence of any express agreement with the Principalto the contrary, it has no rights to exploit the Solution for commercialpurposes.

###  

### (c)                 Forthe purposes of this clause 31, commercial purposes includes:

###  

#### (i)                  any use,modification or extension or proposed use, modification or extension of theSolution or any part of it, including any Device or otherwise, for purposesother than Transit Purposes;

####  

#### (ii)                 use, modification orextension or proposed use, modification or extension of the Victorian SmartcardApplication or any part of it other than in accordance with this agreement;

####  

#### (iii)                use of Smartcardsissued in accordance with this agreement for purposes other than TransitPurposes;

####  

#### (iv)               branding or proposedbranding of Smartcards and the Victorian Smartcard Application;

####  

#### (v)                advertising orproposed advertising on Smartcards, the Victorian Smartcard Application andDevices;

####  

#### (vi)               the involvement orproposed involvement of Smartcards or the Victorian Smartcard Application in aloyalty 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 orexploitation of any part of the Solution that the Principal owns,

####  

but does not include any exercise of the LicensedIntellectual Property outside the Territory.

 

# **32.**                Ownership

# ** **

## **32.1**             Ownership of Solution

## ** **

Subject to clause 30, ownership of that partof the Solution which is the subject of a Completion Certificate will vest inthe Principal free of encumbrances upon payment by the Principal for therelevant Phase.  Ownership of theSolution vests in the Principal free of encumbrances upon the payment inaccordance with clause 21.3 of the payment due after Completion of the NTSRegional and Metropolitan Implementation Completion Phase.

 

## **32.2**             Device and Software

## ** **

Subject to clause 30, if the Contractorreplaces any material, Device, or Software when carrying out its obligationsunder this agreement, ownership of the replacement material, Device or Softwarewill vest in the Principal.

 

## **32.3**             Indemnity

## ** **

The Contractor must indemnify the Principalagainst all costs, losses, liabilities, damages, expenses, payments, oroutgoings the Principal may suffer or incur arising out of or in connectionwith a failure by the Contractor to ensure that the Principal has unencumberedownership as required by this clause.

 

## **32.4**             No Retention ofOwnership

## ** **

The Contractor must ensure thatany sub-contracts or supply contracts relating to the Solution do not includeany retention of ownership clauses or any clauses under which thesub-contractor or supplier retains any security or other interest in any itemwhich will become part of the Solution which would prevent ownership of thoseitems passing to the Principal in accordance with clause 32.1.

 

## **32.5**             Fixtures

## ** **

Nothing in this clause imposes an additionalobligation on the Contractor to ensure that any part of the Solution (includingany material, Device or Software replaced in the Solution) which is attached toor installed on any property in undertaking the Work in accordance with theContractor’s obligations under this agreement does not become a fixture on suchproperty.

 

**32A.**             Branding

** **

Certain materials, equipment and Software tobe incorporated in the Work have been specified in the Contractor’s Response byreference to trade names or the names of manufacturers and relevant catalogueinformation.  The Contractor, inimplementing the Solution, will provide all materials, equipment and softwarein accordance with the specification for those materials, equipment andSoftware in the Contractor’s Response, and will not change those materials,equipment or Software without the approval of the Principal which will not beunreasonably withheld if the Contractor has demonstrated to the reasonablesatisfaction 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 samequality or performance.

###  

**32B.**             Government PurchasingPower

** **

### (a)                 The Principal may, by givingwritten notice to the Contractor, seek the Contractor’s agreement to enable thePrincipal to itself purchase any material, item of equipment or commercial offthe shelf Software which is included in the Contractor’s Response as part ofthe Solution from alternative suppliers to those being used by the Contractorand, where applicable, provide those materials, items of equipment orcommercial off the shelf Software to the Contractor, where it is able topurchase the same materials, equipment or commercial off the shelf Software ata lower price than the cost for those items specified in the Contractor’sResponse.

###  

### (b)                 If the Principal and theContractor agree, where the Principal purchases any material, equipment orcommercial off the shelf Software under clause 32B(a), the Capital Price willbe reduced by the amount the Contractor has specified for that material, itemof equipment or commercial off the shelf Software in the Contractor’sResponse.  The reduction in the CapitalPrice will be effected by deducting the relevant amount from:

###  

#### (i)                  the PaymentMilestone to which delivery of the relevant material, equipment or commercialoff the shelf Software relates; or

####  

#### (ii)                 where delivery of thematerial, equipment or commercial off the shelf Software relates to more thanone Payment Milestone or it is unclear to which Payment Milestone the deliveryrelates, the next Payment Milestone occurring after the relevant notice givenunder clause 32B(a).

####  

# **33.**                Loss or Damage

# ** **

## **33.1**             Make Good

## ** **

Except as otherwise provided in thisagreement including clause 23.9:

 

### (a)                 the Contractor must promptlymake good any loss or damage to the Solution (including damage to associated orproximate 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 AccessProvider the Contractor must promptly make good such loss or damage,

###  

during the Term.

 

## **33.2**             Reinstatement

## ** **

If any part of the Solution for which theContractor is responsible is damaged or destroyed the Contractor must (withoutlimiting its obligations under this clause):

 

### (a)                 subject to allowing reasonabletime for inspection by insurers, take immediate steps to clear any debris andbegin initial repair work and commence the prompt repair or replacement of thedamage so that:

 

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#### (i)                  it complies with theSolutionDocumentation and this agreement, including theRequirements Document; and

####  

#### (ii)                 there is minimaldisruption to the Solution such that, to the greatest extent possible, theContractor continues to comply with its obligations under the ProjectDocuments;

####  

### (b)                 manage all repair andreplacement activities subject to the direction of the Principal and so as tominimise the impact on Delivery, the provision of the Initial Services and theCore Services or the Solution; and

###  

### (c)                 subject to clause 36.3(c), applyall insurance proceeds in the repair or reinstatement of the Solution,

###  

unless the Principal determines that there isno repair and replacement activities to be undertaken, in which case theContractor must pay the Principal the amount which it would have incurred incarrying out any repair and replacement activities.

 

## **33.3**             Discrepancies

## ** **

The Contractor is responsible for alldiscrepancies that result from fraud, misrepresentation, criminal or otherwrongful act, theft or default by the Contractor, its officers, employees,subcontractors or agents or any Related Body Corporate and will indemnify thePrincipal against any liability, cost, charge, expense or damages it suffers orincurs as a result of such fraud, misrepresentation, criminal or other wrongfulact, theft or default.

 

# **34.**                Security Bonds

# ** **

## **34.1**             Provisionof Security Bonds

## ** **

TheContractor must, on the date of this agreement, provide to the Principal, forthe purposes of ensuring the due and proper performance of its obligationsunder this agreement, Security Bonds with an expiry date no earlier than 3years from the date of this agreement in a form and substance satisfactory tothe 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 theSecurity Bonds under clause 34.7, the Contractor must, at least 1 month priorto the anniversary date of this agreement each year, provide the Principal:

###  

#### (i)                  with respect to Bond1 either:

####  

##### A.                 an extensioncertificate for the current Security Bond for a further period of no less than3 years from the relevant anniversary of this agreement; or

#####  

##### B.                  a replacementSecurity Bond in a form and substance satisfactory to the Principal for thetotal amount of Bond 1, less any proceeds of Bond 1 demanded and received bythe Principal prior to that time, with an expiry date no earlier than 3 yearsfrom the relevant anniversary of the date of this agreement; and

 

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#### (ii)                 with respect to Bond2 either:

####  

##### A.                 an extensioncertificate for the current Security Bond for a further period of no less than3 years from the relevant anniversary of this agreement; or

#####  

##### B.                  a replacementSecurity Bond in a form and substance satisfactory to the Principal for thetotal amount of Bond 2, less any proceeds of Bond 2 demanded and received bythe Principal prior to that time, with an expiry date no earlier than 3 yearsfrom the relevant anniversary of the date of this agreement.

#####  

### (b)                 If the Principal does notreceive the extension certificates or replacement Security Bonds required underclause 34.2(a) at least 1 month prior to the anniversary of the date ofthis agreement each year, the Principal is entitled to demand and receive theproceeds of the current Security Bonds and deposit those proceeds in the BondSecurity Account.

###  

### (c)                 If the Contractor provides thePrincipal with a replacement bond in accordance with clause 34.2(a)(i)B orclause 34.2(a)(ii)B, the Principal and the Contractor shall exchange therelevant existing bond held by the Principal for the replacement bond.

###  

## **34.3**             Operationof Bond Security Account

## ** **

### (a)                 Any interest earned on money inthe Bond Security Account will be paid to the Principal.

###  

### (b)                 If the Principal deposits moneyinto the Bond Security Account under this clause and the Contractorsubsequently provides Security Bonds satisfying the requirements of thisclause, the Principal will release the money in the Bond Security Account tothe Contractor.

###  

### (c)                 On the later of:

###  

#### (i)                  the day 1 monthafter the end of the Defects Liability Period; and

####  

#### (ii)                 the day 1 month after the payment by the Contractor of allliquidated damages and all other money owing to the Principal under this agreement,

####  

the Principal shall release any money in theBond Security Account which exceeds the total amount for Bond 2, to theContractor.  On the date 12 months afterthe expiration of the Term or earlier termination of this agreement and duecompliance by the Contractor of all of its obligations to the Principal, thePrincipal shall release the money in the Bond Security Account to theContractor.

 

## **34.4**             Accessof the Principal to Security Bonds

## ** **

Withoutin any way limiting the Principal’s rights to demand, receive, or use theproceeds of the Security Bonds, the Principal will be entitled to demand,receive, and use the proceeds of the Security Bonds or use any money depositedinto the Bond Security Account whenever it asserts a right to the payment ofmoneys by the Contractor under, arising out of or in connection with thisagreement or otherwise at Law relating to the Solution.

 

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## **34.5**             TheContractor not to injunct the Principal

## ** **

TheContractor must not take any steps to injunct or otherwise restrain:

 

### (a)                 any issuer of a Security Bond from paying the Principalpursuant to a Security Bond;

###  

### (b)                 the Principal from taking any steps for the purpose ofmaking a demand under the Security Bonds or receiving payment under theSecurity Bonds; or

###  

### (c)                 the Principal using the money received under the SecurityBonds.

###  

## **34.6**             SecurityBonds to be provided as a condition precedent

## ** **

TheContractor will provide the Security Bonds to the Principal under clause 34.1as a condition precedent to this agreement.

 

## **34.7**             Returnof Security Bonds

## ** **

ThePrincipal will release the Security Bonds to the Contractor as follows:

 

### (a)                 on the later of:

###  

#### (i)                  the day 1 month afterthe expiration of the Defects Liability Period; and

####  

#### (ii)                 the day 1 month after the paymentby the Contractor of all liquidated damages and all other money owing to thePrincipal under this agreement,

####  

thePrincipal must release the balance of Bond 1 then held to the Contractor;

 

### (b)                 on the date 12 months after the expiration of the Termor earlier termination of this agreement and due compliance by the Contractorof all of its obligations to the Principal, the Principal must release thebalance of Bond 2 then held to the Contractor.

###  

## **34.8**             Nolimit

## ** **

Inno event will the existence of the Security Bonds or the stated amount of thembe construed to limit the amount of damages payable by the Contractor under orin accordance with this agreement.

 

# **35.**                Open Architecture andChanges to the Solution

# ** **

### (a)                 The Contractor acknowledges thatthe Principal, the Operators or any of them may use parties other than theContractor to vary, extend or modify the Solution including to provideadditional equipment, work and Software in respect of the Solution.

###  

### (b)                 The Principal must notify the Contractorbefore the Principal, the Operators or any of them use a party other than theContractor to vary, extend or modify the Solution including to provideadditional equipment, work and Software in respect of the Solution.  The notice must specify with reasonabledetail the proposal for using such a third party and the scope of the proposedvariation, extension or modification of the Solution (a **“Proposal”**).  

 

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### (c)                 The Contractor may, not laterthan 2 Business Days after receipt of a notice from the Principal underclause 35(b) request in writing to the Principal’s Representative suchadditional information in relation to the Proposal as the Contractor reasonablyrequires to undertake an analysis of the likely impact of the Proposal on theSolution, the Initial Services and the Core Services (an **“Impact Analysis”**).

###  

### (d)                 Within 5 Business Days (or suchlonger period as may be agreed between the parties) of receipt of a notice fromthe Principal under clause 35(b) or the date on which the Principalprovides the additional information requested by the Contractor under clause35(c), the Contractor must provide the Principal’s Representative with awritten response to the Principal’s notice (a **“Response”**).  The Response must set out the results of theImpact Analysis, the extent (if any) to which, in the Contractor’s reasonableopinion, the Contractor’s performance and service obligations and warrantiesunder this agreement would need to be varied as a consequence of the Proposaland the Contractor’s conclusions, including reasons, in relation to thefeasibility of the Proposal.  TheResponse may be disclosed by the Principal to the Operators or any of themwhich are relevant to the Proposal.

###  

### (e)                 The Principal will actreasonably and take the Response into account in deciding whether or not toproceed to implement (or to amend and implement) the Proposal to which theResponse relates, or, in the case of a Proposal for the Operators or any ofthem to use a party other than the Contractor to vary, extend or modify theSolution, the Principal will provide a copy of the Response to the relevantOperator or Operators.

###  

### (f)                  If the Principal, theOperators or any of them decide to proceed with implementation (or the amendmentand implementation) of a Proposal, the Principal must notify the Contractorbefore the Principal, the Operators or any of them use the relevant thirdparty.  The notice must specify theextent (if any) to which the Contractor’s performance and service obligationsand warranties under this agreement are to be varied as a consequence of usingsuch third party.  The Principal musttake into account the Response and act reasonably in determining the content ofthe notice.  For the avoidance of doubt,if the Contractor considers that the Principal has not acted reasonably indetermining the content of such notice, it may refer this matter to the Expertfor determination in accordance with clause 49.5.

###  

### (g)                 If the Contractor accepts thevariation to the Contractor’s performance and service obligations andwarranties specified in the notice given under clause 35(f), the performanceand service obligations and warranties are varied as set out in thenotice.  If the Contractor does notaccept the variation to the Contractor’s performance and service obligationsand warranties specified in the notice given under clause 35(f), the Contractormust perform the variation, extension or modification on substantially the sameterms that the party other than the Contractor was proposing and the Contractor’sperformance and service obligations and warranties under this agreement will bevaried as determined by the Expert under clause 49.5, or in the case of clauses49.5(l) or (m), by the Arbitrator.

###  

### (h)                 The Contractor agrees that anyinterface work required by the Principal to be undertaken by the Contractor inorder to integrate any new or additional equipment, works or Software suppliedby a party other than the Contractor into the Solution (other than interfacework which is included in the Initial Services or Core Services) will beperformed by the Contractor as a Variation in accordance with clause 20.

###  

### (i)                  Any Initial Servicesor Core Services which the Principal requires the Contractor to provide inrespect of any variation, extension or modification to the Solution carried

 

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### outby a party other than the Contractor (other than such services which areincluded within the Initial Services or Core Services) will be a Variation inaccordance with clause 20.

###  

### (j)                  The Contractor must:

###  

#### (i)                  subject to the otherterms of this agreement, not make (or permit to be made) any changes to theSolution or the Initial Services and Core Services without the Principal’sprior written approval; and

####  

#### (ii)                 notify the Principal of any changemade to the Solution.

####  

# **36.**                Insurance

# ** **

## **36.1**             Insurances

## ** **

### (a)                 The Contractor will, at its owncost, and by no later than the date the Principal issues a Certificate ofCompletion in respect of the NTS Mobilisation Phase or, in the case of theinsurances described inclause 36.1(a)(ii) and (iv), by the Commencement Date, effect andmaintain the following insurances:

###  

#### (i)                  insurance policy orpolicies providing cover for:

####  

##### A.                 physical loss,destruction or damage to all property identifiable as forming or to form partof 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, ifapplicable) to any relevant item intended to be employed in or in connectionwith the Work or the Solution, from the time at which the risk in respect ofsuch items passes from the manufacturer or vendor to the Contractor, for a suminsured of not less than the value of the property;

#####  

##### C.                  loss of cash intransit within Australia, including loss due to theft, from the date on whichthe Contractor commences providing the Cash Collection Services;

#####  

##### D.                 consequential loss(business interruption) in respect of additional expenditure/increased costs ofworking, claims preparation costs and loss of turnover/output arising out ofphysical loss, destruction or damage to the property identified in clause36.1(a)(i)A, for a sum insured of not less than $[**];

#####  

#### (ii)                 public and productsliability, indemnifying all third party claims in respect of:

####  

##### A.                 loss, destruction ordamage to real or personal property, including property of the Principal, andincluding 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 Workor the Solution including arising out of or in connection with rail risks, bothfor 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 theaggregate, any one period of insurance (product liability);

 

#### (iii)                current motor vehicleregistration insurance in respect of all vehicles of the Contractor used inconnection with the Work or the Solution;

####  

#### (iv)               professional indemnityinsurance for itself and its employees against civil liability arising out ofor in connection with the Work or the Solution, for a sum insured of not lessthan $[**] million for any one claim and in the aggregate;

####  

#### (v)                employer’s liabilityand workers’ compensation insurance against any liability which may arise atcommon law or by virtue of any relevant workers’ compensation or employers’liability legislation, whenever and to the extent required by law;

####  

#### (vi)               key person insuranceproviding cover for loss resulting from death or disability of key personnelinvolved in management of the Work or the Solution and the costs of acquiring asuitable replacement;

####  

#### (vii)              fidelity guarantee andcomputer crime insurance for a sum insured of not less than $[**] millionfor any one claim to enable the Contractor to fulfil its obligations underclause 33.3; and

####  

#### (viii)             other insurances whichthe Principal reasonably requires as agreed in writing prior to theCommencement Date.

####  

### (b)                 In addition to the insurancesreferred to in clause 36.1(a), the Contractor will effect and maintain allinsurances in a manner and to such extent which is reasonable and customary fora prudent business enterprise engaged in similar Work or providing similarservices.

###  

### (c)                 The Contractor must maintain theinsurances referred to in clauses 36.1(a) and 36.1(b) until:

###  

#### (i)                  in the case of theinsurance required under clause 36.1(a)(i)C until the expiry of theInitial Services Term or the earlier termination of the Initial Services;

####  

#### (ii)                 in the case of therequired professional indemnity insurance, 7 years from the expiry of the Termor earlier termination of this agreement; and

####  

#### (iii)                in the case of theother insurances, until the expiry of the Term or earlier termination of thisagreement.

####  

## **36.2**             General Requirements

## ** **

### (a)                 All insurance which theContractor is required to effect under this agreement:

###  

#### (i)                  must be effectedwith insurers with an S & P or Moodys or A.M. Best rating of noless than A minus (or the equivalent) and otherwise be approved by thePrincipal; and

####  

#### (ii)                 must be on the termsrequired by clause 36.3 and otherwise as approved by the Principal.

####  

### (b)                 The Contractor must:

 

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#### (i)                  punctually pay allpremiums, commissions, stamp duties, charges, taxes and other expensesnecessary for effecting and maintaining in force each such insurance policyrequired by this agreement;

####  

#### (ii)                 pursue any insuranceclaim in relation to the Project expeditiously;

####  

#### (iii)                not do anything orpermit anything to be done which may prejudice any insurance policy required bythis agreement or omit to do anything where such omission may prejudice anysuch insurance policy;

####  

#### (iv)               notify the Principal ofany fact or circumstance or change in circumstances which may prejudice anysuch insurance policy;

####  

#### (v)                provide anyinformation requested by the insurer in relation to any such insurance policy;

####  

#### (vi)               notify the relevantinsurer of any enhancement in the value of the property required to be insuredunder clause 36.1(a)(i)A which increase the value of that property; and

####  

#### (vii)              comply at all times withthe terms and conditions of each such insurance policy including, withoutlimitation, the provisions relating to disclosure, notification and claimsco-operation.

####  

### (c)                 The Contractor may arrange suchother insurance as it may reasonably require.

###  

### (d)                 In the case of the insurancesspecified in clause 36.1(a)(iv), the Contractor will use its best endeavours toensure that any subcontractors and consultants whom it may engage in theirprofessional capacity have professional indemnity insurance on similar termsappropriate to the responsibilities undertaken.

###  

### (e)                 In the case of the insurancesspecified in clause 36.1(a)(v), the Contractor will ensure that each of itssubcontractors and consultants who are themselves employers will effect suchinsurance as required by law.

###  

## **36.3**             Contents of Policy

## ** **

Insurances which the Contractor is requiredto effect under this agreement must contain terms such that:

 

### (a)                 subject to clause 36.3A, nopolicy has a deductible greater than $[**];

###  

### (b)                 in the case of the insurancesspecified in clauses 36.1(a)(i), 36.1(a)(ii), 36.1(a)(vi) and36.1(a)(viii), the insurances must insure the Contractor, the Principal, theGovernment and the Governmental Agencies to the extent of their insurableinterest according to the Project Documents, for their respective rights,interests and liabilities, in the totality of the subject matter of theinsurance;

###  

### (c)                 in the case of the insurancesspecified in clause 36.1(a)(i) and to the extent that the insurer agreesto do so:

###  

#### (i)                  proceeds of anypayment in respect of such insurance are to be paid to the Principal or to suchaccount as the Principal may require; and

####  

#### (ii)                 the Principal willthen make these proceeds available to the Contractor in order that it be ableto meet its contractual obligations under clause 33.2(c),

 

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provided that if the Contractor directlyreceives any proceeds from the insurances specified inclause 36.1(a)(i) it will pay all such proceeds to the Principal or tosuch account as the Principal may require and paragraph (ii) of thisclause 36.3 will then apply.

 

### (d)                 the case of the insurancesspecified in clause 36.1(a)(ii), there is a cross liability clause for thepurposes of which the insurer accepts the term “insured” as applying to each ofthe persons comprising the insured as if a separate policy of insurance hadbeen issued to each of them (subject always to the limit of the policy notbeing increased as a result);

###  

### (e)                 in the case of all insurancesrequired by this agreement, the insurer:

###  

#### (i)                  will not impute to anamed party or loss payee knowledge or intention or a state of mind of thepolicy holder or of any other named party or loss payee;

####  

#### (ii)                 acknowledges that theinsured parties’ and loss payees’ interest is in the entire assets andundertaking of the Work and the Solution and waives any rights of subrogationit may have against them; 

####  

### (f)                 in the case of all insurancesrequired by this agreement, no reduction in limits or scope of coverageaffecting the Work or the Solution will be made in any such policy during theperiod of insurance; and

###  

### (g)                 in the case of all insurancesrequired by this agreement, the policy is subject to and governed by the lawsof the place where the insurance claim arises and is brought.

###  

**36.3A**          Payment of deductibles

** **

The Principal acknowledges that someinsurance policies required to be effected by the Contractor under thisclause 36 will have deductibles greater than $[**] but not more thanUS$[**] (or such other amount notified to the Principal in accordance with thisclause).  Where the Government orGovernmental Agencies having an insurable interest according to the ProjectDocuments (in this paragraph the **“Other Insured Parties”**)or the Principal under the insurances required to be effected and maintainedunder this clause 36 has paid or incurred, or is required to pay or incur, anydeductible in respect of a claim made or to be made or which, but for the sizeof the deductible, would have been made under an insurance policy which isrequired to be effected by the Contractor under this clause 36 and such deductibleis greater than $[**], or where the Principal or any Other Insured Party could,but for the size of the applicable deductible have made a claim under such aninsurance policy, [**] under and in accordance with clause 12 of the ParentCompany Guarantee [**] by the Principal or any Other Insured Party [**].  The Principal will [**].  If the deductible under the Keane Inc. globalinsurance policy is proposed to be increased above US$[**] at any time duringwhich the Contractor’s obligations to effect and maintain insurance under thisclause 36 are being met under the Keane Inc. global insurance policy, theContractor will give written notice to the Principal of any such increase inthe deductible taking effect.

 

## **36.4**             Information

## ** **

### (a)                 Except to the extent it may beprevented by commercial confidentiality obligations owed towards its insurer,the Contractor must give the Principal certified copies of all:

###  

#### (i)                  policies or, if theContractor is bound by a duty of confidentiality to the issuer of any suchpolicy prohibiting disclosure of its terms, then instead of a copy of suchpolicy, a letter from the insurance broker to the

 

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#### Principal stating that the policy conformswith the requirements of this agreement, and containing a statementacknowledging 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, uponrequest, provide to the Principal:

###  

#### (i)                  copies of receiptsfor payment of premiums for any insurance policy required by this agreement;

####  

#### (ii)                 certificates ofcurrency in respect of each insurance policy required by this agreement;

####  

#### (iii)                such other details asto each such insurance policy as the Principal may reasonably require.

####  

### (c)                 The Contractor must notify thePrincipal, immediately upon the occurrence of an event which would or mayentitle the Contractor to make a claim under any insurance policy (other thanthe professional indemnity insurance policy), and promptly do anythingnecessary in respect of such a claim including, without limitation, notifyingthe insurer.

###  

## **36.5**             Remedy of Default

## ** **

If any default is made by the Contractor ineffecting or maintaining an insurance policy required by this agreement inaccordance with this agreement or if any such insurance policy becomes void orvoidable, the Principal may (but is not obliged to) effect or maintain saidinsurance policy at the cost of the Contractor.

 

## **36.6**             Enforcement

## ** **

The Contractor will do all things reasonablynecessary and provide all documents, evidence and information necessary toenable the Principal to collect or recover any moneys due or to become due tothe Principal in respect of any insurance policy required by this agreement.

 

## **36.7**             Cancellation andChange

## ** **

### (a)                 Without prejudice to therequirements of this clause, the Contractor will not cause or take any steps tobring about the lapse, cancellation, material change or reduction of anyinsurance policy required by this agreement.

###  

### (b)                 Without limiting its obligationsunder this agreement, the Contractor will immediately notify the Principal ofany lapse, cancellation, material change or reduction of any insurance policyrequired by this agreement and will provide to the Principal promptly uponreceipt a copy of all notices it receives from any insurer relating to anyproposed lapse, cancellation, material change or reduction of any suchinsurance policy.

###  

### (c)                 The Contractor will immediatelynotify the Principal in the event that a risk covered by any of the insurancesrequired by this agreement becomes an uninsurable risk.

###  

### (d)                 Provided that the Contractor hasgiven the Principal notice in accordance with clause 36.7(b) or (c) asapplicable, the Contractor will not be in breach of its

 

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### obligationsto effect and maintain the insurances required under this clause 36 to theextent that, and for so long as it has demonstrated to the satisfaction of thePrincipal that insurance cover for a risk required to be so maintained is notavailable to:

###  

#### (i)                  the Contractor; or

####  

#### (ii)                 if the Contractor isat the relevant time meeting its obligations under this clause 36 under theKeane Inc. global policy, Keane Inc.,

####  

on commercially reasonable terms in theinternational insurance market place from insurers meeting the requirements ofclause 36.2(a)(i).  If the Contractor hasobtained any relief from its insurance obligations pursuant to this clause36.7(d), the Contractor must, at the same time that it provides the Principalwith its detailed financial forecasts under clause 47.2(b)(i)B, give to thePrincipal written confirmation that the relevant insurance cover remainsunavailable as described in this clause 36.7(d).

 

# **37.**                Force Majeure

# ** **

## **37.1**             Force Majeure Notice

## ** **

### (a)                 If the Contractor alleges orwishes to claim that Force Majeure has occurred the Contractor must give thePrincipal prompt written notice of the Force Majeure once it becomes aware ofthe same and the obligations affected together with full particulars of allrelevant matters including:

###  

#### (i)                  details of the ForceMajeure;

####  

#### (ii)                 details of theobligations affected;

####  

#### (iii)                details of the actionthat the Contractor has taken and/or proposes to take to remedy the situation;

####  

#### (iv)               an estimate of the timeduring which the Contractor will be unable to carry out its obligations due tothe Force Majeure;

####  

#### (v)                an estimate of thecosts that the Contractor will incur to remedy the situation; and

####  

#### (vi)               details of allinsurance moneys upon which the Contractor will be able to rely in making gooddamage caused by the Force Majeure.

####  

### (b)                 After giving notice under clause37.1(a) the Contractor must continue to provide to the Principal allrelevant information pertaining to the Force Majeure.

###  

## **37.2**             Meeting, Applicationof Provisions

## ** **

The parties must meet within 5 Business Daysof service of a notice of a Force Majeure event to determine:

 

### (a)                 if the Force Majeure is coveredby insurance;

###  

### (b)                 the estimated length of time forwhich the Force Majeure will continue; and

###  

### (c)                 a plan of action to remedy (ifpossible) the effects of the Force Majeure.

 

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## **37.3**             Suspension ofObligations

## ** **

### (a)                 If a Force Majeure occurs each party’s obligations under this agreement (other than under thisclause 37) which are affected by the Force Majeure will be suspended but onlyto the extent and for so long as such obligations are affected by the ForceMajeure.

###  

### (b)                 If a Force Majeure occurs and anotice under clause 37.1(a) is issued, no party will be in defaultof its obligations under this agreement in so far as the failure or delay inthe observance or performance of those obligations by that party is caused by the Force Majeure specified in the Force Majeurenotice.

###  

### (c)                 Upon the Principal or theContractor (as the case may be) becoming able to recommence performing its obligationswhich were suspended under clause 37.3(a), the Principal or the Contractor (asthe case may be) must recommence the performance of those obligations.

###  

## **37.4**             Duty to Remedy ForceMajeure

## ** **

### (a)                 Where there is a remedy, theContractor must use its reasonable endeavours to remedy the effects of a ForceMajeure promptly, including making any reasonable expenditure of funds whichmay mitigate or avoid the effect of the Force Majeure.

###  

### (b)                 Where a Force Majeure hasresulted in damage to the Solution, the Contractor must:

###  

#### (i)                  promptlyreconstruct, rectify or replace that part of the Solution which has beendamaged; and

####  

#### (ii)                 applyany 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**             Securitymeasures updated

## ** **

TheContractor must update its security procedures and must procure that theparties with whom the Principal has Direct Agreements update their securityprocedures as technology and security threats evolve to provide commerciallyreasonable security capabilities at all times in accordance with IndustryPractice and this agreement, including the Requirements Document and the Solution Documentation.

 

## **38.2**             Securityaudit

## ** **

### (a)                 The Contractor will have its security procedures andphysical facilities audited, and must procure that the parties with whom thePrincipal has Direct Agreements have their security procedures and physicalfacilities audited, on an annual basis by a qualified, nationally recognisedfirm and the Contractor must take such action as is reasonable to comply withany exceptions or discrepancies discovered by any audit.

###  

### (b)                 The Contractor must:

###  

#### (i)                  provide the Principalwith a copy of any such audits within 5 Business Days of it becoming available;

####  

#### (ii)                 prepare a corrective action plan todeal with any exceptions or discrepancies discovered as a result of the auditand provide the Principal

 

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#### witha copy of that plan within 2 Business Days of provision of the audit underclause 38.2(b)(i);

####  

#### (iii)                confirm promptly and in any eventwithin 3 months that it has performed all work disclosed by the audit and thecorrective action plan as required to be performed.

####  

## **38.3**             Breachesand threatened breaches of Solution security

## ** **

TheContractor must:

 

### (a)                 report:

###  

#### (i)                  any attempted orthreatened breach of Solution security; and

####  

#### (ii)                 any attempted or threatenedunauthorised access to the Solution,

####  

tothe Principal as soon as practicable and in any event within 48 hours ofbecoming aware of the attempted or threatened breach or unauthorised access;

 

### (b)                 report:

###  

#### (i)                  any breach of Solutionsecurity; and

####  

#### (ii)                 any unauthorised access to theSolution,

####  

tothe Principal as soon as practicable and in any event within 12 hours ofbecoming aware of the relevant breach or unauthorised access;

 

### (c)                 where there has been a breach of Solution security orunauthorised access to the Solution, prepare a corrective action plan toaddress the breach or unauthorised access or both and provide the plan to thePrincipal within 24 hours of the breach or unauthorised access;

###  

### (d)                 within 5 Business Days receipt of the corrective action planfrom the Contractor, the Principal’s Representative may give notice to theContractor that the whole or part of the corrective action plan does notaddress the concerns of the Principal with respect to the security breach anddirect the Contractor to resubmit a revised corrective action plan under clause38.3(c) which addresses the Principal’s concerns, within 1 Business Day;

###  

### (e)                 proceed to implement and carry out any corrective actionplan or part of any corrective action plan which has not been rejected by thePrincipal under clause 38.3(d) and take such steps as may reasonably berequested by the Principal to prevent further breaches or unauthorised access.

###  

## **38.4**             BusinessContinuity Plan

## ** **

### (a)                 The Contractor must comply with any obligations set out inthe Business Continuity Plan, which plan must be consistent with any businesscontinuity plan of the Principal and reasonably acceptable to the Principal.

###  

### (b)                 The Contractor must prepare and submit to the Principal forits approval an updated Business Continuity Plan at the same time that itprovides the Principal with its detailed financial forecasts underclause 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 anupdated Business Continuity Plan, advise the Contractor whether or not itconsiders such plan to be in accordance with this agreement, including theRequirements

 

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### Documentand the Solution Documentation, or reject it and provide its comments (ifany).  If a Business Continuity Plan isrejected, the Contractor must promptly,and in any event within 5 Business Days, submit to the Principal a redraftof the plan.  The Contractor must takeinto account any comments of the Principal in finalising the BusinessContinuity Plan.

###  

### (c)                 The Contractor must set up and have rendered operational afacility located in a geographically diverse area that is capable ofreplicating that part of the Solution that is used for the processing ofaggregated data.  The Business ContinuityPlan must include a complete and periodic test program for the alternatefacility.

###  

### (d)                 Any agreement with a third party for disaster recovery orbackup services will be subject to approval by the Principal, and must requirethe third party service provider to take reasonable steps to maintain theconfidentiality of all Software and data.

###  

### (e)                 The Contractor must use its best endeavours to assist thePrincipal if the Principal needs to implement its own Business Continuity Plan.

###  

# **39.**                Contractor’s Representations

# ** **

## **39.1**             Contractor’srepresentations

## ** **

TheContractor makes the following continuing representations and warranties forthe benefit of the Principal:

 

### (a)                 it is duly incorporated and is validly existing under thelaws of its jurisdiction of incorporation and it has the requisite power to ownits properties and assets and to carry on its business as now conducted orproposed to be conducted;

###  

### (b)                 it has produced its Constitution and any relevantshareholder agreements to the Principal at the date of this agreement, signedby its solicitors for the purposes of identifying that it is the Contractor’sConstitution including all resolutions affecting it;

###  

### (c)                 it has in full force and effectall authorisations necessary to enter into and perform its obligations underthe Project Documents.  It has compliedwith each of them and paid all applicable fees in respect of them;

###  

### (d)                 it has power to enter into andperform its obligations under the Project Documents, to carry out thetransactions which those documents contemplate will be carried out by theContractor and to carry on its business, and the entry into of each suchdocument is a proper exercise of power;

###  

### (e)                 the execution, delivery andperformance of the Project Documents and the transactions under each of them donot:

###  

#### (i)                  violate in anyrespect a provision of its Constitution or any Law or official directive whichis binding on it;

####  

#### (ii)                 violate in anyrespect a provision of any other document or agreement to which it is a party;or

####  

#### (iii)                cause a limitation onits powers or the powers of its directors or other officers to be exceeded;

####  

### (f)                 its obligations under the Project Documents are legal, validand binding and are

 

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### enforceable against it and in accordance withits terms subject to the availability of equitable remedies and, to the extentapplicable, laws relating to the enforcement of creditor’s rights;

###  

### (g)                 it has carefully reviewed and understands all of therequirements of the Project Documents, and has determined that it is fully ableto conduct, perform, and complete the requirements of the Project Documentswithin the specified timeframe and that it is fully able to perform the Work inaccordance with the Project Documents;

###  

### (h)                 it has reviewed the requirements for the format and detailof records to be maintained at all times pursuant to this agreement and that ithas instituted or will institute the preparation and maintenance of suchrecords;

###  

### (i)                  it does not enter into any of the Project Documents in thecapacity of trustee of a trust or settlement and will not act at any timeduring the Term as trustee of a trust or settlement;

###  

### (j)                  it will not engage in any conduct which is misleading ordeceptive or likely to mislead or deceive;

###  

### (k)                 it has or will obtain all required Approvals, licences,professional ability, skills, capacity and financial resources, and hasavailable or will obtain the necessary Device and other equipment, materials,tools and facilities to perform its obligations in accordance with therequirements contained in the Project Documents;

###  

### (l)                  each representation and warranty made by it in any ProjectDocument is true, complete, accurate and correct;

###  

### (m)               all information, representations and other matters of factcommunicated in writing to the Principal or its agents or employees inconnection with the Contractor’s response to the request for tender in respectof the Project or in the course of subsequent negotiations in respect of thisagreement 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 enterinto any Project Document to which it is party;

###  

### (o)                 all personnel performing Work will have the necessarylicences, certifications, credentials and expertise and must otherwise be fullyqualified to perform the Work to which they are assigned;

###  

### (p)                 no litigation, arbitration, taxclaim, dispute or administrative or other proceeding (which has not beendisclosed to the Principal in writing prior to the date of this agreement) hasbeen commenced or, to its knowledge, threatened against it or any Related BodyCorporate which is likely to have a material adverse effect upon it or itsability to perform its financial or other obligations under the ProjectDocuments, in particular there is no outstanding product liability or workers’compensation claim;

###  

### (q)                 it will carry out the Work in amanner so that it, as far as reasonably practicable, avoids inconvenience ordisruption to the business of any Access Provider or any third party;

###  

### (r)                  it will immediatelynotify the Principal of the occurrence of, or the pending or threatenedoccurrence of, any event of which it is aware that may cause or

 

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### constitutea breach of any of the representations, warranties or covenants contained ormade in connection with any Project Document, including without limitation, anyevent that may result in a material adverse change in the business of theContractor or may affect the financial viability of the Contractor’s business;

###  

### (s)                 all financial projections andinformation in relation to the financial position and prospects of theContractor and the financial capability of the Contractor to fund itscommitments under this agreement, given before or after the Commencement Date,have been or will be given after diligent inquiry and investigation on the partof the Contractor and there has been no material adverse change in thefinancial position or prospects of the Contractor after the date to which therelevant financial projections and information relate;

###  

### (t)                  (i)                  its most recentconsolidated and unconsolidated audited (if the requirement for auditing isapplicable) accounts give a true and fair view of its and its Related BodiesCorporate state of affairs as at the date to which they relate and the resultsof its and its Related Bodies Corporate operations for the accounting periodended on such date;

###  

#### (ii)                 there has been nomaterial change in its or its Related Bodies Corporate state of affairs sincesuch date;

####  

#### (iii)                in respect of theContractor, such accounts have been prepared in accordance with the Corporations Act and generallyaccepted Australian accounting principles and practices consistently applied,and in respect of all other relevant entities, such accounts have been preparedin accordance with generally accepted accounting principles and practicesconsistently applied in the country of origin or incorporation of the relevantentity, except to the extent of departures from such principles and practicesdisclosed in such accounts; and

####  

#### (iv)               there is no financialindebtedness or any other contingent liability which is not disclosed in suchaccounts;

####  

### (u)                 it has not engaged in anyuncompetitive behaviour or other practice which has denied or may denylegitimate business opportunities to other tenderers or other participants inthe tender process, including but not limited to:

###  

#### (i)                  the payment ofunsuccessful tender fees; or

####  

#### (ii)                 thepayment to any third party of money, incentives or other concessions contingentupon the success of the tender which do not relate to the provision of bonafide services relevant to the object of the tender;

####  

### (v)                 it: 

###  

#### (i)                  is not directly orindirectly involved in and does not conduct any business or activity, otherthan the Project;

####  

#### (ii)                 does not engage any employee in anyactivity or business which it may not be involved in or conduct under paragraph(i); and

####  

#### (iii)                does not have any subsidiary asthat 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 thisagreement;

###  

### (x)                 all copies or originals ofdocuments or instruments provided to the Principal under or in connection withany Project Document (including its latest audited accounts and allauthorisations) are or will be, at the date of this agreement or of their laterprovision, originals or true copies of the documents or instruments which theypurport or have been represented to be. Where applicable, those documents are in full force and effect;

###  

### (y)                 there are no documents oragreements in existence at the date of this agreement and there will not be anydocuments or agreements in the future which have not been or will not bedisclosed to the Principal which are material in the context of the ProjectDocuments or the Project or which have the effect of varying any ProjectDocument and, in respect of Project Documents to which the Principal is not aparty, performance of which would have a material adverse effect on theProject;

###  

### (z)                 neither it nor any ofits assets enjoys any immunity from set-off, suit or execution;****and

###  

### (aa)              it is responsible for any consequences arising from thestructure adopted by the Contractor, including any tax, financial or otherconsequences.

###  

# **40.**                Indemnity and liability

# ** **

## **40.1**             ContractorIndemnity

## ** **

Subject to clause 40.3(b), theContractor indemnifies and keeps indemnified on demand and by way of continuingindemnity, defends, and saves harmless the Principal, the Government,Governmental Agencies, the Bus Operators and the Access Providers, includingthe Operators, their members, directors, officers, employees, agents andsubcontractors (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 proceedingsof any nature whatsoever for:

 

### (a)                 loss of or damage to property;and

###  

### (b)                 claims by any person in respectof personal injury or death,

###  

to the extent to which they arise out of oras a consequence of:

 

### (c)                 the Contractor’s performance ofthe Work;

###  

### (d)                 a breach of this agreement orany Project Document by or on behalf of the Contractor;

###  

### (e)                 any negligent, wilful orfraudulent act or omission by or on behalf of the Contractor;

###  

### (f)                 a breach of a representation orwarranty given by the Contractor under this agreement; or

###  

### (g)                 any other act or omission by oron 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 ofthe Indemnified Party, the failure of the Indemnified Party to take reasonablesteps to mitigate loss or damage suffered, or the breach by the Principal ofits obligations under this agreement.  Inthe event such loss, damage, injury or death results from

 

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the joint or concurrent act or omission ofthe parties, the Contractor will be liable under this indemnity in proportionto its relative degree of fault.  

 

## **40.2**             Contractor Indemnityto Principal for Economic Loss

## ** **

Subject to clauses 40.3(a) and40.4(b), the Contractor indemnifies and keeps indemnified on demand and by wayof continuing indemnity, defends, and saves harmless the Principal from andagainst:

 

### (a)                 direct economic loss (beingeconomic loss that directly and naturally flows in the normal course of eventsfrom the occurrence of the relevant event) suffered by the Principal; and

###  

### (b)                 the loss of any fees or paymentspayable by third parties to the Principal during the Term for: 

###  

#### (i)                  Smartcard basedtransport ticketing services in Victoria; and

####  

#### (ii)                 services provided bythe Principal by use of the Solution (**“****Third Party Solution Services”**), provided that the Contractor:

####  

##### A.                 has been givenreasonable prior written notice of the proposed supply of the Third PartySolution Services by the Principal to the relevant third party;

#####  

##### B.                 any work necessary tochange, extend or modify the Solution (**“****Extended Solution”**) toenable it to be used by the Principal for the supply of the Third PartySolution Services by the Principal to the relevant third party has beenundertaken accordance with clauses 20 or 35 and the Contractor has agreed thatthis indemnity is not affected; and

#####  

##### C.                 continues to provide,in accordance with this agreement, the Core Services and other servicesnecessary for the operation, support and development of the Extended Solution,

#####  

to the extent to which such losses arise as aconsequence of:

 

### (c)                 a breach of this agreement orany Project Document by or on behalf of the Contractor;

###  

### (d)                 any negligent, wilful orfraudulent act or omission by or on behalf of the Contractor; or

###  

### (e)                 a breach of a representation orwarranty given by the Contractor under this agreement,

###  

except to the extent that such losses areattributable to:

 

#### (i)                  the negligent orwilful act or omission of the Principal;

####  

#### (ii)                 the failure of thePrincipal to take reasonable steps to mitigate loss or damage suffered; or 

####  

#### (iii)                the breach by thePrincipal of its obligations under this agreement.  

 

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In the event that any such loss results fromthe joint or concurrent act or omission of the parties, the Contractor will beliable under this indemnity in proportion to its relative degree of fault.  

 

## **40.3**             Liability ofContractor

## ** **

### (a)                 To the maximum extent permittedby law, the total liability of the Contractor to the Principal or theGovernment or any Governmental Agency arising under, out of, or in connectionwith this agreement or any Project Document, or for any act or omission of theContractor, its Related Bodies Corporate or its sub-contractors under thisagreement or any Project Document, whether such liability arises undercontract, tort (including negligence) or for any other cause of action, willnot exceed******$[**]dollars).  This clause 40.3 does notapply to the indemnity in clause 40.1.

###  

### (b)                 Subject to clauses 40.3(d) and29.7, but notwithstanding any other provision of this agreement, to the maximumextent permitted by law, the Contractor excludes all liability to the Principaland each other Indemnified Party (whether by way of indemnity, damages orotherwise) in respect of: 

###  

#### (i)                  any Indirect orConsequential Loss incurred or sustained by the Principal or any other person,arising under, out of, or in connection with this agreement or any ProjectDocument, or for any act or omission of the Contractor, its Related BodiesCorporate or its sub-contractors under this agreement or any Project Document;or

####  

#### (ii)                 loss of fareboxrevenue (being any revenue or money, including fares and transfer, zone andpark and ride receipts, paid or payable by transport passengers, also known as “passengerrevenue”),

####  

whether such liability arises under contract,tort (including negligence) or for any other cause of action.

 

### (c)                 Subject to clause 40.3(d), forthe purposes of clauses 40.3(b) and 40.5, “Indirect or Consequential Loss”suffered by a person means any special, indirect, or consequential loss ordamage 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 torealise anticipated savings, even if such loss or damage was in the reasonablecontemplation of the parties at the time of entry into this agreement.

###  

### (d)                 For the purposes ofclause 40.3(c), where that person is the Principal:

###  

#### (i)                  “Indirect orConsequential Loss” does not include loss for which the Principal isindemnified under clause 40.2; and

####  

#### (ii)                 the parties agreethat any Services Charge adjustments for failure by the Contractor to meet thePerformance Requirements are not in the nature of loss or damage andconsequently 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 relationto intellectual property under clause 30;

 

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#### (ii)                 loss or liability forwhich the Contractor is required to be indemnified under a policy of insurancerequired to be maintained under clause 36 which the Contractor recovers orought reasonably to have recovered but for an act or omission by theContractor, except where the Contractor has been unable to recover under thepolicy due to the occurrence of an Event of Insolvency in relation to theinsurer; 

####  

#### (iii)                loss or liability ofthe Contractor which it is required to pay in respect of any deductible payablein relation to any policy of insurance required to be maintained under clause36;

####  

#### (iv)               loss, liability orclaims in respect of loss of or damage to property or claims in respect ofinjury to, or death, of persons; 

####  

#### (v)                any amounts payable bythe Contractor pursuant to clauses 18.5 and 18.6.

####  

### (b)                 The limitation inclause 40.3(a) does apply to the Contractor’s indemnity under clause40.2.

###  

## **40.5**             Liability of Principal

## ** **

### (a)                 The total liability of thePrincipal to the Contractor and its sub-contractors for Indirect orConsequential Loss under or in any way arising out of or in connection withthis agreement or any other Project Document will not exceed $10,000,000. To avoid doubt, liability of the Contractor for loss or damage sufferedby its sub-contractors arising out of an act or omission of the Principal isnot Indirect or Consequential Loss of the Contractor unless the loss or damageof the relevant sub-contractors is itself Indirect or Consequential Loss ofthat sub-contractor.

###  

### (b)                 In any Claim forbreach of this agreement, the Contractor will not be entitled to damages onaccount of loss of profits under this agreement for a period in excess of 2years.

###  

# **41.**                Step-in and temporary suspension of Work

# ** **

## **41.1**             Principal’s right ofstep-in

## ** **

### (a)                 If:

###  

#### (i)                  the Work is notbeing performed in accordance with this agreement, including the RequirementsDocument and the Solution Documentation in a material respect, there is realpotential for this to lead to the occurrence of an Event of Default and thePrincipal is of the reasonable opinion that it should exercise its rights underthis Clause 41.1 as a consequence;

####  

#### (ii)                 there is an Event ofDefault; or

####  

#### (iii)                there is an Emergency,

####  

then the Principal is entitled to take anysteps required to remedy the situation and, without prejudice to any of itsother remedies and at the Principal’s discretion, where the Principal hasstepped in under clause 41.1(a)(i) or (ii), the Contractor must payto the Principal on demand the cost of carrying out such steps (taking intoaccount any amounts which would otherwise be payable by the Principal to theContractor in respect of the Work which has been remedied by the Principal under

 

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this clause)******providedthat in circumstances where it is reasonable to do so, the Principal has giventhe Contractor 5 Business Days written notice of its intention to remedy thesituation and the Contractor has failed to remedy the situation within such anotice period.  Where the Principal hasstepped in because there is an Emergency, unless the Emergency was caused by anEvent of Default or a failure by the Contractor to perform its obligations underthis agreement, the Principal will pay its own costs of carrying out suchsteps.

 

### (b)                 Without limiting its rightsunder clause 41.1(a), the Principal may, pursuant to clause 41.1(a), do:

###  

#### (i)                  all things:

####  

##### A.                 which the Contractoris obliged to do under or in connection with this agreement, any other ProjectDocument to which it is a party or any Law;

#####  

##### B.                 which the Principalis under any Project Document or any Law authorised or empowered to do withrespect to the Contractor; and

#####  

#### (ii)                 anything necessary toperform the Work.

####  

### (c)                 The Contractor agrees to providereasonable assistance to the Principal in the exercise of its rights underclause 41.1(a) and will ensure that all employees, subcontractors andthird parties do the same.

###  

### (d)                 The Contractor acknowledges andagrees that:

###  

#### (i)                  the Principal willnot have any liability to the Contractor, and the Contractor will not beentitled to make any Claim, arising out of or in connection with the exerciseby the Principal of its rights under clause 41.1(a) except where:

####  

##### A.                 there is anynegligent or fraudulent act or omission by the Principal in the exercise ofthose rights;

#####  

##### B.                 there is an Emergencyprior to the Completion Date of the NTS Regional and MetropolitanImplementation Completion Phase and it is not caused by the Contractor, inwhich case the Contractor will be entitled to make a claim:

#####  

###### 1)                  for an extension oftime under clause 18.7; and

######  

###### 2)                  within [**] of such an Emergency occurring, for costs relating to the extensionof time (if any) granted under clause 18.7, which costs must be limited toDelay Costs; and

######  

#### (ii)                 the exercise by thePrincipal of its rights under clause 41.1(a) does not limit any otherright of the Principal under this agreement, including any rights arisingpursuant to an Event of Default.

####  

### (e)                 Except where there is an Eventof Default, the exercise by the Principal of its rights under clause 41.1(a) doesnot relieve the Principal from the performance of its obligations under thisagreement, including the obligation to pay amounts due to the

 

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### Contractorunder this agreement, provided that to the extent that the Contractor’s abilityto achieve any Performance Requirements is affected by the Principal’s exerciseof its rights under clause 41.1(a), any adjustments to the Services Chargeunder clause 27 in relation to the relevant Performance Requirements willremain at the level of the adjustments applicable for the month immediatelyprior to the month in which the Principal exercised its rights under clause41.1(a).

###  

### (f)                 The Contractor will not berelieved of its obligations under this agreement, including the RequirementsDocument and the Solution Documentation, except to the extent that suchobligations (including any obligations in relation to the PerformanceRequirements) cannot be performed as a result of the exercise by the Principalof its rights under clause 41.1(a).

###  

### (g)                 The Principal may at any timecease to exercise its rights under clause 41.1(a) by giving the Contractor5 Business Days notice in writing.

###  

## **41.2**             Principal’s right totemporarily suspend Work

## ** **

### (a)                 If:

###  

#### (i)                  the Work is notbeing performed in accordance with this agreement, including the RequirementsDocument and the Solution Documentation, in a material respect, there is realpotential for this to lead to an Event of Default and the Principal is of thereasonable opinion that it should exercise its rights under this clause 41.2 asa consequence;

####  

#### (ii)                 there is an Event ofDefault; or

####  

#### (iii)                there is an Emergency,

####  

thePrincipal may, by notice to the Contractor, stop or suspend all or any portionof the Work for such period as the Principal deems necessary.  The Contractor must comply immediately withthe 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 ofany delay arising as a result of the exercise by the Principal of its rights tosuspend under clause 41.2(a) will be at the Contractor’s expense.  

###  

### (c)                 The Contractor will not be relieved of its obligations underthis agreement, including the Requirements Document and the SolutionDocumentation, except to the extent that such obligations (including anyobligations in relation to the Performance Requirements) cannot be performed as a result of the partial suspension.

###  

### (d)                 The Contractor acknowledges andagrees that:

###  

#### (i)                  the Principal willnot have any liability to the Contractor, and the Contractor will not beentitled to make any Claim, arising out of or in connection with the exerciseby the Principal of its rights under clause 41.2(a) except where:

####  

##### A.                 there is anynegligent or fraudulent act or omission by the Principal in the exercise ofthose rights;

#####  

##### B.                 there is an Emergencyprior to the Completion Date of the NTS Regional and MetropolitanImplementation 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 oftime under clause 18.7; and

######  

###### 2)                  within 10 BusinessDays of such an Emergency occurring, for costs relating to the extension oftime (if any) granted under clause 18.7, which costs must be limited to DelayCosts;

######  

#### (ii)                 the exercise by thePrincipal of its rights under clause 41.2(a) does not limit any otherright of the Principal under this agreement, including any rights arisingpursuant to an Event of Default and, in particular periods during which theContractor is entitled to remedy a breach are unaffected by the Principalexercising its rights under clause 41.2(a).

####  

### (e)                 Except where there is an Event of Default, the exercise bythe Principal of its rights under clause 41.2(a) does not relieve thePrincipal from the performance of its obligations under this agreement,including the obligation to pay amounts due to the Contractor under thisagreement,provided that to the extent that the Contractor’s ability to achieve anyPerformance Requirements is affected by the Principal’s exercise of its rightsunder clause 41.2(a), any adjustments to theServices Charge under clause 27 in relation to the relevant PerformanceRequirements will remain at the level of the adjustments applicable for themonth immediately prior to the month in which the Principal exercised itsrights under clause 41.2(a).

###  

### (f)                 The Principal may atany time cease to exercise its rights under clause 41.2(a) by giving theContractor a written direction to resume the Work.

###  

### (g)                 Upon receipt of a writtendirection under clause 41.2(f), the Contractor must as soon as practicable, butin 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**             Eventsof Default

## ** **

Itis an Event of Default if:

 

### (a)                 the Contractor fails to commence, or to expeditiously anddiligently perform, the Work as required under clause 18.1 and does not curesuch failure within 10 Business Days of receiving written notice from thePrincipal to do so;

###  

### (b)                 Completion of a Phase does not occur on or prior to therelevant Phase Date;

###  

### (c)                 the Contractor:

###  

#### (i)                  fails to provide theInitial Services or the Core Services or any part thereof; or

####  

#### (ii)                 ceases or threatens to ceaseproviding the Initial Services or the Core Services, or any part thereof,

####  

inaccordance with its obligations under this agreement (other than as a result ofa Force Majeure in relation to which some or all of the Contractor’sobligations under this agreement have been suspended, or an Act of Preventionto the extent that the

 

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Contractorhas been given relief from compliance with this agreement underclause 28.2) and does not cure such failure within 10 Business Days ofreceiving 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 itsterms as at the date of this agreement; or

####  

#### (ii)                 is or becomes, as against theContractor or Keane Inc., void, voidable, illegal, invalid, unenforceable or oflimited force and effect;

####  

### (e)                 the Contractor defaults in the due observance andperformance of any of its other obligations under any Project Document and ifthe default is capable of remediation the Contractor does not commence toremedy such default to the reasonable satisfaction of the Principal within 10Business Days of receipt of written notice specifying the default and does notcomplete its remedy of the default within such reasonable time period as isspecified 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 BodyCorporate or one of the Contractor’s subcontractors which in the reasonableopinion of the Principal has a material impact upon the Project or theperformance by the Contractor of its obligations under this agreement;

###  

### (h)                 without the consent of the Principal:

###  

#### (i)                  a change occurs in theequipment supplied or to be supplied; or

####  

#### (ii)                 a material change occurs in thescope or conduct of the work performed or to be performed,

####  

pursuantto a Key Contract between the Contractor and a subcontractor which is, or oughtto be, a party to a Direct Agreement, or pursuant to a Key Contract to whichWayfarer or Gunnebo is party;

 

### (i)                  a change in the control (as defined in section 50AA ofthe Corporations Act) of the Contractor occurs without the consent of thePrincipal under clause 45.3, or the Contractor is in breach of itsobligations under clause 45.3;

###  

### (j)                  where the Contractor’s shares are at any time listed on anystock exchange, the listing is suspended or revoked and the suspension orrevocation remains in force for a period greater than 14 days;

###  

### (k)                 any representation or warrantyor statement made by the Contractor to the Principal in any Project Document orin any document delivered under any Project Document proves to have been untruein any material respect;

###  

### (l)                  there is a failure toprovide the Initial Services or the Core Services or any part thereof to therelevant minimum standard set out in the Performance Requirements and theContractor does not cure such failure within 20 Business Days of receivingwritten notice from the Principal to do so;

###  

### (m)               any action is initiated by any competent authority with aview 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 Projector refuses to proceed with the Project.

