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DRAFT ATTACHMATE SOFTWARE MAINTENANCE AND SUPPORT SERVICES AGREEMENT

between

SOUTH AFRICAN REVENUE SERVICE

[Customer]

and

[XXX][Service Provider Name]

Confidential

TABLE OF CONTENTS

1 INTERPRETATION.......................................................................................................52 INTRODUCTION.........................................................................................................163 COMMENCEMENT AND DURATION........................................................................164 AGREEMENT STRUCTURE......................................................................................175 SOFTWARE PROCUREMENT SERVICES...............................................................186 MAINTENANCE AND SUPPORT SERVICES............................................................187 OTHER SERVICES.....................................................................................................218 DELIVERY.................................................................................................................. 229 ESCALATION PROCEDURES...................................................................................2310 SERVICE COMPATIBILITY........................................................................................2311 TESTING..................................................................................................................... 2412 SUBCONTRACTORS.................................................................................................2513 HEALTH, SAFETY AND SECURITY PROCEDURES AND GUIDELINES................2514 FEES AND PAYMENT................................................................................................2615 INTELLECTUAL PROPERTY RIGHTS......................................................................2616 ALIGNMENT IN LICENCE QUANTITIES (TRUE-UP)................................................2717 DATA PROTECTION AND CONFIDENTIALITY........................................................2818 AUDITS....................................................................................................................... 3219 WARRANTIES............................................................................................................3320 BROAD BASED BLACK ECONOMIC EMPOWERMENT..........................................3621 RISK OF LOSS...........................................................................................................3622 INDEMNITIES.............................................................................................................3723 PUBLICITY................................................................................................................. 3724 CO-OPERATION........................................................................................................3725 LIMITATION OF LIABILITY........................................................................................3726 TERMINATION...........................................................................................................3827 TERMINATION FOR CONVENIENCE........................................................................3928 EFFECT OF TERMINATION.......................................................................................3929 TERMINATION/EXPIRATION ASSISTANCE.............................................................3930 DISPUTES.................................................................................................................. 4031 FORCE MAJEURE.....................................................................................................4132 NON-EXCLUSIVITY....................................................................................................4133 NOTICES AND DOMICILIA........................................................................................4234 GENERAL................................................................................................................... 4335 BENEFIT OF THE AGREEMENT...............................................................................4536 APPLICABLE LAW AND JURISDICTION.................................................................4537 COSTS........................................................................................................................ 45

Draft Attachmate Software Maintenance & Support Services Agreement Page

38 SIGNATURE...............................................................................................................46ANNEXE "A" – SOFTWARE SCHEDULE...........................................................................48ANNEXE "B" – CHARGES SCHEDULE................................................................................11 GENERAL..................................................................................................................... 12 INVOICING REQUIREMENTS AND PAYMENT...........................................................13 TAX, DUTIES AND CURRENCY ISSUES....................................................................44 ADJUSTMENT IN CHARGES......................................................................................45 DISPUTED CHARGES AND INVOICING ERRORS.....................................................56 ONGOING SERVICES..................................................................................................67 CHARGES ON A TIME AND MATERIALS BASIS......................................................78 NEW SERVICES...........................................................................................................29 TERMINATION/EXPIRATION ASSISTANCE...............................................................210 EXTRAORDINARY EVENTS........................................................................................311 TERMINATION CHARGES...........................................................................................312 CESSATION UPON PARTIAL TERMINATION OR REDUCTION IN

REQUIREMENTS.........................................................................................................413 SERVICE LEVEL CREDITS.........................................................................................4APPENDIX B-1: SERVICE PRICING TABLES......................................................................5APPENDIX B-2: PERSONNEL RATES AND SKILL CLASSIFICATIONS............................6ANNEXE "C" – ATTACHMATE SOFTWARE MAINTENANCE AND SUPPORT SERVICES

SCHEDULE................................................................................................................... 11 SINGLE POINT OF CONTACT.....................................................................................12 CONTACT LOGGING SYSTEM INTEGRATION..........................................................23 RESOURCES................................................................................................................34 HOURS OF SERVICE...................................................................................................35 INCIDENT MANAGEMENT SERVICES.......................................................................36 PROBLEM MANAGEMENT SERVICES......................................................................87 CONSULTING SERVICES..........................................................................................148 MAINTENANCE AND SUPPORT SERVICES............................................................169 SUPPORT................................................................................................................... 1710 OTHER SERVICES.....................................................................................................1711 TRAINING................................................................................................................... 1812 CATEGORISATION OF PRIORITIES...........................................................................113 ESCALATION...............................................................................................................1ANNEXE "D" – SERVICE LEVELS........................................................................................21 GENERAL..................................................................................................................... 22 SERVICE LEVELS........................................................................................................23 CHANGES IN SERVICE LEVELS................................................................................34 STATUS OF SERVICE LEVEL CREDITS....................................................................3