###  

## **42.2**             Terminationby the Principal

## ** **

### (a)                 Upon the occurrence of an Event of Default, the Principalmay, at its option give the Contractor [**] written notice of its intention to:

###  

#### (i)                  terminate thisagreement; or

####  

#### (ii)                 terminate the Contractor’s rightsand obligations with respect to any part of the Services under this agreement.

####  

Duringthe [**] period, the Contractor will have the right to remedy the event.

 

### (b)                 If at the expiration of the [**] period following thewritten notice under clause 42.2(a), the Event of Default has not beenremedied, the Principal may terminate this agreement by issuing a writtennotice to the Contractor.

###  

### (c)                 Notwithstanding clauses 42.2(a) and (b), if in thereasonable opinion of the Principal the Contractor is not making reasonableefforts 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 remedythe Event of Default and of the Principal’s intention to terminate thisagreement; and

####  

#### (ii)                 if at the expiration of the [**]period the Contractor is not making reasonable efforts aimed at remedying theEvent of Default, the Principal may thereafter terminate this agreement bywritten notice to the Contractor.

####  

### (d)                 Upon termination of this agreement under this clause thePrincipal will not be liable to pay any compensation or other money in respectof the termination to the Contractor.

###  

## **42.3**             Impactof Dispute Resolution Procedures

## ** **

Thefact that either party requires a matter to be resolved in accordance with theDispute Resolution Procedures or that a dispute has been referred to theDispute Resolution Procedures will not affect the Principal’s rights under thisclause 42.

 

## **42.4**             Rightto Damages

## ** **

Anytermination of this agreement by the Principal under this clause 42 will:

 

### (a)                 not in any way prejudice the Principal’s rights to claim andrecover liquidated damages under this agreement and the Principal’s rights toclaim and recover damages for any prior breach of contract by the Contractor;and

###  

### (b)                 entitle the Principal to recover such other damages as thePrincipal may suffer or incur arising out of the termination of this agreement.

 

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## **42.5**             Actionstaken following termination

## ** **

Immediatelyupon receipt of a notice of termination, the Contractor must:

 

### (a)                 stop Work on the date and to the extent specified in saidnotice;

###  

### (b)                 within [**] of receipt of said notice, notify the Principalof all orders and subcontracts to the extent that they relate to theperformance of Work terminated and:

###  

#### (i)                  unless the Principaldirects otherwise within [**] of receiving a notice from the Contractor underthis clause, terminate all orders and subcontracts to the extent that theyrelate to the performance of Work terminated; and

####  

#### (ii)                 place no further orders orsubcontracts for materials, services or facilities, except as may be necessaryfor the completion of such portion of the Work as is not terminated;

####  

### (c)                 if directed by the Principal, assign to the Principal all ofthe right, title and interest of the Contractor under any orders andsubcontracts;

###  

### (d)                 if directed by the Principal, transfer title and deliver tothe Principal:

###  

#### (i)                  to the extent that thePrincipal has already paid for them, the fabricated or unfabricated parts, workin progress, completed work, supplies, and other material produced as a partof, or acquired in connection with the performance of the Work terminated; and

####  

#### (ii)                 the completed or partiallycompleted plans, drawings, manuals, information and other property which, ifthe Work had been completed, would have been required to be furnished to thePrincipal; and

####  

### (e)                 complete performance of such part (if any) of the Work notterminated by said notice.

###  

Ifthe Principal gives a direction under clause 42.5(d)(i) but has notalready paid the Contractor for the value of some or all of the items which arethe subject of that direction, the Contractor must immediately provide thePrincipal with the relevant information necessary to demonstrate to thePrincipal’s satisfaction the items for which the Principal has not alreadypaid, and the cost price payable by the Contractor for those items, and whichthe Principal must pay to the Contractor if the Principal desires the transferof title to and the delivery of those items to it (the**“Price”**).  The Principal may request, and the Contractormust immediately provide, such additional information as the Principal may fromtime to time reasonably require to establish the Price.  The Principal will pay the Contractor thePrice upon transfer of title to and the delivery of those items by theContractor to the Principal.

 

# **43.**                Termination for the convenience of thePrincipal

# ** **

## **43.1**             Rightto Terminate

## ** **

### (a)                 Despite any other provision of this agreement, this agreement may be terminated withoutcause by the Principal upon written notice to the Contractor, at the Principal’sabsolute 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 fordoing so.

 

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## **43.2**             Compensation

## ** **

If the Principal exercises its rights underclause 43.1, it must:

 

### (a)                 pay the Contractor, within [**] of termination of this agreement the amounts determined inaccordance with Schedule 18 (but will not be liable for any other costs,losses, expenses, liabilities, payments, outgoings or damages suffered orincurred by the Contractor as a result of such termination); and

###  

### (b)                 return to theContractor the Security Bonds held by it in accordance with clause 34.

###  

# **44.**                Expiration of Agreement and Handover

# ** **

## **44.1**             Termination prior toSolution Completion Date

## ** **

### (a)                 If this agreement is terminatedprior to the Solution Completion Date, the Contractor must:

###  

#### (i)                  from the date theContractor receives a notice under clause 42 or 43 (as applicable) untilthe expiry of the period of notice given in that notice, do all thingsrequested by the Principal and co-operate with the Principal or any third partyengaged or employed by the Principal to carry out the Work; and

####  

#### (ii)                 if requested by thePrincipal, and in the case of paragraph D. subject to clause 30.6, hand over tothe Principal’s Representative all documentation and material necessary toenable the Principal or a third party to undertake the Work including any ofthe following which have not already been provided to the Principal in theircurrent form:

####  

##### A.                 books of account andall other records relating to the Project;

#####  

##### B.                 electronic and hardcopy versions of the Solution Documentation;

#####  

##### C.                 the most recentversions of any Design Documents;

#####  

##### D.                 all Software andDevices relating to the Project, which were utilised or intended to be utilisedin the Solution or to provide the Initial Services and the Core Services (butexcluding infrastructure used in the provision of the Initial Services or CoreServices, to the extent that it is infrastructure of an entity other than theContractor which is also used by that entity to provide a material level ofservices not related to the Initial Services or Core Services and which theContractor, using reasonable endeavours, is not able to transfer).

#####  

### (b)                 For the purposes ofclause 44.1(a) documentation must be current at the time of deliveryand 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 Principaland the Contractor as set out in clause 30.6.

 

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## **44.2**             Expiration

## ** **

### (a)                 This agreement shall commence onthe date of this agreement and shall, unless earlier terminated or extended inaccordance with this agreement, expire on the last day of the Term.

###  

### (b)                 The Contractor must ensure thatthe Solution is in a state of good repair upon expiration of the Term, and thatall overhauls, repairs and retrofits of Devices, facilities and other materialsforming part of the Solution are completed (at the Contractor’s expense) at least6 months prior to the expiration of the Term to allow the Principalsufficient time to inspect their condition.

###  

## **44.3**             Transfer

## ** **

### (a)                 The Contractor must use bestendeavours to ensure that the Transfer from the Contractor to the Principal orany third party takes place with minimal disruption to the Principal, theAccess Providers, the Bus Operators and Stakeholders.

###  

### (b)                 Upon expiration of the InitialServices Term or earlier termination of this agreement, the Contractor mustTransfer, or facilitate the Transfer of, the provision of the Initial Servicesand those parts of the Solution required to provide the Initial Services to thePrincipal or a third party, in accordance with the Transfer Plan and theTransfer Principles.

###  

### (c)                 Upon expiration of the Term orearlier termination of this agreement, the Contractor must Transfer, orfacilitate the Transfer of, the provision of the Core Services and the Solutionin accordance with the Transfer Plan and the Transfer Principles.

###  

### (d)                 The Principal and the Contractoragree to enter into:

###  

#### (i)                  tripartiteagreements with any new contractors nominated by the Principal which willconfirm the roles and responsibilities of each of the parties in relation tothe Solution and the provision of the Initial Services and Core Services; and

####  

#### (ii)                 any other agreementsnecessary to facilitate the Transfer of the Solution.

####  

### (e)                 At any stage prior to expirationof the Term or the earlier termination of this agreement, the Principal canrequire modifications, additions or variations to the Transfer Plan if it isnot adequate to meet the objectives and strategies for the Transfer as set outin this agreement, including the Requirements Document and the TransferPrinciples.  The Contractor must amendthe Transfer Plan in accordance with any such modifications, additions orvariations unless it is unreasonable to do so, and the amended Transfer Planmust be approved by the Principal.

###  

### (f)                 The Contractor must prepare andsubmit to the Principal for its approval an updated Transfer Plan at the sametime that it provides the Principal with its detailed financial forecasts underclause 47.2(b)(i)B and 12 months prior to the expiry of the Initial ServicesTerm and the Term (or if the Principal terminates this agreement with a noticeperiod of less than 12 months, at a time specified by the Principal afterreceipt of such notice by the Contractor). The Principal may, within 10 Business Days of receipt of an updatedTransfer Plan, advise the Contractor whether or not it considers such plan to bein accordance with this agreement, including the Requirements Document and theTransfer Principles, or reject it and provide its comments (if any).  If an updated Transfer Plan is rejected, theContractor must promptly, and in any event within 5 Business Days, submit tothe Principal a redraft

 

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### ofthe plan.  The Contractor must take intoaccount any comments of the Principal in finalising the Transfer Plan.

###  

### (g)                 The Principal may, within40 Business Days of receipt of the amended Transfer Plan referred to inclause 44.3(f) propose a modification or alteration to the Contractor’sproposed method of Transfer and the Contractor must comply with suchmodification or alteration unless it is manifestly unreasonable to do so.

###  

### (h)                 The Contractor must provide fullcooperation to the Principal in relation to any Transfer, or facilitation ofthe Transfer, including in relation to any tender process the Principal carriesout for the procurement of a third party to operate the Solution or provide anyof the Initial Services and the Core Services or both, including carrying outall acts reasonably requested by the Principal in relation to any Transfer inan efficient, timely and professional manner.

###  

## **44.4**             Maintenance ofworkforce

## ** **

### (a)                 The Contractor must maintain afull and adequate workforce on the Project until the last day of the Term,including those personnel nominated by the Principal to work with the Principalor a new contractor.

###  

### (b)                 The Contractor must ensure thatprior to expiration or the earlier termination of this agreement the keypersonnel set out in Schedule 2 co-operate with any incoming contractor toensure a smooth transition.

###  

### (c)                 The Contractor must make the keypersonnel set out in Schedule 2 available to perform work reasonablyrequested by the Principal in relation to the Solution or the Initial Servicesand the Core Services for 12 months after the expiration or earlier terminationof this agreement.  The Principal mustpay the Contractor for the work requested by the Principal under this clauseits costs, based on time spent and materials used, at the rates for each whichare set out in Schedule 7.

###  

### (d)                 During the Term, and for aperiod of 12 months after the expiration or earlier termination of thisagreement (other than termination for an Event of Default), the Principal willnot directly solicit the employment of any of the employees of the Contractorinvolved 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 anysuch employee makes an approach or offer to the Principal for employment by thePrincipal which has not been solicited by the Principal.

###  

### (e)                 If the Principal does not obtainthe consent of the Contractor where required to do so underclause 44.4(d), the Principal will be liable to pay to the Contractor, foreach employee it employs without the required consent, an amount equal to [**]%of the annual gross salary of the employee for the last 12 months ofemployment with the Contractor by way of liquidated damages, and this will bethe sole and exclusive remedy of the Contractor in relation to that failure toobtain consent.

###  

### (f)                 Notwithstandingclause 44.4(d), but subject to the rights of the Contractor to liquidateddamages under clause 44.4(e) the Contractor will not prohibit orprevent its former staff from employment by the Principal or any third partytaking over operation of the Solution, or operation of a system to replace theSolution or provision of the Initial Services and the Core Services and uponnotice from the Principal and where the relevant employee agrees, willfacilitate the transfer of all employees of the Contractor that the Principalconsiders are necessary to whom it offers employment, to the Principal or athird party.

 

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### (g)                 Where any employee istransferred to the Principal or a third party in accordance withclause 44.4(f), the Contractor agrees to make an appropriate adjustmentand payment to the Principal or a third party of all actual or contingentliability for annual leave, accrued rostered days off, sick leave, long serviceleave and all other employee entitlements which are not to be paid out to the relevanttransferring employee at the time of transfer of employment.  

###  

### (h)                 If there is a dispute betweenthe Principal and the Contractor in relation to the payments and adjustments tobe made for employee entitlements under clause 44.4(g) or the amountof liquidated damages that may be payable by the Principal underclause 44.3(e), either party may give notice to the other requiring thedispute to be referred to the Dispute Resolution Procedures.

###  

## **44.5**             Warranty

## ** **

The Contractor warrants that the obligationsset out in this clause will be sufficient and adequate to enable the Principalor a new contractor to replace the Solution with another system and/or providethe Initial Services and the Core Services, provided the Principal or the newcontractor have the necessary experience and expertise of a service providerskilled in providing similar services.

 

# **45.**                Assignment

# ** **

## **45.1**             Assignmentby the Contractor

## ** **

Subjectto clause 45.3, the Contractor must not assign, novate or otherwisetransfer any of its rights or obligations under this agreement without theprior written consent of the Principal.

 

## **45.2**             Assignmentby the Principal

## ** **

### (a)                 The Principal may, without the consent of the Contractor,assign, novate or otherwise transfer:

###  

#### (i)                  the benefit to thePrincipal of all or any of the Contractor’s obligations under this agreement; and/or

####  

#### (ii)                 any of its rights or obligationsunder this agreement,

####  

to any person which has the capacity to carryout the obligations of the Principal under this agreement except for a Contractorcompetitor.  The Contractor will executeany document required by the Principal and do such things as and when requestedby the Principal to give effect to such assignment, novation or transfer.

 

### (b)                 Upon written request by thePrincipal, the Contractor hereby irrevocably agrees to enter into a newagreement upon substantially the same terms and conditions as this agreement towhich another person, who is an assignee, novatee or transferee pursuant toclause 45.2(a), agrees to perform and observe the Principal’s obligationsunder the agreement as if it were named in the relevant agreement instead ofthe Principal.

###  

## **45.3**             Changein control

## ** **

### (a)                 For the purposes of clause 45.1, any change in control (asdefined in section 50AA of the Corporations Act) of the Contractor orKeane Inc will be deemed to be an assignment by the Contractor of its rightsand obligations under this agreement and such change in control will be subjectto the terms and conditions of this clause 45.

 

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### (b)                 The Contractor must immediately notify the Principal of anyproposed change in control (or, in the case of a change in control due to thetransfer of shares or securities in a publicly listed company, as soon as itbecomes aware of that change in control or proposed change in control and ispermitted by the laws applicable to that publicly listed company to disclosethat information to the Principal) of the Contractor and must provide thePrincipal with details of:

###  

#### (i)                  the identity of eachproposed Controller;

####  

#### (ii)                 the address of each proposedController;

####  

#### (iii)                the extent and nature of theproposed change in control; and

####  

#### (iv)               any other information necessary forthe Principal to determine whether to consent, or not to consent, to the changein control of the Contractor.

####  

### (c)                 The Principal will not unreasonably withhold its consent tosuch change in control of the Contractor, unless the Principal is of thereasonable opinion that:

###  

#### (i)                  the proposed persongaining the control of the Contractor following the change in control:

####  

##### A.                 is not solvent or reputable;

#####  

##### B.                 has an interest which conflicts ina material way with the interests of the Principal or is involved in a businessor activities which are incompatible with, or inappropriate in relation to theProject; or

#####  

##### C.                 does not have the same or greaterfinancial and technical capacity than the person it is replacing or from whichit is taking control;

#####  

#### (ii)                 the proposed change is against thepublic interest; or

####  

#### (iii)                the proposed change will impactadversely on the ability of the Contractor to perform its obligations underthis agreement and each other Project Document.

####  

# **46.**                Confidentiality, information and privacy

# ** **

## **46.1**             Confidentialinformation

## ** **

### (a)                 Each party will treat as confidential all informationobtained from the other party under or in connection with this agreement and:

###  

#### (i)                  will not disclose suchinformation to any third party without the prior written consent of the otherparty, except to such persons and to such extent as may be necessary for theperformance of this agreement or as otherwise required by law; and

####  

#### (ii)                 will not use any of thatinformation otherwise than for the purposes of the agreement.

####  

### (b)                 Despite any other provision of this agreement, the Contractor will, upon request by the Principal, makeany information or data that is generated during the Project

 

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### concerning Solution usage available to thePrincipal who may then make that information available to the Operators andStakeholders.

###  

### (c)                 Each party will take all necessary precautions to ensurethat all information obtained from the other party under or in connection withthis agreement:

###  

#### (i)                  is given to each memberof staff and, in the case of the Contractor, to its subcontractors, only to theextent necessary for that member of staff’s or the subcontractor’s activitiesin relation to the Solution, the performance of the Work, the provision of theInitial Services and Core Services and the performance of the obligations underthis agreement; and

####  

#### (ii)                 is treated as confidential and notdisclosed (without prior written approval) or used by any member of staff orsubcontractor otherwise than for the purposes of this agreement.

####  

### (d)                 Where it is considered necessary in the reasonable opinionof the Principal, the Contractor will procure that all members of its staff andall subcontractors sign a confidentiality undertaking with the Principalagreeing to be bound by the same confidentiality obligations as the Contractorunder this clause 46.1, before commencing any Work.

###  

## **46.2**             Exceptions

## ** **

### (a)                 The provisions of clause 46.1 will not apply to anyinformation:

###  

#### (i)                  which is or becomespublic knowledge (otherwise than by breach of this clause 46); or

####  

#### (ii)                 which was in the possession of theparty concerned, without restriction as to its disclosure, before receiving itfrom the disclosing party.

####  

### (b)                 Nothing in this clause 46 will prevent the Principal orthe Contractor from disclosing any information obtained from the Contractor toany other department, office, or agency of the Commonwealth or State ofVictoria, or to any person engaged by the Principal in connection with this agreement, provided that in disclosing the information the Principalhas required that the information is treated as confidential, includingrequiring confidentiality undertakings where appropriate.

###  

### (c)                 Nothing in this clause 46 will prevent either partyfrom using, in the course of its normal business, any techniques, ideas orknow-how gained during the performance of this agreement, to the extent that this does not result in a disclosure ofcontract-specific information.

###  

### (d)                 The Principal may publish on a government internet web siteof the Principal the contents of any Project Document to which the Principal isa party.  The Principal will act inaccordance with any Government policies and guidelines applicable from time totime when determining what contents of any such Project Documents are to be sopublished.

###  

## **46.3**             Publicity

## ** **

### (a)                 Subject to clause 46.3(b), the Contractor and its RelatedBodies Corporate must not make any public statements or issue any pressreleases in respect of or in any way in connection with the Project or anyProject Document, the Solution or the Services without the prior writtenconsent of the Principal.

 

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### (b)                 Where the Contractor or a Related Body Corporate is requiredby law to disclose information to the public, the Contractor or the RelatedBody Corporate (whichever is applicable) must, where possible, provide thePrincipal 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 ismade.

###  

## **46.4**             Privacy

## ** **

### (a)                 The Contractor must:

###  

#### (i)                  comply with the PrivacyObligations and the Contractor’s Privacy Plan and agreesto be bound by the Information Privacy Principles inthe Information Privacy Act 2000 (Vic) and any applicable Code of Practice withrespect to any act done, or practice engaged in, by it for the purposes of thisagreement, in the same way and to the same extent as the Principal would bebound 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 hadit been directly done or engaged in by the Principal;

####  

#### (ii)                 provide all reasonable assistanceto enable the Principal to comply with the Privacy Obligations and the TTA’sPrivacy Management Plan and Policy;

####  

#### (iii)                provide all reasonable assistanceto enable the Access Providers and the Bus Operators to comply with the PrivacyObligations;

####  

#### (iv)               design the Solution to operate, andensure the Solution operates;

####  

##### A.                 in compliance with the PrivacyObligations, the TTA’s Privacy Management Plan and Policy and the Contractor’sPrivacy Plan;

#####  

##### B.                 in a manner that ensures:

#####  

###### 1)                  the Contractor complieswith the Privacy Obligations and the Contractor’s Privacy Plan;

######  

###### 2)                  the Principal can complywith the Privacy Obligations and the TTA’s Privacy Management Plan and Policy;

######  

###### 3)                  the Access Providers andthe Bus Operators can comply with the Privacy Obligations.

######  

### (b)                 Without derogating from clause 46.4(a), the Contractormust ensure that Personal Information is collected, used, disclosed and handledby it and within the Solution in accordance with the Contractor’s Privacy Plan, the TTA’s Privacy Management Plan and Policyand this agreement, including the Requirements Document and the Solution Documentation.

###  

### (c)                 The Contractor’s Privacy Plan must includeprocedures which:

###  

#### (i)                  ensure that theContractor will comply with the Privacy Obligations;

####  

#### (ii)                 are consistent with the PrivacyObligations as they apply to the Principal, the Access Providers and the BusOperators;

 

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#### (iii)                are consistent with the TTA’sPrivacy Management Plan and Policy; and

####  

#### (iv)               are consistent with any additionalmeasures specified in the Requirements Document and theSolution Documentation.

####  

### (d)                 The Contractor must update its procedures in relation toprivacy protection and the Contractor’s Privacy Plan as technologyand security threats evolve at all times in accordance with Industry Practiceand this agreement, including the Requirements Document and the SolutionDocumentation and in any event, must prepare andsubmit to the Principal for its approval an updated Contractor’s Privacy Planat the same time that it provides the Principal with its detailed financialforecasts under clause 47.2(b)(i)B. The Principal may, within 10 Business Days of receipt of an updatedContractor’s Privacy Plan, advise the Contractor whether or not it considerssuch plan to be in accordance with this agreement or reject it and provide itscomments (if any).  If an updatedContractor’s Privacy Plan is rejected, the Contractor must promptly, and in anyevent within 5 Business Days, submit to the Principal a redraft of theplan.  The Contractor must take intoaccount any comments of the Principal in finalising the Contractor’s PrivacyPlan.

###  

### (e)                 The Contractor must ensure that its contract with anysubcontractor who collects, uses, stores, disposes or discloses PersonalInformation contains provisions to the same or similar effect as this clause46.4.

###  

### (f)                 The Contractor will indemnify the Principal in respect ofall Claims and liabilities whatsoever incurred by the Principal resulting fromany act done or practice engaged in by the Contractor or its subcontractorswhether or not for the purposes of this agreement or a subcontract, and whichwould, had that act or practice been done or engaged in by the Principal, havecontravened one or more of the Information Privacy Principles inthe Information Privacy Act2000 (Vic) or any applicable Code of Practice.

###  

### (g)                 The Contractor and its subcontractors will have their privacyprocedures audited on an annual basis by a qualified nationally recognised firmand the Contractor and its subcontractors must take such action as isreasonable to comply with any exceptions or discrepancies discovered by anysuch audit.

###  

### (h)                 Where the Principal, after the Completion Date of the NTSSolution Requirements Phase, notifies the Contractor in writing of:

###  

#### (i)                  any additions or changesto 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’sPrivacy Management Plan and Policy, 

####  

suchnotification will constitute a Variation Order for the purposes of thisagreement and the Contractor’s obligations under this agreement will be variedin accordance with, and the Contractor must comply with, the matters notifiedby the Principal.  

 

## **46.5**             Information

## ** **

TheContractor must immediately notify the Principal of the following:

 

### (a)                 any Smartcard ticketing projects or related projects whichthe Contractor has been awarded either in Australia or overseas;

 

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### (b)                 any Event of Default;

###  

### (c)                 any litigation, arbitration or administrative proceedingstaking place, pending or threatened, affecting the Contractor or a Related BodyCorporate which could materially impact on the Project or the performance bythe Contractor of its obligations under this agreement;

###  

### (d)                 any change in control of the Contractor in accordance withclause 45.3;

###  

### (e)                 any substantial dispute between the Contractor and anysubcontractor or third party the outcome of which could impact on the Projector the performance by the Contractor of its obligations under this agreement;and

###  

### (f)                 any change in the financial position or prospects of theContractor or a Related Body Corporate which could impact on the Project or theperformance 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 properbooks of account and all other records relating to the Project at its officesin Melbourne in a manner and to a standard as would be expected of a prudentand competent person undertaking the obligations of the Contractor under thisagreement.

###  

### (b)                 The Contractor must ensure that:

###  

#### (i)                  its books of accountand records referred to in clause 47.1(a); and

####  

#### (ii)                 the books of accountand records of any third party who has entered into a Key Contract with theContractor in connection with this agreement,

####  

are available to the Principal or any personnominated by the Principal at all reasonable times for examination, audit,inspection, transcription and copying, provided however that the Principal mustkeep any information obtained by it under this clause confidential.

 

### (c)                 Upon the expiration of the Termor earlier termination of this agreement, the Contractor must deliver to thePrincipal all books of account and records referred to in clause 47.1(a) whichare necessary for the continued delivery of the Solution and provision of theInitial Services and the Core Services. The Contractor may keep a copy of such accounts and records for itscorporate records and audit purposes.

###  

### (d)                 The Principal must give theContractor access to any books of account or records given to it by theContractor for a period of 7 years after the date they are given to thePrincipal.

###  

## **47.2**             Financial Statements

## ** **

### (a)                 Not later than 31 October ineach year, the Contractor must give to the Principal the Project’s auditedfinancial statements (including all notes to and forming part of the financialstatements) for the previous financial year.

###  

### (b)                 The Contractor must provide tothe Principal:

 

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#### (i)                  as soon as practicableand in any event not later than 31 October of each year:

####  

##### A.                 a copy of its auditedstatement of financial position, statement of financial performance andstatement of cashflow (including all notes to and forming part of thestatements) for the previous financial year (**“AuditedAnnual Financial Statements”**);

#####  

##### B.                 detailed forecasts ofits financial position, financial performance and cashflow for the next 2financial years; and

#####  

##### C.                 copies of the AuditedAnnual Financial Statements of the Contractor and Keane Inc.

#####  

#### (ii)                 as soon aspracticable and in any event not later than 20 Business Days after the firsthalf of each financial year:

####  

##### A.                 a copy of itsstatement of financial position, statement of financial performance andstatement of cashflow for that half year (**“UnauditedHalf-yearly Financial Statements”**), certified as correct by adirector and secretary of the Contractor; and

#####  

##### B.                 copies of theUnaudited Half-yearly Financial Statements of the Contractor and Keane Inc.

#####  

#### (iii)                such additionalrelevant financial or other information with respect to it, the Solution or theProject as the Principal may from time to time reasonably require.

####  

### (c)                 The Contractor must ensure thateach statement of financial position, statement of financial performance andstatement of cashflow furnished pursuant to clause 47.2(b) will:

###  

#### (i)                  in respect of theContractor, be prepared in accordance with the A-IFRS accounting principles andpractices as varied from time to time consistently applied, except to theextent of departures from such principles and practices disclosed in suchaccounts;

####  

#### (ii)                 in respect of allother relevant entities, be prepared in accordance with generally acceptedaccounting principles and practices consistently applied in the country oforigin or incorporation of the relevant entity, except for the extent ofdepartures from such principles and practices disclosed in such accounts; and

####  

#### (iii)                fairly represent itsfinancial condition or its consolidated financial position and that of itscontrolled entities, as the case may be, and the result of its operations as atthe date and for the period ending on the date to which such accounts wereprepared.

####  

## **47.3**             Management Accounts

## ** **

### (a)                 The Contractor must provide tothe Principal:

 

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#### (i)                  as soon aspracticable and in any event not later than 20 Business Days after the close ofeach month, a copy of its unaudited management accounts (**“Management Accounts”**) including:

####  

##### A.                 summary financialstatements based on the Management Accounts;

#####  

##### B.                 statement ofcashflow;

#####  

##### C.                 statement offinancial position;

#####  

##### D.                 statement offinancial performance (containing at least the following detail: revenue bytype, material, labour, overhead (excluding margin), gross margin andperformance against budget and forecasts); and

#####  

##### E.                  details of anyrelated party transactions, including margin or mark up applied on items listedat 47.3(a)(i)D above;

#####  

#### (ii)                 as soon aspracticable and in any event not later than:

####  

##### A.                 31 October ofeach year, a reconciliation of the Contractor’s Management Accounts with itsAudited Annual Financial Statements; and

#####  

##### B.                 20 Business Daysafter the first half of each financial year, a reconciliation of the Contractor’sManagement Accounts with its Unaudited Half-yearly Financial Statements; and

#####  

##### C.                 such additionalrelevant financial or other information with respect to it, the Solution or theProject as the Principal may from time to time reasonably require.

#####  

### (b)                 Where the Contractor performs areconciliation in accordance with clause 47.3(a)(ii) and there is anydifference between the Contractor’s Management Accounts and its Audited AnnualFinancial Statements and Unaudited Half-yearly Financial Statements, thedifferences must be fully explained in writing. The Contractor must immediately draw any unexplained items to theattention of the Principal.  Anyadjustments or balancing items that do not fall within the A-IFRS accountingprinciples and practices as varied from time to time or any successor standardsmust promptly be referred to an independent auditor for review.

###  

## **47.4**             Fixed Asset and SparesInventory Reporting

## ** **

### (a)                 Fromthe date on which the first payment is made to the Contractor under clause 21and thereafter for each year ending 30 June during the Term, as soon aspracticable and in any event not later than 31 July of each year, theContractor must provide to the Principal:

###  

#### (i)                  a hard copy and an electronic copy (in an electronic format that can beeasily migrated into Microsoft Excel without loss of format or data integrity)of the audited annual asset register of all assets comprised in the Solutionand 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 beeasily migrated into Microsoft Excel without loss of format or data

 

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#### integrity) of a detailed spares inventory, per assetclass 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 clearlyidentifies changes between the opening balance and the closing balance of theasset register (**“Audited Annual SparesInventory”**); 

####  

#### (iii)                certification of the Audited Annual Asset Register and Audited AnnualSpares Inventory by an independent auditor who is acceptable to the Principal,

####  

and such additional relevant asset andinventory information with respect to it, the Solution or the Project as thePrincipal may from time to time reasonably require.

 

### (b)                 Fromthe 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 eachnew month, an electronic copy (in an electronic format that can be easilymigrated into Microsoft Excel without loss of format or data integrity) of:

###  

#### (i)                  a detailed asset register of all assets comprised in the Solution andowned by the Principal pursuant to this agreement in accordance, at a minimum,with the level of detail set out inclause 47.4(c), including a reconciliation that clearly identifies changesbetween the opening balance and the closing balance of the asset register; 

####  

#### (ii)                 a detailed set of depreciation and amortisation schedules per assetclass and per transport mode; and

####  

#### (iii)                a detailed account of the spare parts inventory levels per asset classand per transport mode where applicable, including a reconciliation thatclearly identifies changes between the opening balance and the closing balanceof the asset register,

####  

and such additional relevant asset andinventory information with respect to the Contractor, the Solution or theProject as the Principal may from time to time reasonably require.

 

### (c)                 TheContractor must ensure that each asset register furnished pursuant to clause47.4(a) or (b) contains full details of all assets comprised in theSolution 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’suseful life or functionality;

####  

#### (vi)               software development; and

####  

#### (vii)              network development;

 

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##### and a reconciliation that clearly identifies changesbetween the opening balance and the closing balance of the asset register.

#####  

### (d)                 The Contractor must ensure thatall asset or inventory reporting provided to the Principal under thisclause 47.4 is prepared in accordance with the prevailing accounting principlesand practices for the Victorian State Government (A-IFRS), except to the extentof departures from such principles and practices disclosed in such accounts.

###  

## **47.5**             Blackout Periods

## ** **

Notwithstanding anything in this agreement ora Direct Agreement, the Contractor is not required to give the Principalinformation or access to books of accounts or other records of the Contractoror any of its independent sub-contractors which are publicly listed entitiesfor the period during which the Contractor or a sub-contractor (as the case maybe) is in a trading blackout period under applicable rules, regulations orpolicies of, the US Securities and Exchange Commission, the New York StockExchange or another exchange or regulatory authority to which the Contractor orany of its sub-contractors (as the case may be) is subject.

 

# **48.**                General record keepingand reporting

# ** **

## **48.1**             Acknowledgement

## ** **

The Contractor acknowledges that:

 

### (a)                 it will comply with anyobligations imposed upon it under any Public Information Act;

###  

### (b)                 the Principal is bound to complywith, amongst other things, the Public Information Acts; and

###  

### (c)                 it will, upon request by thePrincipal, assist and co-operate with the Principal in respect of any requestmade, or other action required to be taken by the Principal under a PublicInformation Act in relation to the Project.

###  

## **48.2**             Contractor toCo-operate

## ** **

If a request is made of the Contractor inaccordance with clause 48.1(c), the Contractor will:

 

### (a)                 ensure that all documentation itprovides to the Principal is in a format accessible to, and able to be read andinterpreted by the Principal; and

###  

### (b)                 ensure that the Principal isgiven access to any employees, contractors or representatives of the Contractorfor the purposes of satisfying the request, including without limitation byprocuring that such persons:

###  

#### (i)                  attend interviews;

####  

#### (ii)                 give evidence inCourt at the request of the Principal; and

####  

### (c)                 provide all other reasonableassistance in relation to any request.

 

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# **49.**                Dispute ResolutionProcedures

# ** **

## **49.1**             General

## ** **

### (a)                 If any dispute or differencearises between the parties as to any fact, matter or thing arising out of or inconnection with this agreement or the Project, either party may give to theother party a notice adequately identifying the matters the subject of thedispute or difference together with detailed particulars of it and that disputeor difference will be referred to the Dispute Panel.

###  

### (b)                 For the avoidance of doubt, aparty has the right to refer any dispute or difference between the parties asto any fact, matter or thing arising out of or in connection with thisagreement or the Project irrespective of whether any clause dealing with thearea of dispute specifically refers to the Dispute Resolution Procedures.

###  

### (c)                 Despite the existence of adispute between the parties:

###  

#### (i)                  the Contractor mustcontinue to carry out the Work;

####  

#### (ii)                 each party mustotherwise comply with its obligations under this agreement; and

####  

#### (iii)                each party’s rightsunder this agreement will not be affected.

####  

### (d)                 Except where a party seeksurgent interlocutory relief (including interim injunctions), each party may notcommence court proceedings relating to this agreement before it has compliedwith the Dispute Resolution Procedures.

###  

### (e)                 To the extent that a party issuccessful in a dispute, the unsuccessful party will pay the successful party’scosts incurred in resolving the dispute, calculated from******the date the dispute is referred to the Project ControlGroup under clause 49.2(e)(iii), or to the Chief Executive Officers underclause 49.2(e)(iv), until the date the dispute is resolved in accordance withthe Dispute Resolution Procedures or the process is otherwise terminated.  For the avoidance of doubt, each party willpay its own costs up until the date the dispute is referred to the ProjectControl Group under clause 49.2(e)(iii) or the Chief Executive Officersunder clause 49.2(e)(iv).  For the purposeof 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 anhourly basis and the cost of disbursements actually incurred.

###  

### (f)                  Any of the timeperiods that appear in this clause 49.1 may be varied by written agreementbetween the parties.

###  

## **49.2**             Dispute Panel review

## ** **

### (a)                 If a dispute is referred to theDispute Panel under clause 49.1(a), the Dispute Panel is required to meetwithin 5 Business Days of the dispute being referred to it to attempt toresolve the dispute in good faith.

###  

### (b)                 Meetings of the Dispute Panelwill be held at convenient venues in Melbourne, unless otherwise agreed by thePrincipal’s Representative and the Contractor’s Representative.

###  

### (c)                 The Principal’s Representativeand the Contractor’s Representative may each invite other persons to attendmeetings of the Dispute Panel as they consider appropriate for the resolutionof a dispute, although such persons shall not have a vote.

 

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### (d)                 Decisions of the Dispute Panelwill be contractually binding on the Principal and the Contractor provided theyare in writing and signed by the Principal’s Representative and the Contractor’sRepresentative.

###  

### (e)                 If:

###  

#### (i)                  the Dispute Panel isunable to resolve the dispute within 5 Business Days of first convening toresolve the dispute under clause 49.2(a); or

####  

#### (ii)                 the Dispute Paneldoes not convene within 5 Business Days following a referral of the disputeunder clause 49.1(a),

####  

then:

 

#### (iii)                if the Principalreasonably determines that the potential value of the dispute is less than$500,000, either party may immediately refer the dispute to the Project ControlGroup; or

####  

#### (iv)               if the Principalreasonably determines that the potential value of the dispute is greater than$500,000, either party may immediately refer the dispute to the Chief ExecutiveOfficers.

####  

### (f)                  A determination ofthe Principal under clause 49.2(e) will be conclusive and binding on theparties in the absence of a manifest error by the Principal.

###  

## **49.3**             Project Control Groupreview

## ** **

### (a)                 If a dispute is referred to theProject Control Group under clause 49.2(e)(iii), the Project Control Group isrequired to meet within 10 Business Days of the dispute being referred toit to attempt to resolve the dispute in good faith.

###  

### (b)                 Where the Project Control Groupis convened to resolve a dispute referred to it under clause 49.2(e)(iii):

###  

#### (i)                  unless otherwiseagreed by the members of the Project Control Group, no other business will bediscussed at such meeting; and

####  

#### (ii)                 the quorum of anymeeting of the Project Control Group must be at least two representatives ofeach of the Principal and the Contractor. If a quorum is not present within 45 minutes after the timeappointed for commencement of the meeting of the Project Control Group, thatmeeting will be adjourned to the same time 2 Business Days after thatmeeting at the same place or at such other time, day or place asrepresentatives of both the Principal and the Contractor may agree.  If a quorum is again not present within 45minutes 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 atmeetings of the Project Control Group will be decided by a unanimous resolutionwith each representative having one vote provided that if there is not aunanimous resolution at a meeting of the Project Control Group then eitherparty may immediately refer the dispute to the Chief Executive Officers.

###  

### (d)                 Duly passed resolutions of theProject Control Group will be contractually binding on the Principal and theContractor provided they are in writing and signed by each member of theProject Control Group.

 

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### (e)                 If:

###  

#### (i)                  the Project ControlGroup is unable to resolve the dispute within 5 Business Days of firstconvening to resolve the dispute under clause 49.3(a); or

####  

#### (ii)                 the Project ControlGroup does not convene within 10 Business Days following a referral of thedispute under clause 49.2(e)(iii),

####  

then either party may immediately refer thedispute to the Chief Executive Officers.

 

## **49.4**             Chief ExecutiveOfficer review

## ** **

### (a)                 If a dispute is referred to theChief Executive Officers under clause 49.2(e)(iv) or clauses 49.3(b), 49.3(c) or49.3(e), the Chief Executive Officers (or other holder of the delegations ofthat position for the time being) are required to meet within 5 BusinessDays of the dispute being referred to them to attempt to resolve the dispute ingood faith.

###  

### (b)                 The joint decisions of the ChiefExecutive Officers will be contractually binding on the Principal and theContractor provided they are in writing and signed by the Chief Executive Officers.

###  

### (c)                 If:

###  

#### (i)                  the Chief ExecutiveOfficers are unable to resolve the dispute within 5 Business Days of firstconvening to resolve the dispute under clause 49.4(a); or

####  

#### (ii)                 the Chief ExecutiveOfficers do not convene within 5 Business Days following referral of thedispute to them under clause 49.2(e)(iv) or clauses 49.3(b), (c) or(e),

####  

then either party may refer the dispute tothe Expert for determination in accordance with clause 49.5.

 

## **49.5**             Expert determination

## ** **

### (a)                 Where this agreement requires amatter to be referred to or resolved by the Expert or where the partiesotherwise agree to refer a matter to the Expert, the matter will be determinedby the Expert and administered in accordance with this clause 49.5.  For the avoidance of doubt, where thisagreement or the parties require a matter to be referred directly to theExpert, 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 anExpert as a condition precedent to the payment of the Milestone Payment dueafter the Completion Date for the NTS Mobilisation Phase.

###  

### (c)                 The parties must comply with theterms of the Expert Deed.

###  

### (d)                 If the Expert Deed isterminated, the parties must appoint a new Expert, on the terms of Schedule 14,with amendments in writing as reasonably required by the Expert and consistentwith the terms of this agreement, or as otherwise agreed between the partiesand the Expert.  If the parties areunable to agree upon the identity of a new Expert within 10 Business Days ofthe termination of the Expert Deed, or within a time otherwise agreed betweenthe parties, then either party may request the Australian Commercial DisputesCentre (ACDC) to nominate an Expert.

 

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### (e)                 The Expert must:

###  

#### (i)                  act as an expert andnot as an arbitrator;

####  

#### (ii)                 proceed in any mannerhe or she thinks fit without being bound to observe the rules of evidence;

####  

#### (iii)                take intoconsideration all documents, information and other material which the partiesgive the Expert which the Expert in his or her absolute discretion, considersrelevant to the determination of the dispute;

####  

#### (iv)               not be expected orrequired to obtain or refer to any other documents, information or material butmay do so if he or she so wishes;

####  

#### (v)                act in good faith andmake his or her decision within 15 Business Days (or within a time otherwiseagreed between the parties);

####  

#### (vi)               give his or herdetermination in writing (including a statement of the value of thedetermination) and give written reasons for the determination.

####  

### (f)                  The Expert may, withprior written approval from both the Contractor and the Principal, commissionhis or her own advisers or consultants, including lawyers, accountants,bankers, engineers, surveyors, transport consultants, or other technicalconsultants, to provide information to assist the Expert in his or herdecision.

###  

### (g)                 The Expert must appoint anyadvisers or consultants nominated in writing by both the Principal and theContractor to provide information to assist the Expert in his or her decisions.

###  

### (h)                 The parties will indemnify theExpert for the cost of retaining those advisers or consultants.

###  

### (i)                  The Contractor mustprovide the Expert with copies of minutes of meetings and all reports relevantto the Work within 5 Business Days of them being prepared, and all otherinformation required to keep the Expert informed and able to carry out his orher function under this clause.

###  

### (j)                  The Principal mayprovide the Expert with any relevant information it considers necessary to keepthe Expert informed and able to carry out his or her function under thisclause.

###  

### (k)                 A copy of all informationprovided by one party under clause 49.5(i) or 49.5(j) must be sent to theother party.

###  

### (l)                  The determination ofthe Expert will be final and binding on each party unless:

###  

#### (i)                  the value of thedetermination is greater than $500,000; and

####  

#### (ii)                 a party gives noticeof appeal to the other party within 10 Business Days of the determinationrequiring the dispute to be referred to arbitration.

####  

### (m)                Where a dispute is referred tothe Expert for determination and the Expert does not make a determinationwithin 15 Business Days of the dispute being referred to him or her, or withina time otherwise agreed between the parties, either party may refer the disputeto arbitration.

 

175

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### (n)                 The parties are to give effectto 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), thePrincipal and the Contractor will each pay one-half of the costs of the Expert.

###  

## **49.6**             Arbitration

## ** **

### (a)                 If a notice of appeal is givenunder clause 49.5(l)(ii) or a dispute is referred to arbitration underclause 49.5(m), the parties agree to refer the dispute to arbitrationadministered by the Australian Commercial Disputes Centre (ACDC)***.***

###  

### (b)                 The arbitration will beconducted in accordance with the ACDC arbitration rules which areoperating at the time the dispute is referred to ACDC, and which terms areherewith deemed to be incorporated into this agreement subject to this clause49.6.

###  

### (c)                 The seat of the arbitration willbe Melbourne, Victoria.

###  

### (d)                 The dispute will be decided by asole arbitrator.

###  

### (e)                 The parties will appoint anarbitrator as a condition precedent to the payment of the Milestone Payment dueafter the Completion Date for the NTS Mobilisation Phase.  If at the time the dispute is referred toarbitration the arbitrator is or declares not to be capable of performing itsduties as arbitrator under this agreement, the parties shall appoint anotherarbitrator.  If the parties fail toappoint a new arbitrator within 15 Business Days after the dispute has beensubmitted to arbitration, an arbitrator shall be appointed by ACDC.  In selecting an arbitrator ACDC shall inparticular consider the nature of the dispute.

###  

### (f)                  The parties agree tothe following general principles in relation to the conduct of the arbitration:

###  

#### (i)                  that they havechosen arbitration for the purposes of achieving a just, quick and cheapresolution of any dispute;

####  

#### (ii)                 that any arbitrationconducted pursuant to this clause shall not mimic court proceedings and thepractices of those courts will not regulate the conduct of the proceedingsbefore the arbitrator;

####  

#### (iii)                that in conducting thearbitration, the arbitrator must take into account the matters set out above,particularly in deciding issues such as:

####  

##### A.                 how many writtensubmissions will be allowed;

#####  

##### B.                  how much time theparties shall have for preparing written submissions;

#####  

##### C.                  where appropriate,the length of written submissions;

#####  

##### D.                 the extent ofdocument discovery permitted, if any;

#####  

##### E.                  the length of anyhearing; and

#####  

##### F.                  the number ofexperts, if any, each party is allowed to appoint.

 

176

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### (g)                 The arbitrator will conduct thearbitration as expeditiously as possible and no party will unnecessarily delaythe arbitration proceedings.

###  

### (h)                 The arbitrator will have thepower to grant all legal, equitable and statutory remedies, and will beentitled to review and substitute any determination made by the Expert underclause 49.5.

###  

### (i)                  The arbitration willbe private and confidential, and no party or arbitrator will, without priorwritten consent of all parties to the arbitration, disclose any matter relatingto the arbitration.

###  

### (j)                  This clause 49.6 setsout a separate and several agreement to this agreement.  Accordingly, if this agreement is void orvoidable for any reason the dispute resolution agreement set out in this clausewill be unaffected and will survive any determination that this agreement isvoid or has been avoided.

###  

# **50.**                Administrative provisions

# ** **

## **50.1**             Notices

## ** **

Allcommunications (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 bythat party to each other party from time to time):

###  

**Contractor**

 

Name:          Keane Australia MicropaymentConsortium Pty Ltd

 

Address:     Level 50, Bourke Place, 600 BourkeStreet, Melbourne

 

Fax:              +61 3 9643 5999

 

Forthe 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

 

Forthe attention of:       Principal’s Representative

 

### (c)                 must be signed by the party making the communication or (onits behalf) by the solicitor for, or any attorney, director, secretary orauthorised 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 clause50.1(b); and

 

177

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### (e)                 are taken to be received by the addressee:

###  

#### (i)                  in the case of prepaidpost, on the Business Day that is the third Business Day after the date ofposting to an address within Australia, and on the fifth Business Day after thedate of posting by airmail to an address outside Australia;

####  

#### (ii)                 in the case of fax, at the localtime (in the place of receipt of that fax) which then equates to the time thatfax is sent as shown on the transmission report produced by the machine fromwhich 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 aBusiness Day, when that communication is taken to be received at 9.00 am on thenext Business Day; and

####  

#### (iii)                in the case of delivery by hand, ondelivery at the address of the addressee as provided inclause 50.1(b), unless that delivery is made on a day that is not a BusinessDay, or after 5.00 pm on a Business Day, when that communication is taken to bereceived at 9.00 am on the next Business Day.

####  

## **50.2**             Stampduty

## ** **

The Contractor:

 

### (a)                 must pay all stamp duties andany related fines and penalties in respect of this agreement, the performanceof this agreement and each transaction effected by or made under or pursuant tothis agreement;

###  

### (b)                 must indemnify each other partyagainst any liability arising from failure to comply with clause 50.2(a); and

###  

### (c)                 is authorised to makeany application for and retain the proceeds of any refund due in respect ofstamp duty paid under this clause.

###  

## **50.3**             Governinglaw

## ** **

Thisagreement is governed by and will beconstrued according to the law applying in Victoria.

 

## **50.4**             Jurisdiction

## ** **

Subject to clause 49, each party irrevocably:

 

### (a)                 submits to the non-exclusivejurisdiction of the courts of Victoria, and the courts competent to determineappeals from those courts, with respect to any proceedings which may be broughtat any time relating to this agreement; and

###  

### (b)                 waives any objectionit may now or in the future have to the venue of any proceedings, and any claimit may now or in the future have that any proceedings have been brought in aninconvenient 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 ofa right, power or remedy provided by law or under this agreement by any party does not preclude, or operate as a waiver of, the exerciseor

 

178

----

 

### enforcement,or further exercise or enforcement, of that or any other right, power or remedyprovided by law or under this agreement.

###  

### (b)                 Any waiver or consent given by aparty 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 anyterm of this agreement will operate as a waiver of another breach of that termor of a breach of any other term of this agreement.

###  

## **50.6**             No limitation

## ** **

Without limiting the generality of any otherprovision of this agreement, any exercise by the Principal of any rights underthis agreement will not relieve the Contractor of any of its obligations underthis agreement.

 

## **50.7**             Consent or approval ofthe Principal

## ** **

In any case where pursuant to this agreementthe doing or executing of any act, matter or thing by the Contractor isdependent upon the approval or consent of the Principal such approval orconsent may be given or withheld, or may be given subject to any conditions, bythe Principal in its absolute discretion unless this agreement expresslyprovides otherwise.

 

## **50.8**             Measurements

## ** **

All measurements of physical quantities willbe 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 adocument signed by or on behalf of each party.

 

## **50.10**           Furtheracts and documents

## ** **

Eachparty must promptly do and perform all further acts and sign, execute andcomplete all additional documents which may be necessary to effect, perfect, orcomplete the provisions of this agreement and the transactions towhich it relates.

 

## **50.11**           Counterparts

## ** **

This agreement may be executed in any numberof counterparts and by the parties on separate counterparts.  Each counterpart constitutes an original ofthis agreement, and all together constitute one agreement.

 

## **50.12**           Expenses

## ** **

Except as otherwise provided in thisagreement, each party must pay its own costs and expenses in connection withnegotiating, preparing, executing, performing and amending this agreement.

 

## **50.13**           Severability

## ** **

Ifany part of this agreement is or becomes illegal,invalid or unenforceable in any relevant jurisdiction, the legality, validityor enforceability of the remainder of this agreement will not be affectedand this agreement will be read as if the part hadbeen deleted in that jurisdiction only.

 

179

----

 

## **50.14**           Entireagreement

## ** **

To the extent permitted by law, in relationto its subject matter, this agreement:

 

### (a)                 embodies the entireunderstanding of the parties, and constitutes the entire terms agreed by theparties; and

###  

### (b)                 supersedes any prior written orother agreement of the parties.

###  

## **50.15**           Representations andwarranties

## ** **

Each representation and warranty in thisagreement is a continuing representation and warranty and will be repeated oneach day while any obligation under this agreement remains outstanding, withreference to the facts and circumstances then subsisting.

 

## **50.16**           Indemnities

## ** **

### (a)                 Each indemnity in this agreementis a continuing obligation, separate and independent from the other obligationsof the parties, and survives termination, completion or expiration of thisagreement.

###  

### (b)                 It is not necessary for a partyto incur expense or to make any payment before enforcing a right of indemnityconferred by this agreement.

###  

### (c)                 A party must pay on demand anyamount 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 underthis agreement are given in respect of, or expressed to be in favour of, anyGovernment, Governmental Agency, Access Provider, Stakeholder or other thirdparty, the Principal holds the benefit of such obligations, undertakings,warranties, indemnities and liabilities on trust for each of those parties asfrom the date of this agreement.

 

## **50.18**           Non-merger

## ** **

None of the terms or conditions of thisagreement nor any act, matter or thing done under or by virtue of or inconnection with this agreement will operate as a merger of any of the rightsand remedies of the parties in or under this agreement all of which willcontinue in full force and effect until the respective rights and obligationsof the parties under this agreement have been fully performed and satisfied.

 

## **50.19**           Set-Off

## ** **

### (a)                 The Principal may deduct frommoney otherwise due to the Contractor:

###  

#### (i)                  any debt or othermoney due from the Contractor to the Principal; or

####  

#### (ii)                 any Claim to moneywhich the Principal may have against the Contractor whether for damages(including liquidated damages) or otherwise,

####  

whether under this agreement or otherwise atlaw relating to the Work.

 

### (b)                 The Contractor must not deductfrom money otherwise due to the Principal:

###  

#### (i)                  any debt or othermoney due from the Principal to the Contractor; or

 

180

----

 

#### (ii)                 any Claim to moneywhich the Contractor may have against the Principal whether for damages(including liquidated damages) or otherwise,

####  

whether under this agreement or otherwise atlaw relating to the Work.

 

## **50.20**           Survival

## ** **

Theparties respective rights under clauses 1, 6, 14.2, 19, 22.5, 23.5, 24.2,30, 32, 36 to the extent required byclause 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 andthis clause 50.20 survive the termination or expiry of this agreement on anybasis other than to the extent required or specifically contemplated under theprovisions of those clauses.

 

## **50.21**           Goodsand services tax

## ** **

### (a)                 **Interpretation**

###  

#### (i)                  Except where the context suggests otherwise, terms used in this clausehave 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 thecontrary, any amount, payment or consideration referred to under or inconnection with this agreement is exclusive of GST.  Any consideration that is specified to beinclusive of GST must not be taken into account in calculating the GST payablein relation to a supply for the purpose of this clause.

####  

#### (iii)                Any part of a supplythat is treated as a separate supply for GST purposes (including attributingGST payable to tax periods) will be treated as a separate supply for thepurposes of this clause.

####  

### (b)                 **Reimbursementsand similar payments**

###  

Any payment or reimbursement required to bemade 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 oramount less the amount of any input tax credit to which an entity is entitledfor the acquisition to which the cost, expense or amount relates.

 

### (c)                 **GSTpayable**

###  

#### (i)                  If GST is payable inrelation to a supply made under or in connection with this agreement then anyparty (**“Recipient”**) that isrequired to provide consideration to another party (**“Supplier”**) for that supply must pay an additional amount tothe Supplier equal to the amount of that GST at the same time as anyconsideration is to be first provided for that supply.

####  

#### (ii)                 The Supplier mustprovide a tax invoice to the Recipient, no later than the time at which theadditional amount in respect of that taxable supply is to be provided underclause 50.21(c)(i) unless the Recipient issues a recipient created taxinvoice pursuant to clause 50.21(e).

####  

### (d)                 **Variationof GST**

###  

If the GST payable in relation to a supplymade under or in connection with this agreement varies from the additionalamount paid by the Recipient under clause 50.21(c)(i)

 

181

----

 

in relation to that supply then the Supplierwill provide a corresponding refund or credit to, or will be entitled toreceive the amount of that variation from, the Recipient.  Any payment, credit or refund under thisclause is deemed to be a payment, credit or refund of the additional amountpayable under clause 50.21(c)(i).

 

### (e)                 **Recipientcreated tax invoices**

###  

#### (i)                  Where the GST lawpermits, the Principal may issue to the Contractor a recipient created taxinvoice (**“RCTI”**) for each taxablesupply made by the Contractor to the Principal under this agreement that isspecified in a notice pursuant to clause 50.21(e)(ii).

####  

#### (ii)                 Where the Principalwishes to issue an RCTI in respect of a taxable supply made by the Contractorto the Principal under this agreement, the Principal must give a written noticeto the Contractor identifying the relevant taxable supplies for which an RCTIwill be issued and the date from which the notice takes effect.  The Principal will issue the RCTI in a formatthat states the total amount payable on account of GST.  The Principal will issue an adjustment notefor any adjustment event relating to any supply in respect of which it issuesan RCTI.

####  

#### (iii)                Where the Principal ispermitted by the GST law and under this agreement to issue RCTIs and adjustmentnotes in respect of taxable supplies referred to in the notice in clause50.21(e)(ii) that are made by the Contractor to the Principal, theContractor must not issue a tax invoice or adjustment note in respect of thesetaxable supplies.

####  

#### (iv)               Each party acknowledgesthat it is registered for GST purposes at the time this agreement isexecuted.  Each party must notify theother party if it ceases to be registered for GST or if that party ceases tocomply with any requirement or criteria in the GST law or any ruling ordetermination 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 beregistered for GST, or after the Principal or the Contractor ceases to complywith any Requirement.

####  

#### (v)                The Contractor willindemnify or reimburse the Principal on demand for any loss, cost, expense,penalty, fine, interest, fee or other amount incurred in relation to thePrincipal issuing RCTIs while:

####  

##### A.                 the Contractor is notregistered for GST and/or otherwise fails to satisfy, or comply with, anyRequirement and the Principal has not received notification from the Contractorof the relevant fact referred to in clause 50.21(e)(iii); or

#####  

##### B.                  the detailscontained in any RCTI or adjustment note issued by the Principal is incorrect,inaccurate or misleading as a result of information provided by the Contractorto the Principal.

#####  

## **50.22**           Interest

## ** **

### (a)                 If either party fails to paywhen due any moneys payable by it under, or in connection with any ProjectDocument (including interest under this clause), the party in default will payinterest on the amount owing at a rate equal to the Overdue Rate calculateddaily and capitalised monthly in arrears for the period from the date

 

182

----

 

### whenthe amount became owing until the amount is paid or satisfied (both before, andas a separate and independent obligation after, any judgment).

###  

### (b)                 The interest will be capitalisedmonthly and will be added to the amount owing, and will itself bear interestunder this clause.

###  

## **50.23**           Marketingand Communications by the Principal

## ** **

TheContractor must, at its own cost, provide all reasonable assistance requestedby the Principal in relation to any marketing activities or publiccommunications that the Principal undertakes or wishes to undertake in relationto 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 1Phases**

 

(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 inthe Project Agreement

 

“WD” means work days, being any Monday toFriday 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 3Completion Pre-Conditions**

** **

(Clause 1.1 and 17)

 

**Completion Process**

 

The Completion Pre-Conditions- General and the Completion Pre-Conditions for the following Phases will beincorporated into this Schedule 3 prior to the Principal executing theagreement:

 

•                   NTS Mobilisation Phase;

 

•                   NTS SolutionRequirements Phase;

 

•                   NTS Regional andMetropolitan Implementation Completion Phase; and

 

•                   NTS Operational ProvingPhase.

 

The Principal and theContractor will also seek to agree the Completion Pre-Conditions for all otherPhases prior to the Principal executing the agreement. If the Completion Pre-Conditionsfor any of the following Phases required for this Schedule 3 have notbeen agreed and completed prior to the Principal executing the agreement:

 

•                   NTS Release 0 andPrototyping Phase;

 

•                   NTS Front Office Designand Hardware FAT Phase;

 

•                   NTS Front OfficeSoftware FAT and Back Office Release 1 and 2 Phase;

 

•                   NTS Final Back OfficeRelease Phase;

 

•                   NTS Front office UserAcceptance Test Phase;

 

•                   NTS User AcceptancePhase;

 

•                   NTS Front OfficeImplementation 1 Phase; and

 

•                   NTS Front OfficeImplementation 2 Phase,

 

then the following processwill be used to determine the Completion Pre-Conditions for the relevant Phasesprior to the Phase Date for the NTS Mobilisation Phase:

 

•                   the Principal willprovide the Contractor with a draft of the Completion Pre-Conditions for therelevant 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-Conditionsto be acceptable or to provide its comments (if any);

 

•                   if the Contractorprovides comments in relation to the draft Completion Pre-Conditions, thePrincipal must, within 5 Business Days of receipt of the Contractor’scomments, provide a revised draft of the Completion Pre-Conditions to theContractor having considered any comments of the Contractor;

 

•                   if the Contractor doesnot accept the revised draft Completion Pre-Conditions, then either party mayrefer the matter for resolution in accordance with clause 2.2(e) ofthe agreement; and

 

----

 

•                   subject to the outcomeof any such dispute resolution process, the Completion Pre-Conditions, as determinedby the Principal’s Representative, will be incorporated into Schedule 3 asthe Completion Pre-Conditions for the relevant Phases as set out above.

 

----

 

**General**

 

The following are theminimum conditions precedent to the completion of each Phase, which may bereasonably added to by the Principal for any or all Phases, in order to ensurethat the Phase deliverables and the requirements of the agreement are compliedwith in relation to each Phase:

 

1.                  The Contractor has completed all work and deliverables for therelevant Phase, including all work and deliverables as set out in theDescription of Phase Deliverables – Exhibit 4.

 

2.                  Completion of all testing required to be carried out in the relevantPhase and achievement of the required test results.

 

3.                  All minor Defects identified in respect of a previous Phase havebeen rectified in accordance with the agreement or, at the sole discretion ofthe Principal; have been scheduled to be rectified by the Phase Date for asubsequent Phase.

 

4.                  All relevant Approvals and licences required to be obtained by theContractor have been obtained and each of the relevant conditions to suchApprovals and licences have been satisfied.

 

5.                  All insurances required to be effected and maintained have beeneffected pursuant to this Agreement.

 

6.                  The Contractor has provided to the Principal the warrantiesavailable to the Contractor from all of its subcontractors and suppliersdirectly in favour of the Principal.

 

7.                  Written confirmation from the Contractor that all its subcontractorsand suppliers have been paid all amounts due and payable to them.

 

8.                  Written confirmation from the Contractor that ownership of allmaterials which should be passed to the TTA will be passed, in accordance withclauses 30 and 32 of the agreement, upon payment in respect of that Phase.

 

9.                  The Contractor has procured from all relevant sub-contractors andsuppliers, and provided written confirmation to the Principal, that allrelevant sub-contractors and suppliers have no continuing interest in any materialswhich will be owned by the Principal upon payment by the Principal of therelevant Payment Milestone.

 

10.                Writtenconfirmation from the Contractor that the Solution Documentation prepared bythe Contractor complies with the requirements of the agreement and all relevantapprovals, and that the Phase and Solution has been constructed or completed(as appropriate) in accordance with such documentation.

 

11.                TheContractor has provided to the Principal all Design Documents and any otherSolution Documentation required to be provided as pat of the relevant Phase.

 

12.                TheContractor has deposited in escrow all Escrow Material required to be depositedin escrow in accordance with the agreement as part of the relevant Phase.

 

13.                TheContractor has provided to the Principal a list of all material placed inescrow since completion of the previous Phase.

 

14.                Completionof all previous Phases has occurred.

 

----

 

**NTS Mobilisation Phase - CompletionPre-Conditions**

 

In addition to the generalCompletion Pre-conditions, the following are conditions precedent to thecompletion of the NTS Mobilisation Phase:

 

15.                Agreementby the Principal of those Category 2 Matters set out in Part B of Schedule 37.

 

16.                Deliveryto the Principal of completed versions of the documents, plans and reportsdetailed in the Description of Deliverables for the NTS Mobilisation Phase (Exhibit 4).

 

17.                Evidencesatisfactory to the Principal that the required Contractor resources areavailable in Melbourne, including Key Personnel, to commence the NTS SolutionRequirements Phase and the NTS Release 0 and Prototyping Phase inaccordance with the Project Timeline (Exhibit 3).

 

----

 

**NTS Solution Requirements Phase - CompletionPre-Conditions**

 

In addition to the generalCompletion Pre-conditions, the following are conditions precedent to thecompletion of the NTS Solution Requirements Phase:

 

18.                Agreementby the Principal of those Category 3 Matters set out in Part C of Schedule 37.

 

19.                Deliveryto the Principal of the completed NTS Requirements Specification developed inaccordance with clause 11.3.

 

20.                TheContractor has obtained written confirmation from the Operators that all of theoutcomes, requirements, policies, procedures, practices and business rules ofthe Operators have been documented in the NTS Requirements Specification inaccordance with clause 11.1(b)(i) of the agreement. However if theContractor has used best endeavours to obtain such confirmation from anOperator, and has demonstrated to the satisfaction of the Principal that theyhave in fact documented all the requirements, policies, procedures, practicesand business rules of that Operator, then the Principal will not requireconfirmation from that Operator.

 

21.                Completionof the Contractor’s obligations in regard to the NTS Solution RequirementsPhase in accordance with the agreement.

 

22.                Deliveryto the Principal of the required versions or releases of the documents, plansand reports detailed in the Description of Deliverables for the NTS SolutionRequirements Phase (Exhibit 4) and as detailed in the Design Document listprepared in accordance with Schedule 38.

 

23.                Deliveryto the Principal of the document which sets out any proposed reduction in theCapital Price or the Service Charges or both, or which does not propose anysuch reduction, in accordance with clause 11.4(b) of the agreement.

 

24.                Adescription of the Work which will comprise an Interim Phase (if any) and thePhase Dates and Completion Pre-Conditions of each Interim Phase, in accordancewith clause 11.8 of the agreement.

 

25.                Deliveryto the Principal of evidence that the NTS Requirements and outcomes,requirements, business processes and business rules identified during theNTS Solution Requirements Phase have been documented in the NTS RequirementsSpecification, including the requirements of clause 11.1(b)(iii) ofthe agreement.

 

26.                Provisionof completed documentation in relation to the Principal’s requirements for thePilot Trial as required by clause 11.1(b)(vi) of the agreement.

 

27.                Approvalby the Principal of the completed Design Document list developed in accordancewith clause 11.7 and Schedule 38 Part B.

 

28.                Acceptanceby the Principal of the completed Test Plan developed in accordance withclause 11.7 and Schedule 39.

 

29.                Deliveryto the Principal of the completed Project Quality Assurance Plan.

 

30.                Paymentin full of all liquidated damages due and payable by the Contractor inaccordance with clause 18.6 (prepayment of Liquidated Damages).

 

31.                Deliveryto the Principal of a customisation document describing the extent of work theContractor must undertake to its existing equipment and system in order to meetthe Principal’s requirements, as required by clause 11.1(b)(iii) ofthe agreement.

 

----

 

32.                Deliveryto the Principal of all audit reports relating to CMM and or ISO, electronicdata processing or system security, undertaken either by the relevantadministering organisation or by or on behalf of the Contractor, since theCommencement Date.

 

----

 

**NTS Release 0 and PrototypingPhase - Completion Pre-Conditions**

 

In addition to the generalCompletion Pre-conditions, the following are conditions precedent to thecompletion of the NTS System Prototyping Phase:

 

1.                   Evidence of theContractor having placing orders for the procurement of long lead time items(purchase orders) in accordance with the Bill of Materials for long lead timeitems.

 

----

 

**NTS Regional and Metropolitan ImplementationCompletion Phase - Completion Pre-Conditions**

 

In addition to the generalCompletion Pre-Conditions, the following are conditions precedent to thecompletion of the NTS Regional and Metropolitan Implementation CompletionPhase:

 

1.                 Demonstration to the reasonablesatisfaction 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 sothat the Solution can meet all requirements of the agreement, including theperformance requirements as detailed in Schedules 29, 30 and 31.

 

2.                 Delivery to the Principal of allTest Plan reports and data that demonstrates that all tests conducted inaccordance with the Test Plan, Test Documents and any additional testingperformed 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 allfinal software, hardware and business systems required for the operation theSolution.

 

4.                 Delivery to the Principal of allstored test data and testing software.

 

5.                 Delivery to the Principal of thecompleted final versions or releases of the documents, plans and reports asdetailed in the Design Document list prepared in accordance with Schedule 38.

 

6.                 Evidence satisfactory to thePrincipal that all non-compliances identified through the Contractor’s QualityManagement System and the Project Quality Assurance System, have beenrectified.

 

7.                 Delivery to the Principal of thefinal and completed documents, plans and reports detailed in the Description ofDeliverables for the NTS Regional and Metropolitan Implementation CompletionPhase (Exhibit 4).

 

8.                 Completion of all training requiredin accordance with the Training Programme Plan and the agreement, to thesatisfaction of the Principal.

 

9.                 Verification that all redundantequipment, devices and infrastructure has been removed and made good to thesatisfaction of the Principal.

 

10.               Payment in full of all liquidateddamages due and payable by the Contractor in accordance with clause 18.6(prepayment of Liquidated Damages).

 

11.               Delivery to the Principal of allaudit reports relating to the Project Quality Assurance Plan, CMM and or ISOreports, electronic data processing or system security, undertaken either bythe relevant administering organisation or by or on behalf of the Contractor,that have not been previously provided to the Principal since the CommencementDate.

 

----

 

**NTS Operational Proving Phase -Completion Pre-Conditions**

 

In addition to the generalCompletion Pre-conditions, the following are conditions precedent to thecompletion of the NTS Operational Proving Phase:

 

1.                 Verification to the satisfaction ofthe Principal that all components of the Solution and the Solution as a wholeis operating in accordance with the requirements of the agreement, includingthe performance requirements as detailed in Schedules 29, 30 and 31.

 

2.                 Verification to the satisfaction ofthe Principal that the Solution has operated for the final three months of theNTS Operational Proving Phase without incurring any more than 1500 ServicePoints and $1,500 of Payment Reductions (the threshold amounts) in accordancewith the performance requirements set out in Schedules 29, 30 and 31.

 

3.                 Verification to the satisfaction ofthe Principal that all tests required to achieve Completion of the NTS Regionaland Metropolitan Implementation Completion Phase have been repeated during thisPhase.

 

4.                 Delivery to the Principal of allTest Plan reports and data that demonstrates that all tests conducted duringthis Phase in accordance with the Test Plan, Test Documents and any additionaltesting performed by the Principal in accordance with clause 15.7, haveobtained a ‘Pass’ rating as described in the Test Plan.

 

5.                 Delivery to the Principal of thecompleted final versions or releases of all documents, plans and reports asdetailed in the Design Document list prepared in accordance with Schedule 38.

 

6.                 Evidence satisfactory to thePrincipal that all non-compliances identified through the Contractor’s QualityManagement System and the Project Quality Assurance System, have beenrectified.

 

7.                 Delivery to the Principal of thefinal and completed documents, plans or reports detailed under the Descriptionof Deliverables for the NTS Operational Proving Phase (Exhibit 4).

 

8.                 Verification to the satisfaction ofthe Principal that all transition activities have been completed in accordancewith the Transition Plan.

 

9.                 Payment in full of all liquidateddamages due and payable by the Contractor in accordance with clause 18.6(prepayment of Liquidated Damages).

 

10.               Delivery to the Principal of allaudit reports relating to the Project Quality Assurance Plan, CMM and or ISO,electronic data processing or system security, undertaken either by therelevant administering organisation or by or on behalf of the Contractor, thathave not been previously provided to the Principal since the Commencement Date.

 

----

 

**SCHEDULE 4**

 

**Schedule 4Certificate of Completion**

** **

(Clause 17)

 

Given pursuant toclause 17 of the Transport Ticketing Solution Project Agreement (**“****agreement****”**) dated **[                                            ]**between Public Transport Ticketing Body trading as Transport TicketingAuthority** **(**“Principal”**) and Keane Australia Micropayment Consortium PtyLtd (**“Contractor”**).

 

To:               Contractor

 

1.                   Pursuant to and for thepurposes of the agreement the Principal hereby certifiesthat *[specify Phase]* achievedCompletion on [  ].

 

2.                  This certificate iscopied to:

 

(a)                 [                       ];and

 

(b)                [                      ].

 

3.                  Terms defined in theagreement have the same meaning where used in this certificate.

 

4.                  This certificate mayonly be relied on by the parties to the agreement.

 

5.                  This certificate isissued 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 outthe following works as a Variation:

 

**[the Principal to insert details]**

 

Subject to clause 20.4 of the agreement the value of the Variation is asfollows:

 
| (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 6Acceleration Direction**

** **

(Clause 20)

 

 

(To the Contractor)

 

In accordance with clause 20.3 of the New Ticketing Solution ProjectAgreement (**“agreement”**), you are directed toaccelerate the Delivery by taking those measures which are necessary toovercome 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 thisdirection.

 

 
|                            |   |
|---------------------------------|--------|
|                            |
| Principal’s Representative |

 

----

 

**SCHEDULE 7**

 

**Schedule 7**Schedule of Ratesand Prices for Variations

** **

(Clause 20)

 

The rates and prices in this schedule aredivided between:

 

•                   equipment pricing by device and by vehicle, in Part 1 and Part 2respectively;

 

•                   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 maximumlead times between the order and delivery of devices.

 

The following items will be finalised by thePrincipal and the Contractor as Category 3 Matters prior to the Completionof 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.

 

Thefinalisation of these items by the Principal and the Contractor will be basedupon, and will involve no more cost to the Principal than, the rates and pricescurrently set out in this schedule.

 

----

 

**1.****                                                      Equipment**

 

The hours and costs relating to installationand de-installation will be finalised as a Category 3 Matter prior to theCompletion of the NTS Solution Requirements Phase in accordance with thisagreement and the process and principles set out at the beginning of thisschedule.

 

Hand-held devices – selling equipmentcosts will be finalised as a Category 3 Matter prior to the Completion ofthe NTS Solution Requirements Phase in accordance with this agreement and theprocess and principles set out at the beginning of this schedule.

 

Prices are statedas at 9 May 2005, to be escalated annually for CPI in accordance withSchedule 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 asdelivered, or required to be delivered, as part of the original equipmentsupply under the Project Agreement and as described in the BOM and RequirementsDocument.

 

----

 

(1)                                                  Costs for Ascom supplies are FCA Bern or FCAPoole, as applicable.  FCA is a definedINCOTERM meaning that the goods will be handed over to the carrier at thedesignated place, cleared for export. Keane will charge freight costs from Bern or Poole to Melbourne at costplus a margin of [**]%.  Freight costsinclude shipping, freight handling and freight insurance.  Costs exclude duty which is assumed to bezero.  At the Principal’s discretion,Keane will be required to obtain a minimum of [**]competitive quotes to supportthese costs.

 

(2)                                                  Installation Cost includes all direct coststo install equipment, including delivery to site, testing and commissioning andsafety requirements. That is, the cost, inclusive of those direct costs, willbe determined by multiplying the number of hours in the column by theapplicable hourly rate for “Installation Technician” from ERG, as set out in Part 5of this Schedule.

 

(3)                                                  De-installation Cost includes all directcosts associated with de-installing/ decommissioning equipment from a site/vehicle, removing to depot or alternative site and making the existing sitesafe. That is, the cost, inclusive of those direct costs, will be determined bymultiplying the number of hours in the column by the applicable hourly rate for“Installation Technician” from ERG, as set out in  Part 5 of thisSchedule.

 

(4)                                                  Other Costs include all non-labour andequipment costs (eg, accessories, miscellaneous materials).

 

----

 

**2.**                                                      Vehicle packages

 

The hours and costs relating to installationand de-installation will be finalised as a Category 3 Matter prior to theCompletion of the NTS Solution Requirements Phase in accordance with thisagreement and the process and principles set out at the beginning of thisschedule.

 

Prices are stated as at 9 May 2005,to be escalated annually in accordance with Schedule 11. All prices inAustralian 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 asdelivered, or required to be delivered, as part of the original equipmentsupply under the Project Agreement and as described in the BOM and RequirementsDocument.

 

(5)                                                  Costs for Ascom supplies are FCA Bern or FCAPoole, as applicable.  FCA is a definedINCOTERM meaning that the goods will be handed over to the carrier at thedesignated place, cleared for export. Keane will charge freight costs from Bern or Poole to Melbourne at costplus a margin of [**]%.  Freight costsinclude shipping, freight handling and freight insurance.  Costs exclude duty which is assumed to bezero.  At the Principal’s discretion,Keane will be required to obtain a minimum of [**] competitive quotes tosupport these costs.

 

(6)                                                  Installation Cost includes all direct coststo install equipment, including delivery to site, testing and commissioning andsafety requirements. That is, the cost, inclusive of those direct costs, willbe determined by multiplying the number of hours in the column by theapplicable hourly rate for “Installation Technician” from ERG, as set out in Part 5of this Schedule.

 

(7)                                                  De-installation Cost includes all directcosts associated with de-installing/ decommissioning equipment from a site/vehicle, removing to depot or alternative site and making the existing sitesafe. That is, the cost, inclusive of those direct costs, will be determined bymultiplying 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 andequipment costs (eg, accessories, miscellaneous materials).

 

----

 

**3.**                                                      Device maintenance andother costs

 

Device maintenance charges in this Part 3will be finalised as a Category 3 Matter prior to the Completion of theNTS Solution Requirements Phase in accordance with this agreement and theprocess and principles set out at the beginning of this schedule.

 

The rates contained in this table will beindexed in accordance with Schedule 11. Prices are stated as at 9 May 2005.  The equipment which the maintenance and othercosts relate to are as set out in Part 1 and 2 of this Schedule 7.All prices are in Australian Dollars.

 

The rates are toapply as an increase to the services charges (where the overall number of unitsbeing maintained and operated has increased) and as a decrease to the servicescharges (where the overall number of units being maintained and operated hasdecreased).

 
| **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 allincremental labour and materials costs associated with preventative,line 1, line 2 and line 3 maintenance activities (including anallowance for the cost of vandalism).

 

(10)                                            Other Service charges includes all incrementallabour and materials costs associated other Core Services (except DeviceManagement Services) activities.

 

(11)                                            Initial Services charges include allincremental costs associated with each of Cardholder Support Services,Distribution Services or Cash Collection.

 

----

 

**4.**                                                      Core work packages

** **

The ratescontained 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 – InstallationTechnician will be finalised as a Category 3 Matter prior to theCompletion of the NTS Solution Requirements Phase in accordance with thisagreement and the process and principles set out at the beginning of thisschedule.

 

The daily rates in this table are quoted onthe basis of a 7.5 hour working day.

 

The ratescontained 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.

 

**Pricesexcluding 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 inaddition to the above rates and will be charged at cost.  Travel will be reimbursed on the basis ofeconomy flights for journeys with a scheduled flying time up to 12 hoursduration and business class flights for journeys with a scheduled flying timeof greater than 12 hours duration. All flight bookings will be made byKeane.  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 themost efficient allocation of tasks associated with a Variation taking intoconsideration 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 willapply on the following basis:

 

•                                                                          Keane Australia will undertakeimpact analysis, client facing tasks, requirements specification design (KeaneAustralia rates will apply);

 

•                                                                          Keane India will undertakesoftware development, testing and maintenance (Keane India rates will apply);and

 

•                                                                          Keane UK/US will providespecialist expertise from Keane’s practices (Keane Inc/Ltd rates will apply).

 

----

 

**6.**                                                      Transaction volumesincrease

 

This schedule has not been agreed by theparties.  This schedule, including thecircumstances in which it will apply, will be completed as a Category 3Matter prior to the Completion of the NTS Solution Requirements Phase inaccordance with this agreement and the process and principles set out at thebeginning of this schedule.  The partiesagree that there will no increase Services Charges if there is an increase intransaction volumes which is solely due to an increase in the level ofVictorian transit ticketing transactions where there is no change to theSolution.

 

No additional Service Charges will be paid inrelation to Cardholder Support Services and Distribution Services as thePayments for these services contain a variable component which will takeaccount of changes in transaction volumes. Cash Collection Initial Service Payments variations will be valued inaccordance with clause 20.4. (a)(ii)B

 

Increases in CoreServices Payments due to transaction volume increases shall be calculated byreference to the following table. When the Increase Percentage falls into oneof the bands shown in the first column (other than [**]%, which will notconstitute a Varation), an Increase Event is deemed to have occurred. When anIncrease Event occurs, the Core Services Base Charge shall be increased to anamount calculated using the formula shown in the second column. The increasedpayment will be payable from the beginning of the calendar month following themonth in which the Increase Event occurs.

 
| **Percentage increase in  transaction volumes  (%)** | ** ** | **Core  Services Payment  (per annum)** |   |
|------------------------------------------------------|------------|-----------------------------------------|--------|
| [**]%[**]%                                           |       | [**]                                    |   |
| [**]%[**]%[**]                                       |       | [**]                                    |   |
| [**]%[**]%                                           |       | [**]                                    |   |
| [**]%[**]%                                           |       | [**]                                    |   |

 

Keane’s current estimate is a BaseTransaction 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 leadtimes

 

The followingtable sets out the lead times required by the Contractor between the order anddelivery 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**

**PaymentSchedule**

 

(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 &  Devrient94 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**ServiceCharges

 

(Clause 27) 

 

**Completion Process**

 

**A. Card Drafting**

 

The Smartcard procurement and payment principles below have been agreedby the parties and will be drafted for incorporation into the Project Agreementas a Category 2 Matter.

 

•             Priorto each Smartcard order by the Contractor, the Principal will meet with theContractor to discuss Smartcard procurement for the coming period and provideinformation in respect of its marketing (including special editions) and otherrequirements which may impact demand for Smartcards and/or mix of Smartcardtypes required (including the Smartcard type, printing, Personalisation anddesign features required for the Smartcards).

 

•             TheContractor will then determine the requirements for all Smartcard types andseek relevant pricing and delivery information from its suppliers in light ofthe Principal’s requirements discussed under the previous point.  Prior to confirming any order with itssuppliers, the Contractor must seek the Principal’s approval of the details ofits proposed order including details of volume, pricing and projected monthlyissue profile for each type of Smartcard.

 

•             ThePrincipal may either approve the order (subject to requiring potentialvariation of proposed delivery program, ie. the Principal may require theContractor to hold greater or less volumes of stock than planned or to vary theorder to ensure it reflects the Principal’s requirements with respect tomarketing, Smartcard type, Smartcard features and Smartcard mix) or seek a dealfor better terms and conditions in the market (the Contractor must assist thePrincipal with this procurement process and then adopt the resulting supplyarrangement).

 

•             ThePrincipal will pay the Contractor based on volume of Smartcards issued (on afirst in first out basis) multiplied by the lower of the “capped rate” (beingthe amounts set out in this schedule) and “actual Smartcard cost plus agreed margin” in accordance with themargin set out in Schedule 10I).

 

•             Theissue of a Smartcard is defined to be the point of time at which Smartcardshave been issued to the end user of the Smartcard (ie. the customer). Forclarity the following table summarises the point of issue for each Smartcardunder 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 becompleted as a Category 2 Matter.

 

----

 

•             TheContractor will be paid for all stock of Smartcards (ie. relating toagreed 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. Inaddition the Principal will support any contract for future supply of agreedorder volumes (per the process above).

 

•             TheContractor will be required to minimise distribution costs by optimising batchdelivery arrangements.

 

In addition, the drafting of Schedule 10 will be refined toprovide greater clarity in respect of how Schedules 10C to 10I interact inlight of the Smartcard procurement and payment principles set out above.

 

It is also noted that Schedule 10 and 32 both currently containseparate Smartcard pricing and payment schedules.  The consolidation of the Smartcard pricingand payment provisions of these schedules will be considered during the abovelegal drafting process.

 

----

 

 

**1.**                                                      Principal Formula

** **

1.1                                 TheService Charge for each month of the Core Services Term will be calculated asfollows:

 

 

where:

 

**SC****                                               **is the Service Charge payable in that month;

 

**CSP****                                       **is the Core Services Payment for the month asdetermined in accordance with paragraph 2; and

 

**ISP****                                            **is the Initial Services Payment for the monthas determined in accordance with paragraph 3.

 

**2.**                                                      Core ServicesPayment

** **

2.1                                                 TheCore Services Payment for the month is the amount set out against the relevantmonth in the Core Services Payment Table in Schedule 10A, subject toclause 4.1 of this schedule.

 

**3.**                                                      Initial ServicesPayment

** **

3.1                                                 TheInitial Services Payment for the month will be calculated as follows:

 

 

where:

 

**ISP****                                            **is the Initial Service Payment payable inthat month;

 

**DSP****                                       **is the Distribution Services Payment for themonth as determined in accordance with paragraph 3.2;

 

**CCP****                                      **is the Cash Collection Services Payment forthe month as determined in accordance with paragraph 3.3; and

 

**CSSP****                               **is the Cardholder Support Services Paymentfor the month as determined in accordance with paragraph 3.4.

 

Inthe event that at any time during the Initial Services Term the Contractor isno longer providing one or more of the Distribution Services, Cash CollectionServices or Cardholder Support Services, the Contractor will no longer beentitled to the corresponding payment and the Initial Services Payment will becalculated excluding the relevant payments.

 

3.2                                                 TheDistribution Services Payment for each month will be calculated as follows:

 

 

where:

 

**DSP****                                       **is the Distribution Services Payment payablein that month;

 

**FDSP****                                **is the Fixed Distribution Services Paymentfor the month calculated as the amount set out against the relevant month inthe Initial Services Payment Table in Schedule 10B, subject to clause 4.1 of this schedule;

 

----

 

**VD****                                              **is the volume of Disposable Smartcards (asdefined in the Glossary which forms part of the NTS Requirements Document)Issued in the month;

 

**UPD****                                       **is the unit price per Disposable Smartcard asdetermined 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 SmartcardsIssued in the month;

 

**UPR****                                       **is the unit price per Re-Loadable Smartcardas 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 SmartcardsIssued in the month;

 

**UPSE****                                 **is the unit price per Special EditionSmartcard 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 andRe-Loadable Smartcards which were individually delivered in the month;

 

**UPI****                                            **is the unit price per individual Smartcarddelivered as set out in Schedule 10F;

 

**CDB****                                     **is the volume batches of Disposable Smartcardand Re-Loadable Smartcards which were batched delivered in the month;

 

**UPB****                                       **is the unit price per batched Smartcarddelivered as set out in Schedule 10F;

 

**DO****                                             **is the monthly payment associated withdistributing materials, other than Smartcards, as agreed between the Contractorand Principal;

 

**CP****                                               **is the volume of Disposable Smartcard andRe-Loadable Smartcards which were Personalised (as described in note 1 in Schedule 10G)in the month;

 

**UPP****                                        **is the unit price per Smartcard Personalisedas set out in Schedule 10G;

 

**CDH****                                     **is number of design hours undertaking agreed Smartcard feature/ designchanges 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                                                 TheCash Collection Services Payment for the month is the amount set out againstthe relevant month in the Initial Services Payment Table in Schedule 10B,subject to clause 4.1 of this schedule.

 

3.4                                                 TheCardholder Support Services Payment for each month will be calculated asfollows:

 

 

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 setout 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 exceedingthe minimum call volume set out in the Cardholder Support Variable ServiceCharge Table in Schedule 10J; and

 

**UPC****                                       **is the unit price for each call exceeding theminimum call volume set out in the Cardholder Support Variable Service ChargeTable in Schedule 10J.

 

**4.**                                                      Pro Rata

** **

4.1                                                 Ifthe period during which the Initial Services and Core Services are beingprovided and in respect of which Services Charges are being paid is less than afull calendar month, the Core Services Payment and the Fixed DistributionServices Payments, Cash Collection Services Payments and Fixed CardholderSupport Services Payment set out in Schedules 10A and 10B respectivelywill 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 monthin which the payment relates.

 

----

 

**Schedule 10ACore 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 endfrom commencement of the Core Services Term. If commencement of the Core Services Term is not the first day of themonth, the first month will be pro-rated in accordance with 4.1 of Schedule 10.

 

----

 

**Schedule 10BInitial 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 endfrom commencement of the Initial Services Term. If commencement of the Initial Services Term is not the first day of themonth, the first month will be pro-rated in accordance with 4.1 of Schedule 10.

 

----

 

**Schedule 10CUnit Price – Cards Issued TableUnit Price – Raw Card Unit Cost Table**

 

The unit prices below are inclusive of all initialisation costs andcosts 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 ofthe types of Smartcard listed in Schedule 10C, provided that no newSmartcard data definition is required and no other on-Smartcard applicationsare required. Should the Principal wish to introduce new services to customersand Operators which require interventions at the Smartcard level, suchinterventions will be Variations.

 

----

(1)                                                  Per Smartcard description table below.  The Smartcard types required will bedetermined in accordance with the Smartcard procurement process set out in[reference to procurement process to be inserted when that process has beendrafted and inserted into the agreement.]

 

(2)                                                  Four colour, two sided printing is includedin the base cost of the Smartcard as set out in this schedule, for bothDisposable and Re-loadable Smartcards.

 

----

 

**D.**                                    CardType 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 10DUnit Price – Initialisation**

 

The Initialisation Cost set out in this schedule are to be paidonly where the Principal sources Smartcards from a third party supplier andprovides 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 includesinitialisation. At the time of purchase, the Smartcard is printed in4 colours both sides. Electronically, the Smartcard is encoded only withthe unique manufacturer’s number and is accessible using the “transport keys”.Initialisation consists of opening and reading the Smartcard, changing the “transportkeys” for “scheme keys” and loading the basic “application” onto the Smartcard.For Smartcards which are to be initialised only, the price for initialisationis included in the raw card cost for each Smartcard set out in Schedule 10C.

 

Personalisation includes Initialisation, the encoding of personalinformation and the printing of personal information on the Smartcard (see Schedule 10G).So Smartcards which are to be Personalised do not require a separateInitialisation process and the cost of Initialisation for Smartcards which arePersonalised is included in the costs set out in Schedule 10G.

 

For Disposable Cards, Initialisation (including loading theapplication) is undertaken as part of the Smartcard manufacturing process forSmartcards sourced by the Contractor. In the event that  the Principal wishes to procure DisposableSmartcards from an alternative supplier, then the Contractor recommends thatthe 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 Personalisethem as required by the Principal at the prices set out below, provided that:

 

1.                                                       thePrincipal procures Smartcards tested for conformance to the relevant parts ofISO 14443 as shown in the table entitled “Card Type Description” in Schedule 10C;

 

2.                                                       thePrincipal procures PVC Smartcards;

 

3.                                                       thePrincipal procures that the Smartcards are shrink wrapped in boxes of400 Smartcards; and

 

4.                                                       theContractor is able to test the quality of each delivered batch of Smartcards bysampling a statistically significant number of Smartcards, and reject theentire delivery, if the Contractor reasonably concludes that the sample doesnot meet the Contractor’s standards for surface irregularities, physicaldamage, contamination and electrical performance. The Contractor shall not beliable for any delay caused by the rejection of a delivery of Smartcardsprovided it is acting reasonably in concluding that the Smartcards do not meetits 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 asdescribed in Schedule 10C only.

 

----

 

**Schedule 10EUnit Price – Printing**

 

The following prices are to be added to the base Smartcard price in Schedule 10Cfor over-printing of each Smartcard (over and above the base printing featuresincluded in Schedule 10C) or where the Principal sources Smartcards from athird 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 sidedprinting.

 

(2)                                                  The unit price per Smartcard for theseprinting features is capped at $[**] in total if one or more of these featuresis required to be provided at the same time or [**] if requested at the sametime as Personalisation (in accordance with Schedule 10G).

 

----

 

**Schedule 10FUnit Price – Card Distribution**

 

The following prices are to be paid depending on the delivery methodchosen.

 
| **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 Contractormust minimise distribution costs by optimising batch delivery arrangements.

 

----

(1)                                                  The cost of postage to the home of the cardholderfor personalised Smartcards is included in the cost of Personalisation.

 

----

 

**Schedule 10GUnit Price – Personalisation**

 

The following prices are to be paid depending on the type ofPersonalisation 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)                                       |       | [**]                      |       | [**]                     |       | [**]                     |       | [**]                      |       | [**]                      |       | [**]                      |       | [**]                      |       |

 

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(1)                                                  Personalisation includes Initialisation, theencoding of personal information and the printing of personal information onthe Smartcard and the despatch of each Personalised Smartcard by post. As such,Smartcards which are to be Personalised do not require a separateInitialisation process.

 

(2)                                                  The unit price per Smartcard for these personalisationfeatures is capped at $[**] in total if one or more of these features arerequired to be provided at the same time.

 

----

 

**Schedule 10HUnit 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           |       | $                      | [**]       |                   | $          | [**]                   |       | $                      | [**]       |                   | $          | [**]                   |       | $                      | [**]       |   | $ | [**] |   | $ | [**] |   |
|                              |            |                        |            |                        |            |                        |            |                        |            |                        |            |                        |            |                        |            |  |  |  |  |  |  |  |

 

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(1)                                                  In the case that the Principal provides theContractor with the artwork, the Contractor will provide one design change perannum free of charge, provided the Principal provides artwork in the formatrequired by the Smartcard printer.

 

----

 

**Schedule 10I**Margin

 

Margins set out in the table below will only apply when the unit pricefor 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 10JCardholder 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 11CPI Adjustment**

 

(Schedule 7)

 

References to amounts tobe indexed in accordance with CPI are references to such amounts multiplied byan adjustment factor.  The adjustmentfactor shall be calculated as shown in the formula below:

 

 

where

 

“CPI1” is the CPI for the quarter ending31 December in the preceding calendar year to the relevantcalculation 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 isno change in the coverage, periodicity or reference base from those applying atthe date of this agreement;

 

(b)                                                 ifthere is a change in the coverage of the All Groups Consumer Price IndexWeighted Average of Eight Capital Cities from that applying at the date of thisagreement and the new All Groups Consumer Price Index Weighted Average of EightCapital Cities is linked to previous All Groups Consumer Price Indexes, CPI isthe All Group Consumer Price Index Weighted Average of Eight Capital Cities;

 

(c)                                                  ifthere is a change in the reference base of the All Groups Consumer Price IndexWeighted Average of Eight Capital Cities from that applying at the date of thisagreement and the Australian Bureau of Statistics provides a conversion factor,that conversion factor will be applied to calculate revised CPI figures for thepurpose of this agreement, in terms of the new reference base;

 

(d)                                                 ifthere is a change in the reference base of the All Groups Consumer Price IndexWeighted Average of Eight Capital Cities from that applying at the date of thisagreement and the Australian Bureau of Statistics does not provide a conversionfactor, 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)                                                  ifthe All Groups Consumer Price Index Weighted Average of Eight Capital Cities ispublished and:

 

(i)                                                      thereis a change in its coverage and it is not linked to previous All GroupsConsumer Price Indexes; or

 

(ii)                                                   thereis a change in its periodicity,

 

the parties mustrequest the President of the Institute of Actuaries (or his nominee) todetermine:

 

----

 

A.                                                   whetherthe new All Groups Consumer Price Index Weighted Average of Eight CapitalCities is appropriate as a general indicator of the rate of price change forconsumer goods and services; or

 

B.                                                     ifit is not, what other index should be used as a substitute index for the purposeof this agreement,

 

and hisdetermination is final and binds the parties;

 

(f)                                                    ifthe All Groups Consumer Price Index Weighted Average of Eight Capital Cities isnot published and the Australian Bureau of Statistics publishes another indexwhich is:

 

(i)                                                      areplacement of the All Groups Consumer Price Index Weighted Average of EightCapital Cities; and

 

(ii)                                                   linkedto the All Groups Consumer Price Index Weighted Average of Eight CapitalCities,

 

all CPIs relevantto this agreement must be re-calculated to the same reference base as thereplacement index;

 

(g)                                                 ifthe All Groups Consumer Price Index Weighted Average of Eight Capital Cities isnot published and the Australian Bureau of Statistics publishes another indexwhich is not linked to the All Groups Consumer Price Index Weighted Average ofEight Capital Cities, the parties must request the President of the Instituteof Actuaries (or his nominee) to calculate the revised CPIs for the purposes ofthis agreement, and his calculation is final and binds the parties; or

 

(h)                                                 ifthe All Groups Consumer Price Index Weighted Average of Eight Capital Cities isnot published and the Australian Bureau of Statistics does not publish anotherindex in replacement of the All Groups Consumer Price Index Weighted Average ofEight Capital Cities, the parties must request the President of the Instituteof Actuaries (or his nominee) to determine an appropriate index which is ageneral indicator of the rate of price change for consumer goods and services,and his determination is final and binds the parties.

 

----

 

**Schedule 12**

 

**Schedule 12Invoice 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 ofa Payment Milestone invoice to be submitted under clause 21.3(a) andclause 21.3(b) is set out in Schedule 12A.  In accordance with clause 21.3, theinvoice for any claim with respect to a Payment Milestone must be accompaniedby, at a minimum, the following information and substantiation data:

 

(a)                                                  acopy of the relevant Certificate of Completion issued by the TTA in accordancewith clause 17 for completion of the relevant Phase;

 

(b)                                                 acopy of all Variation Orders issued by the Principal to the Contractor sincethe date of the last claim with respect to a Payment Milestone setting out thevalue and scope of the Variation and the amended Schedule 8 and Schedule 8Ato the Project Agreement;

 

(c)                                                  acopy of all Variation Orders issued by the Principal to the Contractor forwhich payment is due at the end of the relevant Phase to which the invoicerelates;

 

(d)                                                 detailof the nature and amounts to be capitalised and expensed in accordance withA-IFRS;

 

(e)                                                  therelevant extract(s) of the detailed fixed asset register and spares inventoryin the detail as set out in clause 47.4 and a full reconciliation of theinvoice to the additions to fixed asset register and spares inventory.  The invoice, reconciliation, fixed assetregister extracts and spares inventory extracts must provide sufficient detailto readily support the reconciliation, and to enable TTA to meet therequirements of its auditors in this regard;

 

(f)                                                    anyother adjustments or payments due to or to be made by either party inaccordance with this Project Agreement including any adjustment relating tocertificates or notices issued by the TTA; and

 

(g)                                                 anyother information reasonably requested by the Principal.

 

----

 

**Part B – Delivery Services Charges**

 

(Clause 21A)

 

The format of the Monthly Invoice to be submitted during the DeliveryServices Term, in accordance with clause 27.3, is set out in Schedule 12B.  In accordance with clause 27.3, anyMonthly Invoice for any Delivery Services Charge claim must be accompanied by,at a minimum, the following information and substantiation data:

 

(a)                                                  Thedates of the relevant month of the Delivery Services Term to which the invoicerelates.

 

(b)                                                 Either:

 

I.                                                          wherea Variation Order amends the Services to be delivered during the DeliveryServices Term and the Variation Order:

 

(i)                                                     hasbeen issued since the last Monthly Invoice; or

 

(ii)                                                  wherethe current invoice is the first Monthly Invoice;

 

then a copy of:

 

1.                                                       eachVariation Order issued by the Principal to the Contractor since the lastMonthly Invoice (or if the first Monthly Invoice, all Variation orders) settingout the value and scope of the Variation; and

 

2.                                                       theamended Schedule 32 to the Project Agreement; or

 

II.                                                      whereno 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 inthe last Monthly Invoice; or

 

III.                                                  whereno Variation Order has been issued and the current invoice is the first MonthlyInvoice, a copy of Schedule 32 included in the Project Agreement atexecution.

 

(c)                                                  Fullcalculations of the monthly Delivery Services Charge in accordance with Schedule 32,including where applicable:

 

I.                                                          therelevant base data and payable amounts calculated for Cardholder SupportServices, Distribution Services and Cash Collection, including the:

 

(i)                                                     applicableFixed Cardholder Support Delivery Services Payment;

 

(ii)                                                  volumeof calls of the month;

 

(iii)                                               unitprice for each call;

 

(iv)                                              FixedDistribution Services Payment;

 

(v)                                                 volumeof Disposable Smartcards Issued in the month;

 

(vi)                                              unitprice per Disposable Smartcard;

 

(vii)                                           volumeof Re-Loadable Smartcards Issued in the month;

 

(viii)                                        unitprice per Re-Loadable Smartcard;

 

----

 

(ix)                                                volumeof Special Edition Smartcards Issued in the month;

 

(x)                                                   unitprice per Special Edition Smartcard;

 

(xi)                                                volumeof Disposable Smartcard and Re-Loadable Smartcards which were individuallydelivered in the month;

 

(xii)                                             unitprice per individual card delivered;

 

(xiii)                                          volumebatches of Disposable Smartcard and Re-Loadable Smartcards which were batcheddelivered in the month;

 

(xiv)                                         unitprice per batched card delivered;

 

(xv)                                            monthlypayment associated with distributing materials, other than cards;

 

(xvi)                                         volumeof Disposable Smartcard and Re-Loadable Smartcards which were Personalised inthe month;

 

(xvii)                                      unitprice per card Personalised;

 

(xviii)                                   numberof design hours undertaking agreed smartcard feature / design changes inthe month; and

 

(xix)                                           priceper hour for card design;

 

II.                                                      forsubstantiation of Fixed Delivery Services charge for all other DeliveryServices, a copy of each relevant Certificate of Completion issued by the TTAin accordance with clause 17 for the completion of all Phases occurringbefore the payment date.

 

(d)                                                 Anyother adjustments or payments due to or to be made by either party inaccordance with this Project Agreement including any adjustment relating tocertificates or notices issued by the TTA.

 

(e)                                                  Copiesof invoices for the pass through of banking charges in accordance with clause27.9.

 

(f)                                                    Detailof the nature and amounts to be capitalised and expensed in accordance with theprevailing accounting principles and practices for the Victorian StateGovernment (A-IFRS).

 

(g)                                                 Anyother information reasonably requested by the Principal.

 

----

 

**Part C – Service Charges**

 

(Clause 27)

 

The format of the Monthly Invoice to be submitted during the CoreServices Term in accordance with clause 27.3 is set out in Schedule 12C.  In accordance with clause 27.3, aninvoice for any Services Charges claim must be accompanied by, at a minimum,the following information and substantiation data:

 

(a)                                                  Thedates of the relevant month of the Core Services Term to which the invoicerelates.

 

(b)                                                 Either:

 

I.                                                          wherea Variation Order amends the Services to be delivered during the Core ServicesTerm and the Variation Order:

 

(i)                                                     hasbeen issued since the date of the last Monthly Invoice; or

 

(ii)                                                  wherethe current invoice is the first Monthly Invoice,

 

then a copy of:

 

1.                                                       eachVariation Order issued by the Principal to the Contractor since the lastMonthly Invoice (or if it is the first Monthly Invoice, all Variation orders);and

 

2.                                                       theamended Schedule 10 to the Project Agreement;

 

II.                                                      whereno 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 substantiationin the last Monthly Invoice; or

 

III.                                                  wherethe current invoice is the first Monthly Invoice, a copy of Schedule 10included in the Project Agreement at execution.

 

(c)                                                  Fullcalculations of the monthly Service Charges according to Schedule 10, to asufficient level of detail to enable verification of the invoice amount,including:

 

I.                                                          theCore Services Payment for the relevant month;

 

II.                                                      therelevant base data and payable amounts calculated for any Initial ServicesPayment for the month, including:

 

(i)                                                     theFixed Distribution Services Payment;

 

(ii)                                                  theactual cost plus margin calculation of the Distribution Service Payment, whereapplicable;

 

(iii)                                               thevolume of Disposable Smartcards Issued in the month;

 

(iv)                                              theunit price per Disposable Smartcard;

 

(v)                                                 thevolume of Re-Loadable Smartcards Issued in the month;

 

(vi)                                              theunit price per Re-Loadable Smartcard;

 

(vii)                                           thevolume of Special Edition Smartcards Issued in the month;

 

(viii)                                        theunit price per Special Edition Smartcard;

 

----

 

(ix)                                                thevolume of Disposable Smartcard and Re-Loadable Smartcards which wereindividually delivered in the month;

 

(x)                                                   theunit price per individual card delivered;

 

(xi)                                                thevolume batches of Disposable Smartcard and Re-Loadable Smartcards which werebatched delivered in the month;

 

(xii)                                             theunit price per batched card delivered;

 

(xiii)                                          themonthly payment associated with distributing materials, other than cards;

 

(xiv)                                         thevolume of Re-Loadable Smartcards which were Personalised in the month;

 

(xv)                                            theunit price per card Personalised;

 

(xvi)                                         thenumber of design hours undertaking agreed smartcard feature / designchanges in the month;

 

(xvii)                                      theprice per hour for card design;

 

(xviii)                                   theCash Collection Services Payment for the relevant month;

 

(xix)                                           theFixed Cardholder Support Services Payment for the month;

 

(xx)                                              thevolume of calls per month, including the calculation of the calls that exceedthe minimum call volume; and

 

(xxi)                                           theunit price for each call exceeding the minimum call volume;

 

III.                                                  thecalculation of any adjustment to the Service Charge, where the payment periodis less than a full calendar month.

 

(d)                                                 Inaccordance with Schedule 31 the full calculations of any Adjustment Amountthat the Services Charge will be reduced by in the month, including relevantbase data and calculation of the Services KPI Performance Amount, Entry /Exit Point Performance Amount, Entry / Exit Device Performance Amount, andthe Distribution / Selling Device Performance Amount supported by anelectronic Excel spreadsheet containing active formulae and base data for thecalculation of the Adjustment Amount.

 

(e)                                                  Inaccordance with Schedule 31 the full calculations of any Half YearlyService Bonus, Monthly Service Charge Bonus, Smartcard activation and useBonuses, or Farebox growth bonuses, as applicable, payable to the Contractor,supported by an electronic Excel spreadsheet containing active formulae andbase data for the calculation of any bonuses.

 

(f)                                                    Theamount of any capital variation that is due and payable in the month to whichthe Monthly Invoice relates, including a copy of the relevant Variation Ordersissued by the Principal to the Contractor.

 

(g)                                                 Thecalculation of any amount payable relating to replacement and refurbishment inaccordance with clause 23.10 and Schedule 33 to the ProjectAgreement.  The Monthly Invoice shouldcontain details of:

 

I.                                                          thespecific component replaced (including type of component and its location);

 

II.                                                      thecomponent which was installed as a replacement;

 

----

 

III.                                                  thedate and time that the replacement took place; and

 

IV.                                                  theprice of the replacement, in accordance with Schedule 33.

 

(h)                                                 Inaccordance with clause 23.9, the Contractor must set out in each MonthlyInvoice, any act of Vandalism and, in relation to each act of Vandalism:

 

I.                                                          theDevice affected;

 

II.                                                      theVandalism Category which the Vandalism falls into and substantiation of thevandalism act;

 

III.                                                  theVandalism Costs for those vandalism acts above the agreed cap;

 

IV.                                                  informationand documents to substantiate the Vandalism Costs above the agreed cap;

 

V.                                                      theEquivalent Incident units; and

 

VI.                                                  thetotal Equivalent Units for the relevant month.

 

(i)                                                     Detailsof all spare parts procured by the Contractor during the month, relating toeither the Initial Services spares inventory (clause 22.9) or CoreServices spares inventory (clause 23.8).

 

(j)                                                     Therelevant extract(s) of the detailed fixed asset register and spares inventoryin the detail as set out in clause 47.4 and a reconciliation (whereapplicable) of the invoice to the additions to the fixed asset registerand / or spares inventory.  Thereconciliation, fixed asset register extracts and spares inventory extractsmust provide sufficient detail to enable TTA to meet the requirements of itsauditors in this regard.

 

(k)                                                  Detailof the nature and amounts to be capitalised and expensed in accordance with theprevailing accounting principles and practices for the Victorian StateGovernment (A-IFRS).

 

(l)                                                     Anyother adjustments or payments due to or to be made by either party in accordancewith this Project Agreement including any adjustment relating to certificatesor notices issued by the TTA.

 

(m)                                               Copiesof invoices for any pass through of banking charges in accordance with clause27.9.

 

(n)                                                 Anyother information reasonably requested by the Principal.

 

----

 

**Schedule 12AFormat 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 12BFormat 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 12CFormat 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 13Transfer Principles**

 

(Clause 44)

 

1.                                       Transfermust take place in a manner which:

 

(a)                                                   minimisesdisruptions to the businesses of the Principal, Access Providers, Bus Operatorsand Stakeholders;

 

(b)                                                  minimisesdisruptions to the public;

 

(c)                                                   minimisescosts for the Principal, Access Providers, Bus Operators and Stakeholders;

 

(d)                                                  minimisesthe start up and ongoing costs for the Principal or any third party that

 

(i)    takes over the operation ofthe Solution; or

 

(ii)                                                 isoperating a system that replaces the Solution; or

 

(iii)                                              takesover the provision of any of the Services;

 

(e)                                                   occursin the most expeditious and efficient manner possible;

 

(f)                                                     wherethe Solution is being replaced by a new system, provides for the concurrentoperation of the Solution and the new system and gradual decommissioning of theSolution.

 

2.                                                       TheContractor must as part of the Transfer or facilitation of the Transfer to thePrincipal or a third party, at a minimum:

 

(a)                                                   peaceablysurrender and transfer to the Principal or a third party the Solution in afully functional condition which complies with this agreement, including theRequirements Document and the Solution Documentation;

 

(b)                                                  deliverto the Principal all Devices, documentation and material in relation to theSolution which is necessary to enable the Principal or a third party to operatethe Solution and/or replace the Solution with another system and/or provide theServices including any of the following which have not previously been providedto the Principal in their current form:

 

(i)                                                     electronicand hard copy versions of the Solution Documentation including each of theDesign Documents;

 

(ii)                                                  alldata associated with the Solution, including System Data and Test Data;

 

(iii)                                               allmanufacturers’ warranties and guarantees relating to Devices and materials tobe delivered to the Principal or a third party;

 

(iv)                                              documentation,information, books, records and other materials (current at the time ofdelivery and reflecting current business and other processes) relating to theSolution and the Services; and

 

(v)                                                 allSoftware, Devices and other equipment required to operate and maintain theSolution or provide the Services (other than infrastructure used in theprovision of the Initial Services or Core Services to the extent

 

----

 

that it is infrastructure of an entity otherthan the Contractor which is also used by that entity to provide a materiallevel of services not related to the Initial Services or Core Services andwhich the Contractor, using reasonable endeavours, is not able to transfer);

 

(c)                                                   priorto the Transfer, provide to the Principal or a third party authorised by thePrincipal, access to:

 

(i)                                                     anypart of the Solution; and

 

(ii)                                                 anyof the items referred to in section 2(b) of this schedule;

 

(d)                                                  uponnotice from the Principal, transfer, or facilitate the transfer, by way ofnovation or otherwise, of:

 

(i)                                                     allpremises owned, leased or operated by the Contractor or any subcontractor;

 

(ii)                                                  allKey Contracts, agreements and other contracts (including supply contracts)entered into by the Contractor and its subcontractors;

 

(iii)                                              allApprovals obtained by the Contractor and its subcontractors;

 

in relation tothe Solution which are necessary for the ongoing operation of the Solution andthe continued provision of the Services or the replacement of the Solution withanother system.

 

(e)                                                   doall other reasonable acts and things to enable the Principal or a third partyto operate the Solution and provide the Services at a level at least equal tothat in effect immediately before the termination of this agreement withoutinterruption.

 

----

 

**Schedule 14**

 

**Schedule 14**ExpertDeed

 

(Clause 49.5)

 

***[Note:  To be finalised by the Principal.]***

 

**DEED OF APPOINTMENT OF EXPERT**madeat Melbourne on

 

**Parties**                                                                                            **Public Transport Ticketing Body trading as Transport TicketingAuthority**of Level 38, 55 Collins Street, Melbourne, Victoria (the **“Principal”**)

 

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

 

**[INSERT NAME]** of **[insert address]** (**“Expert”**)

 

**Recitals**

 

A.                                                   ThePrincipal and the Contractor have entered into an agreement dated[             ]entitled “New Ticketing Solution Project Agreement” (**“ProjectAgreement”**).

 

B.                                                     TheExpert has been appointed by the Principal and the Contractor to determinedisputes or differences in relation to the Project Agreement under theprocedure described in the Project Agreement.

 

**This Deed witnesses**

 

**1.**                                                      Interpretation

** **

Unless thecontrary intention appears, words and phrases used in this Deed shall have thesame meaning as attributed to such words in the Project Agreement.

 

**2.**                                                      Decide on disputes

** **

The Expert shallbe required to determine disputes or differences referred to the Expert inaccordance with the procedures set out in the Project Agreement and shall, indischarging the Expert’s obligationsunder this Deed, abide and be bound by the provisions of the Project Agreement.

 

**3.**                                                      Meeting

** **

Within 5 BusinessDays of a dispute being referred to the Expert, the Expert shall meet with thePrincipal and the Contractor to determine a procedure to resolve the dispute ordifference.

 

**4.**                                                      Expert release

** **

The partiesrelease and indemnify the Expert from and against all claims, except in thecase of fraud on the part of the Expert, which may be made against him or herby any person in respect of the Expert’s appointment to determine the dispute.

 

----

 

**5.**                                                      Expert’s powers

** **

**5.1**                                               Generalpowers

 

The Expert willin discharging the Expert**’**sobligations under this Deed:

 

(a)                                                   actas an expert and not as an arbitrator;

 

(b)                                                  proceedin such manner as the Expert thinks fit without being bound to observe the rules ofevidence;

 

(c)                                                   takeinto consideration all documents, information, and other written and oralmaterial that the parties place before the Expert including documents,information, and material relating to the facts in dispute and to arguments andsubmissions upon the matters in dispute;

 

(d)                                                  notbe expected or required to obtain or refer to any other documents, information,or material but may do so if the Expert so desires;

 

(e)                                                   actin good faith and with expedition with a view to making a decision within thetime period required by the Project Agreement;

 

(f)                                                     givehis or her determination in writing (including a statement of the value of thedetermination) and give written reasons for the determination.

 

**5.2**                                               Advisorsand consultants

 

(a)                                                   TheExpert may, with prior written approval from both the Contractor and thePrincipal, commission his or her own advisers or consultants, includinglawyers, accountants, bankers, engineers, surveyors, transport consultants orother technical consultants, to provide information to assist the Expert in hisor her decision.

 

(b)                                                  TheExpert must appoint any advisors or consultants nominated in writing by boththe Principal and the Contractor to provide information to assist the Expert inhis or her decisions.

 

**6.**                                                      Meet with parties

** **

The Expert may asa part of the procedure to be determined under clause 3 further meet with theparties to discuss the dispute or difference and at and in connection with anysuch meeting:

 

(a)                                                   neitherparty may be accompanied by their legal representative; and

 

(b)                                                  theparties agree to be bound by such procedural directions as may be given by theExpert both in preparation for and during the course of the meeting.

 

The parties agreethat any such meeting or meetings shall not in any way be regarded as a formalhearing.

 

**7.**                                                      Decision binding

** **

Subject to clause49.5(l) of the Project Agreement, the Expert’s decision shall be final andbinding.

 

----

 

**8.**                                                      Remuneration

** **

In considerationof the Expert performing the Expert’s obligations under this Deed, thePrincipal and the Contractor shall jointly pay to the Expert the amount set outin the Schedule or such other amount as is agreed between all parties tothis Deed.

 

**9.**                                                      Confidentiality

** **

The Expert shallnot, at any time, whether before or after the expiration or soonerdetermination of this Deed, without the consent of the Principal and the Contractordivulge to any person any details concerning:

 

(a)                                                   thesubject matter of any dispute or difference referred to the Expert under thisDeed;

 

(b)                                                  anyof the contents of the Project Agreement or this Deed or any other agreementscollateral or supplemental to the Project Agreement or this Deed;

 

(c)                                                   anyof the commercial bases of the Project Agreement or any information relating tothe negotiations concerning the same or any information which may have come tothe Expert’s knowledge in the course of such negotiations; or

 

(d)                                                  theoperations, dealings, transactions, contracts, commercial, or financialarrangements, or affairs of the Principal and the Contractor as contemplated bythe Project Agreement.

 

**10.**                                               Nature of Expert’srole

** **

(a)                                                   TheExpert shall be independent from the Principal and the Contractor and (withoutlimitation) the Expert warrants that he or she has no conflict of interest inacting under this Deed.  Nothing in thisDeed shall be deemed to make the Expert an agent, employee, or partner of thePrincipal or the Contractor.

 

(b)                                                  TheExpert shall assume full responsibility and liability for the payment of alltaxes due on moneys received by the Expert under this Deed.

 

**11.**                                               Term

** **

This Deed willexpire on [***Note:******To beinserted.***]

 

**12.**                                               Termination

** **

(a)                                                   ThisDeed may be terminated by either the Principal or the Contractor by giving theother parties 10 days written notice upon the occurrence of any of thefollowing events:

 

(i)                                                     theExpert being declared of unsound mind or mentally ill;

 

(ii)                                                  thedeath of the Expert;

 

(iii)                                               theExpert being declared bankrupt;

 

(iv)                                              theExpert committing any proven act of dishonesty or, by wilful act or omission orby gross neglect, behaving in a fashion clearly prejudicial to the interests ofthe Principal or the Contractor;

 

----

 

(v)                                                 theExpert being prevented by prolonged illness or incapacity from performing theExpert’s obligations under this Deed.

 

(b)                                                  ThisDeed may be terminated by 10 days written notice to the Expert from both thePrincipal and the Contractor for any reason.

 

**13.**                                               Insurance

** **

The Expert shallhold professional indemnity insurance as required by the Principal and theContractor.

 

**14.**                                               Notices

** **

All notices to begiven to the Expert under this Deed shall be properly given if hand deliveredto the Expert or if sent by certified or registered mail to the Expert’saddress shown in this Deed or to such other address as the Expert may from timeto time advise by notice in writing.

 

**15.**                                               Governing law

** **

This Deed will begoverned by the laws of Victoria.

 

**THE SCHEDULE**

 

 

Expert’sRemuneration

 

[***Note: To be inserted.***]

 

 

**EXECUTED**as a deed.

 

----

 

**Schedule 15**

 

**Schedule 15Parent Company Guarantee**

 

(Clause 2.1)

 

**DEED OF GUARANTEE AND INDEMNITY**made on                            2005

 

**Parties**

 

**PublicTransport Ticketing Body trading as Transport Ticketing Authority**,ABN 73 595 242 024 (**“Beneficiary”**)

 

**Keane, Inc.** USfederal identification number 042437166 (**“Guarantor”**)

 

**Recitals**

 

A.                                                   Atthe request of the Contractor and in consideration of the Beneficiary enteringinto and being bound by the Project Agreement, the Guarantor has agreed togrant a guarantee and indemnity on the terms of this deed.

 

B.                                                     TheGuarantor considers that by providing the guarantee and indemnity on the termsof this deed there will be a commercial benefit flowing to the Guarantor.

 

**This deed provides**

 

**1.**                                                      Definitions andInterpretation

** **

**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 (includingthis deed), indemnity, letter of credit, letter of comfort, performance bond,or other avoidance against loss which secures any obligation which is or may beor becomes owing by any other Relevant Person to the Guarantor.

 

**“GovernmentAuthority”** means any government or any governmental orsemi-governmental entity, authority, agency, commission, corporation or body(including those constituted or formed under any Statute), local governmentauthority, stock exchange, administrative or judicial body or tribunal.

 

**“Guarantee”**means the guarantee and indemnity provided for in this deed.

 

**“GuaranteedMoney”** means all money the payment or repayment of whichfrom time to time forms part of the Obligations including all moneys payable byway of interest, fees, costs, charges, duties, Taxes or expense or payable byway 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.

 

**“MaterialAdverse Effect”** means a material adverseeffect on:

 

(a)                                                   the business, assets, or financial condition of theContractor and the Guarantor (taken as a whole); or

 

----

 

(b)                                                  the ability of the Contractor and the Guarantor (takenas 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 inconnection with the Project Agreement and each other Project Document andincludes any liabilities or obligations which:

 

(a)                                                   areliquidated or unliquidated;

 

(b)                                                  arepresent, prospective or contingent;

 

(c)                                                   arein existence before or come into existence on or after the date of this deed;

 

(d)                                                  relateto the payment of money or the performance or omission of any act;

 

(e)                                                   soundin damages only; or

 

(f)                                                     accrueas a result of any Event of Default,

 

and irrespectiveof:

 

(g)                                                  whetherthe Contractor is liable or obligated solely, or jointly, or jointly andseverally with another person;

 

(h)                                                  thecircumstances in which the Beneficiary comes to be owed each liability orobligation and in which each liability or obligation comes to be the subject ofthe Guarantee, including any assignment of any liability or obligation or ofthis deed; or

 

(i)                                                      thecapacity in which the Contractor and the Beneficiary comes to owe or be owedsuch liability or obligation.

 

**“ProjectAgreement”** means the agreement entitled “New TicketingSolution Project Agreement” dated on or about the date of this deed between theBeneficiary and the Contractor.

 

**“RelevantPerson”** means the Contractor and any person who hasexecuted a Security in favour of the Beneficiary.

 

**“Security”**means a mortgage, charge, pledge, lien, hypothecation, guarantee (includingthis deed), indemnity, letter of credit, letter of comfort, performance bond,or other assurance against loss which secures any of the Obligations (includingthe payment of the Guaranteed Money) and whether existing at the date of thisdeed or at any time in the future.

 

**“Statute”**means any legislation of the Parliament of the Commonwealth of Australia or ofany State or Territory of the Commonwealth of Australia in force at any time,and any rule, regulation, ordinance, by-law, statutory instrument, order ornotice 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 anyGovernment Authority, other than any imposed on overall net income.

 

**1.2**                                               TheProject Agreement

 

Except where thecontext requires otherwise, words and expressions used in this deed which arenot otherwise defined shall have the meaning given to them in the ProjectAgreement.

 

----

 

**1.3**                                               Interpretation

 

In this deed:

 

(a)                                                   headingsare for convenience only and do not affect interpretation,

 

and unless thecontext indicates a contrary intention:

 

(b)                                                  anobligation or a liability assumed by, or a right conferred on, 2 or morepersons binds or benefits them jointly and severally;

 

(c)                                                   “person” includes an individual, theestate of an individual, a corporation, a Government Authority, an associationor a joint venture (whether incorporated or unincorporated), a partnership, anda trust;

 

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

 

(e)                                                   areference to any document (including this deed) is to that document as varied,novated, ratified or replaced from time to time;

 

(f)                                                     areference to a Statute includes its delegated legislation and a reference to aStatute or delegated legislation or a provision of either includesconsolidations, amendments, re-enactments and replacements;

 

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

 

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

 

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

 

(j)                                                      “includes” in any form isnot a word of limitation; and

 

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

 

**1.4**                                               Rule ofconstruction excluded

 

No term orprovision of this deed shall be construed against a party on the basis that thedeed or the term or provision in question was put forward or drafted by thatparty.

 

**2.**                                                      Guarantee

** **

**2.1**                                               Guarantee

 

The Guarantorunconditionally and irrevocably guarantees to the Beneficiary thedue and punctual performance and satisfaction by the Contractor of all of theObligations including the payment in full of the Guaranteed Money.

 

----

 

**2.2**                                               Paymentof Guaranteed Money

 

If the Contractordoes not pay the Guaranteed Money when due, the Guarantor must, on demand beingmade pursuant to clause 2.4, pay to the Beneficiary the Guaranteed Money whichis then due and payable, subject only to the limitation in clause 4.3.

 

**2.3**                                               PerformObligations

 

If the Contractordefaults in the performance or observance of any of the Obligations, theGuarantor shall, in addition to its obligations under clause 2.2, and subjectonly to the limitation in clause 4.3, on demand from time to time by theBeneficiary pursuant to clause 2.4, immediately perform or procure theperformance by the Contractor of any of the Obligations then required to beperformed by the Contractor in the same manner as the Contractor is required toperform the Obligations.

 

**2.4**                                               Demand

 

The Beneficiary will:

 

(a)                                                   priorto making demand on the Guarantor under clause 2.2 or 2.3, make demand on theContractor to pay the Guaranteed Money or perform the Obligation thenoutstanding;

 

(b)                                                  onthe same day, give a copy of the demand under clause 2.4(a) to theGuarantor; and

 

(c)                                                   beentitled to make demand on the Guarantor for payment of the Guaranteed Money orperformance of the Obligation if a demand made under clause 2.4(a) remainsoutstanding at the end of 5 Business Days from the date of that demand,

 

and the Guarantor must make the relevantpayment or perform or procure performance of the relevant Obligation pursuantto that demand without reference to the Contractor and notwithstanding anydispute by the Contractor as to its liability to the Principal to make thatpayment or perform that Obligation, but subject to clause 4.5.

 

**3.**                                                      Indemnity

** **

As a covenantseparate and distinct from that contained in clause 2, the Guarantorirrevocably agrees, subject only to the limitation in clause 4.3, to indemnifythe Beneficiary and at all times to keep the Beneficiary indemnified againstany loss or damage suffered by the Beneficiary arising out of or in connectionwith:

 

(a)                                                   anyfailure by the Contractor to observe or perform any of the Obligationsincluding any failure by the Contractor to pay the Guaranteed Money duly andpunctually; or

 

(b)                                                  anyProject Document being wholly or partly void, voidable, or unenforceableagainst the Contractor as a result of any act or omission by or on behalf ofthe Contractor or other Relevant Person, with the effect, in any such case,that:

 

(i)                                                     sumswhich would (but for the voidness, voidability, or unenforceability) have beenGuaranteed Money are not recoverable by the Beneficiary under clause 2.2; or

 

(ii)                                                  anyother obligations which would (but for the voidness, voidability, orunenforceability) have been Obligations are not guaranteed underclause 2.3; or

 

----

 

(c)                                                   adisclaimer of any contract or property (including the Project Agreement) madeby a liquidator of the Contractor,

 

provided however that the Guarantor shall notindemnify the Beneficiary for losses to the extent that they result from thegross negligence of the Beneficiary or breach by the Beneficiary of itsobligations under the Project Documents.

 

**4.**                                                      Nature andPreservation of Liability

** **

**4.1**                                               Absoluteliability

 

The liability ofthe Guarantor under this deed arises immediately on execution and delivery ofthis deed by the Guarantor, and:

 

(a)                                                   arisesnotwithstanding that any person expressed to be a party to this deed does notexecute and deliver this deed, that there is any invalidity, forgery or irregularityin the execution or purported execution of this deed by any person, or thatthis deed is or becomes unenforceable against any such person for any reason;and

 

(b)                                                  isnot conditional on the entering into by any other person of any other documentor agreement which might benefit (directly or indirectly) the Guarantor, or onthe satisfaction of any other condition.

 

**4.2**                                               Unconditionalliability

 

The liability ofthe Guarantor under this deed will not be affected by any act, omission, matteror thing which but for this clause 4.2, might operate in law or in equityto release the Guarantor from that liability or to reduce the Guarantor’sliability under this deed including, any of the following:

 

(a)                                                   (**Invalidity etc.**): any Security or anyProject Document being terminated or discharged (whether by any party theretoor by operation of law) or being or becoming void, voidable, or unenforceablefor any reason;

 

(b)                                                  (**Other Securities**): the Beneficiaryaccepting or declining to accept any Security from any person;

 

(c)                                                   (**Time or indulgence**): the Beneficiarygranting or agreeing with the Guarantor, the Contractor or other RelevantPerson to grant time, waiver, or other indulgence or concession to, or makingany composition or compromise with any person whether or not pursuant to anyProject Document;

 

(d)                                                  (**Forbearance**): the Beneficiary notexercising or delaying in the exercise of any remedy or right it has at anytime to terminate or enforce its rights under this deed, any Project Document,or any Security;

 

(e)                                                   (**Variation**): any variation, novation oralteration to or substitution of this deed, any Project Document or anySecurity, if that variation, novation or alteration permits or results in achange in the Obligations, including amount of the Guaranteed Money or a changein the date by which it must be paid, or a change in the identity of theContractor or other Relevant Person;

 

(f)                                                     (**Release**): the partial or conditionalrelease or discharge by the Beneficiary or by operation of law of any RelevantPerson 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 orotherwise;

 

(h)                                                  (**Accounts**): the opening or operation of anynew account with the Beneficiary by the Contractor or other Relevant Person;

 

(i)                                                      (**Change of constitution**): any change for anyreason in the name or manner in which the Beneficiary or any Relevant Personcarries on business, including any change in any partnership, firm, orassociation of which the Beneficiary or any Relevant Person is a member;

 

(j)                                                      (**Disclosure**): any failure by the Beneficiaryto disclose to the Guarantor any material or unusual fact, circumstance, event,or thing known by, or which ought to have been known by, the Beneficiaryrelating to or affecting any Relevant Person before or at any time after the dateof this deed;

 

(k)                                                   (**Prejudicial Conduct)**: any breach by theBeneficiary of any term of any Project Document or Security or any other act oromission (negligent or otherwise) of the Beneficiary with regard to any ProjectDocument, any Security, or any Relevant Person which is prejudicial to theinterests of the Guarantor;

 

(l)                                                      (**Preference**): any claim by any person that apayment to, receipt by, or other transaction in favour of the Beneficiary in ortowards satisfaction of the Obligations, including the payment of theGuaranteed Money is void, voidable, or capable of being set aside under any lawrelating to bankruptcy, insolvency, or liquidation being upheld, conceded, orcompromised;

 

(m)                                                (**Assignment**): the transfer, assignment, ornovation by the Beneficiary or any Relevant Person of all or any of its rightsor obligations under any Project Document or Security to which it is a party;

 

(n)                                                  (**Administration**): the provisions of section 440Jof the Corporations Act so operating as to prevent or delay;

 

(i)                                                     theenforcement of this deed against any Guarantor other than a Guarantor inrespect of whose liability the section applies; and/or

 

(ii)                                                  anyclaim for contribution against any Guarantor;

 

(o)                                                  (**Disclaimer**): a disclaimer of any contractor property (including the Project Agreement) made by a liquidator of theContractor or other Relevant Person;

 

(p)                                                  (**Event of Insolvency**): the occurrencebefore, on or at any time after the date of this deed, of any Event ofInsolvency in relation to any Relevant Person;

 

(q)                                                  (**Distribution**): the receipt by theBeneficiary of any payment, dividend or distribution under any InsolvencyProvision in relation to any Relevant Person;

 

(r)                                                     (**Event of Default**): the occurrence of anyEvent of Default;

 

(s)                                                   (**Acquiescence or other omission**): anylaches, acquiescence or other act, neglect, default, omission or mistake by theBeneficiary;

 

----

 

(t)                                                     (**Repudiation**): the determination,rescission, repudiation or termination, or the acceptance of any of theforegoing, by the Beneficiary or any Relevant Person of any Project Document orany Obligation;

 

(u)                                                  (**Security property**): the release of anyproperty from any Security or the substitution of any property in place of anyother property the subject of a Security;

 

(v)                                                  (**Loss of Securities**): the failure to obtainany Security or the loss or impairment of any Security by operation of law orotherwise, whether or not the same is in breach of any express or impliedcondition to obtain or preserve that Security, or is in breach of any equitableduty which might otherwise have been imposed on the Beneficiary; or

 

(w)                                                (**Priority of Securities**): the Beneficiaryagreeing to the postponement or loss of any priority attaching to any Security.

 

**4.3**                                               Limitationof Liability

 

(a)                                                   Exceptin respect of clause 12, subject to clause 4.3(b), the aggregate liability ofthe Guarantor under this Deed, whether for the Guarantor’s obligations,indemnifications or otherwise, shall not be greater than and falls within thesame monetary limitations as are imposed on the liability of the Contractor tothe Beneficiary:

 

#### (ii)                                                  inrespect of the Obligations; and

####  

#### (iii)                                               inrespect of any payment or other act the making or doing of which would haveformed part of the Obligations but for a circumstance where the ProjectAgreement or another Project Document becomes wholly or party void, voidable orunenforceable against the Contractor for any reason.

####  

(b)                                                  Tothe extent that the Contractor satisfies a liability to the Principal which issubject to the monetary limitation on liability of the Contractor under clause40.2 of the Project Agreement, the maximum liability amount of the Guarantor tothe Principal under this Deed will be reduced accordingly.

 

**4.4**                                               Claimon the Guarantor

 

Subject to clause2.4, the Beneficiary is not required to make any claim or demand on theContractor or on any other Relevant Person, or to take any steps to enforce itsrights under any Project Document or any Security before making any demand orclaim on, or otherwise enforcing its rights against, the Guarantor under this deed.

 

**4.5**                                               Noset off, counterclaim etc.

 

The liability ofthe Guarantor under this deed will not be reduced or avoided by any defence,set off, or counterclaim available to the Contractor against the Beneficiaryexcept that the Guarantor will be entitled to raise any defence of theContractor, where the Contractor has a bona fide dispute with the Principal asto its liability for the particular payment of Guaranteed Moneys or performanceof the Obligation to which the demand on the Guarantor relates, providedhowever that the dispute does not relate to any claim that any Project Documentis wholly or partly void, voidable or unenforceable against the Contractor.

 

----

 

**4.6**                                               Nomarshalling

 

The Beneficiaryis under no obligation to marshal or appropriate in favour of the Guarantor orto exercise, apply, transfer, or recover in favour of any Guarantor, anySecurity or any funds or assets that the Beneficiary holds, has a claim on, oris entitled to receive.

 

**4.7**                                               Norepresentation by Beneficiary

 

The Guarantoracknowledges that in entering into this deed ithas not relied upon any representation, warranty, statement, information ordata made or provided to it by the Beneficiary, the Government, any GovernmentAgencies, the Access Providers or any Stakeholder.

 

**4.8**                                               Voidor voidable transactions

 

If:

 

(a)                                                   theBeneficiary has at any time released or discharged:

 

(i)                                                     theGuarantor from its obligations under this deed or any Security executed by theGuarantor; or

 

(ii)                                                  anyassets of the Guarantor from a Security,

 

in either case inreliance on a payment, receipt, or other transaction to or in favour of theBeneficiary;

 

(b)                                                  thatpayment, receipt, or other transaction is subsequently claimed by any person tobe void, voidable, or capable of being set aside for any reason, includingunder an Insolvency Provision; and

 

(c)                                                   thatclaim 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 Beneficiarywill immediately become entitled against the Guarantor to all such rights(including under any Security) as it had immediately before that release ordischarge;

 

(e)                                                   (**Restore Beneficiary’s position**): theGuarantor must immediately do all things and execute all documents as theBeneficiary may require to restore the Beneficiary all those rights; and

 

(f)                                                     (**Indemnity**): the Guarantor must indemnifyand keep the Beneficiary indemnified against costs, losses, and expensessuffered or incurred by the Beneficiary as a result of the upholding,concession, or compromise of the claim.

 

**4.9**                                               Nodouble proof

 

This deedconstitutes a guarantee of the whole of the Obligations, even if the Beneficiaryand the Guarantor have agreed or agree at any time that the Guarantor’sliability under this deedwill be limited to a maximum amount under clause 4.3.  Accordingly, subject to clause 4.10, theGuarantor is not entitled to lodge any proof of debt inthe winding up of the Contractor or other Relevant Person withrespect to any claim arising as a result of the Guarantor making a paymentunder this deed, unless and until the Obligations have been satisfied in fulland the Guaranteed Money has been paid to, or recovered by, the Beneficiary infull and no claim

 

----

 

referred to in4.8(b) is threatened, pending, upheld, conceded or compromised in relationto that payment or other transaction relied on by the Beneficiary as the basisfor any discharge.

 

**4.10**                                        Proofof debt in competition with Beneficiary

 

(a)                                                   TheGuarantor must prove in the winding-up of any Relevant Person in respect of anyclaim it has against that Relevant Person other than a claim arising as aresult of the Guarantor making a payment under this deed,and agrees to hold any dividend received in respect of that proof on trust forthe Beneficiary in or towards satisfaction of the Guarantor’s obligations underthis deed.

 

(b)                                                  TheGuarantor irrevocably appoints the Beneficiary its attorney for the purposes oflodging a proof in the Guarantor’s name, and authorises the Beneficiary toretain and to carry to a suspense account and appropriate at the discretion ofthe Beneficiary any amounts received in respect of that proof until, aftertaking the amount into account, the Beneficiary has recovered an amount equalto all of the Guaranteed Money.

 

**4.11**                                        Waiverof rights

 

The Guarantor:

 

(a)                                                   mustnot exercise any right to contribution, indemnity or subrogation (includingbeing entitled to the benefit of any Security held by the Beneficiary) which itmight otherwise be entitled to claim and enforce against any Relevant Person onaccount of the Obligations; and

 

(b)                                                  willnot be entitled to the benefit of, nor seek the transfer to it, any Securityheld by the Beneficiary,

 

until all theObligations have been satisfied and Guaranteed Money has been paid to,discharged or recovered by the Beneficiary in full and no claim referred to in4.7(b) is threatened, pending, upheld, conceded or compromised in relationto that payment or other transaction relied on by the Beneficiary as the basisfor any discharge.

 

**4.12**                                        Restrictionon Guarantor’s dealings

 

The Guarantormust not without the Beneficiary’s prior written consent to those matters inclause 4.12(a) to (c):

 

(a)                                                   (**No proceedings)**:****institute anyproceedings against the Contractor;

 

(b)                                                  (**No demand**): in relation to the ProjectDocument make any demand for, or accept any money in or towards satisfaction ofany liability on any account of the Contractor other than for a liabilityarising out of the supply of goods or services by the Guarantor to theContractor in the ordinary course of that Guarantor’s ordinary business, and onarm’s length terms;

 

(c)                                                   (**No Encumbrances)**: create or permit to existany Encumbrance as security for any obligation which is or may be or becomeowing by the Contractor to the Guarantor. The Guarantor agrees to hold the benefit of any Encumbrance created orexisting in breach of this clause 4.12 and the proceeds of its realisationon trust for the Beneficiary to be applied in or towards satisfaction of theGuarantor’s liability under this deed; or

 

(d)                                                  (**administrator**): appoint an administrator tothe Contractor or other Relevant Person without prior written notice to theBeneficiary.

 

----

 

**4.13**                                        Suspenseaccount

 

The Beneficiarymay retain and carry to a suspense account and appropriate at the discretion ofthe Beneficiary any dividend received by the Beneficiary in the winding-up ofany Relevant Person, plus any other sums received by the Beneficiary on accountof the Guaranteed Money, until the Beneficiary has received the full amount ofthe Guaranteed Money.

 

**4.14**                                        Exerciseof subrogation rights

 

The Guarantorwill not seek the transfer to it of any Security which is subject to an agreedorder 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 bebound by the priority affecting that Security with the other parties to thatagreed order or priority.

 

**5.**                                                      CorporateRepresentations and Warranties

** **

**5.1**                                               Representationsand Warranties

 

The Guarantorrepresents and warrants to the Beneficiary that:

 

(a)                                                   (**Constitution**): the execution, delivery, andperformance of this deed does not violate its Constitution or any otherdocument, agreement, law, or rules by which it is bound;

 

(b)                                                  (**Corporate power**): it has taken all actionrequired to enter into this deed and to authorise the execution and delivery ofthis deed and the performance of its obligations under this deed;

 

(c)                                                   (**Filings**): it has filed all material noticesand effected all registrations with the United States Securities and ExchangeCommission or similar office in its jurisdiction of incorporation and in anyother jurisdiction as required by law which could have an effect upon theenforceability or validity of any Project Document or the ability of theGuarantor to perform its obligations under any Project Document, and thosefilings and registrations are current, complete, and accurate;

 

(d)                                                  (**Corporate Benefit**): the execution of thisdeed is in the best commercial interests of the Guarantor;

 

(e)                                                   (**Consideration**): this deed is executed forvaluable consideration, the receipt and adequacy of which the Guarantoracknowledges;

 

(f)                                                     (**Status**): no Event of Insolvency hasoccurred or subsists in respect of the Contractor or the Guarantor and nomatter relating to the Contractor or the Guarantor is the subject of adirection under, or having effect as if it were a direction under, section 14of the Australian Securities and Investment Commission Act 2001, or the subjectof an investigation under, or taken to be under, that Act;

 

(g)                                                  (**Ownership of property**): it has full legalcapacity and power to own its property and assets and carry on its business asit is now being conducted;

 

(h)                                                  (**Ranking of obligations**): this deedconstitutes a valid and legally binding obligation, enforceable in accordancewith its terms, to rank at all times at least equally with all of its otherpresent and future unsecured payment obligations (including, withoutlimitation, contingent obligations), other than those which are mandatorilypreferred by law and that the Guarantor has taken all action required to ensurethat 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 ofany of its officers, threatened against it or any of its subsidiaries or any ofits or their property which, if adversely determined, would be likely to have aMaterial Adverse Effect;

 

(j)                                                      (**Financial statements**): its financialstatements have been prepared and will from time to time be prepared inaccordance with **Guarantor**’sConstitution, any applicable Statute, and all accounting principles andpractices generally accepted in its place of incorporation consistentlyapplied, and give a true and fair view of the financialcondition 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 therehas been no change since that date having a Material Adverse Effect;

 

(k)                                                   (**Other information**): the written informationand reports (if any) which it has given to the Beneficiary in connection withthe 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)                                                  containforecasts and opinions all of which were made or formed after due and carefulconsideration on the part of its relevant officers based on the bestinformation available to it and were in the bona fide opinion of the Guarantorfair and reasonable when made or formed; and

 

(l)                                                      (**No filings or Taxes**): it is not necessaryor desirable to ensure the legality, validity, enforceability, or admissibilityin evidence of this deed that this deed or any other instrument be filed orregistered with any Government Authority or that any Taxes be paid.

 

**5.2**                                               Representationsand Warranties Repeated

 

While Obligationsremain to be performed or satisfied or any or the Guaranteed Money remainsoutstanding (whether or not then due for payment) the Guarantor will:

 

(a)                                                   giveto 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 alllitigation, arbitration or administrative proceedings taking place, pending, orto the knowledge of its officers, threatened against the Guarantor or any ofits subsidiaries or any of their property which, if adversely determined, wouldbe likely to have Material Adverse Effect; and

 

(b)                                                  promptlyupon becoming aware, advise the Beneficiary if any Event of Insolvency occursor subsists in respect of the Contractor or the Guarantor.

 

**5.3**                                               Relianceon Representations and Warranties

 

The Guarantoracknowledges that the Beneficiary has entered into the Project Agreement andeach other Project Document in reliance on the representations and warrantiesin this Clause 5.

 

**5.4**                                               NoRepresentations to Guarantor

 

The Guarantorconfirms that, except as provided herein and any Project Document, it has notexecuted this deed as a result ofor in reliance upon any promise, representation, statement, or information ofany kind or nature whatever given or offered to it by or on behalf of theBeneficiary whether in answer to any inquiry by or on behalf of the Guarantoror not.

 

----

 

**6.**                                                      Payments

** **

**6.1**                                               Ondemand

 

All money payableby the Guarantor under this deedmust be paid on demand by the Beneficiary, in immediately available funds tothe account of, and in the manner notified to the Guarantor from time to timeby, the Beneficiary.

 

**6.2**                                               Paymentin gross

 

All moneyreceived or recovered by the Beneficiary on account of the Guaranteed Moneywill be treated as payments in gross.

 

**6.3**                                               Interest

 

As a liabilityseparate and distinct from the Guarantor’s liability under clauses 2 and 3, theGuarantor must on demand by the Beneficiary pay interest on all amounts due andpayable by it and unpaid under or in respect of this deed.  Interest will accrue on those amounts fromday to day from the due date up to the date of actual payment, before and (as aseparate and independent obligation) after judgment, at the Overdue Rate forsuccessive 60 day interest periods commencing on the date of default and, ifnot paid when due, will itself bear interest in accordance with this clause6.3.

 

**6.4**                                               Merger

 

If the liabilityof the Guarantor to pay to the Beneficiary any money under this deed becomesmerged in any judgment or order, then, as an independent obligation, theGuarantor will pay interest on the amount of that money at the rate which isthe higher of that payable under clause 6.3 and that fixed by or payable underthe judgment or order.

 

**6.5**                                               Appropriationof payments

 

The Beneficiarymay appropriate any money received by it under or in respect of this deed, anyProject Document, or any Security in the manner and order and at all times asthe Beneficiary in its absolute discretion determines.

 

**6.6**                                               Noset-off or deduction

 

All payments bythe Guarantor under this deedwill be free of any set-off or counterclaim and without deduction orwithholding for any present or future Taxes unless the Guarantor is compelledby law to make any deduction or withholding and if this is the case, theGuarantor must pay to the Beneficiary any additional amounts as are necessaryto enable the Beneficiary to receive, after all those deductions andwithholdings, a net amount equal to the full amount which would otherwise havebeen payable had no deduction or withholding been required to be made.

 

**7.**                                                      Expenses and StampDuty

** **

**7.1**                                               Expenses

 

The Guarantormust on demand indemnify and keep the Beneficiary indemnified against allexpenses including legal fees, costs, and disbursements (on a solicitor and ownclient basis or on a full indemnity basis, whichever is the higher), incurredby the Beneficiary in connection with the enforcement,attempted enforcement, or preservation of any rights under this deed.

 

----

 

**7.2**                                               Stampduties

 

The Guarantormust:

 

(a)                                                   (**Payment of all duties**): pay all stampduties, 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 orany payment or other transaction under or contemplated in this deed; and

 

(b)                                                  (**Indemnity**): indemnify and keep theBeneficiary indemnified against any loss or liability incurred or suffered byit as a result of the delay or failure by the Guarantor to pay Taxes.

 

**8.**                                                      GST

** **

**8.1**                                               Interpretation

 

(a)                                                   Exceptwhere the context suggests otherwise, terms used in this clause 8 have themeanings given to those terms by the *A NewTax System (Goods and Services Tax) Act 1999* (as amended from timeto time).

 

(b)                                                  Unlessstated to the contrary, any amount, payment or consideration referred to underor in connection with this deed is exclusive of GST.  Any consideration that is specified to beinclusive of GST must not be taken into account in calculating the GST payablein relation to a supply for the purpose of this clause 8.

 

(c)                                                   Anypart of a supply that is treated as a separate supply for GST purposes(including attributing GST payable to tax periods) will be treated as aseparate supply for the purposes of this clause 8.

 

**8.2**                                               Reimbursementsand similar payments

 

Any payment orreimbursement required to be made under this deed that is calculated byreference to a cost, expense, or other amount paid or incurred will be limitedto the total cost, expense or amount less the amount of any input tax credit towhich an entity (or its representative member) is entitled for the acquisitionto which the cost, expense or amount relates.

 

**8.3**                                               GSTpayable

 

If GST is payablein relation to a supply made under or in connection with this deed then:

 

(a)                                                   anyparty (**“Recipient”**) that is required toprovide consideration to another party (**“Supplier”**) forthat supply must pay an additional amount to the Supplier equal to the amountof that GST; and

 

(b)                                                  theadditional amount is payable at the same time as any other consideration is tobe first provided for that supply or, if later, within 14 days after the day onwhich the Supplier provides the Recipient with a tax invoice for the supply.

 

**8.4**                                               Variationof GST

 

If the GSTpayable in relation to a supply made under or in connection with this deedvaries from the additional amount paid by the Recipient under clause 8.3 suchthat a further amount of GST is payable in relation to the supply or a refundor credit of GST is obtained in relation to the supply, then the Supplier willprovide a corresponding refund or credit to, or will be

 

----

 

entitled toreceive the amount of that variation from, the Recipient.  Any payment, credit or refund under thisclause 8.4 is deemed to be a payment, credit or refund of the additional amountpayable under clause 8.3.

 

**9.**                                                      Assignments

** **

The Beneficiarymay at any time assign or otherwise transfer all or any part of its rightsunder this deed to a person to whom theBeneficiary has assigned or otherwise transferred its rights under, and inaccordance with, the Project Agreement and may disclose to a proposed assigneeor transferee any information in the possession of the Beneficiary relating tothe Guarantor.

 

**10.**                                               Governing Law andJurisdiction

** **

**10.1**                                        Governinglaw

 

This deed isgoverned by and will be construed according to the law applying in Victoria.

 

**10.2**                                        Jurisdiction

 

(a)                                                   (**Acceptance of jurisdiction**): The Guarantorirrevocably submits to, acknowledges and accepts, generally andunconditionally, the exclusive personal and subject matter jurisdiction of thecourts and appellate courts of Victoria with respect to any legal action orproceedings 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 Guarantorirrevocably waives any objection it may now or in the future have to the venueof any action or proceeding, and any Claim it may now or in the future havethat any action or proceeding has been brought in an inconvenient forum.

 

(c)                                                   (**Enforcement of Victorian judgment**):  The Guarantor agrees that a judgment or orderof a Victorian court in connection with this deed:

 

(i)                                                     isconclusive and binding on the Guarantor, subject to any rights of appeal whichthe Guarantor may have in Victoria or to the High Court of Australia; and

 

(ii)                                                  maybe enforced, and the Guarantor consents to the enforcement of such a judgmentor order, against the Guarantor in the courts of any other jurisdiction,including the state and federal courts of the Commonwealth of Massachusetts, inthe United States of America.

 

**11.**                                               Miscellaneous

** **

**11.1**                                        Certificateof Beneficiary

 

A certificate inwriting of the Beneficiary certifying the amount payable by the Guarantor tothe 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 thatamount, act, matter or thing in the absence of manifest error on the face ofthe certificate.

 

**11.2**                                        Notices

 

Allcommunications (including notices, consents, approvals, requests and demandsunder or in connection with this deed:

 

----

 

(a)                                                   mustbe in writing;

 

(b)                                                  mustbe addressed as follows (or as otherwise notified by that party to each otherparty from time to time):

 

**Guarantor**

 

Name:                              KeaneInc.

 

Address:             100 City Square,Boston, Massachusetts 02129, United States of America

 

Fax:                                          +1617 241 8032

 

For the attention of:                      ChiefFinancial Officer

 

**Beneficiary**

 

Name:                              TransportTicketing Authority

 

Address:              Level 38, 55Collins Street, Melbourne, Victoria

 

Fax:                                          +613 9651 7578

 

For the attentionof:     Principal’sRepresentative

 

(c)                                                   mustbe signed by the party making the communication or (on its behalf) by thesolicitor for, or any attorney, chief executive officer, director, secretary ofthat party or other senior officer authorised to make such communications bywritten notice from time to time by that party to the other party;

 

(d)                                                  mustbe delivered or posted by prepaid post to the address, or sent by fax to thenumber, of the addressee, in accordance with this clause; and

 

are taken to bereceived by the addressee:

 

(i)                                                     inthe case of prepaid post, on the Business Day that is the third Business Dayafter the date of posting to an address within Australia, and on the fifthBusiness Day after the date of posting by airmail to an address outsideAustralia;

 

(ii)                                                  inthe case of fax, at the local time (in the place of receipt of that fax) whichthen equates to the time that fax is sent as shown on the transmission reportproduced by the machine from which that fax is sent confirming transmission ofthat fax in its entirety, unless that local time is not on a Business Day, oris after 5.00 pm on a Business Day, when that communication is taken to bereceived at 9.00 am on the next Business Day; and

 

(iii)                                               inthe case of delivery by hand, on delivery at the address of the addressee asprovided in this clause, unless that delivery is made on a day that is not aBusiness Day, or after 5.00 pm on a Business Day, when that communication istaken to be received at 9.00 am on the next Business Day.

 

**11.3**                                        Continuingobligation

 

This deedwill be a continuing obligation notwithstanding any termination by theGuarantor, settlement of account, intervening payment, a disclaimer of anycontract or property (including

 

----

 

any ProjectDocument) made by a liquidator of the Contractor, express or impliedrevocation, or any other matter or thing and continues to entitle theBeneficiary to the benefit of this deed as regards the performance andsatisfaction of all the Obligations including due and punctual payment of anyof the Guaranteed Money which becomes due or owing or is incurred aftertermination, settlement of account, payment, revocation, or other matter orthing until a final discharge has been given to the Guarantor.

 

**11.4**                                        Furtherassurance

 

The Guarantorwill upon request (given in accordance with clause 11.2) by the Beneficiary andat the entire cost and expense of the Guarantor, perform all things and executeall agreements, assurances, and other documents as the Beneficiary reasonablyrequires, to perfect or give effect to the rights and powers of the Beneficiarycreated, or intended to be created, by this deed.

 

**11.5**                                        Form ofDemand

 

At a minimum, ademand on the Guarantor for the performance of the Obligations or the paymentof the Guaranteed Money must be made in accordance with clause 11.2 and maycontain any information as the Beneficiary determines.

 

**11.6**                                        Severabilityof provisions

 

Any provision ofthis deed which is illegal, void, orunenforceable will be ineffective to the extent only of that illegality,voidness, or unenforceability without invalidating the remaining provisions.

 

**11.7**                                        Remediescumulative

 

The rights andremedies conferred by this deed onthe Beneficiary are cumulative and in addition to all other rights or remediesavailable to the Beneficiary by law or by virtue of any Project Document or anySecurity.

 

**11.8**                                        Waiver

 

(a)                                                   Failureto exercise or enforce, or a delay in exercising or enforcing or the partialexercise or enforcement of a right, power or remedy provided by law or underthis deed by any party does notpreclude, or operate as a waiver of, the exercise or enforcement, or furtherexercise or enforcement, of that or any other right, power or remedy providedby law or under this deed.

 

(b)                                                  Nowaiver of a breach of any term of this deedwill operate as a waiver of another breach of that term or of a breach of anyother term of this deed.

 

**11.9**                                        Consentsand approvals

 

Where under this deed theconsent or approval of the Beneficiary is required to any act or thing, thenunless expressly provided otherwise in this deed,that consent or approval may be reasonably given or withheld.

 

**11.10**                                 Writtenwaiver, consent and approval

 

Any waiver,consent, or approval given by the Beneficiary under this deedwill only be effective and will only bind the Beneficiary if it is given inwriting.

 

----

 

**11.11**                                 Moratoriumlegislation

 

To the fullestextent permitted by law, the provisions of all legislation whether existing nowor in the future, operating directly or indirectly:

 

(a)                                                   tolessen or otherwise to vary or affect in favour of the Guarantor any obligationunder this deed; or

 

(b)                                                  todelay or otherwise prevent or prejudicially affect the exercise of any rightsor remedies conferred on the Beneficiary under this deed,

 

are expresslywaived and excluded.

 

**11.12**                                 Debitaccounts and set-off

 

The Beneficiarymay without prior notice to the Guarantor set-off any amount which or maybecome owing, actually or contingently and on any account whatsoever by theBeneficiary to the Guarantor against any liability actual or contingent of theGuarantor to the Beneficiary under this deed.  The rights of the Beneficiary under thisclause 11.12 are without prejudice and in addition to any other right or remedyto which it is at any time entitled.

 

**11.13**                                 Counterparts

 

This deed maybe executed in any number of counterparts and by the different parties ondifferent counterparts, each of which constitutes an original of this deed,and all of which together constitute one and the same instrument.

 

**11.14**                                 Executionby less than all parties

 

This deedbinds each of the persons executing it notwithstanding:

 

(a)                                                   thatone or more of the persons named in this deed as a Guarantor may not execute ormay not become or may cease to be bound by this deed; or

 

(b)                                                  thatthe Beneficiary may not execute or may only subsequently execute this deed.

 

**11.15**                                 Resolutionof Disputes Binding

 

The settlement orthe resolution of any dispute arising under or in connection with the ProjectAgreement whether by express or implied agreement between the parties in theProject Agreement, in accordance with the procedures provided for in theProject Agreement or otherwise will be binding on each of the Guarantors and aGuarantor will not reopen, revisit or otherwise dispute that settlement or resolutionand the subject matter of that settlement or resolution.

 

**11.16**                                 NoRight to be Heard

 

The Guarantorwaives and expressly disclaims any right to be heard at or appear in anyprocedure (whether judicial, arbitral, administrative, or of any other nature)which is conducted, inter alia, for purposes connected with settling orresolving or attempting to settle or resolve any dispute referred to in clause11.15 or otherwise to be involved in the settlement or resolution of any suchdispute.

 

**11.17**                                 Agentfor Service

 

The Guarantorirrevocably agrees that service of process in any proceedings in the courts ofVictoria relating to this deedwill 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 beforethat service to be the current address for service on Mallesons Stephen Jaquesor at an address where Mallesons Stephen Jaques conduct business in the Stateof Victoria.

 

This clause doesnot affect service of process on the Guarantor in any other manner permitted bylaw.

 

**12.**                                               Payment by theGuarantor

** **

**12.1**                                        Separatepayment obligation

 

As a covenantseparate and distinct from that contained in clauses 2 and 3, the Guarantorirrevocably agrees to pay to the Beneficiary on demand from time to time anyamount required to be paid in accordance with clause 12.2.  The obligations of the Guarantor under thisclause 12 are not subject in any way to the limitations set out in clause 4.3.

 

**12.2**                                        Amountspayable

 

Where theBeneficiary, the Government and Governmental Agencies to the extent of theirinsurable interest according to the Project Documents (in this clause 12, the**“Other Insured Parties”**) has paid or incurred, or isrequired to pay or incur, any deductible in respect of a claim made or to bemade or which, but for the size of the deductible, would have been made undersuch an insurance policy and such deductible is greater than $[**], or wherethe Beneficiary or any Other Insured Party could, but for the size of theapplicable deductible have made a claim under such an insurance policy, [**],by the Beneficiary or any Other Insured Party an amount equal to the differencebetween the amount of the deductible (where a claim is or will be made) or theloss or liability suffered (where, but for the size of the applicabledeductible a claim could have been made) and $[**].

 

**12.3**                                        Holdon Trust

 

The Beneficiarywill hold a payment made by the Guarantor in accordance with this clause 12 ontrust to the extent that the amount paid by the Guarantor is in respect of anamount paid or a loss or liability suffered by any Other Insured Party.

 

**12.4**                                        Increasein deductible

 

The Guarantor confirmsto the Beneficiary that as at the date of this deed, no deductible in respectof the insurances required to be effected and maintained by the Contractorunder clause 36 of the Project Agreement exceeds US$[**].  If the deductible under the Guarantor’sglobal insurance policy is proposed to be increased above US$[**] at any timeduring which the Contractor’s obligations to effect and maintain insuranceunder clause 36 of the Project Agreement are being met under the Guarantor’sglobal 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**EscrowAgreement

 

(Clause 30)

 

**ESCROW AGREEMENT**made at Melbourne on 

 

**Parties**                                                                                                   **[Escrow Agent]** of [                                                   ](**“Escrow Agent”**)

 

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

 

**Public Transport Ticketing Body trading asTransport Ticketing Authority**of Level 38, 55 CollinsStreet, Melbourne, Victoria (**“Principal”**)

 

**Recitals**

 

A.                                                   The  Principal and the  Contractor have entered into an agreementdated[                    ]entitled “New Ticketing Solution Project Agreement” (the **“Project Agreement”**).

 

B.                                                     TheEscrow Agent has been appointed by the Principal and the Contractor  tohold the  Material in escrow.

 

**1.**                                                      Definitions andInterpretation

** **

**1.1**                                               Definitions

 

In thisAgreement:

 

**“BusinessDay”** means a day which banks are open for business inMelbourne other than a Saturday or Sunday.

 

**“CommencementDate”** means the date of this agreement.

 

**“Container”**means an air tight, moisture free container approved by the Principal.

 

**“DisputeResolution Procedures”** has the meaning given tothat expression in the Project Agreement.

 

**“EscrowFee”** means [         ].

 

**“EscrowMaterial”** has the meaning given to that expression in the ProjectAgreement.

 

**“Material”**means the data and material provided by the Contractor to the Escrow Agent asvaried, added to or replaced from time to time.

 

**“PrescribedForm”** means ***[Note:  insert information as to the form of theregister the Escrow Agent is required to maintain as agreed by the Principal,the Contractor and the Escrow Agent]***.

 

**“Term”** hasthe meaning given to that expression in the Project Agreement.

 

**1.2**                                               Interpretation

 

In thisagreement:

 

----

 

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

 

and unless thecontext indicates a contrary intention:

 

(b)                                                  “person”includes an individual, the estate of an individual, a corporation, anauthority, an association or a joint venture (whether incorporated orunincorporated), a partnership, a trust and governmental agencies;

 

(c)                                                   areference to any party includes that party’s executors, administrators,successors, substitutes and assigns, including any person taking by way ofnovation

 

(d)                                                  areference to this agreement or to any other deed, agreement or documentincludes, respectively, this agreement or other such deed, agreement ordocument as amended, novated, supplemented, varied or replaced from time totime;

 

(e)                                                   areference to a statute includes its delegated legislation and a reference to astatute or delegated legislation or a provision of either includesconsolidations, amendments, re-enactments and replacements;

 

(f)                                                     wordsimporting the singular including the plural (and vice versa) and words denotinga given gender include all other genders;

 

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

 

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

 

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

 

(j)                                                      referencesto currency unless otherwise specifically provided are references to Australiancurrency.

 

**2.**                                                      Purpose of Agreement

** **

Subject to theterms and conditions of this agreement, to secure the interests of thePrincipal under the Project Agreement:

 

(a)                                                   theContractor must deposit the Escrow Material the Contractor is required todeposit pursuant to the Project Agreement with the Escrow Agent in Melbourne;and

 

(b)                                                  theEscrow Agent must act as escrowee of the Material.

 

**3.**                                                      Term of Agreement

** **

This agreementcommences on the Commencement Date and will remain in force until all Materialis released in accordance with this agreement or this agreement is otherwiseterminated.

 

----

 

**4.**                                                      Deposit of Material

** **

**4.1**                                               Depositof Material

 

The Contractor shalldeposit Material with the Escrow Agent from time to time as required by theProject Agreement and the Escrow Agent must accept custody of the Material.

 

**4.2**                                               Confirmationof Receipt

 

The Escrow Agentmust give the Contractor and the Principal written confirmation of receipt ofall Material referred to in clause 4.1 immediately it is received.

 

**4.3**                                               Storageof Material

 

The Escrow Agentmust store the Material in the following manner (**“Prescribed Manner”**):

 

(a)                                                   placethe Material in a Container; and

 

(b)                                                  storethe Container in a safe and secure place at the Escrow Agent’s premises inMelbourne.

 

**4.4**                                               MaterialRegister

 

The Escrow Agentmust maintain a register of Material deposited, stored and released under thisagreement in the Prescribed Form.

 

**4.5**                                               Informationand Inspection Requests

 

(a)                                                   TheEscrow Agent must promptly comply with a request of the Principal or theContractor to inspect and be furnished with a copy of the register referred toin clause 4.4 and to be furnished with information about storage, safety andsecurity procedures relating to the Material.

 

(b)                                                  Thereasonable costs of the Escrow Agent complying with a request in this clause4.5 will be borne by the Contractor.  ThePrincipal shall promptly reimburse the Contractor for the costs of the EscrowAgent borne by the Contractor arising from a request by the Principal underthis clause 4.5.

 

(c)                                                   TheEscrow Agent must release the Material to the Principal’s auditor uponpresentation of a notice issued by the Principal under clause 30.6 of theProject Agreement.  The Principal’sauditor will conduct the audit at the Escrow Agent’s premises or, if the EscrowAgent does not have the required equipment or facilities, at the Contractor’sPremises.

 

**5.**                                                      Access to Material

** **

The Escrow Agentmust authorise the relevant personnel to perform maintenance, security orsupervisory activities relating to the Material’s storage facilities or to theEscrow Agent’s premises generally.  Subject to this agreement and unless requiredby law, no other person shall have access to the Material unless the EscrowAgent has been notified in advance in writing by the Contractor.

 

----

 

**6.**                                                      Loss of Material

** **

**6.1**                                               Lossof Material

 

If the Materialor any medium containing the Material is lost, destroyed or damaged while inthe possession, custody or control of the Escrow Agent:

 

(a)                                                   theEscrow Agent must promptly notify the Contractor and Principal;

 

(b)                                                  theContractor must within 7 Business Days replace the lost, damaged or destroyedMaterial; at:

 

(i)                                                     theEscrow Agent’s costs if the loss, damage or destruction was caused by theEscrow Agent’s negligence, recklessness, act or omission or breach of thisAgreement; or

 

(ii)                                                  theContractor’s and the Principal’s cost in all other circumstance.

 

**6.2**                                               Specificperformance

 

Without derogatingfrom any other right to obtain specific performance, the Contractoracknowledges that the Principal is entitled to specific performance of theContractor’s obligations in clause 6.1.

 

**7.**                                                      Insurance by EscrowAgent

** **

During thisagreement the Escrow Agent must keep the Material insured in favour of thePrincipal and the Contractor for their respective interests under thisagreement against loss of or damage to the Material due to any cause and theEscrow Agent must provide both the Principal and the Contractor with a copy ofthe insurance policy upon request by either of them.

 

**8.**                                                      Release of Material

** **

The Escrow Agentshall immediately release the Material to any person nominated by a notice inwriting signed by both the Principal and the Contractor.

 

**9.**                                                      Release of Material toPrincipal

** **

**9.1**                                               Release

 

The Escrow Agentmust release the Material (except the material referred to in paragraphs (c), (d) and(e) of the definition of “Escrow Material” in the Project Agreement) tothe Principal immediately after the expiration of 10 Business Days’notice in writing by the Principal if:

 

(a)                                                   thePrincipal terminates the Project Agreement as provided under clause 42 of theProject Agreement;

 

(b)                                                  theTerm of the Project Agreement expires (after all and any extensions pursuant toclause 26 of the Project Agreement);

 

(c)                                                   thePrincipal gives the Contractor a written request for Escrow Material inaccordance with clause 30.6 of the Project Agreement and in this case theEscrow Agent must only release that part of the Material the subject of suchrequest; or

 

----

 

(d)                                                  thePrincipal terminates the Project Agreement as provided in clause 43 of theProject Agreement after payment by the Principal of the amount due under theProject Agreement as a consequence of the Principal issuing a Certificate ofCompletion in respect of the NTS Operational Proving Phase (as each of thoseterms are defined in the Project Agreement).

 

**9.2**                                               ReleaseRequired**

 

The Escrow Agentmust release any part of the Material referred to in paragraphs (c), (d) and(e) of the definition of “Escrow Material” to the Project Agreement thatis 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 BusinessDays’ notice in writing by the Principal.

 

**9.3**                                               Objectionby Contractor

 

Immediately ongiving the Escrow Agent notice under clause 9.1 or clause 9.2, the Principalmust give a copy of the notice to the Contractor.  The Contractor may then object to the releaseof the whole or part of the Material to the Principal by notice in writing tothe Escrow Agent and the Principal given before the expiration of the 10Business Days period referred in clause 9.1. If the Contractor makes such an objection within the time specified, theEscrow Agent must not release to the Principal any part of the Material thesubject of such objection.

 

**9.4**                                               Disputes

 

If the Contractorgives notice to the Principal under clause 9.3 and the Contractor and thePrincipal are unable to resolve their dispute within  5 Business Days, this dispute must be dealtwith in accordance with the Dispute Resolution Procedures in the ProjectAgreement.

 

**10.**                                               Release of Material tonew Escrow Agent

** **

(a)                                                   Subjectto clause 10(b) in the event that this agreement terminates or the EscrowAgent:

 

(i)                                                     becomes,threatens to become or is in jeopardy of becoming subject to any form ofinsolvency administration; or

 

(ii)                                                  isin breach of this Agreement,

 

then the EscrowAgent shall immediately release the Material to a new escrow agent nominated bynotice in writing by the Principal and agreed by the Contractor.

 

(b)                                                  If anew escrow agent has not been appointed the Escrow Agent will release theMaterial to a third party as agreed by the Contractor and the Principal andnotified to the Escrow Agent in writing. If the Principal and the Contractor are unable to agree on a third partywithin 2 Business Days of any communication between the Parties relatingto this clause, the Escrow Agent will release the Material to the Expertreferred to in the Project Agreement immediately upon written notice from thePrincipal.

 

**11.**                                               Escrow fees andcharges

** **

**11.1**                                        Payment

 

During the Term,the Contractor will pay the Escrow Fee to the Escrow Agent without demand onthe Commencement Date and on each anniversary of the Commencement Date.  After the

 

----

 

Term, thePrincipal will pay the Escrow Fee to the Escrow Agent annually upon receipt ofa notice from the Escrow Agent requesting payment.

 

**11.2**                                        Increases

 

***[Note:  Provision for increases to the Escrow Feewill be inserted following discussion with preferred Escrow Agent.]***

 

**11.3**                                        LatePayments

 

(a)                                                   TheEscrow Agent shall notify the Principal within a reasonable period if theContractor fails to make any payment to the Escrow Agent by the due date.  On receipt of such notice, the Principal maypay to the Escrow Agent all amounts for which the Contractor is in arrears, inwhich case the Escrow Agent shall release the Material to the Principal pendingresolution of any payment issue or dispute. 

 

(b)                                                  ThePrincipal may deduct amounts paid or incurred under this clause by thePrincipal from any moneys otherwise due from the Principal to the Contractor orrecover such amounts from the Contractor as a debt. 

 

**11.4**                                        OtherCharges

 

The Escrow Fee isinclusive of all taxes, duties, fees or other government charges which may beimposed on the storage of the Material under this agreement or otherwise.  

 

**12.**                                               GST

** **

**12.1**                                        Interpretation

 

(a)                                                   Exceptwhere the context suggests otherwise, terms used in this clause 12 have themeanings given to those terms by the *A NewTax System (Goods and Services Tax) Act 1999* (as amended from timeto time).

 

(b)                                                  Unlessstated to the contrary, any amount, payment or consideration referred to underor in connection with this agreement is exclusive of GST.  Any consideration that is specified to beinclusive of GST must not be taken into account in calculating the GST payablein relation to a supply for the purpose of this clause 12.

 

(c)                                                   Anypart of a supply that is treated as a separate supply for GST purposes(including attributing GST payable to tax periods) will be treated as aseparate supply for the purposes of this clause 12.

 

**12.2**                                        Reimbursementsand similar payments

 

Any payment orreimbursement required to be made under this agreement that is calculated byreference to a cost, expense, or other amount paid or incurred will be limitedto the total cost, expense or amount less the amount of any input tax credit towhich an entity (or its representative member) is entitled for the acquisitionto which the cost, expense or amount relates.

 

**12.3**                                        GSTpayable

 

If GST is payablein relation to a supply made under or in connection with this agreement then:

 

(a)                                                   anyparty (**“Recipient”**) that is required toprovide consideration to another party (**“Supplier”**) forthat supply must pay an additional amount to the Supplier equal to the amountof that GST; and

 

----

 

(b)                                                  theadditional amount is payable at the same time as any other consideration is tobe first provided for that supply or, if later, within 14 days after the day onwhich the Supplier provides the Recipient with a tax invoice for the supply.

 

**12.4**                                        Variationof GST

 

If the GSTpayable in relation to a supply made under or in connection with this agreementvaries from the additional amount paid by the Recipient under clause 12.3 suchthat a further amount of GST is payable in relation to the supply or a refundor credit of GST is obtained in relation to the supply, then the Supplier willprovide a corresponding refund or credit to, or will be entitled to receive theamount of that variation from, the Recipient. Any payment, credit or refund under this clause 12.4 is deemed to be apayment, credit or refund of the additional amount payable underclause 12.3.

 

**13.**                                               Confidentiality

** **

**13.1**                                        Confidentialityof Material

 

The Escrow Agentacknowledges that the Material is the property of the Contractor or thePrincipal and accordingly must treat the Material which comes into itspossession, control or custody, under this agreement as confidential.

 

**13.2**                                        ProhibitedActs

 

The Escrow Agentmust not copy, reproduce, deal with or in any way use the Material or discloseit to any person without the written permission of both the Contractor and thePrincipal.

 

**13.3**                                        Accessby Other Persons

 

The Escrow Agentmust ensure that persons granted access to the Material pursuant to thisagreement or otherwise will, if requested by the Contractor or the Principal,execute an agreement with the Contractor or the Principal undertaking the sameobligations as are imposed on the Escrow Agent under this clause 13.

 

**13.4**                                        AfterTermination

 

The obligationsunder this clause 13 survive the termination of this agreement or the releaseof all Material.

 

**14.**                                               Escrow Agent’s furtherobligations

** **

The Escrow Agentmust:

 

(a)                                                   retainthe Material in a safe and secure manner and in an environment that minimisesdegradation of the Material;

 

(b)                                                  subjectto clause 6.1(b) bear the costs of any loss or destruction of or damage tothe Material whilst in its possession or control;

 

(c)                                                   ensurethe Material remains in the same condition it was in at the time of depositwith the Escrow Agent.

 

----

 

**15.**                                               Termination OfAgreement

** **

**15.1**                                        TerminatingEvents

 

This agreementwill immediately terminate if both the Contractor and the Principal give 10Business Days’ notice of such termination. 

 

**15.2**                                        Releaseof Material

 

On termination ofthis agreement for whatever cause the Escrow Agent must immediately release theMaterial in accordance with clause 10.

 

**16.**                                               Assignment

** **

**16.1**                                        Assignmentby Contractor or Escrow Agent

 

The benefit ofthis Agreement will not be dealt with in any way by the Contractor or theEscrow Agent (whether by assignment or otherwise) without the prior consent ofall other parties.

 

**16.2**                                        Assignmentby Principal

 

The Principal mayat any time assign, novate or otherwise transfer all or any part of its rightsor liabilities under this Agreement to any person upon the Principal assigningits rights under the Project Agreement under clause 45 of the ProjectAgreement.

 

**17.**                                               Sub-contracts

** **

The Escrow Agentmust not subcontract or otherwise arrange for another person to perform anypart of this agreement or to discharge any of its obligations under thisagreement without the prior written consent of the Principal.

 

**18.**                                               Waiver

** **

**18.1**                                        Noticein Writing

 

No right underthis agreement will be deemed to be waived except by notice in writing signedby each party.

 

**18.2**                                        SubsequentBreaches

 

No waiver by aparty under clause 18.1 will prejudice its rights in respect of any subsequentbreach of this agreement by another party.

 

**18.3**                                        ActionsNot Constituting Waiver

 

Subject to clause18.1, no failure by a party to enforce any clause of this agreement or anyforbearance, delay or indulgence granted by that party to another party will beconstrued 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 everyone of the covenants, obligations and restrictions in whole or in part isdeemed to be severable and independent. Any provision of this agreement which is 

 

----

 

determined to be unreasonable will beineffective to the extent only of such unreasonableness, without invalidatingthe remaining provisions hereof.

 

**20.**                                               Governing Law

** **

This agreementwill be governed by and construed and taken into effect in accordance with thelaws of Victoria and the parties irrevocably submit to the jurisdiction of theCourts of  Victoria and Courts entitledto 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 asotherwise 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 thecommunication 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 prepaidpost to the address, or sent by fax to the number, of the addressee, inaccordance with clause 21.1(b); and

 

(e)                                                   are taken to be received by the addressee:

 

----

 

(i)                                                     in case of prepaid post on the BusinessDay that is the third Business Day after the date of posting to an addresswithin Australia, and on the fifth Business Day after the date of posting byairmail to an address outside Australia.

 

(ii)                                                  in the case of fax at the local time (inthe place of receipt of that fax) which then equates to the time that fax issent as shown on the transmission report produced by the machine from whichthat fax is sent confirming transmission of that fax in its entirety, unless thatlocal 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 BusinessDay; and

 

(iii)                                               in the case of delivery by hand ondelivery at the address of the addressee as provided in clause 21.1(b), unlessthat delivery is made on a day that is not a Business Day, or after 5.00 pm ona Business Day, when that communication is taken to be received at 9.00 am onthe next Business Day.

 

**22.**                                               Principal’s rights

** **

Any expressstatement of a right of the Principal under this agreement is without prejudiceto any other statement of a right of the Principal under this agreement or atlaw.

 

**23.**                                               Entire Agreement

** **

This agreementconstitutes the entire agreement between the parties for the subject matterreferred to in clause 2.  Any priorarrangements, agreements, representations or undertakings are superseded.  No modification or alteration of any clauseof 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 17Access Providers and Bus Operators**

 

(Clause 9)

 

**Part A- Bus Operators**

 

**Metropolitan**

 

Bacchus Marsh Coaches P/L

 

Broadmeadows Bus ServiceP/L

 

Bryant Motors P/L (forDiamond Coaches)

 

Croydon Bus Service P/L(for InvictaBus)

 

Donric P/L (for SunburyBus Service)

 

Driver Group P/L (forDriver Bus Lines)

 

Kefford Corporation (forEastrans, Westrans, Altona Buslines P/L, Footscray/Yarraville Bus Service P/L,Eastern Suburbs Omnibus Service P/L, W Sinclair & Sons P/L, NorthSunshine Bus Service P/L, Sitch Bus Service, St Albans Bus Service, WestTransit Bus Lines P/L, Pt Cook/Werribee Passenger Service)

 

Grenda Corporation (forGrendas, Cardinia Transit, Moorabbin Transit, Peninsula Bus Lines, PortseaPassenger Service)

 

Hurstbridge Bus &Coach P/L

 

Ivanhoe Bus Co P/L

 

Kastoria Bus Lines

 

LC Dysons Bus Services P/L

 

McKenzies Tourist ServiceP/L

 

Mees Bus Lines P/L

 

Melbourne Bus Link P/L(owned in partnership by Reservoir Bus Co & L C Dysons)

 

Mountjoy Public TransportP/L (for Martyrs Bus Service)

 

Moonee Valley Bus LinesP/L

 

Moreland Bus Lines P/L

 

Northern Bus Lines P/L

 

Pulfran Transit P/L (forUS Bus Lines, Cranbourne Transit)

 

Reservoir Bus Co (Vic) P/L(for Reservoir Bus Company and East West Bus Company - owned in partnershipwith LC Dysons)

 

Ryan Bros Bus Service P/L

 

Sangold P/L (for Chris’sCoaches and Hope Street Bus Line)

 

----

 

Sita Bus Lines P/L (forSita Buslines and SunBus)

 

SkyBus P/L

 

Tullamarine Bus Lines P/L

 

Ventura Group (forNational Bus Co, Ventura Motors P/L, Mt Dandenong Passenger Service, VenturaBus 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 ClockworldP/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 (forBenders 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 (forWesternport Road Lines)

 

Wangaratta Bus Lines

 

----

 

**Part B- Other Operators**

 

**B1Regional Rail Services**

 

***B1-1. V/Line Passenger Corporation*** is a statutory corporation under Governmentownership governed by an independent board of directors.  **V*/LinePassenger Pty Ltd (V/Line)*** is owned by V/Line Passenger Corporation and operates Regional rail andcoach services under franchise.

 

Franchise period from October 2003to October 2006 with an option for extension by the Director of PublicTransport (DPT).

 

**B2Metropolitan Rail Services**

 

***B2-1****.****Connex Melbourne Pty Ltd***operates Metropolitan Rail services under Franchise, trading as “Connex Trains”.

 

Franchise period from April 2004to November 2008, with an option for extension by the DPT up to not laterthan May, 2010.  In April 2004,Connex assumed responsibility for the operations of the former Bayside Trainsfranchise marketed under the M>Train brand.

 

**B3 Tram Services**

 

**B3-1. MetroLink VictoriaPty Ltd** is a joint venture partnership between an Australian company(Transfield Services) and a European transport operator (Transdev).  The company operates Metropolitan Tramservices under Franchise, trading as “Yarra Trams”.  Franchise period from April 2004 to November 2008with an option for extension by the DPT to not later than May 2010.  In April 2004, Yarra  assumed responsibility for the operations ofthe former Swanston Trams franchise marketed under the M>Tram brand.

 

**Part C- Other Access Providers**

 

***C1-1. Spencer Street Station Authority (SSSA)*****managesthe Spencer Street Station (SSS) re-development project.  SSSA will operate the Station for the periodprior to completion of the project.

 

***C1-2. Civic Nexus*****is thecontractor for the SSS re-development project, and will operate SSS followingcompletion of the project.  The CivicNexus consortium is financed and led by ABN Amro Australia, and includesLeighton Contractors, Honeywell and Delaware North Australia.

 

***C1-3. Victorian Rail Track (VicTrack)*** owns allland and infrastructure in Victoria used for the purposes of public train andtram based transport.  It leases theseassets to the private transport operators through the DPT, however retains someresidual interests not specifically related to transport operations.

 

***C1-4. PacificNational Pty Ltd (PN)*** operates the regional railnetwork (but not stations) leased from the DPT. V/Line operates rail services over certain of PN’s rail network pursuantto an access agreement (regional stations are leased by V/Line directly fromthe DPT).

 

***C1-5. - Rail Corporation of NSW***operates Albury Station and associated NSW rail infrastructure operated over byV/Line.

 

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**Schedule 18**

 

**Schedule 18Early Termination Amount**

 

(Clause 43)

 

The Early TerminationAmount payable to the Contractor will be the aggregate of the following coststhat the Contractor has used its best endeavours to minimise:

 

(a)                                                  the unpaid value of all Workcompleted in accordance with this agreement prior to the date of termination;

 

(b)                                                 the cost of goods, services andmaterials ordered by the Contractor and for which it is legally bound to payand for which the TTA will take delivery and ownership;

 

(c)                                                  the reasonable cost of removing itsproperty from any property where Work is being carried out;

 

(d)                                                 the reasonable cost of return totheir place of recruitment of the Contractor’s employees engaged in the workunder this agreementat the date of termination including any amounts payable at Law upontermination of employment; and

 

(e)                                                  [**]% of the outstanding unpaidamounts (if any) of the Contract Price (less amounts paid under (a) to (d) ofthis schedule). For the purposes of this schedule only the **Contract Price** is defined as the sum of the Capital Priceplus services charges assuming 2 years of Initial Services and10 years of Core Services.

 

No double-counting ofcosts will be allowed.  That is, anamount 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 theparagraphs.

 

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**Schedule 19**

 

**Schedule 19Bus Access**

 

(Clause 9)

 

**Part ABus Access Principles**

 

**1.**                                                      Time of access

** **

Satellite NTS Busequipment 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, toensure that the equipment for the NTS is installed as efficiently as possible.

 

Bus AssociationVictoria (BAV) will arrange and negotiate with PBOs which PBO depots will beused as installation stations and provide details of each location and thefacilities available at each site to TTA and the Contractor. The Contractorwill work with the BAV during this process to ensure that the needs of both thePBOs and the Contractor are fairly balanced. An installation station must have sufficient area to locate a portableoffice and workshop facility eg. Container space to support theinstallation of the NTS equipment. Any area occupied by a Contractor will bereturned to a PBO in a clean and tidy state. Access charges for space occupied by the installation stations may applyand will be negotiated with each PBO.

 

Out-of-pocketcosts may be payable to the BAV in respect of the arrangements for the PBOs.

 

BAV and theContractor will arrange and negotiate the schedule for each PBO vehicle tobe fitted with NTS equipment in consultation with the TTA.

 

The Contractorwill negotiate with the BAV where changes to the agreed schedule arerequired.  Where an individual PBO mayexperience difficulties in adhering to an agreed schedule, the BAV willnegotiate amendments to the schedule with the Contractor, as required, toensure that the installation process is not delayed.

 

The PBOs willassist in delivering their vehicles to an installation station in a manner thatfacilitates installation according to the agreed schedule whilstminimising the cost to the Contractor. A delivery charge of $50 per hour and$2.20 per kilometre will apply.

 

Any changes orinstallation of equipment or components at major bus stops will be managed bythe Contractor, in association with the PBOs servicing these routes. Access tothe agreed sites will be procured by the Contractor in conjunction with TTA andBAV as required to ensure that the equipment for the NTS is installed in anefficient manner.

 

Any changes orinstallation of equipment or components required to be made at BusInterchanges, including shopping centres and railway station interchanges,would be managed by the Contractor in association with the Department ofInfrastructure (DOI) and TTA. Access to these venues will be provided asrequired to ensure that the equipment for the NTS is installed as soon aspossible.

 

**1.1**                                               Accessto Bus Operator’s Property

 

The MetropolitanPBOs and selected Regional PBOs agree that the NTS will be installed at thePBOs sites and on the PBOs vehicles approved by the DOI under the DOI/PBOtransport services arrangements.

 

Access to themaintenance pits or vehicle hoists will be provided according to the agreedschedule.

 

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Access tovehicles will be provided as required to ensure that the equipment for the NTSis installed in an efficient manner that facilitates the equipment for the NTSis installed according to the agreed schedule. Further the Contractor isrequired to comply with all conditions and rules of access as defined in Section 3Conditions and Rules of Access.

 

The Contractorwill negotiate with the BAV where changes to the agreed schedule arerequired.  Where an individual PBO mayexperience difficulties in adhering to an agreed schedule, the BAV willnegotiate amendments to the schedule as required to ensure that theinstallation process is not delayed.

 

**1.2**                                               Accessto information

 

PBOs agree tomake available information, such as reports, drawings, maps, diagrams, orsketches which are reasonably required by TTA or the Contractor, to facilitatethe installation of equipment for the NTS in an efficient manner.

 

**1.3**                                               Accessto Bus Operator staff

 

PBOs agree tomake available those of their employees, agents and contractors which arereasonably required by TTA or the Contractor to attend and complete appropriatetraining in the NTS.

 

A charge of $45per hour will be incurred to access staff for training purposes. The number ofstaff requiring training is approximately 3,000.

 

PBOs agree tomake available those of their employees, agents and contractors which arereasonably required by TTA or the Contractor, to supply any informationrequired to facilitate the installation of equipment for the NTS in anefficient manner.

 

PBOs agree tomake available staff which are reasonably required by TTA or the Contractor, totest the installation of NTS equipment. A checklist that will define the testcriteria will be developed in consultation with the BPO, TWU, TTA and theContractor.

 

A charge of $45per person per hour will be incurred to cover the cost of testing personnel.

 

A charge of $75per hour will be incurred for an after hours supervisor if required by the PBOto provide access to facilities or information to the Contractor outside ofnormal business operating times This supervisor may also provide vehicle movingservices as required by the Contractor.

 

**2.**                                                      Services

** **

**2.1**                                               Tobe provided by a PBO

 

The PBOs arerequired to make available to the Contractor or their contractors:

 

(a)                                                   Supplypower to operate the NTS;

 

(b)                                                  Supplypower for the successful contractor to be able to operate the equipmentnecessary for the installation of the NTS to vehicles and Back Office /Head Office;

 

(c)                                                   Supplyof water to or close by the installation area;

 

(d)                                                  Accessto change rooms and mess rooms (tea and coffee making facilities) if required;

 

(e)                                                   Siteamenities; and

 

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(f)                                                     Sitesafety rules and OHS Act 2004, its regulations and amendments.

 

**2.2**                                               Tobe provided by the Contractor

 

The Contractorwill be responsible for the supply and installation of the NTS system, accessoriesand components, including cable ducting on buses and at PBO sites as requiredfor the NTS. These will be both workman like, aesthetically pleasing andapproved by the PBO and TTA.

 

Any storage oroffice space requirements will be provided by the Contractor.  Any mobile buildings will be sited inconsultation with the PBO.

 

It is envisagedthat the installation of the Back Office / Head Office equipment would befitted at an agreed time with the PBO.

 

**3.**                                                      Conditions and Rules ofAccess

** **

The Contractorand/or their contractors will adhere to all the following conditions and rules outlinedbelow when operating on a PBO’s site.

 

**3.1**                                               BusOperator’s Property

 

(a)                                                   Safety

 

(i)                                                     Conformto the Occupational Health & Safety requirements that are in place atthe PBO’s site.

 

(ii)                                                  Conformto Safe Working environment requirements.

 

(iii)                                               Conformto Safety and Protective equipment requirements.

 

(iv)                                              Maintaina zero blood alcohol reading.

 

(v)                                                 Conformto any other requirements that are applicable to that site.

 

(b)                                                  Security

 

(i)                                                     TheContractor and/or their contractors will be responsible for the security oftheir equipment while working at the PBOs site.

 

(ii)                                                  TheContractor will be responsible for Asset Insurance on NTS equipment while onsite.

 

(c)                                                   Training

 

(i)                                                     BAVwill provide details of safe working environment standards and trainingrequirements.

 

(ii)                                                  BAVwill provide internal training capabilities detailing the number of staff bycategory to be trained, average hourly costs of staff and proposed methodologyof training.

 

(d)                                                  Miscellaneousconditions and rules

 

(i)                                                     Beresponsible for removal of all rubbish created by the installation of the NTSat the PBO’s site.

 

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(ii)                                                  PBOsagree to use their best endeavours to assist the NTS team to install the NTSequipment within the scheduled time frames.

 

(iii)                                               TheContractor will be required to complete all installation works in accordancewith applicable Australian Standards and provide formal certification of allworks prior to the return of the vehicle.

 

(iv)                                              TheContractor will agree to use all endeavours to minimise the disruption to thePBO’s normal operations and their requirement to provide services under DOIcontracts.

 

(v)                                                 TheContractor will remove all existing ATS equipment and make good repairs to thesatisfaction of the PBO and the TTA.

 

(vi)                                              TheContractor will set up a service support hotline for operators from5.00 am – 11.00 pm (7 days per week).

 

(vii)                                           Removalof old ATS equipment and make good repairs if necessary.

 

**4.**                                                      Schedule ofCharges

** **

The followingcharges will be imposed in the following scenarios.

 

**4.1**                                               VehicleDelivery Charge

 

A delivery chargeof $50 per driver hour and $2.20 per vehicle kilometre will apply.

 

(a)                                                   Thedriver charge will be incurred from the time a driver leaves the ‘Home’ depot withthe vehicle to when the driver returns the vehicle to the ‘Home’ depot. Thekilometre charge will be incurred from the distance a vehicle will travel fromthe ‘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 theinstallation station nominated.  Thisstandard charge will be established by BAV in consultation with the PBO andTTA.

 

(b)                                                  Wherea vehicle is being fitted at its ‘Home’ depot no vehicle delivery charges willbe incurred.

 

(c)                                                   Wherea driver is required by a PBO at a ‘Home’ depot being utilised as anInstallation Station to move vehicles, for the Contractor, no vehicle deliverycharges for this service will be incurred.

 

**4.2**                                               TrainingCharge

 

An estimatedcharge of $45 per hour will be incurred to access staff for training purposesvia the existing EBA arrangements. This cost will vary according to variousconditions outlined within the EBA.

 

**4.3**                                               AfterHours Supervision Charge

 

A charge of $75per hour will be incurred for an after hours supervisor.

 

Where a driver isrequired by a PBO at a ‘Home’ depot being utilised as an Installation Stationto move vehicles, for the Contractor, or where access to PBO facilities arerequired after 5.00 pm and before 5.00 am, an after hours supervisioncharge will apply.

 

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**4.4**                                               InstallationStation Occupation Charge

 

An occupationcharge of $200 per week is payable to reimburse a PBO for the following costs:

 

(a)                                                  additionalpower used by the Contractor while on site; and

 

(b)                                                  purchasereplacement of tea, coffee and biscuits stock used by Contractor.

 

**4.5**                                               TestingCharge

 

A charge of $45per person per hour will be incurred for testing personnel.

 

This cost will cover all PBO staff who are involved in testing NTSequipment as part of the sign off process to authorise the release of eachvehicle to an operation ready status. A standard fee will be developed toaddress each part of the sign off process by BAV in consultation with the PBOand TTA.

 

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**Schedule 20**

 

**Schedule 20Security Bonds**

 

(Clause 34)

 

**Security Bond**

 

**In favour of**:                                                           Public Transport Ticketing Body trading asTransport Ticketing Authority (**“Principal”**)

 
| **Given  by:** |   | (**“Financial Institution”**) |
|----------------|--------|-----------------------------------------|

 

**Recitals**

 

A.                                                    The Principal and the Contractor have entered into the NewTicketing Solution Project Agreement dated [*insert date of Project Agreement*] (the **“Project Agreement”**).

 

B.                                                    Under the Project Agreement, the Contractorhas agreed, amongst other things, to carry out certain works.

 

C.                                                    Under the Project Agreement, the Contractoris required to provide this undertaking to the Principal to secure performanceof certain aspects of the works to be performed by the Contractor under theProject Agreement.

 

**Operative**

 

1.                                                      In consideration of the Principal acceptingthis undertaking, the Financial Institution unconditionally undertakes andcovenants to pay to the Principal on written demand without reference to theContractor, and notwithstanding any notice given by the Contractor to theFinancial Institution not to do so, any sum or sums which may from time to timebe 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 Institutionunder this undertaking will not be discharged or impaired by reason of anyvariation or variations in any of the terms of the Project Agreement, anybreach or breaches of the Project Agreement by the Contractor or the Principal,or any extensions of time or other forbearance by the Principal or theContractor under the Project Agreement.

 

3.                                                      The Financial Institution’s liability underthis undertaking will be a continuing liability and will continue until thefirst of the following events occurs:

 

(a)                                                  the Principal notifies the Financial Institution inwriting that the undertaking is no longer required;

 

(b)                                                  the Financial Institution has paid the maximumaggregate sum to the Principal; and

 

(c)                                                   the [*expiry date*].

 

4.                                                      Neither the Bank nor the Principal maytransfer or assign any of its rights or obligations under this undertaking.

 

5.                                                      This undertaking will be governed by andconstrued in accordance with the laws for the time being of Victoria.

 

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**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 |

 

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**Schedule 21**

 

**Schedule 21Exit Costs**

 

(Clause 27.7)

 

**Part A– Initial Services**

 

The following exit costs will be paid to the Contractor by thePrincipal for each Initial Service at the expiry of the Initial Service Termfor 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 thePrincipal:

 

•                                                          uponearly termination of the Core Services Term under clause 23.7; or

 

•                                                          upontermination of the Core Services under clause 26(d).

 

The amount paid will be referrable to the number of years of the CoreServices Term that has been completed.

 
| **Number of completed years of  Core Services Term** | ** ** | **Core Services Exit Cost** | ** ** |
|------------------------------------------------------|------------|-----------------------------|------------|
| 5                                                    |       | $[**]                       |       |
| 10                                                   |       | $[**]                       |       |
| 11                                                   |       | $[**]                       |       |
| 12                                                   |       | $[**]                       |       |

 

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**Schedule 22**

 

**Schedule 22Industrial Relations Plan**

 

**Completion Process**

 

The document included in this Schedule 22 is incomplete andrepresents an outline of the Industrial Relations Plan that the Contractor mustprepare and implement in accordance with clause 8.1 of the agreement. Thefinalisation of the Industrial Relations Plan is a Category 3 matter.

 

The Contractor must undertake the following process to complete theIndustrial Relations Plan, prior to the Phase Date for the NTS SolutionRequirements Phase, to the reasonable satisfaction of the Principal:

 

•                                                          theContractor must develop an Industrial Relations Plan, based on the outlinedocument included in this Schedule 22, which is compliant with any and allemployment and industrial relations obligations, including without limitation,any obligations arising under the *WorkplaceRelations Act* 1996 (Cth) and which takes into account therequirements of clause 8.1(c) of the agreement;

 

•                                                          theContractor must prepare and submit its proposed Industrial Relations Plan tothe Principal for its approval within 40 Business Days after theCommencement Date; and

 

•                                                          thePrincipal may, within 10 Business Days of receipt of the Contractor’sproposed Industrial Relations Plan, advise the Contractor whether or not itconsiders such plan to be in accordance with this agreement, including theRequirements Document and the Solution Documentation, or reject it and provideits 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 dealtwith by the Principal as if it were the initial draft submitted. The Contractormust take into account any comments of the Principal in finalising theIndustrial Relations Plan.

 

 

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**Schedule 23**

 

**Schedule 23OH&S Plan**

 

**Completion Process**

 

The document included in this Schedule 23 is incomplete andrepresents an outline of the OH&S Plan that the Contractor must prepare andimplement in accordance with clause 8.2 of the agreement. Finalisation ofthe OH&S Plan is a Category 3 matter.

 

The Contractor must undertake the following process to complete theOH&S Plan, prior to the Phase Date for the NTS Solution Requirements Phase,to the reasonable satisfaction of the Principal:

 

•                                                          theContractor must develop an OH&S Plan, based on the outline document includedin this Schedule 23, which is compliant with the applicable occupationalhealth and safety obligations, including obligations under the OH&S Act andassociated regulations;

 

•                                                          theContractor must prepare and submit its proposed OH&S Plan to the Principalfor its approval within 20 Business Days after the Commencement Date; and

 

•                                                          thePrincipal may, within 10 Business Days of receipt of the Contractor’sproposed OH&S Plan, advise the Contractor whether or not it considers suchplan to be in accordance with this agreement, including the RequirementsDocument and the Solution Documentation, or reject it and provide its comments(if any). If the proposed OH&S Plan is rejected, the Contractor mustpromptly, and in any event within 5 Business Days, submit to the Principala redraft of the plan and such redraft will be dealt with by the Principal asif it were the initial draft submitted. The Contractor must take into accountany comments of the Principal in finalising the OH&S Plan.

 

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**Schedule 24**

 

**Schedule 24Access**

 

**1.**                                                      Connex AccessPrinciples

** **

**1.1**                                               AccessPrinciples

 

**1.1.1**                                     Timeof Access

** **

Detailsconcerning available access times are listed below:

 

•                                                          Connexgrants the Contractor the right to access Connex Property excluding thefollowing hours (daily):

 

•                                                                                                                                                                                          06.00to 09.30;

 

•                                                                                                                                                                                          15.00to 18.30; and

 

•                                                                                                                                                                                          00.00to 05.00.

 

Connex canprovide access to stations between 8.00 pm and 5.00 am daily, exceptduring special events, project works and planned and unplanned maintenance andsubject to the availability of Connex and the Franchise Entities’ employees.

 

•                                                          Regardingaccess to Stony Point vehicles, Connex is able to provide access at FrankstonStation between approximately 11.05 and 12.15 each Monday, Wednesday andThursday. If this access is insufficient, access at times outside these periodswill need to be considered and agreed by Connex once the Contractor’srequirements are known in more detail.

 

•                                                          Accessat times outside the periods above to be agreed on a case by case basis inaccordance with the Connex Access Coordination Agreement.

 

**1.1.2**                                     Services

** **

The followingservice arrangements apply:

 

•                                                          WhereConnex supplied power facilities are available, the Contractor is to arrangeaccess with local Station staff for temporary use of power supplies duringinstallation of NTS equipment (including power for the Contractor’s workequipment).  The Contractor mustreimburse Connex for the cost of any power used by the Contractor during theinstallation of the NTS equipment.  IfConnex is unable to provide power supplies to the Contractor, the Contractormust arrange its own direct power supply at its own cost.

 

•                                                          Forpermanent power supply to NTS equipment, the Contractor must arrange, at itsown cost, direct power connection and wiring to the NTS equipment at eachstation.

 

•                                                          Fortelecommunication services to the NTS equipment during the installation andongoing operation of the NTS equipment, the Contractor must arrange its owntelecommunication services directly with VicTrack or with another provider.  The Contractor will be responsible for thecost of arranging the telecommunication services for the NTS equipment and forthe installation and ongoing costs of the telecommunication services.

 

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•                                                          WhereConnex supplied water supplies are available, the Contractor is to make localarrangements with Station staff (area manager) for temporary use.  The Contractor must reimburse Connex for thecost of any water used by the Contractor. If Connex is unable to provide water supplies to the Contractor, theContractor must arrange its own direct water supply at its own cost.

 

•                                                          TheContractor is to provide its own change and mess sheds at its own cost.

 

•                                                          TheContractor is to provide its own storage at its own cost.

 

•                                                          TheContractor is to make local arrangements with Station staff (area manager) foraccess to toilets / amenities or provide its own at its own cost.

 

**1.1.3**                                     Conditionsand Rules of Access

** **

**1.1.3.1****                          Supervision**

 

Connex may electat its sole discretion to supervise the Contractor’s access in circumstanceswhere the Contractor’s access may:

 

•                                                          impacton Connex’s business and the provision of services to customer; or

 

•                                                          impacton the safety of people or property on Connex Property.

 

The Contractormay reasonably expect that Connex will elect to supervise the Contractor’saccess in all circumstances meeting one or both of the criteria above.

 

If Connex electsto supervise the Contractor’s access, the Contractor must not access any ConnexProperty at the specified location until representatives of Connex or MainCoare present.

 

Where Connexelects to supervise the Contractor’s access, it will:

 

•                                                          providereasonable notice of the supervision to the Contractor; and

 

•                                                          providea minimum of two staff members to undertake supervision.

 

The Contractoracknowledges that any supervision by Connex or MainCo does not release theContractor from any of its obligations under the Connex Access CoordinationAgreement.

 

If Connex orMainCo’s personnel elect to supervise the Contractor’s access, the Contractormust pay Connex the charges set out in Schedule 3 Section 1.

 

**1.1.3.2****                          Safety**

 

The accessprinciples and arrangements for access to land / property contained in thefollowing documents must be complied with by the Contractor:

 

•                                                          “Safetyand Environmental Requirements for Contractors Working on MainCo Premises”.

 

MainCo iscontracted by Connex to perform infrastructure and existing rolling stockmaintenance.

 

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**1.1.3.3****                          Security**

 

Additionalproperty access and supervision issues that have not already been listed aboveare listed below:

 

•                                                          TheContractor must at all times comply with the respective Station Visitor policy “VisitorControl Procedure” at each Station. This procedure details the Visitor accessrequirements. In circumstances where a Contractor requires access to a site,the Contractor may be requested to obtain keys from a controlling station foran unstaffed station. In this circumstance the Contractor prior to entering anunstaffed station must call the security centre advising of entry and callagain 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 willbe requested to complete the “Induction Checklist for Contractors Visiting theCity Loop”.

 

•                                                          TheContractor must ensure that all external doors and access areas to the Stationsas well as any rooms or other areas which are not open to the public, are atall times kept locked, except at the times that the Contractor is entering orexiting the Station or such rooms or other areas, and during the hours when theStations are open to the public in relation to all external doors and accessareas to the Stations.

 

•                                                          TheContractor must ensure that if any unauthorised person is observed at any ofthe Stations between the hours of 00.00 and 05.00 am, the Contractor mustcontact a member of Connex personnel and provide information of theobservation. The Contractor’s officers, employees, subcontractors and agents (**Contractor’s Personnel**) mustleave the Station and not enter or remain on the Station premises without thepresence of the police or appropriate Connex personnel.

 

•                                                          TheContractor must reimburse Connex for any cost or expense incurred as a resultof any Contractor Personnel accidentally, intentionally, carelessly ornegligently setting off security alarms, fire alarms or other alarms.

 

•                                                          TheContractor must not make any copies of any keys, alarm codes or any othermaterial provided for access to the Stations (**Connex Security  Material**)without the prior written consent of Connex and on the conditions imposed byConnex.

 

•                                                          TheContractor must only permit access to areas of the Stations which are not opento the public to the Contractor’s Personnel authorised by it to carry out theConnex Work and who have successfully completed any training required under Section 4.5.

 

•                                                          TheContractor must take all necessary precautions to ensure the security of any ConnexSecurity Material issued by Connex to the Contractor is maintained in a mannerwhich is satisfactory to Connex.

 

•                                                          TheContractor must adequately safeguard and comply with any specific requirementsof Connex in respect of any Connex Security Material.

 

•                                                          TheContractor must if any Connex Security Material is misplaced, lost or stolen bythe Contractor or the Contractor’s Personnel, immediately notify Connex andprovide Connex with full particulars of how the incident occurred via

 

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an incident report.  Any Connex Security Material which is lost ormisplaced by or that is stolen from the Contractor or the Contractor’sPersonnel must be replaced at the Contractor’s cost and where reasonablyrequired by Connex taking into account the safety of Connex’s property,business and rail network, the Contractor must pay for the replacement of anylocks resulting from the loss or misplacement of any Connex Security Material.

 

•                                                          TheContractor will employ reasonable endeavours to bring to the attention of theSuperintendent’s Representative (or other nominated officer of Connex) anymatter that in the Contractor’s opinion lessens the security or safety of anyor 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 plansfor each of the three underground stations and Flinders Street Station,describing the facilities, environment, services and other features must becomplied with by the Contractor. These are contained in the followingdocuments:

 

•                                                          “FlagstaffStations Emergency Plan”;

 

•                                                          “MelbourneCentral Emergency Plan”; and

 

•                                                          “ParliamentStations Emergency Plan”.

 

Emergency plansfor all other stations on the network must also be complied with by the Contractor.

 

**1.1.3.5****                          Educationand Training**

 

(a)                                                  TheContractor must ensure that the Contractor Personnel’s have successfullycompleted the following training before accessing any Connex Property:

 

•                                                                                                                                                                                          aninduction course for each station if required by Connex. This induction courseneed only be completed once per station for each of the Contractor’s Personnel;and

 

•                                                                                                                                                                                          TrainTrack 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 ofrail track. Current training charges are detailed in Schedule 4, “TrainingCharge”, but may be subject to change without notice.

 

(b)                                                  Connexrequires evidence that each of the Contractor’s Personnel has successfullycompleted the Train Track SafetyAwareness training where applicable prior to the authorisation of access.

 

(c)                                                   Accessto Access Provider staff for education and training of the NTS from Contractor:

 

As a generalrule, Connex’s staff will be available between the hours of 9.00 am and 3.00 pmon weekdays.

 

Any additionallimitations or restrictions on staff availability, including timing issues arelisted below:

 

•                                                          Restrictionson staff availability for training will apply to all operational staff, forexample, drivers, maintenance staff and other operational staff.

 

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•                                                          Trainingof station staff and authorised officers will need to be conducted duringoff-peak hours from Mondays to Fridays (ie. outside of 06.00 to 09.30 and15.00 to 18.30).

 

•                                                          Itshould also be noted that training may need to be conducted at several non-CBDwork sites dispersed across the suburban areas.

 

•                                                          325of the Authorised Officers will be based at 4 main depots plus8 additional satellite depots across the network.

 

**1.1.3.6****                          MiscellaneousConditions and Rules**

 

The Contractormust comply with all applicable building codes and regulations at all times andthe Contractor will provide Connex with access to “as-built” drawings to enableConnex to undertake any maintenance required at stations to non-NTS equipmentareas / services.

 

Connex will berequired to provide information to its customers, sublessees, licensees and toConnex and the Franchise Entities’ officers, employees, subcontractors andagents (***Interested Parties***) (forexample, by signage, posters or flyers) on the NTS installation works.  Connex will be responsible for specifying thenature and extent of the information that is required to be provided to theInterested Parties and the Contractor must reimburse Connex for any costsincurred by Connex in advising the Interested Parties of the NTS installationworks.

 

**1.1.4**                                     OperationsPrinciples

** **

**1.1.4.1****                          CashCollection Principles**

 

The Contractormust ensure that the following access times / limitations and specialprocedures relating to access for cash collection and replenishment purposesare complied with:

 

•                                                          cashcollections must occur outside the peaks Mondays to Fridays (ie. outsideof the hours 06.00 to 09.30 and 15.00 to 18.30);

 

•                                                          SpecialEvents will require additional and increased frequency of cash collection andequipment servicing, depending on the particular event;

 

•                                                          theprocess of cash transferral must be timely and efficient so as not to disruptthe operation of the station to the extent that lengthy delays result inticketing purchases being reduced; and

 

•                                                          cashcollection includes both collection from all ticket machinery including bookingoffice machines.

 

**1.1.4.2****                          CleaningPrinciples**

 

Access times,limitations and special procedures for scheduled basic cleaning services of NTSequipment are as per requirements for cash collection.

 

**Attachments**

 

•                                                               MainCoMelbourne Third Party Access Agreement.

 

•                                                        “Safetyand Environmental Requirements for Contractors Working on Mainco Premises” andassociated forms:

 

•                                                        “SiteSafety Plan for Minor Works Contractors”; and

 

----

 

•                                                        “MinorWorks Project Induction”.

 

•                                                        “FlagstaffStations Emergency Plan”.

 

•                                                        “MelbourneCentral Emergency Plan”.

 

•                                                        “ParliamentStations Emergency Plan”.

 

**1.2**                                               AccessCharge

 

If supervision isrequired per Schedule 1, Section 4.1 the Contractor will be requiredto pay Connex at the hourly rate of $75 (in July 2004 prices) for eachemployee of Connex or the Franchise Entities.

 

Where any ofConnex or the Franchise Entities’ staff are made available to the Contractorfor training, Connex will be paid the following rates in addition to the AccessCharge. The table below outlines the staff categories and hourly costs. Staffnumbers 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**                                               TrainingCharge

 

For informationpurposes, the estimated cost of each level of the Train Track Safety Awarenesstraining is as follows:

 

(a)                                                  level 1Train Track Safety Awareness – $80 per person plus GST (basic training towork within 3 metres of track);

 

(b)                                                  level 2Train Track Safety Awareness – $140 per person plus GST (for trainingflagmen); and

 

(c)                                                   level 3Train Track Safety Awareness – $320 per person plus GST (for supervisionof flagmen and co-ordination).

 

----

 

**Form 1**

 

**Site SafetyPlan 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 enabletheir necessary duties to be performed in a manner that is safe and withoutrisk to health.

 

Train Track Safety Awareness training is to beundertaken by all persons carrying out or intending to carry out works on ornear train tracks, who do not have a current Certificate of Competency toperform 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 assoon 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 appliedon site:

 

•                      

•                      

•                      

•                      

 

----

 

**6.****                                                     ****Dangerous Goods/HazardousSubstances**

 
| **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 onsite.

 

•                      

•                      

•                      

•                      

 

**8.****                                                     ****Site Map**

 

Where possible, provide a site map indicating the location of variousrisks 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                                             ProjectNumber  H

 

Pleasetick 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 AccessPrinciples

** **

**2.1**                                               AccessPrinciples

 

**2.1.1**                                     GeneralSite 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 notimpaired by drugs whilst on duty.

 

All Contractor and TTA staff must wear safety footwear, protectiveclothing and high visibility safety clothing (Australian StandardAS/NZS 4602 Class D/N for day and Night use) printed front and backwith “NTS CONTRACTOR” (or equivalent as agreed with V/Line) to identifyContractor and TTA staff working on or near the track.

 

When working in and around station buildings, Contractor and TTA staffmust at least be identified by a project badge in an agreed format.

 

**2.1.2**                                     Timesof Access

** **

**2.1.2.1****                         ****General**

 

V/Line grants reasonable site access at the locations and times providedin Table 1 (attached) to all stations, excluding the hours of 7.00 am-9.00 amat the following stations:

 

•                                                          Geelong;

 

•                                                          Ballarat; and

 

•                                                          Bendigo.

 

For operational reasons, these arrangements may change withoutnotice.  Prior to commencing work, theContractor must liaise with each station’s officer or representative (“Officerin Charge”).  V/Line will provide to theContractor 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 beadvised closer to the event.  V/Line, theContractor and the TTA will work co-operatively to ensure that restrictions areconfirmed as early as possible and their effects on the NTS implementation areminimised.

 

----

 

**2.1.3**                                     Services

** **

**2.1.3.1****                         ****Site and Building Plans**

 

V/Line will make available to the Contractor (where available) existingsite and building plans.  V/Line does notwarrant that these plans are up-to-date.

 

The Contractor will provide copies of ‘as-built’ drawings to allow forfuture V/Line maintenance at stations and buildings to non-NTS equipment areas /services appropriate level of information to V/Line or 3rd party to enableexisting 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 powersupplies during installation of NTS equipment (including power for theContractor’s work equipment).  TheContractor is to arrange access with the Officer in Charge where powerfacilities are available.  If V/Line isunable to provide power supplies to the Contractor, the Contractor is toarrange its own direct power supply at its own cost.

 

For permanent power supply to NTS equipment, the Contractor mustarrange, at its own cost, direct power connection and wiring to the NTSequipment at each station.

 

**2.1.3.3****                         ****Water**

 

The Contractor is to make local arrangements with station staff (via theOfficer in Charge) where water supplies are available.  If V/Line is unable to provide water suppliesto the Contractor, the Contractor must arrange their own direct water supply atits own cost.

 

**2.1.3.4****                         ****Cleaning and Removal of Rubbish**

 

The Contractor is to, at its own cost; remove all NTS works relatedrubbish from the site at the completion of each station installation.

 

Temporary storage of rubbish is permitted but must not interfere withthe safe operation of trains or movement of passengers.  The Contractor should agree with the Officerin Charge the temporary arrangements prior to commencing work.

 

**2.1.3.5****                         ****Toilets & OtherAmenities (Changing and Mess Sheds)**

 

The Contractor isto make local arrangements with station staff (via the Officer in Charge) foraccess to toilets/amenities or provide its own (at its own cost).

 

**2.1.4**                                     ThirdParty Access

** **

The Contractor must arrange 3rd party sites land / propertyaccess through nominated site owners listed below:

 

(i)                                                      Pacific National – contact and telephonenumber TBA;

 

(ii)                                                   VicTrack – contact and telephone number TBA;

 

(iii)                                                SSSA – contact and telephone number TBA; and

 

(iv)                                               Civic Nexus – contact and telephone numberTBA.

 

----

 

Following discussions with V/Line, V/Line is to provide contact detailsof other third parties, together with a list of the sites controlled by theseparties to which it is reasonably expected that that the Contractor willrequire access.

 

Where the Contractor experiences difficulty in obtaining third partyAccess, on request from the Contractor V/Line must assist in facilitatingaccess.

 

The Contractor is to ensure compliance with requirement for all 3rdparty access, including OH&S.

 

**2.1.5**                                     Conditionsand Rules of Access

** **

**2.1.5.1****                         ****Site Checklist**

 

Prior to work commencing the Contractor will be in possession of (orprovide 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 Contractormust first obtain the correct authority, keys, security access codes from theappropriate owner, franchise or station master (or Officer in Charge) and oncompletion of each installation ensure the site is secure, alarms set andnotification provided, and the keys are returned immediately to the buildingowner, franchisee or station master (or Officer in Charge).

 

***Option:  Postsite survey phase only:***

 

A V/Line staff representative is to accompany the Contractor (and/orTTA) on all site surveys (eg. civil works and equipment location surveys).  Costs associated with staff supplied byV/Line shall be calculated in accordance with Schedule 1.

 

***Option: Post site survey phase:***

 

If a Contractor staff member is Safety Accredited (ie. hascompleted a Certified Supervisor course – Level 3 Track Safety Awareness)and requires access to the track then they may work unaccompaniedie. without supervision of a V/Line safety-accredited personnel and alsosupervise 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 withall State and Federal Electrical Safety Regulations.

 

**2.1.5.4****                         ****Contractor work, emergency andOH&S plans**

 

The Contractor will provide V/Line with work, emergency and OH&Splans in advance of work commencing.

 

**2.1.6**                                     Educationand Training

** **

**2.1.6.1****                         ****Track Safety and Awareness**

 

All Contractors and TTA staff requiring access to the V/Line networkmust complete a Level 1 Track Safety Awareness course (duration approx21⁄2 hours).

 

----

 

At the successful completion of this session participants will be ableto demonstrate and explain the safety precautions and procedures to be followedwhen on or about the track, interacting with other workgroups and using HighVisibility garments.

 

This also includes the requirement for a Level 4 Health Assessment(for those contractors who are required to attend a Track Safety AwarenessCourse) 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/Lineregarding 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 stafftraining is conducted concurrently.

 

Contractors and TTA staff will require proof of certification in theform of an identify card.  The card mustbe carried at all times and be produced on request by a V/Line staff memberwhen working on or visiting rail infrastructure.

 

Course content will be supplied and delivered initially by V/Line, atthe costs set out in Schedule 4. V/Line and the Contractor will work co-operatively to agree futuretraining arrangements for V/Line, with the option of ‘Train the Trainer’ to beexplored.

 

**2.1.6.2****                         ****Local Site Induction Training**

 

The Contractor shall report to the Officer in Charge prior to commencingwork at any station (or group of stations). The Contractor will be required to attend a local site induction carriedout by the Officer.  The Contractor andV/Line will work co-operatively to ensure that the induction process is carriedout as efficiently as possible so that disruptions to both the NTSimplementation and V/Line operations are minimised.

 

**2.1.7**                                     SafetyProcedures, References and Policies

** **

As a minimum, the Contractor needs to be aware of, and comply with, thefollowing 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 (IncidentNotification) 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) Regulations1997;

 

•                                                          Occupational Health and Safety Act 1985;

 

•                                                          Australian Standard AS 4292.1 – 1995 RailwaySafety Management;

 

•                                                          Electronic OHS Incident Reporting Work Instruction(SAWI:005);

 

•                                                          Victorian Heritage Act (1995);

 

•                                                          Environment Protection and BiodiversityConservation Act 1999 (EPBC Act), its Regulations and Amendments; and

 

•                                                          Historical Building Act

 

The Contractor shall comply with all relevant State and FederalRegulations and Policies.

 

**2.1.8**                                     Trainingof V/Line staff

** **

The TTA, the Contractor and V/Line will work co-operatively to ensurethat appropriate training programs are developed for V/Line staff and aredelivered as efficiently as possible to minimise the disruption to V/Line’soperations.

 

The Contractor will manage, at its own cost, all relevant NTStraining.  Associated out-of costs willalso be met by the Contractor, whilst V/Line staff costs will be re-imbursed atthe rates set out in Schedule 4. Further information on the nature and quantum of training to be providedto 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 tothe stations and buildings, as well as any rooms or other areas which are notopen to the public, are at all times kept locked.  The only exception is times when theContractor is entering or exiting the station or buildings or such rooms orother areas, and during the hours when the stations are open to the public inrelation to all external doors and access areas to the stations.

 

The Contractor shall reimburse V/Line for any cost or expenses incurredas a result of any Contractor staff accidentally, intentionally, carelessly ornegligently setting off security alarms.

 

The Contractor must not make any copies of any keys, alarm codes or anyother material provided for access to the stations or building.

 

The Contractor must bring to the attention of V/Line’s AccessRepresentative any matter that, in the Contractor’s opinion, lessens thesecurity of any or any part of the stations, equipment, materials or otherproperty at the Stations, including trains.

 

----

 

**2.1.10**                              V/LineSystem Access

** **

V/Line will provide reasonable access to relevant V/Line staff toprovide such advice, within the knowledge or control of V/Line, to theContractor as is reasonably required for NTS system integration.

 

The Contractor will be provided access to the V/Line’s IT Networksystem, in accordance with an agreed operations transition plan, to allow forNTS implementation.

 

The Contractor must provide documentation showing clear roles andresponsibilities of all V/Line IT system interfaces prior to completion ofdesign phase.  End-to-end integration ofthe 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 (includingconsulting with Oakton (V/Line’s Great Plains consultant) or equivalent) mustbe included as part of the project.

 

**2.1.11**                              Cash Handling

** **

Access time/limitations and other procedures related to access for cashcollection are highlighted below:

 

•                                                          V/Line’s general requirement is that cashcollections occur outside the morning peaks Mondays to Fridays(ie. outside of the hours 06.00 to 09.30).

 

•                                                          Special Events will require additional andincreased frequency of cash collection and equipment servicing, depending onthe particular event.

 

•                                                          The process of cash transferral must be timely andefficient so as not to disrupt the operation of the station to the extent thatlengthy delays result for customers wanting to purchase tickets.

 

•                                                          Cash collection includes both collection andreplenishment of all ticket machinery including ticket office terminals.

 

The following should also be noted:

 

•                                                          V/Line is working on a Cash Handling documentationproject at present to determine best practice in relation to staffed stationscash collection.

 

•                                                          The scope of this project includes optimal deliverytimes & optimal cash balances, and summarise individual stationsecurity capacities (ie. CCTV, safes etc.).  It planned to have this project completed byend June 2005.

 

•                                                          Some remote agents have indicated their resistanceto daily banking of sales receipts.

 

•                                                          V/Line future interest in the retail agent’s cashhandling will be dependant on its final regional retail agent strategy.

 

**2.2**                                               AccessCharge

 

If supervision isrequired the Contractor will be required to pay V/Line at the hourly rate of$100.00 plus GST.

 

----

 

The table belowoutlines the staff categories identified for the purpose of NTS education andtraining 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 areestimate figures only and may vary by 10-15%.

 

**CategoryA**: Front Line Training: These are people whowill have to directly “use” the system, ie. sell /check tickets or beinvolved “toping up existing tickets /cards. These will include BookingOffice, conductors, coach operators etc.

 

**CategoryB**: Customer Advice / Service Personnel.These people are involved in providing advice or handling enquiry’s face toface or over the phone to the general public. These include such areas asStakeholder relations customer service personnel, Senior Station staff,platform staff etc.

 

**CategoryC:**General Awareness. These are people who donot directly interface with customers. This is general high level understandingand overview of the NTS system.

 

**2.3**                                               TrainingCharge

 

TheContractor/TTA will be required to attend as a minimum the following V/Linecourses:

 

•                                                          V/Linegeneral induction training (cost per session TBC); and

 

•                                                          V/Linelocal site induction training at each station (cost per hour TBC).

 

----

 

**H.**                                                   

 

**3.**                                                      Yarra AccessPrinciples

** **

**3.1**                                               AccessPrinciples

 

**3.1.1**                     Timeof Access

 

Detailsconcerning available access times are listed below.

 

Yarra Tramsgrants the Contractor the right to access the Depots and trams during thefollowing hours (daily):

 

(Access at timesoutside the periods above to be agreed on a case by case basis in accordancewith the Yarra Trams Access Coordination Agreement.)

 

**Tram Depot Access (Office andDepot 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 followingservice arrangements apply:

 

•                                                          Fortemporary use of power supplies (240v) during installation of NTS equipment(including power for the Contractor’s work equipment), the Contractor is toarrange access with local Depot Manager, who will provide access to powersupply as long as it does not disturb operations.

 

•                                                          Forsite water supplies, the Contractor is to make local arrangements with theDepot Manger. All Depots have access to water supply which will be provided byYarra Trams.

 

•                                                          TheContractor is to provide their own change and mess sheds at its own cost.

 

•                                                          TheContractor is to provide their own storage at its own cost.

 

•                                                          TheContractor is to make local arrangements with the Depot Manager for access totoilets / amenities, access to which will be provided by Yarra Trams.

 

----

 

The followingprinciples should be noted:

 

•                                                          Contractorsare responsible for cleaning and removal of rubbish after work.

 

•                                                          Contractorsare responsible for parking their cars as such facility will not be provided byYarra Trams.

 

•                                                          Occupationalhealth and safety requirements for site access as per Yarra Trams’accreditation must be adhered to.

 

•                                                          Contractorsmust comply with all statutory requirements, in relation to compliance withsafe working environment requirements, including rail safety.

 

•                                                          Highvisibility vests and safety shoes.

 

•                                                          Compliancewith Yarra Trams’ Zero Drug and Alcohol Policy (PTSD requirements for railsafety workers. Refer PTSD web site).

 

•                                                          Standardwork site warning signs.

 

•                                                          Furtherdetails are provided in the attached “Worker Competence Induction” document(sections 1, 2, 3.2, 3.3 and 4).

 

**3.1.3**                                     Conditionsand Rules of Access

 

**3.1.3.1****                         ****Supervision**

 

Work Supervisionis not required provided the following safe working environment training iscompleted.

 

Details andassociated cost regarding safe working environment training, etc required bythe Contractor prior to accessing sites and equipment are described and listedbelow:

 
| **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 abovetraining is to be supplied by Yarra Trams personnel.

 

Yarra Trams willprovide one authorised officer to provide access to the Tram Depot during thehours of 1.00 am to 5.00 am when the Depot would normally be closed.

 

The authorisedofficer is there to facilitate access and provide such level of supervision asmay be required by Yarra Trams.

 

----

 

The rate ofcharge for the authorised officer will be $344 per Depot per night, for eachnight that access is required by the Contractor to a Depot after 1.00 am.

 

**3.1.3.2****                         ****OH&S**

 

The Contractorshall comply with all OH&S requirements which from time to time may beapplicable.

 

Prior to anywork, the Contractor shall provide Job Safety Assessment and request itsapproval by Yarra Trams.

 

Contractor staffis required to wear appropriate Personal Protective Equipment.

 

**3.1.3.3****                         ****Security**

 

The Contractorshall comply with all Yarra Trams security requirements and measures which maybe form time to time be in force.

 

In particular,any access to Yarra Trams offices and depots requires a preliminary Sign-OnProcess by the Yarra Trams designated starter staff.

 

**3.1.3.4****                         ****Emergencies**

 

Emergency plansfor each of the eight Tram Depots, describing the facilities environment,services and other features must be complied with by the Contractor. These arecontained in the Yarra Trams Emergency Plan for each Depot.

 

**3.1.3.5****                         ****Limitations**

 

Limited tram keyavailability may require Yarra Trams staff attendance for turning on power,especially on D-Class trams.

 

Power will not beturned on for all trams at the same time.

 

**3.1.4**                                      Educationand Training

 

Access to AccessProvider staff for education and training from Contractor:

 

•                                                          As ageneral rule, staff will be available between the hours of 9.00 am and5.00 pm on weekdays.

 

•                                                          Trainingof drivers will conducted by the YT Tram trainers (4 to 5 per depot) at each ofthe eight Tram Depots. Only 2 Tram drivers will be trained per depot perday. At least 3 Tram Trainer training sessions will be conducted at a TramDepot or other site provided by Yarra Trams.

 

•                                                          Restrictionson staff availability for training will particularly apply to maintenance staffand other operational staff. In particular, training of Depot staff, AuthorisedOfficers, Customer Service and Tram Attendants will need to be conducted duringoff-peak hours from Mondays to Fridays (ie. outside of 06.00 to 09.30 and15.00 to 18.30).

 

•                                                          115 TramAuthorised Officers and 100 Tram Attendants will be conducted at a TramDepot or other site provided by Yarra Trams.

 

----

 

**3.1.5**                                      CashCollection Principles

 

See Access Times.

 

**3.1.6**                                      CleaningPrinciples

 

See Access Times.

 

**3.2**                                               AccessCharges

 

Where access isrequired between 1.00 am and 5.00 am at a Depot an Access Charge willapply. The Contractor will be required to pay Yarra Trams $344 per Depot pernight.

 

**3.3**                                               TrainingCharges

 

The table belowoutlines the staff categories identified for the purpose of NTS education andtraining 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 TicketingAuthority**

** **

Principal

 

**Keane AustraliaMicropayment Consortium Pty Ltd**

** **

Contractor

 

**[                              ]**

** **

Access Provider

 

----

 

**Tableof 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

----

 

**Proforma Access Coordination Agreement made at                                on**

 

**Parties****                                                                                         TransportTicketing Authority ABN [                   ]** of [  ]

 

(**“****Principal”**)

 

**[insert details], [ABN]**of [                     ]

 

(**“****Contractor”**)

 

**[insert details], [ABN]** of [                          ]

 

(**“****Access Provider”**)

 

**Background**

 

A.                                                   ThePrincipal and the Contractor have or will enter into the New Ticketing SystemProject Agreement (the **“Project Agreement”**)under which the Contractor will carry out the Project.

 

B.                                                     Inorder to carry out its obligations under the Project Agreement, the Contractorrequires access to third party property, information and staff.

 

C.                                                     ThisAgreement facilitates the provision of access by the Access Provider to theContractor.

 

**Operativeprovisions**

 

# **2.**                                                      Definitions andinterpretation

# ** **

## **2.1**                                               Definitions

## ** **

In thisAgreement:

 

**“Access”**means access to [and use of] the Access Provider’s Property reasonably requiredby the Contractor to perform its obligations under the Project Agreement.

 

**“AccessCharge”** means the charge for the provision of access basedon the Access Provider Rates and calculated in accordance with Schedule 3.

 

**“AccessCoordination Meeting”** means meetings between thePrincipal, the Contractor, access providers or their authorised representativesand other interested parties to facilitate the overall coordination of accessfor the Project.

 

**“AccessProvider Rates”** means the rates set out in Schedule 3.

 

**“AccessRepresentatives”**means each of the Contractor’sAccess Representative, the Principal’s Access Representative and the [  ]’s Representative.

 

**“AlternativeAccess”** means access not provided for in the version of the[   ] Access Plan finalised in accordancewith clause 6.2(h), and required as a result of the Access Providerfailing to provide access in accordance with the Access Plan.

 

**“[*Note:  Insert name of AccessProvider]*Access Plan”** means thedocument set out in Schedule 2, as developed and amended in accordancewith this Agreement.

 

**“*[Note:  Insert name of AccessProvider]* Access Principles”** means theprinciples, obligations and conditions of access set out in Schedule 1.

 

4

----

 

**“*[Note:  Insert name of AccessProvider]* Property”** means:

 

(a)                                                   allproperty owned, leased or used by the Access Provider (and information anddrawings relating to such property including wiring diagrams) including anyrolling stock, stops, terminals, stations, vehicles, depots, interchanges,computer systems and other facilities, systems, power supplies of the AccessProvider other than the Solution; and

 

(b)                                                  personnelinvolved in the operation or use of the property referred to in paragraph (a) includingemployees of the Access Provider.

 

**“[   ]’s Representative”**means the person appointed by the Access Provider in accordance withclause 5.2**.**

 

**“*[Note:  Insert name of AccessProvider]* Work”** means that part of the Workwhich affects the [ ] Property.

 

**“BusinessDay”** means aday on which banks are open for business in Melbourne but not a Saturday orSunday

 

**“BusinessHours”** means between 9.00 am and 5.00 pm on aBusiness Day.

 

**“ChiefExecutive Officers”**means the chief executiveofficer of the Principal, the chief executive officer of the Contractor, andthe chief executive officer of the Access Provider.

 

**“CommencementDate”** means the date this Agreement is validly executedby the Parties, to the satisfaction of the Principal.

 

**“Contractor’sAccess Representative”** means the person appointedby the Contractor in accordance with clause 5.1.

 

**“CoreServices”**means the core services described andprovided by the Contractor under the Project Agreement.

 

**“CurePlan”** means a proposal that the Contractor or the AccessProvider submits to the Principal pursuant to clause 15(a) whichdetails the steps to be taken and the dates by which those steps must besatisfactorily performed in order to rectify a default.

 

**“DisputeResolution Procedures”** means the proceduresestablished under clause 20.

 

**“Expert”**means the party appointed by the Principal and theContractor 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).

 

**“ForceMajeure”** means lightning, earthquake, fire explosion,cyclone, riots, industry wide, industrial action which is not specific to, orattributable to the action of, the Contractor or any of its Related BodiesCorporate or subcontractors and is not industrial action which falls withinparagraph (f) of the definition of Act of Prevention, civil commotion,natural disaster, sabotage, act of a public enemy, act of God (excluding stormand tempest), war (declared or undeclared), revolution, radioactivecontamination, flood or an outbreak of an infectious disease which results inthe Government, a Governmental Agency or a government having jurisdiction overthe person claiming force majeure relief issuing general prohibition againstany persons entering the State of Victoria, but only if the party claiming therelief could not

 

5

----

 

have preventedthe effects of the event by taking those steps which a prudent, experienced andcompetent contractor or operator (as the case may be) would have taken.

 

**“GovernmentAgency”**means any government or semi-governmental entity orauthority, body politic, government department or statutory authority of theState of Victoria.

 

**“InitialServices”**means the initial services described and tobe provided by the Contractor under the Project Agreement.

 

**“Law”**means:

 

(a)                                                   common law;

 

(b)                                                  Commonwealth, Victorian or local governmentlegislation, regulations, by-laws and other subordinate regulations; and

 

(c)                                                   all building codes and regulations relevant tocarrying out the [      ] Work.

 

**“MonthlyInvoice”**means the invoice referred to in clause 13, inthe form set out in Schedule 5.

 

**“NovationDeed”** means the deed substantially in the form annexed tothis Agreement as Schedule 7.

 

**“NovationNotice”** means a notice issued by the Principal pursuant toclause 22.4 of this Agreement.

 

**“PANovation Deed”** means the deed substantially in the formannexed to this Agreement as Schedule 6.

 

**“PANovation Notice”** means a notice issued bythe 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’sAccess Representative”** means the person appointedby the Principal in accordance with clause 5.3.

 

**“Principal’sNominee”** means the Principal or any party nominated by thePrincipal.

 

**“Project”**means the design,development, integration, installation, testing and implementation of theSolution 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 “ProjectMaster Schedule” prepared by the Contractor (and updated from time to time), inaccordance 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 withthe Project Agreement**.**

 

**“RelatedBody Corporate”** has the same meaning as inthe*Corporations Act*.

 

**“Services”**means the Initial Services and the Core Services.

 

**“Solution”**means the ticketing and payment system designed, andto be provided by the Contractor, as described in the Project Agreement.

 

**“TrainingCharge”**means the charge for the provision of trainingcalculated in accordance with Schedule 3.

 

“**Urgent Action**” means action required to be taken to avoid animmediate threat to a member of the public or the property of the Principal orthe Access Provider.

 

**“Work”**means any work required to be performed by the Contractor pursuant to theProject Agreement.

 

## **2.2**                                               Interpretation

## ** **

In thisAgreement:

 

### (a)                                                   headings are for convenience only anddo not affect interpretation;

###  

and unless thecontext indicates a contrary intention:

 

### (b)                                                  an obligation or a liability assumedby, or a right conferred on, 2 or more persons binds or benefits them jointlyand severally;

###  

### (c)                                                   “person” includes an individual, theestate of an individual, a corporation, an authority, an association or a jointventure (whether incorporated or unincorporated), a partnership, a trust andGovernmental Agencies;

###  

### (d)                                                  a reference to a Party includes thatParty’s executors, administrators, successors and permitted assigns, includingpersons taking by way of novation;

###  

### (e)                                                   a reference to a document (includingthis Agreement) is to that document as varied, novated, ratified or replacedfrom time to time;

###  

### (f)                                                     a reference to a statute includes itsdelegated legislation and a reference to a statute or delegated legislation ora provision of either includes consolidations, amendments, re-enactments andreplacements;

###  

### (g)                                                  a word importing the singular includes theplural (and vice versa), and a word indicating a gender includes every othergender;

###  

### (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 areference to this Agreement includes all recitals, schedules, exhibits,attachments and annexures to it;

 

7

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

###  

### (j)                                                      “includes” in any form is not a word oflimitation; and

###  

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

###  

## **2.3**                                               Rule of construction excluded

## ** **

In theinterpretation of this Agreement, no rule of construction applies to thedisadvantage of one Party on the basis that that Party put forward or draftedthis Agreement or any provision in it.

 

## **2.4**                                               Order of precedence

## ** **

### (a)                                                   If there is or arises anyinconsistency, ambiguity, or discrepancy between any of:

###  

#### (i)                                                     thisAgreement;

####  

#### (ii)                                                  the[   ] Access Principles; and

####  

#### (iii)                                               the[   ] Access Plan,

####  

the followingorder of precedence will apply:

 

#### (iv)                                              thisAgreement;

####  

#### (v)                                                 the[   ] Access Principles;

####  

#### (vi)                                              the[  ] Access Plan.

####  

### (b)                                                  If there is or arises anyinconsistency, ambiguity or discrepancy within:

###  

#### (i)                                                     thisAgreement;

####  

#### (ii)                                                  the[   ] Access Principles; or

####  

#### (iii)                                               the[  ] Access Plan,

####  

the Contractor orthe Access Provider must notify the Principal, or the Principal’s Access Representativemay notify the Contractor and the Access Provider, in writing within10 Business Days of becoming aware of any such inconsistency, ambiguity ordiscrepancy.  The Principal’s AccessRepresentative must determine the intention of the Parties and notify theContractor and the Access Provider of the resolution of the inconsistency,ambiguity or discrepancy within 20 Business Days of the Principal’s AccessRepresentative being so notified.

 

# **3.**                                                      Compliance with Law

# ** **

The Contractorand the Access Provider must perform all their respective obligations underthis Agreement in accordance with the requirements of Law.

 

# **4.**                                                      Term

# ** **

### (a)                                                   ThisAgreement will commence on the Commencement Date.

###  

### (b)                                                  ThisAgreement will expire:

 

8

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#### (i)                                                     on the expiry of the ProjectAgreement;

####  

#### (ii)                                                  on the issue of a variation orderby the Principal under clause 20.3 of the Project Agreement which has theeffect, 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 theProject Agreement, by written notice from the Principal;

####  

unless the Principal gives a PA Novation Notice underclause 22.

 

### (c)                                                   Priorto the Solution Completion Date, the parties agree to meet and negotiate, ingood faith, an access agreement to replace this Agreement which deals withaccess for the maintenance and ongoing operation of the Solution.  However, this Agreement remains on footunless and until it is replaced by the agreement of the parties or otherwiseexpires pursuant to this clause.

###  

# **5.**                                                      Representatives andmeetings

# ** **

## **5.1**                                               Contractor’s Access Representative

## ** **

### (a)                                                   The Contractor must:

###  

#### (i)                                                     within5 Business Days of the Commencement Date give notice in writing to thePrincipal and the Access Provider of the person that will act as arepresentative of and be authorised to act on behalf of it in discharging itsfunctions under this Agreement; and

####  

#### (ii)                                                  obtainthe Principal’s prior written approval to any appointment made underclause 5.1(a)(i) such approval not to be unreasonably withheld ordelayed.

####  

### (b)                                                  The Contractor may by notice in writingto the Principal and Access Provider substitute a person appointed underclause 5.1(a) with another person, provided the Contractor hasobtained the prior written approval of the Principal, which must not beunreasonably withheld or delayed.

###  

### (c)                                                   The Contractor is bound by any act oromission of the person appointed under this clause 5.1 and any direction,notice, or instruction given to the person appointed under this clause 5.1will be deemed to be a direction, notice, or instruction to the Contractor.

###  

## **5.2**                                               [   ]’sRepresentative

## ** **

### (a)                                                   The Access Provider must within5 Business Days of the Commencement Date give notice in writing to thePrincipal and the Contractor of the person that will act as a representative ofand be authorised to act on behalf of it in discharging its functions underthis Agreement.

###  

### (b)                                                  The Access Provider may by notice inwriting to the Principal and the Contractor substitute a person appointed underclause 5.2(a) with another person, provided the Access Provider hasobtained the prior written approval of the Principal, which must not beunreasonably withheld or delayed.

###  

### (c)                                                   The Access Provider is bound by any actor omission of the person appointed under this clause 5.2 and anydirection, notice, or instruction given to the person

 

9

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### appointed under thisclause 5.2 will be deemed to be a direction, notice, or instruction to theAccess Provider.

###  

## **5.3**                                               Principal’s AccessRepresentative

## ** **

### (a)                                                   The Principal:

###  

#### (i)                                                     will,within 5 Business Days of the Commencement Date, appoint a person to be thePrincipal’s Access Representative for the purposes of this Agreement;

####  

#### (ii)                                                  mayat any time replace the Principal’s Access Representative, in which event thePrincipal must appoint another person as the Principal’s Access Representative;and

####  

#### (iii)                                               willgive 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)                                                     mayby written notice to the Contractor and the Access Provider appoint persons toexercise any of the Principal’s Access Representative’s functions under thisAgreement;

####  

#### (ii)                                                  mustnot appoint more than one person to exercise the same function under thisAgreement; and

####  

#### (iii)                                               mayrevoke any appointment made under clause 5.3(b)(i) by notice inwriting to the Contractor and the Access Provider.

####  

### (c)                                                   The Principal’s Access Representativemay continue to exercise a function under this Agreement despite appointinganother person to exercise the function under clause 5.3(b).

###  

### (d)                                                  The Access Provider and the Contractoracknowledge and agree that the Principal’s Access Representative and anyappointee of the Principal’s Access Representative act at all times as agentsof the Principal and are subject to the directions of the Principal and willact solely in the interests of the Principal.

###  

### (e)                                                   Without limiting clause 21 of theProject Agreement the Contractor and the Access Provider must comply with anydirection by the Principal’s Access Representative given or purported to begiven under a provision of this Agreement except where such direction wouldcause the Contractor or the Access Provider (as the case may be) to be inbreach of its obligations under this Agreement.

###  

### (f)                                                     The Principal is bound by any act oromission of any person appointed under this clause 5.3(a) or (b)(i) andany written direction, notice or instruction (other than an email) given tothose persons will be deemed to be a direction, notice or instruction to thePrincipal.

###  

## **5.4**                                               Meetings

## ** **

### (a)                                                   The Access Provider and the Contractormust meet fortnightly in order to facilitate and coordinate access.  A meeting may be cancelled by the agreementof the Parties.

 

10

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### (b)                                                  The Principal must be notified inwriting of all meetings between the Contractor and the Access Provider5 Business Days prior to such meeting, or such other period as is agreedbetween the Parties, and the Principal has the right to attend and participatein all meetings.

###  

### (c)                                                   A Party may schedule meetings thatare additional to the meetings held in accordance with clause 5.4(a) byproviding 5 Business Days notice to the other Parties.  If a Party schedules a meeting under thisclause, the Access Provider and the Contractor must attend the meeting and thePrincipal has the right to attend and participate in such meeting.

###  

### (d)                                                  If the Access Provider is in breach ofclauses 7, 10 or 11 of this Agreement the Contractor must give the otherParties written notice of that breach and a meeting must be held between theContractor and the Access Provider within [5] Business Days of that writtennotice.  The Principal has the right toattend and participate in that meeting.

###  

### (e)                                                   The Contractor will minute and providecopies of all such minutes to the Access Provider and the Principal.  the Contractor will notify the Principal andany attendees at a meeting, in writing, of all agreements that are reached atany meeting.

###  

## **5.5**                                               Access CoordinationMeetings

## ** **

### (a)                                                   The Parties acknowledge that thepurpose of the Access Coordination Meetings is to facilitate the overallcoordination of access for the Project between the Access Provider, theContractor, the Principal, and other access providers and interested parties.

###  

### (b)                                                  Access Coordination Meetings will beheld as and when necessary in order to coordinate and facilitate access issuesthat concern more than one access provider.

###  

### (c)                                                   Access Coordination Meetings may beconvened by the Principal by giving reasonable notice.  Where an Access Coordination Meeting isconvened to deal with an emergency the Principal will only be required to giveone Business Day’s notice.  The Principalmay specify the access providers and other interested Parties that arerequested to attend.

###  

### (d)                                                  The Principal may attend andparticipate in all Access Coordination Meetings.

###  

### (e)                                                   At the request of the Principal, theAccess Provider and the Contractor must attend a specified Access CoordinationMeeting, and agree to negotiate and participate in the resolution of the accessissues raised, in good faith.

###  

### (f)                                                     The Access Provider, the Contractor andthe Principal’s responsibilities in relation to the Access CoordinationMeetings may be carried out by the representatives appointed underclause 5.

###  

### (g)                                                  The Access Provider and the Contractoracknowledge that other access providers and interested parties may be presentat the Access Coordination Meeting, and they agree to participate and negotiatewith such parties in good faith.

###  

### (h)                                                  The Contractor will minute and providecopies of all such minutes and notify the Principal and any attendees at anAccess Coordination Meeting, in writing, of all agreements that are reached atan Access Coordination Meeting.

 

11

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# **6.**                                                      [   ] Access Plan

# ** **

## **6.1**                                               General Obligations

## ** **

### (a)                                                   TheContractor must coordinate access and develop the [ ] Access Plan in accordancewith:

###  

#### (i)                                                     this Agreement, and in particularclause 6.2;

####  

#### (ii)                                                  the [ ] Access Principles;

####  

#### (iii)                                               the Project Timeline and the ProjectMaster Schedule; and

####  

#### (iv)                                              the Project Agreement.

####  

### (b)                                                  TheAccess Plan will document the access to the [  ] Property which theContractor reasonably requires in order to carry out the [  ] Work inaccordance with:

###  

#### (i)                                                     the Project Agreement;

####  

#### (ii)                                                  the Project Timeline and Project MasterSchedule; and

####  

#### (iii)                                               the [  ] Access Principles.

####  

## **6.2**                                               Development of [  ] Access Plan

## ** **

### (a)                                                   The Contractor must prepare and submitto the Principal and the Access Provider a revised draft of the [ ] Access Planbased on the version of the [      ]Access Plan set out in Schedule 2 and at the time specified in the ProjectMaster Schedule.

###  

### (b)                                                  The Access Provider must, as soon asreasonably practicable and in any event, within 10 Business Days ofreceipt of the draft [  ] Access Plan,advise the Contractor in writing whether or not it considers such plan to be inaccordance with this Agreement, including the [   ] Access Principles and suitable for a finaldraft to be prepared pursuant to clause 5.2(e) or reject it and provideits comments (including reasons for rejecting the draft **[  ]**Access Plan) to the Principal and the Contractor.

###  

### (c)                                                   The Principal must as soon asreasonably practicable and in any event, within 20 Business Days ofreceipt of the draft [ ] Access Plan, advise the Contractor in writing whetheror not it considers such plan to be in accordance with this Agreement,including the [ ] Access Principles, and suitable for a final draft to beprepared pursuant to clause 5.2(e) or reject it and provide its comments(including reasons for rejecting the draft **[  ]** Access Plan) to the Contractorand the Access Provider.  If the draft [] Access Plan is rejected by the Access Provider or the Principal, theContractor must promptly, and in any event within 5 Business Days, submitto the Principal and the Access Provider a redraft of the revised [ ] AccessPlan and such redraft will be dealt with by the Principal and the AccessProvider as if it were submitted under clause 6.2(a).

###  

### (d)                                                  The Contractor must take into accountthe Access Provider’s and the Principal’s comments, if any, in revising the [ ]Access Plan.

###  

### (e)                                                   The Contractor must prepare and submitto the Principal and the Access Provider a final version of the [ ] Access Planprepared on the basis of the draft submitted under clause 6.2(a) andin accordance with this Agreement, and at the times specified in the ProjectMaster Schedule.

 

12

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### (f)                                                     The Access Provider must as soon asreasonably practicable and in any event,, within 10 Business Days ofreceipt of the final version of the final [  ] Access Plan, advise the Contractor in writing whether or not itconsiders such final version to be in accordance with this Agreement, includingthe Access Principles, or reject it and provide its comments (including reasonsfor rejecting the final version of the final**[  ]** Access Plan) to the Principaland the Contractor.

###  

### (g)                                                  The Principal must as soon asreasonably practicable and in any event, within 20 Business Days ofreceipt of the final version of the final [ ] Access Plan, advise theContractor in writing whether or not it considers such final version to be inaccordance with this Agreement, including the Access Principles, or reject itand provide its comments (including reasons for rejecting the final version ofthe final **[ ]** Access Plan) to the Contractor and the AccessProvider.  If the final [ ] Access Planis rejected, the Contractor must promptly, and in any event within5 Business Days, submit to the Principal and the Access Provider a redraftof the [ ] Access Plan and such draft will be dealt with by the Principal andthe 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 thePrincipal and in accordance with the requirements set out in this Agreement, asa condition precedent to completion of******theNTS Solution Requirements Phase.

###  

### (i)                                                      The Principal’s and the Access Provider’sreceipt, 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 notrelieve the Contractor of its responsibility for any errors, omissions ordepartures from, or failures to comply with, requirements of this Agreement andwill not affect the rights or obligations of the Principal or the Access Providerunder this Agreement, including the payment obligations under clause 13.

###  

### (j)                                                      If the Contractor reasonably believesthe 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) inrelation to the [   ] Access Plan it mustgive written notice to the Principal’s Access Representative.  If the matter is not resolved within10 Business Days of the receipt of such notice, the dispute will bereferred to the Dispute Resolution Procedures.

###  

### (k)                                                   The Access Provider and the Principalshall act reasonably in exercising its right to review, comment on or takeother action in accordance with the provisions of this clause 6.2.

###  

### (l)                                                      The Principal will use reasonableendeavours to provide a response to the Contractor under clauses 6.2(c) and6.2(g) as soon as reasonably practicable and in any event in a period ofless than the 20 Business Days referred to in those clauses.

###  

## **6.3**                                               Amendment of theAccess Plan

## ** **

### (a)                                                   Amendments to the [   ] Access Plan can be proposed at any time bya Party by giving written notice to the other Parties.  Amendments to the [   ] Access Plan after it has been finalisedpursuant to clause 6.2 may include:

###  

#### (i)                                                     additionalaccess or Alternative Access required by the Contractor;

####  

#### (ii)                                                  achange to access times proposed by either the Access Provider or theContractor;

 

13

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#### (iii)                                               affectthe substantive rights or obligations of the Parties under the Access Plan; or

####  

#### (iv)                                              merelyclarify existing rights and obligations.

####  

### (b)                                                  Where a Party proposes an amendmentunder clause 6.3(a), the Parties agree to negotiate the proposedamendments in good faith and acting reasonably.

###  

### (c)                                                   Within 5 Business Days of writtennotice of the proposed amendment, the Access Provider and Contractor mustconvene and attend a meeting to negotiate any proposed amendments to the [   ] Access Plan.

###  

### (d)                                                  The Principal:

###  

#### (i)                                                     mustbe given 2 Business Days notice of any meeting under this clause by the Contractor;

####  

#### (ii)                                                  hasa right to attend and participate in any such meetings; and

####  

#### (iii)                                               mustbe advised of the outcome of any negotiations in relation to proposedamendments to the Access Plan by the Contractor.

####  

### (e)                                                   Any agreed amendment to the [   ] Access Plan must be in writing, and isdeemed to form part of the [   ] AccessPlan.

###  

### (f)                                                     The Contractor must revise, to thereasonable satisfaction of the Access Provider and the Principal, the [   ] Access Plan to reflect the agreedamendments.

###  

### (g)                                                  The Principal may direct the Contractorto propose an amendment to the [   ]Access Plan under clause 6.3(a) and to consolidate any agreedamendments to the [   ] Access Plan underclause 6.3(f).

###  

### (h)                                                  Where an amendment to the [   ] Access Plan is for additional access requiredby the Contractor, the Contractor and the Access Provider must notify thePrincipal in writing, including an estimate of the resulting increases to theAccess Charge paid in accordance with clause 13.

###  

### (i)                                                      Where agreement on a proposed amendmentto the [   ] Access Plan cannot bereached between the Parties at a meeting convened under clause 6.3(c), anyParty may refer the dispute to the Dispute Resolution Process.

###  

# **7.**                                                      Warranty

# ** **

The Contractor acknowledges and warrants that:

 

### (a)                                                   ithas checked and carefully considered the [ ] Access Principles and they are fitfor their purpose;

###  

### (b)                                                  the performance of the Work will beundertaken in accordance with the requirements of this Agreement, including the[ ] Access Principles and [ ] Access Plan, and the requirements of thisAgreement will enable the Work to be carried out in accordance with the ProjectAgreement; and

###  

### (c)                                                   no representation or warranty has beengiven or is given by or on behalf of the Principal or the Access Provider, asto:

 

14

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#### (i)                                                     thesuitability, completeness or efficacy of any information or data supplied ormade available by any of them, including information or data forming part ofthis Agreement, including the [ ] Access Principles;

####  

#### (ii)                                                  anyother drawings, plans, design specifications, reports or other information ordata which relate directly or indirectly to the Solution; or

####  

#### (iii)                                               theadequacy or sufficiency of the [  ]Property.

####  

# **8.**                                                      Access

# ** **

## **8.1**                                               Contractor’s access

## ** **

### (a)                                                   The Access Provider must provide theContractor with access, and otherwise comply with its obligations, inaccordance with the [  ] Access Plan andthis Agreement, including the Access Principles, for the purpose of enabling theContractor to carry out the [   ] Work.

###  

### (b)                                                  If the Access Provider fails to giveAccess in accordance with the [ ] Access Plan, the Principal will use its bestendeavours to procure the Access Provider to provide Alternative Access on adate and at a time reasonably acceptable to the Contractor which is within 10Business Days, or such other period as agreed by the parties, of the date forthe original Access nominated in the [ ] Access Plan.

###  

### (c)                                                   The Access Provider must:

###  

#### (i)                                                     useall reasonable endeavours to agree Alternative Access with the Contractor; and

####  

#### (ii)                                                  subjectto the terms of this Agreement and the Access Principles, cooperate with andnot interfere with or obstruct the Contractor or any other contractor engagedby the Contractor to perform the [ ] Work on or in the vicinity of the [ ]Property.

####  

### (d)                                                  The rights of access provided pursuantto this Agreement are for the purpose only of carrying out the [ ] Work andincidental activities and the Contractor will obtain no legal estate or otherinterest in the [ ] Property.

###  

### (e)                                                   The Access Provider must act reasonablyand in good faith in giving directions to, and in all its dealings with theContractor, its subcontractors, officers, employees and agents while theContractor or its subcontractors are performing the [ ] Work at the [ ] Property.

###  

### (f)                                                     If preparatory works by or on behalf ofthe Access Provider are required in order to enable the Contractor to performthe Work the scope and timing of such preparatory works will be agreed betweenthe Access Provider and the Contractor and set out in the Access Plan.

###  

## **8.2**                                               Services

## ** **

For the avoidanceof doubt, the Contractor must:

 

### (a)                                                   obtain all services required toundertake the [ ] Work; and

###  

### (b)                                                  pay for all services obtained inrespect of carrying out the [ ] Work,

###  

other than asprovided in this Agreement, including the Access Principles and [  ] Access Plan.

 

15

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## **8.3**                                               Principal’s access

## ** **

### (a)                                                   TheAccess Provider and the Contractor agree that, at all times, the Principal orany person authorised by it will:

###  

#### (i)                                                     subject to normal safety and securityconstraints as notified by the Access Provider, have the right of access duringBusiness 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 ofaccess for the purposes of:

####  

##### A.                                                   observing the [   ] Work and monitoring compliance by theContractor with its obligations under this Agreement and the Project Agreement;

#####  

##### B.                                                     undertaking progress inspections of theSolution ; and

#####  

##### C.                                                     any other reason relating to the Solution,the Project Agreement or this Agreement.

#####  

### (b)                                                  ThePrincipal agrees that any person accessing sites on behalf of the Principalunder clause 8.3(a) must not unduly interfere with the performance of the[  ] Work.  To the extentpossible, reasonable advance notice will be given of the Principal’s intentionto access a site.

###  

## **8.4**                                               Access Provider’sright to inspect

## ** **

The AccessProvider 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 theSolution installed on the **[  ]** Property:

 

### (a)                                                   asbetween the Access Provider and the Principal, will be owned by and is theproperty of the Principal; and

###  

### (b)                                                  willbe installed as a fitting and not a fixture and will not become a fixture onthe **[ ]**Property.

###  

## **8.6**                                               Emergency Access

## ** **

Notwithstanding the **[  ]** Access Plan, the AccessPrinciples and the notice requirements in clause 9(a), if requested by theAccess Provider or the Principal or if agreed between the Contractor and theAccess Provider, the Contractor may be granted emergency access to the **[ ]**Property in order to undertake or complete urgentmaintenance or repairs.  Such emergency accessshall (where possible) be in accordance with the **[  ]** Access Principles or on suchterms as the Contractor and the Access Provider may agree from time to time.

 

# **9.**                                                      Contractor obligations

# ** **

### (a)                                                   Subject to clause 7.6 or as agreedbetween the Parties, the Contractor will give notice to the Access Provider andthe Principal 2 weeks, or such other period agreed

 

16

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### between the parties, prior toaccessing the [   ] Property, even wheresuch 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)                                                     allof the Access Provider’s safety requirements, emergency plans and mandatorysafety training in accordance with the Access Principles and the [  ] Access Plan; and

####  

#### (ii)                                                  anyreasonable or lawful**direction ofthe [    ] Representative given to protect the safety ofpeople or property on the [ ] Property.

####  

### (e)                                                   The Contractor represents and warrantsthat 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 hasavailable or will obtain the necessary equipment, materials, tools andfacilities to perform its obligations in accordance with the requirementscontained in this Agreement.

###  

### (f)                                                     Without limiting clause 9(c) theContractor must:

###  

#### (i)                                                     unlessotherwise agreed by the Contractor and the Access Provider, conclude eachperiod of continuous access at the time specified in the[       ] Access Plan, regardless of whetherthe task for which that period of access was allocated has been completed;

####  

#### (ii)                                                  unlessotherwise agreed by the Contractor and Access Provider or specificallypermitted by the **[  ]** Access Plan, at the conclusionof each period of continuous access, leave the [  ] Property in thestate in which it was found by the Contractor, other than permanent alterationsmade to the [  ] Property as part of the [  ] Work; and

####  

#### (iii)                                               unlessotherwise agreed by the Contractor and Access Provider, at the conclusion ofeach period of continuous access, leave the [  ] Property in a safe condition.

####  

# **10.**                                               Other activities

# ** **

### (a)                                                   The Contractor must:

###  

#### (i)                                                     developthe [ ] Access Plan and carry out the [ ] Work so as to co-ordinate with theother operations of the Access Provider on the [ ] Property, and as far asreasonable practicable avoid inconvenience or disruption to those operations;

####  

#### (ii)                                                  asfar as reasonably practicable avoid inconvenience to the Access Provider’scustomers and risk to those customer’s safety;

####  

#### (iii)                                               atall times co-operate with and not interfere with or obstruct any othercontractor engaged by the Principal or the Access Provider to perform otherworks on or in the vicinity of the [ ] Property; and

 

17

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#### (iv)                                              usereasonable endeavours to ensure that the [ ] Works do not interfere with thenormal activities of the Access Provider.

####  

### (b)                                                  The Contractor will not be liable forany costs that are incurred if the [ ] Works do interfere with the activitiesof the Access Providers or any other contractor, provided the Contractor iscarrying out the [ ] Work in accordance with this Agreement, including theAccess Principles, and the [  ] AccessPlan.

###  

# **11.**                                               Alternative Access

# ** **

### (a)                                                   Without limiting what amounts to afailure to act in good faith, where an amendment proposed under clause 6.3is for Alternative Access, the Access Provider will be deemed to be notnegotiating in good faith and acting reasonably where:

###  

#### (i)                                                     theAccess Provider repeatedly objects to amendments that comply with the AccessPrinciples;

####  

#### (ii)                                                  theAccess Provider fails to offer Alterative Access which is consistent with the[  ] Access Principles; or

####  

#### (iii)                                               theAccess Provider objects to amendments that comply with the Access Principlesand result only in a change to the timing of the access as set out in the[   ] Access Plan, and the AccessProvider has been given reasonable notice of the amendments.  For the avoidance of doubt, in anycircumstances one month will constitute reasonable notice and shorter periodsmay constitute reasonable notice depending on the circumstances.

####  

### (b)                                                  Where an agreed amendment to the [  ] Access Plan for Alternative Access isincorporated into the [  ] Access Plan bythe Contractor in accordance with clause 6.3(e) such access will beidentified as Alternative Access in the revised [  ] Access Plan.

###  

# **12.**                                               Failure to provideaccess

# ** **

### (a)                                                   If the Access Provider fails to provideaccess in accordance with the [  ] AccessPlan or this Agreement (including the Access Principles), the Contractor willgive a written notice to the Access Provider and the Principal.

###  

### (b)                                                  The Principal acknowledges that theAccess Provider’s failure to provide Alternative Access may give the Contractorthe right to claim an extension of time and delay costs in accordance with theProject Agreement.

###  

### (c)                                                   If the Access Provider has consistentlyfailed to provide access (other than Alternative Access) in accordance with the[  ] Access Plan, the matter will bereferred to the Principal for consideration. If, in the opinion of thePrincipal the Access Provider has consistently failed to provide access inaccordance with the [   ] Access Plan,the Principal will deem such failure to provide access to be a breach of thisAgreement.  If the Contractor reasonablyconsiders the Principal is being unreasonable in any consideration under thisclause, it may refer the matter to the Dispute Resolution Procedures.

 

18

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# **13.**                                               Payment

# ** **

## **13.1**                                        Access Charge and TrainingCharge

## ** **

### (a)                                                   Subject to the terms of this Agreement,the Contractor will, for the period commencing on the Commencement Date andending on the Solution Completion Date (as defined in the Project Agreement),pay to the Access Provider:

###  

#### (i)                                                     themonthly Access Charge to be calculated on the basis of the actual accessprovided by the Access Provider in each month, in consideration of the AccessProvider providing access in accordance with this Agreement; and

####  

#### (ii)                                                  theTraining Charge in consideration of the Access Provider providing training tothe Contractor’s personnel in accordance with the Access Principles and theAccess Plan.

####  

### (b)                                                  For the avoidance of doubt and subjectto clause 13.4;

###  

#### (i)                                                     theContractor acknowledges and agrees that the Access Provider is entitled topayment of the Access Charge in accordance with clause 13 for any accessprovided by the Access Provider to the Contractor for the[    ] Work regardless of whether it is set out in the[    ] Access Plan; and

####  

#### (ii)                                                  theContractor will pay the Access Provider in accordance with clause 12.1(a) forany access provided by the Access Provider in excess of the access set out inthe [  ] Access Plan.

####  

### (c)                                                   Provided that the Access Provider hasgiven the relevant access to the Contractor in accordance with this Agreement,the [ ] Access Principles and the [ ] Access Plan, if:

###  

#### (i)                                                     theContractor has not paid the Access Provider the Access Charge or the TrainingCharge in accordance with this clause 13;

####  

#### (ii)                                                  thedispute resolution procedures set out in clause 19 have been invoked inrelation to such non-payment and conducted in accordance with clause 19; and

####  

#### (iii)                                               theExpert has made a determination under clause 18.5 that the Contractor must paymoney to the Access Provider to fulfil its obligation to pay the Access Chargeand Training Charge under clause 13.1(a), and the Contractor has not paid themoney within [  ] Business Days of suchdetermination,

####  

the Principalwill pay the money to the Access Provider. The amount of any money paid by the Principal to the Access Providerunder this clause will be a debt due and payable by the Contractor to thePrincipal within 20 Business Days of demand by the Principal.

 

## **13.2**                                        Alternative Access

## ** **

The AccessProvider will not be entitled to the Access Charge for the provision ofAlternative Access.  For the avoidance ofdoubt, Alternative Access does not include additional access requiredwhere the Access Provider has failed to provide access in accordance with theAccess Plan solely as a consequence of the Contractor not having complied withthe Access Plan or the Access Principles.

 

19

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## **13.3**                                        Additional Access

## ** **

Notwithstandingany other clause in this Agreement or the Project Agreement, the Contractorwill be liable for any part of the Access Charge attributable to any additionalaccess sought under clause 6.3(a) by the Contractor or notified to thePrincipal under clause 6.3(h) and will not be entitled to anyreimbursement from the Principal in relation to such part of the Access Chargewhere that additional access is due to the act or omission of the Contractor.

 

## **13.4**                                        Monthly Invoice

## ** **

### (a)                                                   The Access Provider shall submit to theContractor a Monthly Invoice within 10 Business Days of the end of each monthitemising the Access Charge and Training Charge applicable for that month andprovide a copy of the Monthly Invoice to the Principal.

###  

### (b)                                                  Each Monthly Invoice shall include suchdata and information as is required by the Contractor to verify the computationof the Access Charge, including each day and time that access was granted tothe Contractor.

###  

### (c)                                                   [Each Monthly Invoice shall be a validtax invoice for GST purposes].

###  

## **13.5**                                        Payment

## ** **

### (a)                                                   If the Contractor does not dispute anyaspect of a Monthly Invoice in accordance with clause 13.6, it shallwithin 20 Business Days after receipt of the Monthly Invoice pay to theAccess Provider the amount set out in the Monthly Invoice.

###  

### (b)                                                  If the Contractor disputes any aspectof a Monthly Invoice in accordance with clause 13.6, it shall within20 Business Days after receipt of the Monthly Invoice pay to the AccessProvider all undisputed amounts in respect of that Monthly Invoice.

###  

## **13.6**                                        Non-Acceptance ofMonthly Invoice

## ** **

### (a)                                                   If the Contractor disputes any aspectof a Monthly Invoice, it shall within 10 Business Days after receipt of theMonthly Invoice notify the Access Provider in writing of all aspects which itdisputes and, to the extent that it is able to calculate them, details of theadjustments it requires and provide a copy of the notice to the Principal.  The Contractor may request the AccessProvider to provide to it such further information as it requires to determinethe amounts in dispute and if so requested the Access Provider shall providesuch information as soon as practicable and in any event no later than5 Business Days after being so requested. If upon receipt of such information the Contractor no longer disputesany aspect of the Monthly Invoice, the Contractor shall within 20 BusinessDays after receipt of the information pay to the Access Provider the amountowing under the Monthly Invoice.

###  

### (b)                                                  If the Access Provider notifies theContractor in writing that it agrees with the adjustments requested by theContractor within 5 Business Days after receipt of the notification underclause 13.6(a) and issues a valid adjustment note or revised taxinvoice (as appropriate), the Contractor shall within 20 Business Daysafter receipt of notification of such acceptance pay to the Access Provider theagreed amount owing in respect of the Monthly Invoice.

###  

### (c)                                                   If within 20 Business Days afterreceipt by the Access Provider of the notice from the Contractor pursuant toclause 13.6(a) the Parties have not agreed the amounts in dispute inrespect of the Monthly Invoice, the matter shall be resolved in

 

20

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### accordance with the DisputeResolution Procedures.

###  

# **14.**                                               Indemnity andLimitation of Liability

# ** **

## **14.1**                                        Contractor Indemnity

## ** **

### (a)                                                   The Contractor indemnifies and keepsindemnified on demand and by way of continuing indemnity, defends, and savesharmless the Access Provider and its employees, agents and subcontractors fromand against all liabilities, damages, losses, penalties, demands, suits, costs,payments, outgoings, expenses (including reasonable solicitor’s fees andexpenses) and proceedings of any nature, including for:

###  

#### (i)                                                     lossof or damage to property; and

####  

#### (ii)                                                  claimsby any person in respect of personal injury or death,

####  

to the extent towhich they arise out of or as a consequence of:

 

#### (iii)                                               theContractor’s performance of its obligations under this Agreement;

####  

#### (iv)                                              abreach of this Agreement by or on behalf of the Contractor;

####  

#### (v)                                                 anynegligent, wilful or fraudulent act or omission by or on behalf of theContractor in relation to this Agreement; or

####  

#### (vi)                                              abreach of a representation or warranty given by the Contractor under thisAgreement,

####  

except to theextent that such loss, damage, injury or death is attributable to the negligentor wilful act or omission of the Access Provider or the Principal or the breachby the Access Provider or the Principal of its obligations under thisAgreement.  In the event such loss,damage, injury or death results from the joint or concurrent act or omission ofthe Parties, the Contractor will be liable under this indemnity in proportionto its relative degree of fault.

 

### (b)                                                  For the avoidance of doubt, neither theAccess Provider nor the Contractor has a claim against the Principal of anynature whatsoever for:

###  

#### (i)                                                     lossof or damage to property;

####  

#### (ii)                                                  economicloss; or

####  

#### (iii)                                               claimsby any person in respect of personal injury or death,

####  

as a result of aParty’s failure to perform its obligations in accordance with this Agreement orotherwise in connection with this Agreement, whether such claim is in breach ofcontract, any tort (including negligence) or on any other basis whatsoever.

 

## **14.2**                                        Liability ofContractor

## ** **

### (a)                                                   The Access Provider and the Principalacknowledge that the liability of the Contractor to the Principal and anyaccess provider under the Project Documents is subject to and will not exceedthe Contractor’s limitations of liability set out in clause 40 of theProject Agreement when aggregated with any liability under the ProjectAgreement.

 

21

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### (b)                                                  The Access Provider agrees that theliability of the Contractor to the Access Provider is limited in accordancewith this clause 14.2.

###  

## **14.3**                                        Exclusions

## ** **

The limitation inclause 14.2 does not apply to:

 

### (a)                                                   the extent to which the Contractor isrequired to be indemnified under a policy of insurance in accordance with theProject Agreement; or

###  

### (b)                                                  claims in respect of damage to real orpersonal property or injury to, or death, of persons.

###  

## **14.4**                                        Liability of AccessProvider

## ** **

### (a)                                                   Subject to clause 1 to 50 of theProject Agreement where relevant, the total liability of the Access Provider tothe Contractor and the Principal under or in any way arising out of or inconnection with this Agreement will not exceed:

###  

#### (i)                                                     $[**];or

####  

#### (ii)                                                  thevalue of the payment received by the Access Provider for access in accordancewith the Access Provider Rates,

####  

whichever is thehigher amount.

 

### (b)                                                  Notwithstanding any other clause inthis Agreement, the Access Provider will not be liable to make any payment (byway of indemnity, damages or otherwise) in respect of any indirect orconsequential loss incurred or sustained by the Contractor.

###  

# **15.**                                               Remedy Notice

# ** **

### (a)                                                   If either the Contractor or the AccessProvider  is in default under thisAgreement and that default is capable of remedy, the Principal may give theContractor or the Access Provider (as the case may be) a notice requiring it torectify that default (or overcome its effects) within a reasonable periodspecified in that notice.  If requestedby the Principal from time to time, the Contractor or the Access Provider (asthe case may be) must provide to the Principal any information in respect of analleged breach within [5 Business Days of a request].

###  

### (b)                                                  Within [5 Business Days] ofreceipt of a notice under clause 15(a), the Contractor or the AccessProvider (as the case may be) must submit to the Principal a Cure Plan inrelation to the default for approval by the Principal that is consistent withthis Agreement and the Access Principles. The Contractor or the Access Provider (as the case may be) may, as partof its Cure Plan, request that the period for rectification specified in thePrincipal ‘s notice be extended (but the Principal is not required to approveany such extension).

###  

### (c)                                                   The Principal must review the Cure Planwithin a reasonable period having regard to the nature of the default to whichthe Cure Plan relates.  In consideringthe Cure Plan, the Principal must not unreasonably withhold its approval to theCure Plan, unless the default may have an adverse impact on or adversely affectthe following:

 

#### (i)                                                     the[   ] Property;

####  

#### (ii)                                                  safety;and

 

22

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#### (iii)                                               theoperations of the Access Provider.

####  

### (d)                                                  The Principal may:

###  

#### (i)                                                     approvethe Cure Plan, and notify the Contractor or the Access Provider (as the casemay be) in writing of the approval; or

####  

#### (ii)                                                  requiremodifications to the Cure Plan, and notify the Contractor or the AccessProvider (as the case may be) in writing of such modifications as the Principalconsiders reasonably necessary,

####  

and theContractor or the Access Provider (as the case may be) must immediately complywith the terms and conditions set out in the Cure Plan or the modified CurePlan (as the case may be).

 

### (e)                                                   If the Contractor or the AccessProvider fails to rectify a default in accordance with a Cure Plan:

###  

#### (i)                                                     thePrincipal may take any action (including engaging persons) it considersappropriate to**rectify that default: an*d*

####  

#### (ii)                                                  wheresuch failure is by the Contractor, the Contractor acknowledges and agrees thatit indemnifies the Principal under clause 40 of the Project Agreement inrespect of any damage, expense, loss or liability the Principal suffers orincurs arising out of such action.

####  

### (f)                                                     If Urgent Action is necessary:

###  

#### (i)                                                     thePrincipal or the Access Provider may take any action (including engagingpersons) it considers appropriate to take that Urgent Action; and

####  

#### (ii)                                                  theContractor acknowledges and agrees that it indemnifies:

####  

##### A.                                                   thePrincipal under clause 40 of the Project Agreement; and

#####  

##### B.                                                     theAccess Provider under clause 13,

#####  

in respect of any damage, expense, loss orliability the Principal or the Access Provider suffers or incurs arising out ofsuch action provided that such action was taken to avoid an immediate threat toa member of the public or the property of the Principal or the Access Providerwhich arose out of or was a consequence of the Contractor’s performance of itsobligations under this Agreement or the Project Agreement.

 

### (g)                                                  For the avoidance of doubt, nothing inthis clause 15 affects the Principal’s right to perform, or require theperformance of, urgent works as set out elsewhere in this Agreement.

###  

# **16.**                                               Liability for damage

# ** **

The Contractoracknowledges that it is liable for damage or loss to the [ ] Property to theextent caused by the Contractor or the Contractor’s officers, employees,subcontractors or agents in performing any [ ] Work carried out on the [ ]Property.

 

23

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# **17.**                                               Reporting and Information

# ** **

## **17.1**                                        Information

## ** **

When requested todo so by the Principal’s Access Representative, the Contractor and the AccessProvider must promptly give the Principal’s Access Representative anyinformation in respect of the [  ] Worksor the provision of access under this Agreement which it reasonably requires.

 

## **17.2**                                        Regular updates

 

Without limitingthe generality of clause 17.1, the Contractor must keep the Principal’sAccess Representative regularly informed of the progress of the [   ] Works and notify the Access Provider andthe representative immediately of any matter that may threaten or is likely tothreaten 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 acknowledgesthat it is required to effect and maintain the following insurances inaccordance with the Project Agreement:

 

### (a)                                                   insurance policy or policies providingcover for:

###  

#### (i)                                                     physicalloss, destruction or damage to all property identifiable as forming or to formpart of the Work or the Solution for a sum insured of not less than$[              ];

####  

#### (ii)                                                  lossof cash in transit within Australia, including loss due to theft, from the dateon which the Contractor commences providing cash collection services inaccordance with the Project Agreement;

####  

#### (iii)                                               consequentialloss (business interruption) in respect of additional expenditure/increasedcosts of working, claims preparation costs and loss of turnover/output arisingout of physical loss, destruction or damage to the property identified inclause 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 thePrincipal, and including ensuing loss of use of that property (legal liabilityonly); and

####  

#### (ii)                                                  personalinjury, disease or death of any person,

####  

arising out of orin connection with the Work or the Solution including arising out of or inconnection 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, anyone period of insurance (product liability);

 

24

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### (c)                                                   current motor vehicle registrationinsurance in respect of all vehicles of the Contractor used in connection withthe Work or the Solution;

###  

### (d)                                                  professional indemnity insurance foritself and its employees against any civil liability arising out of or inconnection 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 orby virtue of any relevant workers’ compensation or employers’ liabilitylegislation, whenever and to the extent required by law;

###  

### (f)                                                     fidelity guarantee and computer crimeinsurance for a sum insured of not less than $[ ] to enable the Contractor tofulfil its obligations under the Project Agreement; and

###  

### (g)                                                  all insurances which are reasonable andcustomary for a prudent business enterprise engaged in similar Work orproviding similar services.

###  

***[Note:  Details to be inserted and clause to bereviewed upon finalisation of the Project Agreement to ensure consistency.]***

 

# **19.**                                               Dispute Resolution

# ** **

## **19.1**                                        General

 

### (a)                                                   If any dispute or difference arisesbetween the Parties as to any fact, matter or thing arising out of or inconnection with this Agreement, either Party may give to the other Party anotice adequately identifying the matters the subject of the dispute ordifference together with detailed particulars of it and that dispute ordifference will be referred to the Access Representatives for review.

###  

### (b)                                                  For the avoidance of doubt, a Party hasthe right to refer any dispute or difference between the Parties as to anyfact, matter or thing arising out of or in connection with this Agreementirrespective of whether any clause dealing with the area of disputespecifically refers to the Dispute Resolution Procedures.

###  

### (c)                                                   Despite the existence of a dispute betweenthe Parties:

###  

#### (i)                                                     theContractor must continue to carry out the [  ] Work;

####  

#### (ii)                                                  theAccess Provider must continue to provide access in accordance with the [   ] Access Plan;

####  

#### (iii)                                               eachParty must otherwise comply with its obligations under this Agreement,including the Access Principles; and

####  

#### (iv)                                              eachParty’s rights under this Agreement will not be affected.

####  

### (d)                                                  Except where a Party seeks urgentinterlocutory relief (including interim injunctions), each Party may notcommence court proceedings relating to this Agreement before it has compliedwith the Dispute Resolution Procedures.

###  

### (e)                                                   Any of the time periods that appear inthis clause 19.1 may be varied by written agreement between the Parties.

 

25

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## **19.2**                                        Access Representatives’review

## ** **

### (a)                                                   If a dispute is referred to the AccessRepresentatives for review, the Access Representatives are required to meetwithin 2 Business Days of the dispute being referred to attempt to resolve thedispute in good faith.

###  

### (b)                                                  Meetings of the Access Representativeswill be held at convenient venues in Melbourne, unless otherwise agreed by theAccess Representatives.

###  

### (c)                                                   The joint decisions of the AccessRepresentatives will be contractually binding on the Parties provided they arein writing and signed by the Access Representatives.

###  

### (d)                                                  If:

###  

#### (i)                                                     theAccess Representatives are unable to resolve the dispute within 2 Business Daysof first convening to resolve the dispute under clause 19.2(a); or

####  

#### (ii)                                                  theAccess Representatives do not convene within 2 Business Days following areferral of the dispute under clause 19.2(a),

####  

then any Partymay immediately refer the dispute to the Chief Executive Officers.

 

## **19.3**                                        Chief ExecutiveOfficer review

## ** **

### (a)                                                   If a dispute is referred to the ChiefExecutive Officers under clause 19.2(d), the Chief Executive Officers (or otherholder of the delegations of that position for the time being) are required tomeet within 2 Business Days of the dispute being referred to them to attempt toresolve the dispute in good faith.

###  

### (b)                                                  The joint decisions of the ChiefExecutive Officers will be contractually binding on the Parties provided theyare in writing and signed by the Chief Executive Officers.

###  

### (c)                                                   If:

###  

#### (i)                                                     theChief Executive Officers are unable to resolve the dispute within 1 BusinessDays of first convening to resolve the dispute under clause 19.3(a); or

####  

#### (ii)                                                  theChief Executive Officers do not convene within 2 Business Days followingreferral of the dispute to them under clause 19.2(d),

####  

then any Partymay refer the dispute to the Expert for determination in accordance with clause19.4.

 

## **19.4**                                        Determination by theExpert

## ** **

### (a)                                                   Where this Agreement requires a matterto be referred to or resolved by the Expert or where the parties otherwiseagree to refer a matter to the Expert, the matter will be determined by theExpert and administered in accordance with this clause 19.4.

###  

### (b)                                                  The Expert must:

###  

#### (i)                                                     actas an expert and not as an arbitrator;

####  

#### (ii)                                                  proceedin any manner he or she thinks fit without being bound to observe the rules ofevidence;

 

26

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#### (iii)                                               takeinto consideration all documents, information and other material which theparties give the Expert which the Expert in his or her absolute discretion,considers relevant to the determination of the dispute;

####  

#### (iv)                                              notbe expected or required to obtain or refer to any other documents, informationor material but may do so if he or she so wishes;

####  

#### (v)                                                 actin good faith and make his or her decision within 15 Business Days;

####  

#### (vi)                                              givehis or her determination in writing (including a statement of the value of thedetermination) and give written reasons for the determination.

####  

### (c)                                                   The Expert may, with prior writtenapproval from the Contractor, the Access Provider and the Principal, commissionhis or her own advisers or consultants, including lawyers, accountants,bankers, engineers, surveyors, traffic consultants, or other technicalconsultants, to provide information to assist the Expert in his or her decision.

###  

### (d)                                                  The Expert must appoint any advisers orconsultants nominated in writing by the Principal, the Access Provider and theContractor to provide information to assist the Expert in his or her decisions.

###  

### (e)                                                   The parties will indemnify the Expertfor the cost of retaining those advisers or consultants.

###  

### (f)                                                     The Contractor and the Access Providermust provide the Expert with copies of minutes of meetings and all reportsrelevant to the [    ] Work within[5] Business Days of them being prepared, and all other informationrequired to keep the Expert informed and able to carry out his or her functionunder this clause.

###  

### (g)                                                  The Principal may provide the Expertwith any relevant information it considers necessary to keep the Expertinformed and able to carry out his or her function under this clause.

###  

### (h)                                                  A copy of all information provided byone party under clause 19.4(f) or 19.4(g) must be sent to the otherparties.

###  

### (i)                                                      The determination of the Expert will befinal and binding on each party.

###  

### (j)                                                      The Principal, the Access Provider andthe 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 orwishes to claim that Force Majeure has occurred it must give the other Partiesprompt written notice of the Force Majeure once it becomes aware of the sameand the obligations affected together with full particulars of all relevantmatters including:

###  

#### (i)                                                     detailsof the Force Majeure;

####  

#### (ii)                                                  detailsof the obligations affected;

 

27

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####  

#### (iii)                                               detailsof the action that it has taken and/or proposes to take to remedy thesituation;

####  

#### (iv)                                              anestimate of the time during which it will be unable to carry out itsobligations due to the Force Majeure;

####  

#### (v)                                                 anestimate of the costs that it will incur to remedy the situation; and

####  

#### (vi)                                              detailsof all insurance moneys upon which it will be able to rely in making gooddamage caused by the Force Majeure.

####  

### (b)                                                  After giving notice underclause 20.1(a) the Party must continue to provide to the other Partiesall relevant information pertaining to the Force Majeure.

###  

## **20.2**                                        Meeting, Applicationof Provisions

## ** **

The Parties mustmeet within 5 Business Days of service of a notice of a Force Majeureevent to determine:

 

### (a)                                                   if the Force Majeure is covered byinsurance;

###  

### (b)                                                  the estimated length of time for whichthe Force Majeure will continue; and

###  

### (c)                                                   a plan of action to remedy (ifpossible) the effects of the Force Majeure.

###  

## **20.3**                                        Suspension ofObligations

## ** **

### (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 Majeurewill be suspended but only to the extent and for so long as such obligationsare affected by the Force Majeure.

###  

### (b)                                                  If a Force Majeure occurs and a noticeunder clause 20.1(a) is issued, no Party will be in default of its obligationsunder this Agreement in so far as the failure or delay in the observance orperformance of those obligations by that Party is caused by the Force Majeurespecified in the Force Majeure notice.

###  

### (c)                                                   Upon the Party becoming able torecommence performing its obligations which were suspended underclause 20.3(a), the Party must recommence the performance of thoseobligations.

###  

## **20.4**                                        Duty to Remedy ForceMajeure

## ** **

Where there is aremedy, the Contractor must and the Principal must use its best endeavours toprocure the Access Provider to use reasonable endeavours to remedy the effectsof a Force Majeure promptly, including making any reasonable expenditure offunds which may mitigate or avoid the effect of the Force Majeure.

 

# **21.**                                               Assignment

# ** **

### (a)                                                   The Contractor and the Access Providermust not assign, novate or otherwise transfer any of its rights or obligationsunder this Agreement without the prior written consent of the Principal.

###  

### (b)                                                  The Principal may, without the consentof the Access Provider or the Contractor, at any time assign, novate orotherwise transfer:

 

28

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#### (i)                                                     thebenefit of all or any of the Access Provider and Contractor’s obligations underthis Agreement; and/or

####  

#### (ii)                                                  anyof its rights or obligations under this Agreement,

####  

to any person towhom the Principal has assigned corresponding rights under the ProjectAgreement and which has the capacity to carry out the obligations of thePrincipal under this Agreement.  TheAccess Provider and Contractor will execute any document required by thePrincipal and do such things as and when requested by the Principal to giveeffect to such assignment, novation or transfer.

 

### (c)                                                   Upon written request by the Principal,each of the Access Provider and Contractor hereby irrevocably agrees to enterinto a new agreement upon substantially the same terms and conditions as thisAgreement to which another person agrees to perform and observe the Principal’sobligations under the agreement as if it were named in the relevant agreementinstead of the Principal.

###  

# **22.**                                               Novation

# ** **

## **22.1**                                        Novation onTermination of Project Agreement

## ** **

If the ProjectAgreement has been terminated, or the Contractors’ rights and obligations withrespect to any part of the Services under the Project Agreement have beenterminated, and if the Principal gives written notice to the Access Providerand the Contractor of its intention to exercise its rights under thisclause 22.1, then as from the date of the PA Novation Notice:

 

### (a)                                                   except in respect of any rights of theContractor that arise out of a breach of this Agreement or other liability onthe part of the Access Provider or the Principal under this Agreement occurringor arising prior to the date of the PA Novation Notice the Contractor releaseseach of the Access Provider and the Principal from its obligations under thisAgreement and Access Provider and the Principal shall release the Contractorfrom its performance of its future obligations under this Agreement, andperform for, and owe to the Principal’s Nominee, each of its obligations underthis Agreement;

###  

### (b)                                                  except in respect of the rights of theContractor referred to in clause 22.1(a), the Principal’s Nominee, shallbe 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 ofthe Access Provider and the Principal shall have the same rights against thePrincipal’s Nominee, as it had against the Contractor in respect of obligationsso assumed; and

###  

### (d)                                                  any Party requested by the Principal todo so will:

###  

#### (i)                                                     enterinto the PA Novation Deed; and

####  

#### (ii)                                                  takesuch other action as is required to vest in the Principal’s Nominee full legaland equitable title to any retention account, bank guarantee, performance bond,letter of credit or other security held by the Contractor to secure obligationsof the Access Provider or the Principal under this Agreement.

 

29

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## **22.2**                                        Obligations prior tonovation by Contractor

## ** **

Clause 22.1will not operate to:

 

### (a)                                                   require the Principal’s Nominee, toassume any obligations under this Agreement which relate to the period or ariseprior to the date of the PA Novation Notice or which relate to any breach orfailure to perform in that period;

###  

### (b)                                                  vest in any person any rights againstthe Principal’s Nominee, in respect of obligations which the Principal’sNominee is not required to assume; or

###  

### (c)                                                   release either of the Access Provideror the Principal in respect of its obligations under this Agreement orliability for any breach of this Agreement or other liability on the part ofthe Access Provider or the Principal under this Agreement which relates to theperiod prior to the date of the PA Novation Notice.

###  

## **22.3**                                        Set off in relation toProject Agreement

## ** **

The Principal andthe Access Provider agree that no right of set off or counterclaim may beexercised against the Principal’s Nominee in relation to this Agreement if:

 

### (a)                                                   this Agreement is novated to thePrincipal’s Nominee; and

###  

### (b)                                                  the right relates to a circumstance,event, breach or failure occurring or arising prior to the date of the PANovation Notice.

###  

## **22.4**                                        Novation on Terminationof the Access Provider’s Rights

## ** **

If

 

### (a)                                                   the Access Provider’s rights andobligations with respect to any part of the [ ] Property have expired or been terminated *or*

###  

### (b)                                                  the Access Provider’s ability toprovide access in accordance with the Access Plan or otherwise observe itsobligations under this Agreement is adversely affected,

###  

the Principalwill give written notice to the Access Provider and the Contractor that thePrincipal 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 theAccess Provider that arise out of a breach of this Agreement or other liabilityon the part of Contractor or the Principal under this Agreement occurring orarising prior to the date of the Novation Notice the Access Provider releaseseach of the Contractor and the Principal from its obligations under thisAgreement and each of the Contractor and the Principal shall perform for, andowe to the Principal’s Nominee, all its obligations under this Agreement;

###  

### (d)                                                  except in respect of the rights of theAccess Provider referred to in clause 22.4(c), the Principal’s Nominee,shall be entitled to exercise all of the rights and, subject toclause 22.5, shall assume all of the obligations, of the Access Providerunder this Agreement;

###  

### (e)                                                   subject to clause 22.5, each ofthe Contractor and the Principal shall have the same rights against thePrincipal’s Nominee, as it had against the Access Provider in respect ofobligations so assumed; and

###  

### (f)                                                     any Party that receives a notice to doso from the Principal to do so will:

###  

#### (i)                                                     enterinto the Novation Deed; and

 

30

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#### (ii)                                                  takesuch other action as is required to vest in the Principal’s Nominee full legaland equitable title to any retention account, bank guarantee, performance bond,letter of credit or other security held by the Access Provider to secureobligations of the Contractor under this Agreement.

####  

## **22.5**                                        Obligations prior tonovation by Access Provider

## ** **

Clause 22.4will not operate to:

 

### (a)                                                   require the Principal’s Nominee, toassume any obligations under this Agreement which relate to the period or ariseprior to the date of the Novation Notice or which relate to any breach orfailure to perform in that period;

###  

### (b)                                                  vest in any person any rights againstthe Principal’s Nominee, in respect of obligations which the Principal’sNominee is not required to assume; or

###  

### (c)                                                   release the Contractor or the Principalin respect of its obligations under this Agreement or liability for any breachof this Agreement or other liability on the part of the Contractor or thePrincipal under this Agreement which relates to the period prior to the date ofthe Novation Notice.

###  

## **22.6**                                        Set off in relation totermination of Access Provider’s rights

## ** **

The Contractorand the Principal agree that no right of set off or counterclaim may beexercised against the Principal’s Nominee in relation to this Agreement if:

 

### (a)                                                   the Agreement is novated to thePrincipal’s Nominee; and

###  

### (b)                                                  the right relates to a circumstance,event, breach or failure occurring or arising prior to the date of the NovationNotice.

###  

# **23.**                                               Confidentiality andpublicity

# ** **

## **23.1**                                        Confidentialinformation

## ** **

### (a)                                                   EachParty will treat as confidential all information obtained from the otherParties under or in connection with this Agreement and:

###  

#### (i)                                                     will not disclose such information to anythird party without the prior written consent of the other Parties, except tosuch persons and to such extent as may be necessary for the performance of thisAgreement or as otherwise required by law; and

####  

#### (ii)                                                  will not use any of that informationotherwise than for the purposes of this Agreement.

####  

### (b)                                                  EachParty will take all necessary precautions to ensure that all informationobtained from the other Parties under or in connection with this Agreement:

###  

#### (i)                                                     is given to each member of staff and, inthe case of the Contractor, to its subcontractors, only to the extent necessaryfor that member of staff’s or the subcontractor’s activities in relation to theProject; and

####  

#### (ii)                                                  is treated as confidential and notdisclosed (without prior written approval) or used by any member of staff orsubcontractor otherwise than for the purposes of this Agreementor the Project.

 

31

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## **23.2**                                        Exceptions

## ** **

### (a)                                                   Theprovisions 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 Partyconcerned, without restriction as to its disclosure, before receiving it fromthe disclosing Party.

####  

### (b)                                                  Nothingin this clause 23 will prevent the Principal, the Access Provider or theContractor from disclosing any information obtained from the Principal, theContractor or the Access Provider to any other department, office, or agency ofthe Commonwealth or State of Victoria, or to any person engaged by thePrincipal in connection with this Agreementor the Project, provided that in disclosing the informationthe Principal has required that the information is treated as confidential,including requiring confidentiality undertakings where appropriate.

###  

### (c)                                                   Nothingin this clause 23 will prevent either Party from using, in the course ofits normal business, any techniques, ideas or know-how gained during theperformance of this Agreement,to the extent that this does not result in a disclosure of contract-specificinformation.

###  

### (d)                                                  ThePrincipal may publish on a government internet web site of the Principal thecontents of this Agreement.

###  

## **23.3**                                        Publicity

## ** **

### (a)                                                   Subjectto clause 23.3(b) and (c), the Contractor, the Access Provider andtheir Related Bodies Corporate must not make any public statements or issue anypress releases in respect of or in any way in connection with the Projectwithout the prior written consent of the Principal.

###  

### (b)                                                  Wherethe Contractor, the Access Provider or one of their Related Body Corporates isrequired by law to disclose information to the public, the disclosing Partymust provide the Principal with a copy of such public statement prior to itsissue to a third party.

###  

### (c)                                                   TheAccess Provider may, without the prior written consent of the Principal,release information which relates to the Project where such information relatesto operational matters which impact on the Access Provider’s business and isrequired for the safe and efficient operation of that business provided thatany such information must not reflect adversely on the Contractor, thePrincipal or the Project.  Any publicstatements or media releases relating to the Project generally or the impact ofthe Project *generally*are not information inrelation to operational matters.

###  

# **24.**                                               General

# ** **

## **24.1**                                        Notices

## ** **

All communications (including notices, consents, approvals, requestsand demands) under or in connection with this Agreement:

 

### (a)                                                   mustbe in writing;

 

32

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### (b)                                                  mustbe addressed as follows (or as otherwise notified by that Party to each otherParty 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)                                                   mustbe signed by the Party making the communication or (on its behalf) by thesolicitor for, or any attorney, director, secretary or authorised agent of,that Party;

###  

### (d)                                                  mustbe delivered or posted or prepaid post to the address, or sent by fax to thenumber, of the addressee, in accordance with clause 24.1(b); and

###  

### (e)                                                   aretaken to be received by the addressee:

###  

#### (i)                                                     in case of prepaid post, on the BusinessDay that is the third Business Day after the date of posting to an addresswithin Australia, and on the fifth Business Day after the date of posting byairmail to an address outside Australia.

####  

#### (ii)                                                  in the case of fax, at the local time (inthe place of receipt of that fax) which then equates to the time that fax issent as shown on the transmission report produced by the machine from whichthat fax is sent confirming transmission of that fax in its entirety, unlessthat local time is not on a Business Day, or is after 5.00 pm on aBusiness Day, when that communication is taken to be received at 9.00 amon the next Business Day; and

####  

#### (iii)                                               in the case of delivery by hand, ondelivery 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 after5.00 pm on a Business Day, when that communication is taken to be receivedat 9.00 am on the next Business Day.

 

33

----

 

## **24.2**                                        Stamp Duty

## ** **

The Contractor:

 

### (a)                                                   must pay all stamp duties and anyrelated fines and penalties in respect of this Agreement, the performance ofthis Agreement and each transaction effected by or made under or pursuant tothis Agreement;

###  

### (b)                                                  must indemnify each other Party againstany liability arising from failure to comply with clause 24.2(a); and

###  

### (c)                                                   is authorised to make any applicationfor and retain the proceeds of any refund due in respect of stamp duty paidunder this clause.

###  

## **24.3**                                        Governing Law

## ** **

This agreement is governed by and will be construed according to the lawapplying in Victoria.

 

## **24.4**                                        Jurisdiction

## ** **

Each Partyirrevocably:

 

### (a)                                                   submits to the non-exclusive jurisdictionof the courts of Victoria, and the courts competent to determine appeals fromthose courts, with respect to any proceedings which may be brought at any timerelating to this Agreement.

###  

### (b)                                                  waives any objection it may now or inthe future have to the venue of any proceedings, and any claim it may now or inthe future have that any proceedings have been brought in an inconvenientforum, where that venue falls within clause 24.4(a).

###  

***[Note:  Ifthe Contractor or Access Provider, or their parent, is not an Australian company, additional service and enforcementclauses will be required.]***

 

## **24.5**                                        Waiver

## ** **

### (a)                                                   Failure to exercise or enforce, or adelay in exercising or enforcing or the partial exercise or enforcement of aright, power or remedy provided by law or under this Agreement by any Party does not preclude, or operate as awaiver of, the exercise or enforcement, or further exercise or enforcement, ofthat or any other right, power or remedy provided by law or under thisAgreement.

###  

### (b)                                                  Any waiver or consent given by a Party under this Agreement is only effectiveand binding on that Party if it is given or confirmed in writing by that Party.

###  

### (c)                                                   No waiver of a breach of any term ofthis Agreement will operate as a waiver of another breach of that term or of abreach of any other term of this Agreement.

###  

## **24.6**                                        No limitation

## ** **

Without limitingthe generality of any other provision of this Agreement, any exercise by thePrincipal of any rights under this Agreement will not relieve the Contractor orthe Access Provider of any of its obligations under this Agreement.

 

## **24.7**                                        Consent or approval ofthe Principal

## ** **

In any case wherepursuant to this Agreement the doing or executing of any act matter or thing bythe Contractor or the Access Provider is dependent upon the approval or consentof the Principal such approval or consent may be given or withheld, or may begiven subject to any conditions, by the Principal in its absolute discretionunless this Agreement expressly provides otherwise.

 

34

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## **24.8**                                        Measurements

## ** **

All measurementsof physical quantities will be in Australian legal units of measurements inaccordance with the *National Measurement Act*1960 (Cth).

 

## **24.9**                                        Amendments

## ** **

This Agreementmay 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 towhich it relates.

 

## **24.11**                                 Counterparts

## ** **

This Agreementmay be executed in any number of counterparts and by the Parties on separatecounterparts.  Each counterpartconstitutes an original of this Agreement, and all together constitute oneagreement.

 

## **24.12**                                 Expenses

## ** **

Except asotherwise provided in this Agreement, each Party must pay its own costs andexpenses in connection with negotiating, preparing, executing, performing andamending this Agreement.

 

## **24.13**                                 Severability

## ** **

If any part of this Agreement is or becomes illegal, invalid, orunenforceable in any relevant jurisdiction, the legality, validity, orenforceability of the remainder of the agreement will not be affected and this Agreementwill be read as if the part had been deleted in that jurisdiction only.

 

## **24.14**                                 Entire agreement

## ** **

To the extentpermitted by law, in relation to its subject matter, this Agreement and theProject Agreement *(as between the Principal and theContractor)*:

 

### (a)                                                   embody the entire understanding of theParties, and constitutes the entire terms agreed by the Parties; and

###  

### (b)                                                  supersedes any prior written or otheragreement of the Parties.

###  

## **24.15**                                 Representations andwarranties

## ** **

### (a)                                                   Each representation and warranty inthis Agreement is a continuing representation and warranty and will be repeatedon each day while any obligation under this Agreement remains outstanding, withreference to the facts and circumstances then subsisting.

###  

### (b)                                                  The Principal does not, by enteringinto this Agreement, make any representation:

###  

#### (i)                                                     tothe Access Provider to the effect that the Contractor will comply with thisAgreement; or

 

35

----

 

#### (ii)                                                  tothe Contractor to the effect that the Access Provider will comply with thisAgreement.

####  

## **24.16**                                 Indemnities

## ** **

### (a)                                                   Each indemnity in this Agreement is acontinuing obligation, separate and independent from the other obligations ofthe Parties, and survives termination, completion or expiration of thisAgreement.

###  

### (b)                                                  It is not necessary for a Party toincur expense or to make any payment before enforcing a right of indemnityconferred by this Agreement.

###  

### (c)                                                   A Party must pay on demand any amountit must pay under an indemnity in this Agreement.

###  

## **24.17**                                 Non-merger

## ** **

None of the termsor conditions of this Agreement nor any act, matter or thing done under or byvirtue of or in connection with this Agreement will operate as a merger of anyof the rights and remedies of the Parties in or under this Agreement all ofwhich will continue in full force and effect until the respective rights andobligations of the Parties under this Agreement have been fully performed andsatisfied.

 

## **24.18**                                 Set-Off

## ** **

### (a)                                                   The Principal may deduct from moneyotherwise due to the Contractor:

###  

#### (i)                                                     anydebt or other money due from the Contractor to the Principal; or

####  

#### (ii)                                                  anyClaim to money which the Principal may have against the Contractor whether fordamages (including liquidated damages) or otherwise,

####  

whether underthis Agreement or otherwise at law relating to the Project.

 

### (b)                                                  The Contractor must not deduct frommoney otherwise due to the Principal:

###  

#### (i)                                                     anydebt or other money due from the Principal to the Contractor; or

####  

#### (ii)                                                  anyClaim to money which the Contractor may have against the Principal whether fordamages (including liquidated damages) or otherwise,

####  

whether underthis Agreement or otherwise at law relating to the Project.

 

## **24.19**                                 Survival

## ** **

The Parties respective rights under clauses ***[Note:  To beinserted]***  survive thetermination or expiry of this Agreement on any basis other than to the extentrequired or specifically contemplated under the provisions of those clauses.

 

# **25.**                                               GST

# ** **

## **25.1**                                        Interpretation

## ** **

### (a)                                                   Except where the context suggestsotherwise, terms used in this clause 25 have the meanings given to those termsby the *A New Tax System (Goods and ServicesTax) Act 1999* (as amended from time to time).

 

36

----

 

### (b)                                                  Unless stated to the contrary, anyamount, payment or consideration referred to under or in connection with thisAgreement is exclusive of GST.  Anyconsideration that is specified to be inclusive of GST must not be taken intoaccount in calculating the GST payable in relation to a supply for the purposeof this clause 25.

###  

### (c)                                                   Any part of a supply that is treated asa separate supply for GST purposes (including attributing GST payable to taxperiods) will be treated as a separate supply for the purposes of this clause25.

###  

## **25.2**                                        Reimbursements andsimilar payments

## ** **

Any payment orreimbursement required to be made under this Agreement that is calculated byreference to a cost, expense, or other amount paid or incurred will be limitedto the total cost, expense or amount less the amount of any input tax credit towhich an entity (or its representative member) is entitled for the acquisitionto which the cost, expense or amount relates.

 

## **25.3**                                        GST payable

## ** **

If GST is payablein relation to a supply made under or in connection with this Agreement then:

 

### (a)                                                   any party (**“Recipient”**) that is required to provide consideration toanother party (**“Supplier”**) forthat supply must pay an additional amount to the Supplier equal to the amountof that GST; and

###  

### (b)                                                  the additional amount is payable at thesame time as any other consideration is to be first provided for that supplyor, if later, within 14 days after the day on which the Supplier provides theRecipient with a tax invoice for the supply.

###  

## **25.4**                                        Variation of GST

## ** **

If the GSTpayable in relation to a supply made under or in connection with this Agreementvaries from the additional amount paid by the Recipient under clause 25.3 suchthat a further amount of GST is payable in relation to the supply or a refundor credit of GST is obtained in relation to the supply, then the Supplier willprovide a corresponding refund or credit to, or will be entitled to receive theamount of that variation from, the Recipient. Any payment, credit or refund under this clause 25.4 is deemed to be apayment, credit or refund of the additional amount payable under clause 25.3.

 

37

----

 

**Schedule 25**

 

 

**Schedule 25Pro-Forma Direct Agreement**

 

(Clause 10.3)

 

 

**Direct Agreement**

 

**PublicTransport Ticketing Body trading as Transport Ticketing Authority**

73595 242 024

Principal

 

**KeaneAustralia Micropayment Consortium Pty Ltd**

ACN114 334 600

Contractor

 

**[Insertname of subcontractor / supplier]**

[InsertABN 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 96298488

 

**www.claytonutz.com**

 

Ourreference  155/80003545

 

38

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**Tripartite deed made on**

 

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

 

**Keane Australia Micropayment Consortium Pty LtdACN 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.                                                   TheContractor and the Principal have entered into the Project Agreement pursuantto which the Contractor agrees to, among other things, design, develop,integrate, install, test and implement the Solution and provide the InitialServices and Core Services.

 

B.                                                     TheContractor has engaged the Subcontractor pursuant to the Subcontract to providecertain services and/or products to assist in meeting its obligations under theProject Agreement.

 

C.                                                     TheSubcontractor has agreed to undertake its obligations under the Subcontract onthe terms and conditions set out below.

 

**Operative provisions**

 

**1.**                                                      Definitions andInterpretation

** **

**1.1**                                               ProjectAgreement

 

Any word,expression, reference or term used in this Deed which is defined in the ProjectAgreement and is not specifically defined in this Deed will, unless the contextotherwise requires, have in this Deed the same meaning as in the ProjectAgreement.

 

***[Note:Alternatively, the relevant definitions will be inserted. ]***

 

**1.2**                                               Definitions

 

In this Deed,unless the context otherwise requires:

 

“**Authorised Representative**” means:

 

(a)                                                   inrespect of the Subcontractor, any person from time to time nominated as anauthorised representative of the Subcontractor for the purposes of this Deed bynotice in writing to the Principal, such notice to be accompanied by thespecimen signatures of any person so nominated;

 

(b)                                                  inrespect of the Principal, the Principal’s Representative; and

 

(c)                                                   inrespect of the Contractor, the person nominated under clause 7.3 of the ProjectAgreement from time to time.

 

“**Default Event**”means a default under, or the breach of, the Subcontract by the Contractor, orthe occurrence or subsistence of any event, as a result or consequence of whichthe Subcontractor is or becomes entitled (whether upon the giving of notice orlapse of time or otherwise):

 

39

----

 

(a)                                                   toterminate, rescind or accept the repudiation of the Subcontract; or

 

(b)                                                  tosuspend performance of any of its obligations under the Subcontract or tootherwise not do a thing or things (whether temporarily or otherwise) which itwould otherwise be obliged to do under the Subcontract, where such suspensionor inaction has, or will have, a material adverse effect on the ability of theContractor to perform its obligations under the Project Agreement.

 

“**Grace Period**”means, in relation to a Default Event, the period (if any) within which theContractor may (under the Subcontract) remedy the Default Event or otherwisetake steps the taking of which would prevent the exercise by the Subcontractorof any Right it might have as a result or consequence of the Default Event.

 

“**Novation Notice**” means a notice issued by the Principalpursuant to clause 3.1 of this Deed.

 

“**Project Agreement**”means the New Ticketing Solution Project Agreement entered into between thePrincipal 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 andcauses of action.

 

**“SecurityInterest”** includes any mortgage,pledge, hypothecation, lien or charge or any security or preferential interestor arrangement of any kind, or any other right or arrangement with any creditorto have its claims satisfied prior to other creditors with, or from theproceeds of, any asset (including retention of title and any deposit of moneyby way of security).

 

“**Services**”means the services the Subcontractor is required to perform for the Contractorunder the Subcontract.  ***[Note:  Thisdefinition will be amended if the Subcontract is for the supply of products]***

 

“**Subcontract**” means the **[insert name of KeyContract]** entered into between the Contractor and the Subcontractoron **[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 ofwhich the Contractor is or becomes entitled (whether upon the giving of noticeor lapse of time or otherwise):

 

(a)                                                   toterminate, rescind or accept the repudiation of the Subcontract; or

 

(b)                                                  tosuspend performance of any of its obligations under the Subcontract or tootherwise not do a thing or things (whether temporarily or otherwise) which itwould otherwise be obliged to do under the Subcontract, where such suspensionor inaction has, or will have, a material adverse effect on the ability of theContractor to perform its obligations under the Project Agreement.

 

“**Subcontractor Grace Period**”means, in relation to a Subcontractor Default Event, the period (if any) withinwhich the Subcontractor may (under the Subcontract) remedy the SubcontractorDefault Event or otherwise take steps the taking of which would prevent theexercise by the Contractor of any Right it might have as a result orconsequence of the Subcontractor Default Event.

 

40

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**1.3**                                               Interpretation

 

In this Deed:

 

(a)                                                   headingsare for convenience only and will not affect the interpretation;

 

and unless thecontext indicates a contrary intention:

 

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

 

(c)                                                   areference to party includes that party’s executors, administrators, successors,permitted substitutes and assigns, including persons taking by way of novation;

 

(d)                                                  areference to a document (including this Deed) is to that document as varied,novated, ratified or replaced from time to time;

 

(e)                                                   areference to a statute includes its delegated legislation and a reference to astatute or delegated legislation or a provision of either includesconsolidations, amendments, re-enactments and replacements;

 

(f)                                                     wordsimporting the singular will include the plural (and vice versa) and wordsdenoting a given gender will include all other genders;

 

(g)                                                  areference to a clause or Schedule is a reference to a clause ofor Schedule to this Deed, and references to paragraphs are references toparagraphs within the clause of this Deed in which they are situated, in eachclause unless expressly stated otherwise;

 

(h)                                                  areference to a “day” is a reference to a calendar day (and includes weekendsand public holidays);

 

(i)                                                      whereany word or phrase is given a defined meaning any other part of speech or othergrammatical form in respect of such word or phrase has a corresponding meaning;

 

(j)                                                      theword “including” or any other grammatical form of that word is not a word oflimitation; and

 

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

 

**1.4**                                               BusinessDay

 

Where the day onor by which anything is to be done under this Deed is not a Business Day itshall be done on the next Business Day.

 

**1.5**                                               Inconsistencies

 

If there is anyinconsistency between the provisions of this Deed and the Subcontract, theprovisions of this Deed will prevail to the extent of the inconsistency.

 

**2.**                                                      Default Events

** **

**2.1**                                               TheContractor’s obligations

 

The Contractorshall use its best endeavours to ensure that no Default Event occurs.  If, however, notwithstanding thisundertaking, a Default Event does occur, the Contractor shall ensure that ifthe consequences of it for the Subcontractor are:

 

41

----

 

(a)                                                   capableof remedy, those consequences are remedied promptly and, in any event, withinany relevant Grace Period; and

 

(b)                                                  notcapable of remedy, but those consequences can be adequately compensated for bythe payment of money, money is paid to the Subcontractor which adequatelycompensates for those consequences promptly and, in any event, within anyrelevant Grace Period.

 

**2.2**                                               Notice

 

The Subcontractorwill notify the Principal promptly of any Default Event.  Any such notice must:

 

(a)                                                   includereasonable details of the particular Default Event;

 

(b)                                                  specifythe paragraph of clause 2.3 which applies to the particular Default Event;

 

(c)                                                   ifthe paragraph so specified is paragraph (a), specify the steps which theSubcontractor considers need to be taken in order to remedy the particular DefaultEvent; and

 

(d)                                                  ifthe paragraph so specified is paragraph (b), specify the amount of monetarycompensation for the particular Default Event which the Subcontractor considersto be adequate.

 

**2.3**                                               Exerciseof Rights

 

If a DefaultEvent occurs, the Subcontractor shall not exercise any Right it might have as aresult or consequence of the Default Event unless it has given the Principalnotice of the Default Event in accordance with clause 2.2 and where theconsequences for the Subcontractor of the Default Event are:

 

(a)                                                   capableof remedy, those consequences have not been remedied (whether by theContractor, 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 ofexpiry of the relevant Grace Period and receipt by the Principal of therelevant notice);

 

(b)                                                  notcapable of remedy and clause 2.3(c) does not apply, monetary compensationwhich is adequate having regard to those consequences has not been paid(whether by the Contractor, the Principal or any other person) to theSubcontractor within 20 Business Days of the later of expiry of the relevantGrace Period and the Principal’s receipt of the relevant notice; and

 

(c)                                                   notcapable of remedy and the payment of money to the Subcontractor would notadequately compensate the Subcontractor for those consequences, 20 BusinessDays have expired since the later of expiry of the relevant Grace Period andthe Principal’s receipt of the relevant notice,

 

provided that ifthe Default Event is:

 

#### (i)                                                     anevent described in paragraphs (e) and (f) of the definition of Eventof Insolvency, the time specified in paragraphs (a), (b) and (c) abovewill be abridged to 5 Business Days; and

####  

#### (ii)                                                  anyother event described in the definition of Event of Insolvency, the timespecified in paragraphs (a), (b) and (c) above will be abridged to 2Business Days.

 

42

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**2.4**                                               Principalaction

 

(a)                                                   If aDefault Event occurs, each party agrees that the Principal may (but will not beobliged to) take such action and make such payments as in the reasonableopinion of the Principal is necessary to take or make in order to prevent orreduce the risk of the Subcontractor exercising any Right it might have as aresult or consequence of the Default Event.

 

(b)                                                  ThePrincipal’s rights under paragraph (a) may (but need not) entail thePrincipal taking the steps or paying the compensation specified in the relevantnotice under clause 2.2.

 

**2.5**                                               Remedialaction not novation

 

The taking of anyaction or the making of any payment by the Principal under clause 2.4 willnot be construed as an assumption by the Principal of any obligations of theContractor under or in relation to the Subcontract.

 

**2.6**                                               Indemnityfor costs

 

If the Principaltakes action or makes any payment under clause 2.4, the Contractorindemnifies the Principal (and will pay, on demand by the Principal) againstall reasonable costs, losses, expenses or liabilities incurred or payable bythe Principal as a result of its having taken the relevant action or made therelevant payment.

 

**3.**                                                      Novation onTermination

** **

**3.1**                                               Novation

 

If the ProjectAgreement has been terminated, or the Contractors’ rights and obligations withrespect to any part of the Services under the Project Agreement have beenterminated, and if the Principal gives written notice to the Subcontractor ofits intention to exercise its rights under this clause 3.1, then as fromthe date of the Novation Notice:

 

(a)                                                   exceptin respect of any rights of the Contractor that arise out of a breach of theSubcontract or other liability on the part of the Subcontractor under theSubcontract occurring or arising prior to the date of the Novation Notice theContractor releases the Subcontractor from its obligations under theSubcontract and the Subcontractor shall perform for, and owe to the Principal,or the Principal’s nominee, all its obligations under the Subcontract;

 

(b)                                                  exceptin respect of the rights of the Contractor referred to in paragraph (a), thePrincipal, or the Principal’s nominee, shall be entitled to exercise all of therights and, subject to clause 3.2, shall assume all of the obligations, ofthe Contractor under the Subcontract;

 

(c)                                                   subjectto clause 3.2, the Subcontractor shall have the same rights against thePrincipal, or the Principal’s nominee, as it had against the Contractor inrespect of obligations so assumed; and

 

(d)                                                  anyparty to this Deed requested by the Principal to do so will:

 

(i)                                                     enterinto a deed in a form the same as or substantially similar to that annexed tothis Deed in Annexure A reflecting the novation of the Subcontract to thePrincipal or the Principal’s nominee; and

 

43

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(ii)                                                  takesuch other action as is required to vest in the Principal or the Principal’snominee full legal and equitable title to any retention account, bankguarantee, performance bond, letter of credit or other security held by theContractor to secure obligations of the Subcontractor under the Subcontract.

 

**3.2**                                               Obligationsprior to novation

 

Clause 3.1will not operate to:

 

(a)                                                   requirethe Principal, or the Principal’s nominee, to assume any obligations under theSubcontract which relate to the period or arise prior to the date of theNovation Notice or which relate to any breach or failure to perform in thatperiod;

 

(b)                                                  vestin any person any rights against the Principal, or the Principal’s nominee, inrespect of obligations which the Principal is not required to assume; or

 

(c)                                                   releasethe Subcontractor or the Contractor in respect of its obligations under theSubcontract or liability for any breach of the Subcontract or other liabilityon the part of the Subcontractor or the Contractor under the Subcontract whichrelates to the period prior to the date of the Novation Notice.

 

**3.3**                                               Setoff

 

The Subcontractoragrees no right of set off or counterclaim may be exercised against thePrincipal in relation to the Subcontract if:

 

(a)                                                   theSubcontract is novated to the Principal, or the Principal’s nominee; and

 

(b)                                                  theright relates to a circumstance, event, breach or failure occurring or arisingprior to the date of the Novation Notice.

 

**3.4**                                               Noliability unless novation

 

The Subcontractoracknowledges and agrees that, to the maximum extent permitted by law, thePrincipal has no liability to the Subcontractor (whether by way of indemnity,damages or otherwise), arising out of or in connection with the Project or anyProject Document, except if the Principal exercises its rights under clause3.1, and then, subject to clauses 3.2 and 3.3, only in respect of theobligations assumed by the Principal under the Subcontract and on the terms ofthe Subcontract.

 

**4.**                                                      Subcontractor DefaultEvent

** **

**4.1**                                               TheSubcontractor’s obligations

 

The Subcontractorshall use its best endeavours to ensure that no Subcontractor Default Eventoccurs.  If, however, notwithstandingthis undertaking, a Subcontractor Default Event does occur, the Subcontractorshall ensure that if the consequences of it for the Contractor are:

 

(a)                                                   capableof remedy, those consequences are remedied promptly and, in any event, withinany relevant Subcontractor Grace Period; and

 

(b)                                                  notcapable of remedy, but those consequences can be adequately compensated for bythe payment of money, money is paid to the Contractor which adequatelycompensates for those consequences promptly and, in any event, within anyrelevant Subcontractor Grace Period.

 

44

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**4.2**                                               Notice

 

The Contractorwill notify the Principal promptly of any Subcontractor Default Event.  Any such notice must:

 

(a)                                                   includereasonable details of the particular Subcontractor Default Event;

 

(b)                                                  specifythe paragraph of clause 4.3 which applies to the particular SubcontractorDefault Event;

 

(c)                                                   ifthe paragraph so specified is paragraph (a), specify the steps which theContractor considers need to be taken in order to remedy the particularSubcontractor Default Event; and

 

(d)                                                  ifthe paragraph so specified is paragraph (b), specify the amount of monetarycompensation for the particular Subcontractor Default Event which theContractor considers to be adequate.

 

**4.3**                                               Exerciseof Rights

 

If aSubcontractor Default Event occurs, the Contractor shall not exercise any Rightit might have as a result or consequence of the Subcontractor Default Eventunless it has given the Principal notice of the Subcontractor Default Event inaccordance with clause 4.2 and where the consequences for the Contractor of theSubcontractor Default Event are:

 

(a)                                                   capableof remedy, those consequences have not been remedied (whether by theSubcontractor, 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 laterof expiry of the relevant Subcontractor Grace Period and receipt by thePrincipal of the relevant notice);

 

(b)                                                  notcapable of remedy and clause 4.3(c) does not apply, monetary compensationwhich is adequate having regard to those consequences has not been paid(whether by the Subcontractor, the Principal or any other person) to theContractor within 20 Business Days of the later of expiry of the relevantSubcontractor Grace Period and the Principal’s receipt of the relevant notice;and

 

(c)                                                   notcapable of remedy and the payment of money to the Contractor would notadequately compensate the Contractor for those consequences, 20 Business Dayshave expired since the later of expiry of the relevant Subcontractor GracePeriod and the Principal’s receipt of the relevant notice,

 

provided that ifthe Default Event is:

 

#### (i)                                                     anevent described in paragraphs (e) or (f) of the definition of Eventof Insolvency, the time specified in paragraphs (a), (b) and (c) abovewill be abridged to 5 Business Days; and

####  

#### (ii)                                                  anyother event described in the definition of Event of Insolvency, the timespecified in paragraphs (a), (b) and (c) above will be abridged to 2Business Days.

####  

**4.4**                                               Principalaction

 

(a)                                                   If aSubcontractor 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 thereasonable opinion of the Principal is necessary to take or make in order toprevent

 

45

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or reduce therisk of the Contractor exercising any Right it might have as a result orconsequence of the Subcontractor Default Event.

 

(b)                                                  ThePrincipal’s rights under paragraph (a) may (but need not) entail thePrincipal taking the steps or paying the compensation specified in the relevantnotice under clause 4.2.

 

**4.5**                                               Remedialaction not novation

 

The taking of anyaction or the making of any payment by the Principal under clause 4.4 willnot be construed as an assumption by the Principal of any obligations of theSubcontractor under or in relation to the Subcontract.

 

**4.6**                                               Indemnityfor costs

 

If the Principaltakes action or makes any payment under clause 4.4, the Subcontractorindemnifies the Principal (and will pay, on demand by the Principal) againstall reasonable costs, losses, expenses or liabilities incurred or payable bythe Principal as a result of its having taken the relevant action or made therelevant payment.

 

**5.**                                                      Temporary Step-In andother Principal Rights

** **

**5.1**                                               Rightsof the Principal

 

The Subcontractoracknowledges the Rights of the Principal:

 

(a)                                                   inrespect to access and inspection under clauses 9.10 and 15.9 of theProject Agreement;

 

(b)                                                  tostep in under clause 41.1 of the Project Agreement;

 

(c)                                                   tosuspend the Work under clause 41.2 of the Project Agreement; and

 

(d)                                                  toconduct audits under clause 8.4(f) of the Project Agreement.

 

**5.2**                                               Subcontractorto facilitate

 

The Subcontractoragrees with the Principal that it will exercise its rights under theSubcontract in a way which facilitates the effective exercise by the Principalof the Rights referred to in clause 5.1.

 

**5.3**                                               Subcontractor’scontinued performance

 

During the period in which the Principal isexercising a Right:

 

### (a)                                                   referred to in clause 5.1(b) or(c), the Principal may direct the suspension or continuation of performance bythe 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 theSubcontractor agrees that it will comply with such directions, and with allother reasonable directions of the Principal in relation to the performance ofthe Subcontract by the Subcontractor during such period, provided that suchdirections are not inconsistent with the Subcontract and are not inconsistentwith a direction given by the Principal under the Project Agreement.

 

46

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**5.4**                                               Principalnot liable

 

The requirementof the Principal that the Subcontractor suspend or continue to perform itsobligations under the Subcontract and the giving of any direction under clause5.3(a) by the Principal will not be construed as an assumption by thePrincipal of any obligations of the Contractor under or in relation to theSubcontract.

 

**6.**                                                      Other Undertakings bySubcontractor

** **

**6.1**                                               Subcontract

 

The Subcontractorundertakes that:

 

(a)                                                   itwill duly and punctually perform and observe all its obligations under theSubcontract; and

 

(b)                                                  thatit has the skill and experience to properly perform and observe all of itsobligations under the Subcontract.

 

**6.2**                                               Accessto books and records

 

### (a)                                                   Subject to clause 6.2(b), on reasonablenotice being given by or on behalf of the Principal, the Subcontractor willpermit the Principal’s Authorised Representatives to have access to, and takecopies of, the books and records of the Subcontractor reasonably requested bythe Principal, relating to the Subcontract and the performance of the terms ofthe Subcontract other than books or records subject to legal professionalprivilege.

###  

### (b)                                                  The Subcontractor is not required togive the Principal information or access to books of accounts or other recordsof the Subcontractor if it is a publicly listed entity for the period duringwhich the Subcontractor is in a trading blackout period, under applicablerules, regulations or policies of, the US Securities and Exchange Commission,the New York Stock Exchange or another exchange or regulatory authority towhich the Subcontractor is subject.

###  

**6.3**                                               IntellectualProperty

 

***[Note:  Under clause 30.10 of the Project Agreementthe Contractor is obliged to secure IP rights for the Principle in relation toThird Party Licences.  Where appropriate,those provisions, as they apply to the subcontractor, will be reflected here.]***

 

**6.4**                                               NoRetention of Ownership

 

The Subcontractorconfirms and undertakes that the Subcontract does not and will not include, andwill ensure that its sub-contracts or supply contracts do not and will notinclude, any retention of ownership clauses or any clauses under which theSubcontractor or the Subcontractor’s subcontractor or supplier retains anysecurity or other interest in any item which will become part of the Solutionwhich would prevent ownership of those items passing to the Principal inaccordance with clause 32.1 of the Project Agreement.

 

47

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**7.**                                                      Undertakings by theContractor and Subcontractor

** **

**7.1**                                               Amendments

 

Each of theSubcontractor and the Contractor undertake to the Principal that it will notconsent to, or make any material amendment to, or materially supplement anyprovision of the Subcontract without the prior written consent of thePrincipal.

 

**7.2**                                               Waiver

 

Each of theSubcontractor and the Contractor undertake to the Principal that it will notexpressly or impliedly waive, or extend or grant time or indulgence in respectof, any material provision of or material obligation under the Subcontractwithout the prior written consent of the Principal (such consent not to beunreasonably withheld).

 

**7.3**                                               Disposalor rights

 

Each of theSubcontractor and the Contractor undertake to the Principal that other than asprovided for under clause 3 of this Deed, it will not transfer, assign, novateor otherwise dispose of any of its rights, obligations under or interest in theSubcontract without the prior written consent of the Principal.

 

**7.4**                                               Terminationand release

 

Notwithstandingany other provision of this Deed, each of the Subcontractor and the Contractorundertake 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)                                                  suspendthe performance of any of its obligations under,

 

the Subcontractwithout the prior written consent of the Principal.

 

**7.5**                                               Restrictionon dealings

 

Each of theSubcontractor and the Contractor undertakes to the Principal that it will notgrant, permit to be created or allow to subsist any Security Interest on oraffecting its interest in the Subcontract without the prior written consent ofthe Principal which consent will not be unreasonably withheld or delayed.

 

**8.**                                                      Warranties ofSubcontractor and Contractor

** **

Each of theSubcontractor and the Contractor makes the following continuing warranties forthe benefit of the Principal:

 

(a)                                                   noDefault Event subsists;

 

(b)                                                  noSubcontractor Default Event subsists; and

 

(c)                                                   theSubcontract (and the documents referred to therein) sets out all the terms andconditions of the agreement between the Contractor and the Subcontractor inrespect of the Project.

 

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**9.**                                                      Dispute Resolution,Equitable Relief and Liability

** **

**9.1**                                               Expertdetermination

 

### (a)                                                   If any dispute arises between theparties under or in respect of this Deed, any party may give to the other partiesa notice adequately identifying the matters the subject of the dispute togetherwith detailed particulars of it and refer the dispute to the Expert fordetermination in accordance with this clause 9.1.

###  

### (b)                                                  A matter referred to the Expert will bedetermined by the Expert and administered in accordance with this clause 9.1.

###  

### (c)                                                   The parties must comply with the termsof the Expert Deed.

###  

### (d)                                                  The Expert will be appointed inaccordance with the Project Agreement. If the Expert Deed is terminated, a new Expert will be appointed inaccordance with clause 49.5(d) of the Project Agreement.

###  

### (e)                                                   The Expert must:

###  

#### (i)                                                     actas an expert and not as an arbitrator;

####  

#### (ii)                                                  proceedin any manner he or she thinks fit without being bound to observe the rules ofevidence;

####  

#### (iii)                                               takeinto consideration all documents, information and other material which theparties give the Expert which the Expert in his or her absolute discretion,considers relevant to the determination of the dispute;

####  

#### (iv)                                              notbe expected or required to obtain or refer to any other documents, informationor material but may do so if he or she so wishes;

####  

#### (v)                                                 actin good faith and make his or her decision within 15 Business Days (or within atime otherwise agreed between the parties);

####  

#### (vi)                                              givehis or her determination in writing (including a statement of the value of thedetermination) and give written reasons for the determination.

####  

### (f)                                                     The Expert may, with prior writtenapproval 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 othertechnical consultants, to provide information to assist the Expert in his orher decision.

###  

### (g)                                                  The Expert must appoint any advisers orconsultants nominated in writing by both the Principal and the Contractor toprovide information to assist the Expert in his or her decisions.

###  

### (h)                                                  The parties will indemnify the Expertfor the cost of retaining those advisers or consultants.

###  

### (i)                                                      The Contractor must provide the Expertwith copies of minutes of meetings and all reports relevant to the Work within5 Business Days of them being prepared, and all other information requiredto keep the Expert informed and able to carry out his or her function underthis clause.

 

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### (j)                                                      The Principal may provide the Expertwith any relevant information it considers necessary to keep the Expertinformed and able to carry out his or her function under this clause.

###  

### (k)                                                   A copy of all information provided byone party under clause 9.1(i) or 9.1(j) must be sent to each other party.

###  

### (l)                                                      The determination of the Expert will befinal and binding on each party unless:

###  

#### (i)                                                     thevalue of the determination is greater than $[**];  and

####  

#### (ii)                                                  aparty gives notice of appeal to the other party within 10 Business Days of thedetermination requiring the dispute to be referred to arbitration.

####  

### (m)                                                Where a dispute is referred to theExpert for determination and the Expert does not make a determination within 15Business Days of the dispute being referred to him or her, or within a time otherwiseagreed between the parties, any party may refer the dispute to arbitration.

###  

### (n)                                                  The parties are to give effect to thedetermination of the Expert unless and until it is reversed, overturned, orotherwise changed by any subsequent arbitration under clause 9.2.

###  

### (o)                                                  Subject to clause 9.1(e), thePrincipal, the Subcontractor and the Contractor will each pay one-third of thecosts of the Expert.

###  

**9.2**                                               Arbitration

 

### (a)                                                   If a notice of appeal is given underclause 9.1(l)(ii) or a dispute is referred to arbitration under clause9.1(m), the parties agree to refer the dispute to arbitration administered bythe Australian Commercial Disputes Centre (ACDC), or the Australian Centre forInternational Commercial Arbitration (ACICA) if this is the basis on which arbitrationunder the Project Agreement is then referred.

###  

### (b)                                                  The arbitration will be conducted inaccordance with the ACDC arbitration rules which are operating at the timethe dispute is referred to ACDC (or the ACICA arbitration rules if thedispute is referred to ACICA), and which terms are herewith deemed to beincorporated into this agreement subject to this clause 9.2.

###  

### (c)                                                   The seat of the arbitration will beMelbourne, Victoria.

###  

### (d)                                                  The dispute will be decided by a solearbitrator.

###  

### (e)                                                   The arbitrator will be appointed inaccordance with clause 49.6(e) of the Project Agreement.  If at the time the dispute is referred toarbitration the arbitrator is or declares not to be capable of performing itsduties as arbitrator under this Deed, another arbitrator shall be appointed inaccordance with clause 49.6(e) of the Project Agreement.

###  

### (f)                                                     The parties agree to the followinggeneral principles in relation to the conduct of the arbitration:

###  

#### (i)                                                     thatthey have chosen arbitration for the purposes of achieving a just, quick andcheap resolution of any dispute;

 

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#### (ii)                                                  thatany arbitration conducted pursuant to this clause shall not mimic courtproceedings and the practices of those courts will not regulate the conduct ofthe proceedings before the arbitrator;

####  

#### (iii)                                               thatin conducting the arbitration, the arbitrator must take into account thematters set out above, particularly in deciding issues such as:

####  

##### A.                                                   howmany written submissions will be allowed;

#####  

##### B.                                                     howmuch time the parties shall have for preparing written submissions;

#####  

##### C.                                                     whereappropriate, the length of written submissions;

#####  

##### D.                                                    theextent of document discovery permitted, if any;

#####  

##### E.                                                      thelength of any hearing; and

#####  

##### F.                                                      thenumber of experts, if any, each party is allowed to appoint.

#####  

### (g)                                                  The arbitrator will conduct thearbitration as expeditiously as possible and no party will unnecessarily delaythe arbitration proceedings.

###  

### (h)                                                  The arbitrator will have the power togrant all legal, equitable and statutory remedies, and will be entitled toreview and substitute any determination made by the Expert under clause 9.1.

###  

### (i)                                                      The arbitration will be private andconfidential, and no party or arbitrator will, without prior written consent ofall parties to the arbitration, disclose any matter relating to thearbitration.

###  

### (j)                                                      This clause 9.2 sets out a separate andseveral agreement to this agreement. Accordingly, if this agreement is void or voidable for any reason thedispute resolution agreement set out in this clause will be unaffected and willsurvive any determination that this agreement is void or has been avoided.

###  

**9.3**                                               EquitableRelief

 

(a)                                                   Eachparty to this Deed acknowledges that damages may not be an adequate remedy forany breach of, or failure by it to comply with, this Deed.

 

(b)                                                  Eachparty to this Deed agrees that, without limiting any other right, remedy oraction it has in connection with any actual or threatened breach of, or failureto comply with, this Deed by the other party, it is entitled to seek equitablerelief (including specific performance or injunctive or declaratory relief) torestrain any actual or threatened breach of, or failure to comply with, thisDeed by the other party and the other party must not oppose the granting ofsuch relief on the basis that the party seeking such relief has not or will notsustain any actual loss or damage.

 

**9.4**                                               Liability

 

Despite any otherprovision of this Deed, the maximum aggregate liability of the Subcontractorunder this Deed and the Subcontract will be no greater than the liability ofthe Subcontractor under the Subcontract.

 

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**10.**                                               Stamp Duty andexpenses

** **

**10.1**                                        Stamp Duty

 

The Contractor:

 

(a)                                                   mustpay all stamp duties and any related fines and penalties in respect of thisagreement, the performance of this agreement and each transaction effected byor made under or pursuant to this agreement;

 

(b)                                                  mustindemnify each other party against any liability arising from failure to complywith clause 10.1(a); and

 

(c)                                                   isauthorised to make any application for and retain the proceeds of any refunddue in respect of stamp duty paid under this clause.

 

**10.2**                                        Expenses

 

Except asotherwise provided in this agreement, each party must pay its own costs andexpenses in connection with negotiating, preparing, executing, performing andamending this agreement.

 

**11.**                                               GST

** **

(a)                                                   Inaddition to any other consideration, the recipient of a Taxable Supply madeunder 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 notapply if the consideration specified for the Taxable Supply is expressly agreedto be GST inclusive.

 

(b)                                                  Ifthe amount paid by the Recipient to the Supplier in respect of GST (whetherbecause of an Adjustment or otherwise):

 

(i)                                                     ismore than the GST on the Taxable Supply, then the Supplier shall refund theexcess to the Recipient;

 

(ii)                                                  isless than the GST on the Taxable Supply, then the Recipient shall pay thedeficiency to the Supplier.

 

(c)                                                   TheRecipient is not obliged to pay any amount in respect of GST to the Supplierunless and until the Supplier issues a Tax Invoice to the Recipient in respectof the Taxable Supply. If an Adjustment has occurred, the Supplier must issuean Adjustment Note to the Recipient.

 

(d)                                                  Theamount of a party’s entitlement under this Deed to recovery or compensation forany of its costs, expenses or liabilities is reduced by the Input Tax Creditsto which that party (or the Representative Member of a GST Group of which theparty is a member) is entitled in respect of such costs, expenses orliabilities.

 

(e)                                                   Inthis Deed, amounts which are calculated by reference to revenue or profits arecalculated on the GST-exclusive component of that revenue or those profitsunless expressly provided to the contrary.

 

(f)                                                     Forthe purposes of this clause:

 

52

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(i)                                                     “**GST Law**” has the same meaning as in the *A New TaxSystem (Goods and Services Tax) Act* 1999;

 

(ii)                                                  “Adjustment”,“Adjustment Note”, “GST”, “GST Group”, “Input Tax Credits”, “RepresentativeMember” and “Tax Invoice” have the meanings given to them in the GST Law; and

 

(iii)                                               “TaxableSupply” has the meaning given to it in the GST Law, excluding section 84-5of  *ANew Tax System (Goods and Services Tax) Act* 1999.

 

**12.**                                               Notices

** **

All notices,requests, demands, consents, approvals, agreements or other communications toor by a party to this Deed shall:

 

(a)                                                   bein writing addressed to the address of the recipient shown in the Schedule orto such other address as it may have notified the sender;

 

(b)                                                  besigned 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 BusinessDay that is the third Business Day after the date of posting to an addresswithin Australia, and on the fifth Business Day after the date of posting byairmail to an address outside Australia;

 

(ii)                                                  in the case of fax, at the local time (inthe place of receipt of that fax) which then equates to the time that fax issent as shown on the transmission report produced by the machine from whichthat fax is sent confirming transmission of that fax in its entirety, unlessthat local time is not on a Business Day, or is after 5.00 pm on a BusinessDay, when that communication is taken to be received at 9.00 am on the nextBusiness Day; and

 

(iii)                                               in the case of delivery by hand, ondelivery at the address of the addressee as provided in clause 12(a), unlessthat delivery is made on a day that is not a Business Day, or after 5.00 pm ona Business Day, when that communication is taken to be received at 9.00 am onthe next Business Day.

 

**13.**                                               Governing Law andJurisdiction

** **

**13.1**                                        Governing Law

 

This agreement is governed by and will be construed according to the lawsapplying in the State of Victoria.

 

**13.2**                                        Jurisdiction

 

Subject to clause9.2, each party irrevocably:

 

(a)                                                   submitsto the non-exclusive jurisdiction of the courts of Victoria, and the courtscompetent to determine appeals from those courts, with respect to anyproceedings which may be brought at any time relating to this Deed; and

 

53

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(b)                                                  waivesany 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 beenbrought in an inconvenient forum, where that venue falls within clause 13.2(a).

 

**13.3**                                        Enforcement

 

The Subcontractoragrees that, subject to any rights of appeal which the Subcontractor may havein Victoria or to the High Court of Australia, a judgment or order of aVictorian court in connection with this Deed:

 

(a)                                                   isconclusive and binding on the Subcontractor; and

 

(b)                                                  maybe enforced against the Subcontractor in the courts of any other jurisdiction.

 

**13.4**                                        Agentfor Service

 

The Subcontractoragrees that service of process in any proceedings in the courts of Victoriarelating to this Deed will besufficiently 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 theaddress in Victoria, as the Subcontractor last notified the other partiesbefore that service to be its agent for service (or to be the current addressfor service on that agent).

 

This clause doesnot affect service of process on the Subcontractor in any other mannerpermitted by law.

 

**14.**                                               Assignment

** **

(a)                                                   ThePrincipal may assign or transfer all or any of its rights or obligations underthis Deed to any person to whom the Principal has assigned or transferred allor any of its rights or obligations under, and in accordance with, the ProjectAgreement.

 

(b)                                                  TheContractor and Subcontractor may not assign or transfer all or any of theirrights or obligations under this Deed without the prior written consent of thePrincipal.

 

(c)                                                   TheContractor and Subcontractor will provide all assistance reasonably required bythe Principal (including entering into agreements), in order for the Principalto exercise its rights under paragraph (a) of this clause.

 

**15.**                                               Attorneys

** **

Each attorneyexecuting this Deed states that it has no notice of the revocation of the powerunder which the attorney executes this Deed.

 

**16.**                                               Counterparts

** **

This Deed may beexecuted in any number of counterparts and all such counterparts taken togetherwill be deemed to constitute one and the same instrument.

 

**Executed**as a deed.

 

**[Appropriate execution clauses to beinserted]**

 

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**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:     | [                                 ] |

 

 

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|  | ** ** | **Annexure  A – Deed of Novation (clause 3.1(d)(i))** |
|--|------------|------------------------------------------------------------|

 

 

**Novation Deed**

 

**KeaneAustralia Micropayment Consortium Pty Ltd**

ACN114 334 600

OriginalContractor

 

**PublicTransport Ticketing Body trading as Transport Ticketing Authority**

73595 242 024

Substituted Contractor

 

**[Insertname of subcontractor/supplier]**

[InsertABN of subcontractor /supplier]

Subcontractor

 

56

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**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 asTransport Ticketing Authority ABN 73 595 242 024** ofLevel 38, 55 Collins Street, Melbourne, Victoria (**“Substituted Contractor”**)

 

**[Insert name of subcontractor/supplier] ABN[Insert ABN of subcontractor/supplier]** of [insertaddress] (**“Continuing Sub-contractor”**)

 

**Recitals**

 

A.                                                   TheOriginal Contractor and the Continuing Sub-contractor are parties to aSubcontract dated [insert date] (**“Subcontract”**).

 

B.                                                     TheOriginal Contractor, the Substituted Contractor and the ContinuingSub-contractor are parties to the Direct Agreement dated [insert date] (**“Deed of Covenant”**).

 

C.                                                     Clause3.1 of the Direct Agreement envisages that the Substituted Contractor may, onthe occurrence of certain events, at the option to the Substituted Contractor,replace the Original Contractor as a party to the Subcontract.

 

D.                                                    TheOriginal Contractor has agreed to enter into this Deed for substitution of theSubstituted Contractor for the Original Contractor as a party to theSubcontract on the terms and conditions contained in this Deed, in considerationof the Substituted Contractor accepting in all respects the obligations of theOriginal Contractor under the Subcontract from the Effective Date.

 

**This deed provides**

 

**1.**                                                      Definitions andinterpretation

** **

**1.1**                                               Definitions

 

In this Deed:

 

**“EffectiveDate”** means [insert date] ***[Note:  the date of the Novation Notice will beinserted]***.

 

**1.2**                                               Interpretation

 

In this Deed:

 

(a)                                                   headingsare for convenience only and will not affect the interpretation;

 

and unless thecontext indicates a contrary intention:

 

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

 

(c)                                                   areference to party includes that party’s executors, administrators, successors,permitted substitutes and assigns, including persons taking by way of novation;

 

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(d)                                                  areference to a document (including this Deed) is to that document as varied,novated, ratified or replaced from time to time;

 

(e)                                                   areference to a statute includes its delegated legislation and a reference to astatute or delegated legislation or a provision of either includesconsolidations, amendments, re-enactments and replacements;

 

(f)                                                     wordsimporting the singular will include the plural (and vice versa) and wordsdenoting a given gender will include all other genders;

 

(g)                                                  areference to a clause or Schedule is a reference to a clause ofor Schedule to this Deed, and references to paragraphs are references toparagraphs within the clause of this Deed in which they are situated, in eachclause unless expressly stated otherwise;

 

(h)                                                  areference to a “day” is a reference to a calendar day (and includes weekendsand public holidays);

 

(i)                                                      whereany word or phrase is given a defined meaning any other part of speech or othergrammatical form in respect of such word or phrase has a corresponding meaning;

 

(j)                                                      theword “including” or any other grammatical form of that word is not a word oflimitation; and

 

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

 

**2.**                                                      Novation

 

**2.1**                                               Subcontract

 

Subject toclause 2.2 and with effect from the Effective Date:

 

(a)                                                   theSubstituted Contractor is substituted for the Original Contractor as a party tothe Subcontract and will perform the terms and conditions of the Subcontract;

 

(b)                                                  theSubstituted Contractor will be bound by the Subcontract and be entitled to thebenefit thereof as if the Substituted Contractor was a party to the Subcontractin 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 breachof the Subcontract or other liability on the part of the ContinuingSub-contractor under the Subcontract occurring or arising prior to theEffective Date; and

 

(c)                                                   theOriginal Contractor is released and discharged from all obligations andliabilities, and from all claims (whether for costs, damages, fees, expenses orotherwise), arising under the Subcontract.

 

**2.2**                                               Liability before Effective Date

 

Notwithstandingclause 2.1, the Original Contractor is not released, relieved ordischarged from liability for and the Substituted Contractor will not assumeany liability accrued under the Subcontract before the Effective Date, for anybreach which the Original Contractor may have committed before the EffectiveDate of any provision of the Subcontract.

 

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**3.**                                                      Affirmation of theSubcontract

** **

The Subcontractwill be read and construed subject to this Deed, and in all other respects theprovisions of the Subcontract are ratified and confirmed, and, subject to thevariation and novation contained in this Deed, the Subcontract will continue infull force and effect.

 

**4.**                                                      Stamp duty and costs

** **

The OriginalContractor:

 

(a)                                                   mustpay all stamp duties and any related fines and penalties in respect of thisagreement, the performance of this agreement and each transaction effected byor made under or pursuant to this agreement;

 

(b)                                                  mustindemnify each other party against any liability arising from failure to complywith clause 4.1(a); and

 

(c)                                                   isauthorised to make any application for and retain the proceeds of any refunddue in respect of stamp duty paid under this clause.

 

**5.**                                                      Further acts

** **

Each party willpromptly do and perform all further acts and execute and deliver all furtherdocuments (in form and content reasonably satisfactory to that party) requiredby 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 lawapplying in Victoria.

 

**6.2**                                               Jurisdiction

** **

Each partyirrevocably:

 

(a)                                                   submitsto the non-exclusive jurisdiction of the courts of Victoria, and the courtscompetent to determine appeals from those courts, with respect to anyproceedings which may be brought at any time relating to this Deed; and

 

(b)                                                  waivesany 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 beenbrought in an inconvenient forum, where that venue falls within clause 6.2(a).

 

**6.3**                                               Enforcement

** **

The ContinuingSub-contractor agrees that, subject to any rights of appeal which theContinuing Sub-contractor may have in Victoria or to the High Court ofAustralia, a judgment or order of a Victorian court in connection with thisdeed:

 

(a)                                                   is conclusiveand binding on the Continuing Sub-contractor; and

 

(b)                                                  maybe enforced against the Continuing Sub-contractor in the courts of any otherjurisdiction.

 

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**6.4**                                               Agent for Service

** **

The ContinuingSub-contractor agrees that service of process in any proceedings in the courtsof Victoria relating to this deedwill 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 theaddress in Victoria, as the Continuing Sub-contractor last notified the otherparties before that service to be its agent for service (or to be the currentaddress for service on that agent).

 

This clause doesnot affect service of process on the Continuing Sub-contractor in any othermanner permitted by law.

 

**7.**                                                      Counterparts

** **

This Deed may beexecuted in any number of counterparts and by the parties on separatecounterparts.  Each counterpartconstitutes an original of this Deed, all of which together constitute onedeed.

 

**Executed**as a deed.

 

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**Schedule 26**

 

**Schedule 26Repricing Schedule**

 

The following schedule setsout the items of Work, for which the Contractor must give to the Principal, asa condition precedent to the Completion of the NTS Solution Requirements Phase,any proposed reduction to the Capital Contract Price and the Service Chargeswhere 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                                                       |       |                                                                |       |                                             |       |                                                        |       |                                               |       | [**]                                                                                                                                                         |       |

 

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**Schedule 27**

 

**Schedule 27Deed of Assurance**

 

(Clause 30.17)

 

**THIS DEED**is madethe                                                     dayof                                                     2005

 

**BETWEEN**                                                                                    ***[Insert details of the owner of theLicensed Intellectual Property]***(the **“Licensed IP Owner”**)

 

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

 

**AND****                                                                                                                     Keane AustraliaMicropayment Consortium Pty Ltd ACN 114 334 600**of Level 50, BourkePlace, 600 Bourke Street, Melbourne, Victoria (the **“Contractor”**)

 

 

**RECITALS**

 

A.                                                   The Principal has entered into, or mayin future enter into the New Ticketing Solution Project Agreement (the **“Project Agreement”**) with the Contractor.

 

B.                                                     Part ofthe Contractor’s obligations under the Project Agreement include the licensingof the Intellectual Property described in Schedule 1 (all and every partof which is referred to as the **“****Licensed Intellectual Property”**) to the Principal, with theright to sublicense (the **“Project AgreementLicence”**).

 

C.                                                     TheLicensed IP Owner owns all Intellectual Property in the Licensed IntellectualProperty, and has authorised the Contractor to grant the Project AgreementLicence to the Principal.

 

D.                                                    Bythis Deed, the Licensed IP Owner assures the Principal that the Principal maycontinue exercising its rights under the Project Agreement Licence,notwithstanding any change affecting the Licensed IP Owner’s direct or indirectrelationship with the Contractor.

 

**THIS DEED PROVIDES**

 

1.                                                       TheLicensed IP Owner warrants that it owns all Intellectual Property in theLicensed Intellectual Property and is entitled to enter into this Deed.

 

2.                                                       Ifany circumstances occur whereby the Licensed IP Owner’s direct or indirectrelationship with the Contractor concerning the Licensed Intellectual Propertychanges, or is likely to change, then:

 

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(a)                                                   theLicensed IP Owner and the Contractor shall immediately notify the Principal inwriting, which notice shall describe, with a reasonable level of detail, thenature of those circumstances and their effect or likely effect on thePrincipal; and

 

(b)                                                  notwithstandingthose circumstances, the Principal may continue exercising its rights under theProject Agreement Licence as if such circumstances do not occur, or as the caserequires, had not occurred.

 

Such circumstances include termination of anylicensing arrangement or circumstances involving an inability to pay debts.

 

3.                                                       TheLicensed IP Owner shall ensure that any entity which succeeds to, is assignedor otherwise becomes the owner of, any of the Intellectual Property in respectof the Licensed Intellectual Property agrees to be bound by the terms of thisDeed as if it were named in this Deed as the Licensed IP Owner.

 

4.                                                       TheLicensed IP Owner shall at its cost and expense immediately, on demand by thePrincipal, perform all acts and execute all agreements, assurances and otherdocuments and instruments as the Principal reasonably requests to perfect orgive effect to the rights and powers of the Principal created or intended to becreated by this Deed.

 

5.                                                       ThisDeed shall be governed by the laws in force in the State of Victoria,Australia.

 

6.                                                       TheLicensed IP Owner irrevocably submits to and accepts, generally andunconditionally, the non-exclusive jurisdiction of the courts and appellatecourts of Victoria with respect to any legal action or proceedings which may bebrought at any time relating in any way to this Deed.

 

7.                                                       TheLicensed IP Owner irrevocably waives any objection it may now or in the futurehave to the venue of any action or proceeding, and any claim it may now or inthe future have that any action or proceeding has been brought in anyinconvenient forum.

 

8.                                                       TheLicensed IP Owner agrees that, subject to any rights of appeal which the LicensedIP Owner may have in Victoria or to the High Court of Australia, a judgment ororder of a Victorian court in connection with this Deed is conclusive andbinding on the Licensed IP Owner and may be enforced against the Licensed IPOwner in the courts of any other jurisdiction.

 

9.                                                       TheLicensed IP Owner irrevocably appoints the Contractor as its agent to receiveservice of process or other documents in any action in connection with thisDeed and irrevocably agrees that service on the Contractor as agent will besufficient service on it.  ***[This paragraph may be deleted if the Licensed IPOwner has its registered office in Australia.]***

 

10.                                                 Eachwarranty in this Deed is a continuing warranty for the benefit of thePrincipal.

 

11.                                                 ThePrincipal may at any time assign or otherwise transfer all or any part of itsrights under this Deed to the entity the Principal assigns its rights under theProject Agreement to, under clause 45 of the Project Agreement.

 

12.                                                 For the purposes of this Deed **“Intellectual Property”**means all copyright and analogousrights, all rights in relation to inventions (including patent rights),registered and unregistered trade marks (including service marks), registereddesigns, confidential information (including trade secrets and know-how),circuit layouts and all other rights throughout the world resulting fromintellectual activity in the industrial, scientific or artistic fields.

 

**EXECUTED**as a Deed

 

**[Insertappropriate execution clauses]**

 

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**SCHEDULE 1:**

 

***[insert adescription of the component of the Licensed Intellectual Property (as definedin the Project Agreement) in which the Licensed IP Owner owns the IntellectualProperty]***

 

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**Schedule 28**

 

**Schedule 28Business Continuity Plan**

 

**I.**              Completion Process

 

The business continuity strategy document included in this Schedule 28is incomplete and represents an outline of the Business Continuity Plan thatthe Contractor must prepare and implement in accordance with clause 38.4of the agreement.

 

The Contractor must undertake the following process to complete a draftof the Business Continuity Plan, prior to the Phase Date for the NTS SolutionRequirements Phase, to the reasonable satisfaction of the Principal:

 

•              the Contractor must developa Business Continuity Plan which must be consistent with any businesscontinuity plan of the Principal and reasonably acceptable to the Principal.

 

•              the Contractor must prepareand submit its proposed draft Business Continuity Plan to the Principal for itsapproval within 60 Business Days after the Commencement Date; and

 

•              the Principal may, within10 Business Days of receipt of the Contractor’s proposed draft BusinessContinuity Plan, advise the Contractor whether or not it considers such plan tobe in accordance with this agreement, including the Requirements Document andthe Solutions Documentation, or reject it and provide its comments (if any). Ifthe proposed draft Business Continuity Plan is rejected, the Contractor mustpromptly, and in any event within 10 Business Days, submit to thePrincipal a redraft of the plan and such draft will be dealt with by thePrincipal as if it were the initial draft submitted. The Contractor must takeinto account any comments of the Principal in finalising the BusinessContinuity Plan.

 

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**Schedule 29**

 

**Schedule 29Core Services Performance Requirements**

 

(Clause 28)

 

**1.**                                                      Completion Process

 

**1.1**                                               Generally

 

Except where expresslyspecified otherwise, the Contractor and the Principal have agreed that theprinciples and requirements set out in Schedules 29, 30 and 31 and the annexureto those schedules (the Performance Principles Document and Schedule 42 -Design Targets) are the minimum position with respect to the performance regimeand design target regime to be completed during the NTS Solution RequirementsPhase.  In particular:

 

•         theContractor and the Principal have agreed that the final regime will be no worsethan the regime currently represented by the principles and requirements setout in Schedules 29, 30 and 31 (including the annexure to those schedules); and

 

•         inthe event that the performance regime has not been completed by the Principaland the Contractor or, if referred to the Expert, determined by the Expert bythe time any of the Services to which the regime applies are first provided bythe Contractor or any Devices are first put into revenue service (as defined inPart 1 of Schedule 31) then the performance requirements currentlyset out in Schedules 29, 30 and 31 (including the annexure to those schedules),and in particular the Performance Indicators (“PIs”) for the Initial Servicesand Core Services set out in sections 2 and 3 of the Performance PrinciplesDocument and the agreed PIs for Customer Performance, being the availabilitybenchmarks set out in section 2.14 of Schedule 31, will apply untilsuch time as the regime is agreed or determined.

 

Schedule 29and Schedule 30 will be completed as a Category 3 matter based on:

 

1.                                        thePerformance Indicators (PIs) that will apply to the performance of the CoreServices by the Contractor (Core Services Performance) and the performance ofthe Initial Services by the Contractor (Initial Service Performance) as set outin sections 2 and 3 of the Performance Principles document annexed to thisschedule, subject to the process set out below;

 

2.                                        theprocess and principles set out below; and

 

3.                                        whererelevant, Schedule 31.

 

Amendments to theProject Agreement will also be made to reflect that the Services Charges willbe subject to adjustments in accordance with the final form of this Schedule 29and Schedule 30.

 

In completing Schedule 29and Schedule 30 the following principles shall apply:

 

•                    ThePrincipal and the Contractor have agreed that the performance of the CoreServices and Initial Services shall be subject to a points based measurementsystem. This system has been designed to encourage the Contractor to providethe Initial Services and Core Services at high levels of performance, whileidentifying the relative importance of each measurable PI.

 

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•                    EachPI will accrue points as specified where that PI has not been met, as set outin sections 2 and 3 of the Performance Principles. These points accrue to anaggregate number of points for the Core Services and Initial Services on amonthly basis. The aggregate points accrued across both the Initial Servicesand the Core Services above the Points Threshold Amount will be used tocalculate the adjustment to the Service Charges that are payable.  The total points are converted by the PointsConversion 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 bothCore 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 theperformance regime will initially be [**]% for Customer Performance (deviceavailability and Core Services supporting device availability) regime (schedule 31)and [**]% for Initial Services Performance and Core Services Performance (otherthan those supporting device availability) of the average Services Charges (asfurther set out in section 2.7(d) of Schedule 31), subject tothe following paragraph and the bullet points set out in the rest of thissection.

 

Prior to thePhase Date for the NTS Solution Requirements Phase the Principal or theContractor may agree to further refine Schedule 29, Schedule 30 and Schedule 31(required as changes to 29 & 30 may impact on 31, however only insofaras creating additional PIs for insertion into Schedule 31), by proposingamendments in relation to the performance regime. Amendments to Schedule 29,Schedule 30 and Schedule 31 may be proposed as follows:

 

Schedule 31contains agreed principles between the Principal and the Contractor. If, as aresult of changes to Schedules 29 and 30 arising from the process set outbelow, changes are proposed to Schedule 31, the Principal may considerthese changes but is not bound or obliged in any way to accept such changes.  The Contractor acknowledges that theprinciples set out in Schedule 31 are agreed between the parties and it isnot the intention of either party to change those principles as a result of theprocess set out below, except to insert additional PIs which do not alter theexisting PIs contained within Schedule 31.

 

•                    Performancematrices that support the business outcomes will be developed during the NTSSolution Requirements Phase by the Contractor, in conjunction with the TTA. Thesteps include:

 

1.                                thestarting point for the development of Schedules 29 and 30 are the PIs set outin Sections 2 and 3 of the Performance Principles;

 

2.                                theContractor may in the course of its role in the development of the performancematrices refer to its own Board of Experts (Kamco Board of Experts);

 

3.                                thematrices will be provided to the Principal for comment prior to the Kamco Boardof Experts consulting in relation to the performance matrices;

 

4.                                theContractor after consulting with the Kamco Board of Experts will then proposeappropriate 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 moreappropriate Performance Indicator or measure has been identified;

 

5.                                thePrincipal will assess the proposed amendments in light of the relevant businessoutcomes and the overall performance regime (including the PIs set

 

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out in the Performance Principles) and eitheragree amendments to the PIs or not agree the amendments and refer to the Expertfor determination in accordance with clause 49.5 of this agreement, except thatthe determination of the Expert will be final and binding upon each party andclauses 49.5(l) and 49.5(m) shall not apply. The Principal will not be bound inanyway to accept or reject the proposed amendments of the Kamco Board ofExperts; and

 

6.                                uponagreement or determination of the amendments by the Expert, the At Risk Amountfor Initial Services Performance and Core Services Performance will increase to[**]%.

 

The intention ofthis clause is not to reduce the total aggregate value of currently identifiedPI’s rather it is to allow for performance matrices to be developed by theContractor and amendments to the performance regime proposed by the Contractorfor the Principal’s consideration in light of the business outcomes identifiedand confirmed during the NTS Solution Requirements Phase of the NTS Project.

 

•                    Aspart of the process discussed above, either the Contractor or the Principal may propose amendments to theperformance measures including:

 

•                                                                              measurementlevels;

 

•                                                                              PaymentReductions, such as removal, increase or decrease;

 

•                                                                              removalof existing performance measures (PIs) or creation of new performance measures;and

 

•                                                                              changingthe structure of the PIs based on business outcomes or continuous improvement.

 

Such proposalsfor amendment will be considered and agreed where it is demonstrated that allrelevant and required PIs (including the PIs currently set out in thePerformance Principles**)**are at leastactively monitored, and the existing financial and performance outcomes for thePIs in aggregate are maintained.

 

**2.**                                                      Performance Principles

** **

•         CoreServices Performance and Initial Services Performance will apply as follows:

 

•                                                                              Duringthe period commencing on the date of the first provision of Delivery Servicesto the Completion Date for NTS Operational Proving Phase, the Core ServicesPerformance PIs and Initial Service Performance PIs will apply. During thisperiod, the Points Threshold Amount of 500 points per month, which applies toadjustments to the Services Charges arising from Initial Services Performanceand Core Services Performance in aggregate, will be increased by a factor of100% to 1,000 points per month.  Adjustments during this period will be made tothe Delivery Services Charges or Services Charges, depending on which is beingpaid at the relevant point in time.

 

•                                                                              Afterthe Completion Date for NTS Operational Proving Phase, Core ServicesPerformance and Initial Services Performance will apply and the Threshold levelwill revert to 500 points per month.

 

•         TheContractor and the Principal have agreed that the following principles arefundamental to the Principal and must as a minimum form part of the finalperformance regime which is agreed between the parties:

 

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•                                                                              theContractor is responsible for the collection and processing of all dataavailable for collection for the operating day;

 

•                                                                              allavailable data must be delivered to the central processing system each day bythe agreed cut-off time and must be processed in the appropriate Settlementwindow;

 

•                                                                              allavailable data received by the central processing system must be 100% accurateand 100% complete;

 

•                                                                              anydata exceptions identified are to be reported, investigated and if appropriate,actioned, within 24 hours of receipt by the central processing system;

 

•                                                                              cashreconciliation will occur on the next business day;

 

•                                                                              allcash received shall be counted (processed) and banked by the next business dayin accordance with TTA requirements.  TheContractor must ensure all collected cash is banked accordingly;

 

•                                                                              changefloats must be replenished according to the operational needs of the Operatorand in accordance with the Operator’s delivery schedule and the Contractormust ensure that change floats for booking office are never out of cash ifordered in accordance with the Operator’s delivery schedule;

 

•                                                                              NetworkAvailability – industry standard of 99.999%; and

 

•                                                                              DisasterRecovery – the Contractor must ensure that the NTS has an expeditious ‘returnto service’ (i.e. cutover to back up central processing system) in the order of15 minutes.  The Contractor must ensurethat its Service Level Agreement with its Data Centre services supplier allowsfor an expeditious ‘return to service’ (i.e., cutover to back up centralprocessing system) in the order of 15 minutes.

 

•         Proposalswhere there is a change in risk allocation may have a financial impact to theparties. In such cases, agreement to the proposed amendment will be conditionalon the parties agreeing the price changes (if any) resulting from the proposedamendments.

 

•         Anyproposed amendments to PIs and Device performance measures offered by theContractor must be capable of measurement. The Principal and the Contractorshall cooperate to ensure that all performance measures are able to be measuredin a manner that will provide transparent analysis and data relating to theperformance of the Solution.

 

•         Fromthe time that the Customer Performance (device availability) PIs in Schedule 31apply, the Contractor will monitor and track individual device performance andidentify 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. Accordinglythe return to service of EEPs is paramount to the Principal. Set out below aretarget times relating to EEP return to service.

 

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**TargetEntry/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                                                         |

 

•         Forindividual devices (not EEPs), there is an implied aggregate effort (in termsof time and resources) required to meet PIs 26 to 41 of the PerformancePrinciples (which specifically relate to response and repair times of devices).  That aggregate will be used as the base forthe calibration and finalisation of the return to service times in thefollowing table.  In particular, theimplied amount of effort required to meet the response times in the final formof the table must be equivalent to the implied effort required to meet currentPIs 26 to 41.  Prior to the finalisationof the final form of the table, the times within this table will be consideredas targets:

 

**TargetIndividual 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 calibrationand application of the above table shall exclude those remote locations whichare not regional centres.  The partieswill agree as a separate matter response times for remote locations which arenot regional centres.

 

•         Forthe purposes of the Performance Regime exclusively, the concept of a transitservice day will be introduced to recognize the operational reality that thereare periods of time, generally after midnight and prior to 4am, when there areno operational services across the Solution. The term transit service day refers to the time in which transportservices are operational.  It is notedthat this term may vary according to the location and transport mode. Thedefinition of transit service day will be determined during the NTS SolutionRequirements Phase and may be amended by the Principal for each mode, as andwhen required.

 

Periods of timeoutside the transit service day will not incur a performance adjustment by theContractor. For example only:

 

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| **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 aboveexample, if a device goes out of service at 10pm of an evening at a RegionalCoach location (and say for instance that 2 hours is the allowed Return toService time for that location)) the Contractor effectively has until thecommencement of the next transit service day to return the device tooperational service. These principles apply to Schedules 29, 30 and 31.

 

•         Theprinciples within Schedules 29, 30 and 31 are premised on access beingavailable and granted to the Contractor in a timely manner.

 

The PerformancePrinciples document is **annexed** to Schedule 31.

 

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**Schedule30**

 

**Schedule 30Initial Services Performance Requirements**

 

This schedule will be completed in accordance with the completionprocess set out in schedule 29.

 

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**Schedule 31**

 

**Schedule 31Customer Performance Requirements**

 

(Clause 28)

 

**1.**                                                      Completion Process

 

Except whereexpressly specified otherwise, the Contractor and the Principal have agreedthat the principles and requirements set out in Schedules 29, 30 and 31 and theannexure to those schedules (the Performance Principles Document, CDA and Schedule 42- Design Targets) are the minimum position with respect to the performanceregime and design target regime to be completed during the NTS SolutionRequirements Phase.  In particular:

 

•         theContractor and the Principal have agreed that the final regime will be no worsethan the regime currently represented by the principles and requirements setout in Schedules 29, 30 and 31 (including the annexures to those schedules);and

 

•         inthe event that the performance regime has not been completed by the Principaland the Contractor or, if referred to the Expert, determined by the Expert bythe time any of the Services to which the regime applies are first provided bythe Contractor or any Devices are first put into revenue service (as definedbelow) then the performance requirements currently set out in Schedules 29, 30and 31 (including the annexure to those schedules) and in particular thePerformance Indicators (**“PIs”**) for theInitial Services and Core Services set out in parts 2 and 3 of the PerformancePrinciples document and the agreed PIs for Customer Performance, being theavailability benchmarks set out in section 2.14 of this schedule, willapply until such time as the regime is agreed or determined.

 

The performanceregime that will apply to the operation of the Solution and to the provision ofthe Initial and Core Services will be completed as a Category 3 matter.Schedules 29 and 30, relating to the Initial Services Performance Requirementsand Core Services Performance Requirements, will be completed in accordancewith the process set out in Schedule 29, recognising that changes to thoseSchedules may result in changes to this Schedule 31. Changes to Schedule 31will be limited to the creation of PIs additional to those existing PIs within Schedule 31.

 

This Schedule setsout the process and principles which will apply to the completion of theperformance regime and design targets generally including with respect to theCustomer Performance PIs (the device availability benchmarks set out in part2.14 of this schedule).

 

Part 2 ofthis schedule sets out the principles which have been agreed between thePrincipal and the Contractor with respect to the performance regime which willbe completed and documented (both by way of completion of schedules 29, 30 and31, 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:

 

•         CustomerPerformance (device availability) will apply as follows:

 

•                                              Duringthe period commencing on the first date that an NTS Solution Device is placedin revenue service in the existing automated ticketing system operated byOnelink Transit Systems Pty Limited (**“AFC System”**)and ending on the date that the NTS Device is placed in Smartcard transitrevenue service in the NTS Solution, the performance of such Devices as part ofthe AFC System shall be required as a minimum to meet the Customer DefinedAvailability (CDA) levels of the current ticketing system, as set out in theService Contract between the TTA and Onelink Transit

 

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Systems Pty Ltd as amended and restated on 21 October 2002 and asfurther amended or varied since that time up to the date of this agreement. TheCDA levels of the AFC System as at the date of this agreement are set out inAnnexure 2. **  **Revenueservice means the point where equipment or services related to the Solution areused operationally or for operational purposes either in the AFC System or inthe Solution.

 

•                                              Duringthe period commencing on the first date that a NTS Device is placed inSmartcard transit revenue service in the Solution to the Completion Date of theNTS Operational Proving Phase, the Customer Performance PIs will apply to suchDevices as they are in transit revenue service.

 

•                                              Duringthe period commencing on the first date that an NTS Solution Device is placedin revenue service in the AFC System and ending on the Completion Date of theNTS Operational Proving Phase , the Threshold Level of $[**] per month will beincreased by a factor of [**]% to $[**] per month. Adjustments will be made tothe Delivery Services Charge or Services Charge depending on which is beingpaid at the relevant time.

 

•         Afterthe Completion Date of NTS Operational Proving Phase, the Customer PerformancePIs will apply and the Threshold Level will revert to $[**] per month.

 

•         UndetectedFaults - If a deviation in transaction volume for any device varies by [**]%for a given period the Contractor will:

 

•                                              identifyif the deviation is due to a undetected fault. If so standard Customer Performance availability calculations willapply; and

 

•                                              ifno fault is present, advise the Principal of the change in device usagepattern.

 

•         Basedon the principles in this schedule, specific additional areas to be draftedinto final form for this schedule and other parts of this agreementinclude (but are not limited to):

 

•                                              alldrafting required to reflect the matters set out in Part 2 of thisSchedule;

 

•                                              minimumobligation of the Contractor to perform better than current ticketing deviceequivalent availability performance in the AFC System, by a margin of a minimum[**]% reduction in downtime from the current AFC System CDA performance figuresas specified in Annexure 2;

 

•                                              formulaerelating to the adjustment of Services Charges based on the Contractor’sperformance measured against the Initial Services Performance Requirements,Core Services Performance Requirements and Customer Performance Requirements;

 

•                                              definitionof transit service day by mode to be agreed between the parties; and

 

•                                              designtargets – the Design Targets set out in the Schedule 42 annexed to this schedule 31provide key indicators around device interactions that the Principal believesto be critical.  The Contractor will berequired to demonstrate for all phases up to and including NTS Solution FinalBack Office Release Phase that the Devices can meet these Design Targets andwill be required to achieve these Design Targets during testing. Obligationswith respect to these requirements will be inserted into the agreement,including that the design targets will form part of the Phase Deliverables forrelevant Phases.

 

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Prior to theCompletion Date of the NTS Solution Requirements Phase the Principal and theContractor agree to adjust the design targets set out in Schedule 42 wherethe Contractor can clearly demonstrate that the operating environmentidentified during the NTS Solution Requirements Phase is materially differentto the operating environment which the Contractor reasonably anticipated wouldapply to the Solution as at the date of this agreement and, that solely as aresult of the difference in the operating environment, it is practically impossibleto reach certain design targets.

 

**2.**                                                      Agreed PerformancePrinciples [Schedules 29, 30 & 31]

** **

**2.1**                                               Obligations to Maintain Performance Levels

** **

The Contractormust maintain the performance levels set out in this schedule andschedules 29 and 30 (as they are finally completed). In order for this to bemeasured, the Contractor must provide a robust and reliable means of monitoringand reporting to the Principal in relation to the Performance Requirements, andillustrate its understanding of these measurement requirements.

 

The Contractormust provide a detailed plan that describes the methodology of capturing andprocessing the data to be used to measure the Initial Services PerformanceRequirements, Core Services Performance Requirements and Customer PerformanceRequirements.  This plan is subject toreview and approval by the Principal. The Contractor may add Devices or increase system redundancy levels suchas back-up data servers or additional Distribution Devices in order to meet orexceed Customer Performance requirements. Such Devices must be provided at no additional cost to the Principal.

 

In the event thatSolution Devices do not meet these requirements, the Contractor must identifyand implement remedial action, including, as necessary, modification of theDevices, on-site engineering services, on-site technical services, or otherrelated action at no additional cost to the Principal.  The Contractor will be required to preparevarious annual reporting plans in accordance with the Requirements Document.

 

These annualplans are in addition to the reporting requirements for measuring performancecontained in this document.

 

**2.2**                                               At Risk Amount

** **

Subject to theprocess set out in Schedule 29, the Contractor agrees that the At RiskAmount is calculated in accordance with clause 2.7(d) and is subject tothe Monthly Cap calculated in accordance with clause 2.7(d). As discussedbelow, the Principal may withhold the monthly payment where the performancereduction amounts exceed the Monthly Cap.

 

**2.3**                                               Service Charges

** **

As discussedbelow, where the adjustment to the Services Charges for a particular monthreaches the maximum At Risk Amount of the Monthly Cap, the Principal maywithhold the adjusted monthly Service Charges (the Service Charges less theadjustments in the amount of the Monthly Cap) until the Contractor has providedand complied with the Corrective Action Plan submitted in accordance with theProject Agreement, and in any event until the payment date for the followingmonthly Service Charges after the Contractor has complied with the CorrectiveAction Plan. Where the payment of the adjusted monthly Service Charges iswithheld and the Contractor subsequently complies with the Corrective ActionPlan (in other words restores performance to a level which does not cause theAt Risk Amount to be exceeded), the adjusted Service Charges withheld will bepaid.

 

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**2.4**                                               Threshold Amounts

** **

Subject to Part 1of this Schedule, for Customer Performance (Device) there is a threshold amountof $500 per month. Subject to Schedule 29, for Services Performance (CoreServices and Initial Services), the Threshold level is 500 points per month,reset each month.

 

**2.5**                                               Bonuses

** **

The Principalwishes to encourage consistent achievement of the Performance Requirements,including the Customer Performance device availability regime and the CoreServices Performance Requirements and Initial Services PerformanceRequirements.  The Principal considersthis measure better correlates to the Contactor’s control, as opposed tohistorical bonus measures such as transport growth, which is primarilyinfluenced by a number of factors outside of the Contractor’s control.

 

In acknowledgingthis the following bonuses will be available to the Contractor in recognitionof certain NTS targets being achieved:

 

1.                                        Smartcardactivation and use bonus – scalable up to $[**][**][**] may be accrued based ontargets achieved;

 

2.                                        fareboxgrowth bonus – $[**] lump sum where [**]% real growth in Farebox revenue isachieved during the Implementation phases; and

 

3.                                        performancebonus – up to $[**] each operating year where both Customer Performance PIs andthe Core Service and Initial Service PIs are met consistently.

 

The way in whichthese bonuses will operate is set out in more detail in the remainder of thissection:

 

(a)                                                   PerformanceBonus

 

The Contractor’sperformance will be monitored monthly. Where the Contractor has achieved the performance levels required forthe highest level of Services Charge (ie. there are no adjustments to theServices Charges either as a result of the availability of Devices or ServicesPerformance), for a period of six (6) consecutive months, the Contractorwill receive a consistency based bonus of $[**]. From that point the bonus willbe paid as a monthly performance bonus of $[**] for as long as the requiredperformance levels are maintained. Accordingly the Contractor has the potentialto receive $[**][**][**] in consistency bonuses each year. The bonus is innominal dollars (that is, it will not be adjusted for CPI).

 

Where theContractor is receiving the monthly bonus, and fails to meet the performancelevels 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) consecutivemonths of the required performance levels (and receive the bonus) beforebecoming entitled to the rolling monthly bonus.

 

(b)                                                  SmartcardsActivation and Use Bonus

 

The Principal hasrecognised that the Contractor will not completely control the uptake / issueof Smartcards by Customers. However the Contractor’s performance of servicessuch as Smartcard Base Management Services, Distribution Services andCardholder Support Services will materially influence the level of Smartcardissuance.  On this basis the Principal isincentivising the Contractor during the Implementation by way of a once offbonus. This material influence is of major

 

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importance to thePrincipal. The Principal may independently verify the quantum of cards onissue.

 

The calculationof Smartcard issuance will exclude Operators’ staff and free passes.  Issuance will encompass both activation andhaving been used at least once.

 

(i)                                                     NTSRegional and Metropolitan Implementation Completion Phase- Regional

 

The Contractorwill be incentivised to assist the Principal in maximising the number of cardson issue during the year following the commencement of NTS Regional andMetropolitan Implementation Completion Phase. ** **If the number of Smartcards issuedin regional areas up to the end of 12 months immediately following the period15 months from the commencement of this agreement, is less than [**] then noincentive will be paid. Alternatively, on an aggregate basis, where theContractor has issued cards in excess of [**] in regional areas, a bonus will bepaid at $[**] per card over and above this number.

 

The bonus islimited to a maximum amount of $[**] payable in relation to the 12 monthsimmediately following the period 15 months from the commencement of thisagreement and will be payable at the end of those 12 months. Smartcards issuedfor regional areas and counted towards the Regional Bonus will not be countedfor metropolitan areas below.

 

(ii)                                                  NTSRegional and Metropolitan Implementation Completion Phase - Metropolitan

 

The Contractorwill be incentivised to assist the Principal in maximising the number of cardson issue during the year following the commencement of NTS Regional andMetropolitan Implementation Completion Phase. If the number of Smartcardsissued in metropolitan areas up to the end of 12 months immediately followingthe period 15 months from the commencement of this agreement is less than [**]then no incentive will be paid. If the number issued in metropolitan areasexceeds [**], the bonus will be paid at $[**] per card for each card over andabove this number.

 

The bonus islimited to a maximum amount of $[**] payable in relation to the 12 monthsimmediately following the period 15 months from the commencement of thisagreement, and will be payable at the end of those 12 months. Smartcards issuedfor metropolitan areas will not be counted for regional areas above.

 

(c)                                                   FareboxIncentive (Once Only)

 

The Contractorwill receive an incentive based on the total farebox for metropolitan services.The Contractor will receive a bonus of $[**] if the farebox growth remains ator above the long term real growth level of [**]% per annum. This bonus will bea lump sum payable based on 12 calendar months commencing from the period 15months from the commencement of this agreement. This incentive is to reward theContractor for minimising the Customer affects of NTS Regional and MetropolitanImplementation Completion Phase.  Thedefinition of farebox revenue for metropolitan areas and the method ofcalculation for determining the real growth level will be specified by thePrincipal.  The Principal will determinewhether the real farebox growth remains at or above [**]% per annum.

 

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**2.6**                                               Monitoring Methods

** **

The Contractor’sperformance of the Core and Initial Services will be monitored by a number ofdifferent methods. The following table summarises and classifies the commonmethods referred to in this document, but is not exhaustive and uniquemonitoring 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 thecustomer focused approach the Principal has removed all weighting relating toPackages, days of the week and location. The Principal believe that each ofthese parameters should be treated as equal and any weighting would create anunnecessary bias.

 

(b)                                                  TimePeriods

 

The Principal hascalculated Device availability across a 24 hour day for a period of 365 days –representing a calendar year. The Principal believes that this is a truerepresentation of the Solution Operating requirement. The Principal and theContractor agree to develop this principle further to reflect revenue serviceof the Devices.

 

It is recognised,for the Core Services, the current Operators’ business day commences atapproximately 4am and concludes at approximately 2am the next day, but theproposed Solution must have the ability to perform in a continuous businessday.

 

(c)                                                   Reporting

 

The Principalrequires all performance measures to be collected daily and reported to thePrincipal on a monthly basis.  Themonthly report will be used as the basis of calculation for any adjustmentpayments due.

 

(d)                                                  Methodologyof Adjustment Caps

 

Subject to Schedule 29,the adjustment to the Services Charges as a result of adjustment pointsaccruing in respect of the Initial Services PIs and Core Services PIs will besubject to a monthly cap based on [**]% of the Services Charge. The

 

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adjustment capfor Device availability (Customer Performance) will be set at [**]% of theServices Charge. Based on this, the Principal notes that the combined effect ofthese two caps produces an overall cap of [**]% of the Services Charge foradjustments.

 

The ServiceCharge fluctuates from year to year during the Delivery Services Term and theCore Services Term. The Principal will use Schedules 32 and 10 respectively tocalculate the Average Monthly Delivery Services Charge and the Average MonthlyServices Charge. The Monthly Cap during the Delivery Services Term will be[**]% of the Average Monthly Delivery Services Charge. The Monthly Cap duringthe Core Services Term will be [**]% of the Average Monthly Services Charge.

 

Where some or allof the Initial Services are contracted to be performed by a party other thanthe Contractor or its Subcontractors, then the overall adjustment cap willprogressively reduce and will be recalculated by the Principal as Variations toSchedules 32 and 10 are agreed.

 

**2.8**                                               Withholding Payment

 

The Contractorand Principal agree that the maximum reduction to the Service Charge will becapped at the Monthly Cap referred to in clause 2.7. This Monthly Cap appliesto total reductions for both Customer Performance and Services Performance.

 

Where the MonthlyCap (noting that reductions will be those amounts above the Threshold Amountsdescribed above) is reached and applied to reduce the Service Charge, thePrincipal may withhold the adjusted Service Charge subject to successfulcorrective action.

 

The Correctiveaction will be considered successful where the Contractor improves performanceto a level where the maximum Monthly Cap will no longer be deducted in thefollowing performance month.

 

Accordingly, theContractor has clarity around what is required for the Principal to releasewithheld Service Charge payments.

 

In a given month,the Contractor may believe that the monthly At Risk amount will be exceeded asa result of poor performance. In this circumstance, and prior to the Principaldeciding what portion of the adjusted Service Charges to withhold, theContractor may request a meeting with the Chief Executive Officer of the Principalto discuss the circumstances of the poor performance.

 

**2.9**                                               Device Availability Assumptions & Principles

 

(a)                                                   CustomerPerformance Benchmark

 

The Principal hasderived a Customer Performance indicator that takes into account:

 

•                                                              CorrectiveMaintenance: as a function of the Raw Availability;

 

•                                                              PreventativeMaintenance: as an estimated monthly duration;

 

•                                                              Vandalism:As an estimated monthly duration. Note that this does not include “spate” or inthe case of a TVM, CVM or gate, this does not account for major acts ofvandalism that would require the removal of the device; and

 

•                                                              RevenueCollection: Where applicable the Principal has incorporated estimation for cashcollection.

 

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(b)                                                  DeviceOut of Service

 

The Principalreiterates this principle to define a Device that is either in service or outof service. There are only two outcomes, for instance a device cannot be partlyout of service.

 

A Device will beconsidered out of service (and therefore unavailable) where it fails to providethe level of functionality for that Device as required by the RequirementsDocument. In addition, a Device will be considered out of service where itfails to meet the Design Targets set out in Schedule 42 (as it is finallycompleted).

 

In most cases,Devices will have alerts and alarms where key functionality has failed. Inother cases, other sources of information may be used to determine out ofservice.

 

As set out above,the Device benchmarks are inclusive of all scheduled downtime, and allunscheduled downtime (refer above).

 

(c)                                                   Availability Time Calculation

 

Actualperformance will be compared to the benchmarks. The calculation of device typebenchmarks will initially be based on the actual transit service day as definedfor each mode. The term transit service day refers to the time in whichtransport services are operational.  Itis noted that this term may vary according to the location and transportmode.  For example in relation to Rail(including V/Line) the definition could vary on a station by station basisrecognising the variability of the first service and last service across thismode of transport.  The parties will alsoagree mechanisms for defining the transit service day for Tram, Bus, Hand-Heldand Retail services.

 

It is recognisedthat within the NTS there is a concept of a 24 hour operating day, howeverexclusively for the purposes of the Performance Regime the transit service dayhas been introduced to recognise the operational reality that there are periodsof time, generally after midnight and prior to 4am, when there are nooperational 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 ofthis agreement, there will be no entitlement to increased Service Chargepayments to the Contractor resulting from changes in the period of time for thedefinition of transit service days.

 

The Principal hasused 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                                        |

 

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| **Ave Response Time** | ** ** | **Average Mean Time To  Repair** | ** ** | **Mean Time To Restore** |
|-----------------------|------------|----------------------------------|------------|--------------------------|
| 60                    |       | 15                               |       | 75                       |

 

(d)                                                  Entry/Exit Points

 

The Principal hasdefined the concept of entry/exit points to reflect the customer view of thesystem. The following definition has been applied to entry/exit points:

 

•                                                              Entry/ Exit Points are any physical exit or entry point to any of the publictransport services operated by the Operators (including points of exit or entryon train station platforms or station subways, tram doors and bus doors) whichconsists of 2 or greater Fare Payment Devices or Gates and are considered tocarry the most critical functionality for the NTS. The Principal has ratedthese devices as being twice as important as other devices.

 

•                                                              Rawavailability for entry/exit points is considered to be 99.9995%.

 

The Contractoragrees to meet this benchmark for each entry/exit point within the Solution.

 

**2.10**                                        Device Performance Calculations (Schedule 31)

 

**2.11**                                        Minimum Obligation

 

The Contractoragrees that Device availability of the NTS will be an improvement from theavailability (known as Customer Defined Availability or CDA) of device types inthe current ticketing system. For instance, the average availabilityperformance of NTS CVMs will be better than the average of current TVM devicetypes.  In particular, the Contractor hascommitted to achieving a minimum [**]% reduction in downtime from the currentAFC System CDA levels as set out in Annexure 2.

 

This will applyacross all device types of the NTS.

 

The followingprocess will be used in order for raw NTS Device performance data to becompared to CDA reported availability to determine whether the Contractor hasmet its obligation to improve Device availability levels:

 

1.                                        theContractor provides raw NTS device performance data to the Principal;

 

2.                                        thePrincipal identifies those formulae and adjustments that are applied to the rawavailability data of the current ticketing system to derive the CDA reportedavailability;

 

3.                                        thePrincipal applies those formulae and adjustments (as identified above) to theraw NTS device performance to arrive at adjusted NTS device performance;

 

4.                                        theadjusted NTS device performance is then compared to CDA reported availabilityto determine if the Contractor has met the minimum performance obligations; and

 

5.                                        subjectto agreement with the Contractor, the Principal may during the term of thisagreement provide the software relating to the formulae and adjustments to theContractor so that the Contractor can calculate and report the comparison ofadjusted NTS and CDA data to the Principal.

 

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**2.12**                                        Specific Principles

 

Performance shallbe calculated by as an average over each device type population.

 

The exception tothis is Entry/ Exit Points, which will be calculated on an individualEntry/Exit Point basis.

 

Reduction in theService Charges will apply on an hourly basis, where the monthly availabilityof that device type falls below its agreed benchmark. In other words, a devicebenchmark may imply an average 90 minutes of downtime, and each hour over andabove that (or part thereof) for each device will attract a reduction at anhourly rate, as described below.

 

The Reductions inrelation to Customer Performance will remain capped at [**]% of the monthlyServices Charge.

 

Benchmarks havebeen agreed by device type (and are set out in section 2.14 below).

 

There are threedevice categories being:

 

1.                                        availabilityof Exit / Entry Points within the NTS (EEP);

 

2.                                        availabilityof devices types within Exit Entry Points within the NTS (device entry exit orDEE); and

 

3.                                        availabilityof other device types within the NTS, whose function is distribution / sellingdevice (DSD).

 

The ramificationof 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 devicepopulation benchmark is not met, the actual Customer Performance percentagewill be converted to a number of hours in excess of the benchmark, for thatwhole device type population. The number of hours will attract a paymentreduction of $[**] per hour as set out above. For instance, if CVM (rail)performance implies that there were a total 300 hours in excess of thebenchmark across the CVM (rail) population, then the monthly payment reductionfor that PI shall be:

 

$[**] * [**] =$[**]

 

The intention ofthe above mechanism is to have an increased impact where an entire EEP is outof service. This is very important to the Principal.

 

The maximumreduction of [**]% of Services Charge applies to the sum of reductions acrossall Device types. This amount will remain for the Term.

 

Where thecalculated reduction exceeds [**]% of Services Charge, the reduction is cappedat [**]% of Service Charge.

 

----

 

**2.13**                                        Device Performance Calculation After One Year of NTS Operations

 

After the firstyear from the Solution Completion Date the 3 types of Customer Performance(EEP, DEE and DSD) will continue to be measured by the relevant benchmarks. Inaddition to this Entry/Exit Points (EEP) and device types at those Entry/ExitPoints (DEE) will be weighted according to scan on and scan offtransactions.  The data used for a daywill compare the average of the same day of the previous week, and data 52weeks prior on the same day.

 

This average willrepresent a fraction or percentage of total transactions on that measurementday.

 

For distributionand or selling devices (DSD), the same approach will apply as per above,however revenue will be used.

 

The total weightingimpact within the categories will have the same impact in aggregate as themechanisms described above.

 

For instance,there may be around 15,400 validation type devices (DEE). If each one was downfor 5 minutes more than the benchmark allowed in a month, the reduction in thefirst year, using no weightings might be:

 

15,400 times$[**], then apply a time factor of 5/60 minutes =  $[**] in that month.

 

The Principal’suse of NTS data will ensure that the aggregate impact of the calculatedweightings will be neutral to the total reduction calculated.

 

Specifically, forfare payment device types (DEE) the calculation weighting will be:

 

 

This calculationproduces the same $[**] result assuming all FPDs are down for 5 minutes asabove.

 

----

 

**2.14**                                        Device Availability Benchmark

** **

The Contractorhas agreed that the benchmark for the availability of all Entry/Exit Points is99.9995% (EEP).

 

The Contractorhas also agreed that the benchmarks for availability of individual Device typeswill be the percentages set out in the Customer Performance Indicator column inthe following table.  The otherinformation 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 PerformancePrinciples document is annexed as Annexure 1 to this schedule.  The CDA levels of the AFC System referred toin this schedule are set out as Annexure 2 to this schedule.  Schedule 42 in relation to DesignTargets is annexed as Annexure 3 to this schedule.

 

----

 

**Schedule 32**

 

**Schedule 32Delivery Services**

** **

(Clause 21A and 27) 

 

**CompletionProcess**

 

**A.Card Drafting**

 

The Smartcardprocurement and payment principles below have been agreed by the parties andwill be drafted for incorporation into the Project Agreement as aCategory 2 Matter.

 

•             Priorto each Smartcard order by the Contractor, the Principal will meet with theContractor to discuss Smartcard procurement for the coming period and provideinformation in respect of its marketing (including special editions) and otherrequirements which may impact demand for Smartcards and/or mix of Smartcardtypes required (including the Smartcard type, printing, Personalisation anddesign features required for the Smartcards).

 

•             TheContractor will then determine the requirements for all Smartcard types andseek relevant pricing and delivery information from its suppliers in light ofthe Principal’s requirements discussed under the previous point.  Prior to confirming any order with itssuppliers, the Contractor must seek the Principal’s approval of the details ofits proposed order including details of volume, pricing and projected monthlyissue profile for each type of Smartcard.

 

•             ThePrincipal may either approve the order (subject to requiring potentialvariation of proposed delivery program, ie. the Principal may require theContractor to hold greater or less volumes of stock than planned or to vary theorder to ensure it reflects the Principal’s requirements with respect tomarketing, Smartcard type and Smartcard mix) or seek a deal for better termsand conditions in the market (the Contractor must assist the Principal withthis procurement process and then adopt the resulting supply arrangement).

 

•             ThePrincipal will pay the Contractor based on volume of Smartcards issued (on afirst 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 marginsset out in Schedule 10I).

 

•             Theissue of a Smartcard is defined to be the point of time at which Smartcardshave been issued to the end user of the Smartcard (ie. the customer). Forclarity the following table summarises the point of issue for each Smartcardunder the various possible scenarios in the NTS:

 

----

 

**Schedule 33**

 

**Schedule 33Replacement 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 34Options**

** **

(Clause 20A)

 

The following will be considered as Category 3 Matters:

 

•                                                          Keane to revise expirydate of options in light of actual ordering process;

 

•                                                          Keane is required toprice the SmartBus functionality option in the table below: and

 

•                                                          Keane and TTA will worktogether to clarify and document Keane’s proposal in respect of the VLPreservation system.

 

----

 

**Schedule 35**

 

**Schedule 35Vandalism**

** **

(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 36Capital 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 andRequirements Document.

 

----

 

**Schedule 37**

 

**Schedule 37Category 1, 2 and 3 Matters**

** **

(Clauses 2.1, 2.2 and 11.7)

 

**CompletionProcess**

 

The matters contained in this Schedule 37 have not been agreed orcompleted as at the time of execution of the agreement by the Contractor, andare to be resolved in accordance with the applicable timeframes and processesset out below.

 

**PART A– Category 1 Matters**

 

The following items will be agreed and/or completed and the agreementamended and updated accordingly, prior to execution of the agreement by thePrincipal:

 

1.               Finalisation of Schedule 41of the agreement.

 

**PART B– Category 2 Matters**

 

The following items will be agreed and/or completed prior to the PhaseDate for the NTS Mobilisation Phase in accordance with clause 2.2 of theagreement:

 

1.               The CompletionPre-Conditions completed in accordance with the process described in Schedule 3for the NTS Release 0 and Prototyping Phase, NTS Front Office Design andHardware FAT Phase, NTS Front Office Software FAT and Back Office Release 1 and2 Phase, NTS Final Back Office Release Phase, NTS Front Office User AcceptanceTest Phase, NTS User Acceptance Test Phase, NTS Front Office Implementation 1Phase, NTS Front Office Implementation 2 Phase.

 

2.               Incorporation of ACICA Rules toreplace the ACDC rules contained in clause 49 (dispute resolution) of theagreement if the ACICA Rules have been finalised prior to the Phase Datefor the NTS Mobilisation Phase.

 

3.               The process forordering Smartcards and the Smartcard pricing mechanism to be incorporated intoSchedule 10 and Schedule 32.

 

4.               The Glossary to the RFTis to be reviewed by the Principal and the Contractor and will be amended to beconsistent with the defined terms used in the agreement.  The Glossary to the RFT, as so amended, willbe the glossary for the Requirements Document. This process will be undertaken through discussion with the Contractor.  The RFT means the Request for Tender relatingto the Solution released by the Principal on 30 July 2004 as supplementedand varied by Errata, Addenda and the Revised Offer Brief released by thePrincipal on 20 December 2004.

 

5.               All Category 1 Matters deemedto be Category 2 Matters under clause 2.1(b) of the agreement, to beagreed in accordance with the principles and processes described in Part Aof this Schedule 37 for the relevant item.

 

Agreement of the items set out in this Part B will be a CompletionPre-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 PhaseDate for the NTS Solution Requirements Phase:

 

1.               The Design Documentslist and contents to be developed in accordance with the completion processdescribed in Schedule 38.

 

2.               Exhibit 2B is tobe reviewed by the Principal and the Contractor for the purpose of deletingredundant or superseded documents. Only those documents that assist indescribing 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 beprepared and finalised in accordance with the completion process described in Schedule 39.

 

4.               The IndustrialRelations Plan to be prepared in accordance with the completion processdescribed in Schedule 22.

 

5.               The OH&S Plan to beprepared in accordance with the completion process described in Schedule 23.

 

6.               The draft BusinessContinuity Plan to be prepared in accordance with the completion processdescribed in Schedule 28.

 

7.               Provision of the draftAccess Plans in accordance with and as required by Schedule 24.

 

8.               The Transfer Plandeveloped in accordance with the Transfer Principles.

 

9.               The completion of Schedule 7in 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 1and 2 - installation and de-installation hours and costs required to completeParts 1 and 2.

 

10.         The contractual mechanism andextent of ownership of Intellectual Property (“IP”) in the Solutionincorporating the following principles:

 

a.               The Principal to ownthe Developed IP within the Territory;

 

b.              The Principal to ownContractor Licensed IP in the Solution within the Territory;

 

c.               The Principal to haverights akin to ownership for Headstrong IP in the Solution within the Territorythrough a broad licensing regime;

 

d.              Identification ofLicensed IP in the Solution to remain outside (a) and (b) (e.g. AscomIP);

 

e.               The Contractor to ownthe 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 outin Schedules 29 to 31 as at the Commencement Date.  Similarly, completion of Schedule 42 inrelation to design targets and drafting of obligations with respect to thosedesign targets will be based on the principles set out in schedule 31 andthe form of Schedule 42 which is annexed to Schedule 31 as at theCommencement Date.  It is expected thatconsequential changes will need to be made to the agreement to reflect thefinal agreement in regards to performance and design targets.

 

----

 

12.         The insurance policy termsand conditions, individual claim limits, aggregate claim limits and exclusionsremain subject to review and approval by the Principal.

 

13.         The wording of clause 29.7 tobe agreed in accordance with the following principles:

 

The Contractor shall takeresponsibility for shortfalls arising out of errors in reconciliation, subjectto:

 

a.               the cause of the error in reconciliation being determined through aroot 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 tobe determined over a period of time and not on a daily basis; and

 

d.              the Contractor’s liability for shortfalls does not cut across otherrelief which the Contractor has under the agreement, and in particular issubject 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 34in regard to:

 

a.               the expiry dates ofOptions;

 

b.              the pricing of Smartbusfunctionality; and

 

c.               clarification anddocumentation of the VLP reservation system.

 

16.         All Category 2 Matters deemedto be Category 3 Matters under clause 2.4(b) of the agreement, to beagreed in accordance with the principles and processes described in Part Bof this Schedule 37 for the relevant item.

 

Agreement of the items set out in this Part C will be a CompletionPre-Condition for the NTS Solution Requirements Phase (refer to Schedule 3).

 

----

 

**Schedule 38**

 

**Schedule 38Design 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

 

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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 MaintenanceProcedures

 

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 RequirementsSpecification

 

99.                                                 Rail Solution Business Requirements Specification

 

100.                                           Third Party Agents Solution Business Requirements Specification

 

101.                                           Tram Solution (Including Stony Point Solution) Business RequirementsSpecification

 

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 Specificationdocument

 

114.                                           Interchanges & Super stops Equipment SW Specificationdocument

 

115.                                           Interfaces Specification

 

116.                                           NTS Business Architecture Specification

 

117.                                           Operator Report Formats Specification

 

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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 HWSpecification document

 

129.                                           Tram Solution (Including Stony Point Solution) Equipment SWSpecification document

 

130.                                           Central Systems Operations Specification

 

131.                                           Depot Operation  & FLM of Depot Computer & WDTSSpecification

 

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) OperationsSpecification

 

138.                                           Hand-Held Device Solution Operations Specification

 

139.                                           Third Party Agents Solution Operations Specification

 

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**Part B**

** **

**Completion Process**

** **

The DesignDocuments to be developed in accordance with clause 12.4 will be based onthe Principal’s indicative list of minimum design documents included in Part Aof this Schedule 38. The Design Documents need not be the precisedocuments referred to in Part A of this Schedule 38 but must coverthe subject matter implied by the name of those documents.

 

The Contractorshall ensure that its proposed Design Document list prepared in accordance withthis Schedule 38 reflects the Contractor’s design, development anddelivery methodology for the Solution and its obligations in the previousparagraph.

 

The Contractormust provide to the Principal a list of all Design Documents that are requiredto be developed in accordance with the agreement, prior to the Phase Date forthe NTS Solution Requirements Phase.

 

The DesignDocument 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 andindicative timing;

 

•                                                          the proposed Contractor internal review process in relation to thedevelopment of each document; and

 

•                                                          a version control descriptor for each document.

 

Approval bythe Principal of the Design Document list will be a Completion Pre-Condition tothe NTS Solution Requirements Phase (refer to Schedule 3).

 

Thiscompletion 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).

 

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**Schedule 39**

 

**Schedule 39Test Plan**

** **

(Clause 15.1)

**Completion Process**

** **

The Contractormust prepare and implement, in accordance with clause 15.1 of theagreement, the Test Plan based on the test strategy document included in this Schedule 39.

 

The Contractormust undertake the following process to develop and complete the Test Plan:

 

•                                                          The Contractor must develop a Test Plan, based on the strategydocument included in this Schedule 39, which describes and documents thetests required to prove that the Solution complies with the requirements of theagreement including the Requirements Document.

 

•                                                          The Test Plan will provide for sub-component testing, component andDevice testing, system testing, integration testing and overall Solutiontesting and will include:

 

•                                                          a list of all tests to be undertaken by the Contractor;

 

•                                                          a detailed description of each test including the objectives foreach test;

 

•                                                          a test schedule including tests to be conducted by thePrincipal 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 foreach test; and

 

•                                                          test reporting requirements for each test.

 

•                                                          The Contractor’s Test Plan will include integration of the Devicetesting regime by subcontractors so that the test results will demonstrate thecomplete seamless integration of all Device components, including hardware,software and supportive infrastructure, with other components/systemscomprising the Solution.

 

•                                                          The Contractor must prepare and finalise the Test Plan in accordancewith clause 12.4, except that reference to the Project Master Schedule shallbe taken to mean by not later than the Phase Date for the NTS SolutionRequirements Phase.

 

Acceptance ofthe Test Plan by the Principal will be a Completion Pre-Condition for the NTSSolution Requirements Phase.

 

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**Schedule 40**

 

**Schedule 40Banking Arrangements**

** **

(Clause 27.9)

 

**Part A**

 

•                       Fees or chargesimposed on the Principal for transactions, including fees and charges fordisputed and dishonoured transactions, fees for the depositing of cash and anytaxes, in respect of the Principal’s use of the Australian Payments System inrelation to the Solution.

 

•                       Chargebacks  and related fees payable by the Principalunder any agreement in relation to its activities as a member of any paymentscheme within the Australian Payments System.

 

•                       Any periodicaccount keeping fee howsoever described imposed on the Principal for the bankaccount or accounts in which the Float is held.

 

**Part B**

 

•                       FinancialManagement

 

•                       Datacommunication services

 

•                       EFTPOS terminaland target specification

 

•                       EFTPOS terminaland target vendor selection

 

•                       EFTPOS terminaland target funding

 

•                       EFTPOS terminaland target software development costs

 

•                       EFTPOS terminaland target certification costs

 

•                       EFTPOS terminaland target installation and training

 

•                       EFTPOS terminaland target support (1st & 2nd level)

 

•                       Operation ofInteractive Voice Recognition and internet payment services (excluding fees andcharges set out in Part A)

 

•                       Cash handlingfee

 

•                       Reasonablecosts of tender for acquiring bank (compilation & selection)

 

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**Schedule 41**

 

**Schedule 41Intellectual Property excluded from Equipment IP**

 

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**Schedule 42**

 

**Schedule 42Design Targets**

 

This schedule will be completed in accordance with thecompletion process set out in Schedule 31.

 

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**Listof Exhibits**

** **

** **

** **

**Exhibit1**

** **

**NTSRequirements Document**

** **

** **

**Exhibit2A**

** **

**Contractor'sPrimary Response**

** **

** **

**Exhibit2B**

** **

**Contractor'sSecondary Response**

** **

** **

**Exhibit3**

** **

**ProjectTimeline**

** **

** **

**Project3A**

** **

**ProjectMaster Schedule**

** **

** **

**Exhibit4**

** **

**Descriptionof Phase Deliverables**

** **

** **

**Exhibit5**

** **

**VictorianIndustry Participation**

** **

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