Draft Attachmate Software Maintenance & Support Services Agreement

5 PERFORMANCE AGAINST SERVICE LEVELS..........................................................46 ACTIONS ON FAILURES.............................................................................................57 REPORTING.................................................................................................................68 ENTITLEMENT TO SERVICE LEVEL CREDITS.........................................................69 CALCULATION OF SERVICE LEVEL CREDITS.........................................................710 EXCUSED PERFORMANCE........................................................................................7APPENDIX D-1: SERVICE LEVELS AND SERVICE LEVEL CREDITS................................91 GENERAL..................................................................................................................... 92 MANUFACTURER NOTIFICATION SERVICE LEVEL................................................93 CONTACT RESPONSE SERVICE LEVEL...................................................................94 ONSITE PRESENCE SERVICE LEVEL.....................................................................105 TIME TO RESOLVE INCIDENTS SERVICE LEVEL..................................................10


Confidential

TERMS AND CONDITIONS

This agreement does not constitute a final agreement between the parties. SARS

reserves the right to amend same, at its own discretion, at any point prior to

signature hereof.]

This agreement, effective as of __ (XXXX 20XX)_ ("Effective Date"), is entered into

by and between the South African Revenue Service, an organ of state established in

terms of the South African Revenue Service Act, 1997 (act no 34 of 1997) with its

registered address located at its Pretoria head office, 299 Bronkhorst street, Nieuw

Muckleneuk, 0181, the republic of South Africa ("SARS") and

____________________ [Service Provider's Company name] (Proprietary)

Limited, (registration no. ____________), a company incorporated under the laws of

the ____________________ with its registered address located at

______________________, the ( ___________________) ("Service Provider").

[NOTE TO THE BIDDER: THE ABOVE FIELDS MUST BE COMPLETED AS PART OF THE BIDDER’S CONTRACT MARK-UP RESPONSE]

WHEREBY THE PARTIES AGREE AS FOLLOWS -

1 INTERPRETATION

1.1 In this Agreement (as hereinafter defined) -

1.1.1 clause headings are for convenience only and are not to be used in its

interpretation;

1.1.2 an expression which denotes -

1.1.2.1 any gender includes the other genders; and

1.1.2.2 a natural person includes a juristic person and vice versa;

1.1.2.3 the singular includes the plural and vice versa.

1.2 In this Agreement, unless the context indicates a contrary intention, the


following words and expressions bear the meanings assigned to them, and

cognate expressions bear corresponding meanings –

1.2.1 "Acceptance Testing" means the testing by the Customer of a specific

Deliverable or set of Deliverables for the purposes of determining

whether such Deliverable(s) complies with the Documentation;

1.2.2 "Agreement" means, collectively, the Agreement and all annexes and

appendices thereto;

1.2.3 "BBBEE" means broad-based black economic empowerment as defined

in the Broad-based Black Economic Empowerment Act, 2003 (Act No.

53 of 2003);

1.2.4 "BEE Codes" mean generally, the Codes of Good Practice on Black

Economic Empowerment gazetted by the Minister of Trade and Industry

under section 9 of the Broad-based Black Economic Empowerment Act,

2003 (Act No. 53 of 2003);

1.2.5 "BEE Generic Scorecard" means the balanced BBBEE scorecard

included in Code 000 Statement 000;

1.2.6 "BEE Status" means the BEE Status of the Service Provider based on

its Generic Scorecard as measured and certified by a verification agency

in accordance with the applicable BEE Codes;

1.2.7 "BEE Verification Certificate" means a certificate issued by a

Verification Agency, verifying the Service Provider's BEE Status level

and the details of its scorecard performance on the Elements of the

Generic Scorecard;

1.2.8 “Charges” means the amounts payable by the Customer to the Service

Provider for the Services as set forth in Annexe “B” (Charges Schedule)

hereto;

1.2.9 “Commercially Reasonable Efforts” means taking such steps and

performing in such a manner as a well-managed business would

undertake where such business or entity was acting in a determined,

prudent, and reasonable manner to achieve the particular result for its

own benefit provided always that such steps are within the reasonable


control of the Party;

1.2.10 "Confidential Information" means-

1.2.10.1 in relation to SARS, subject to sub-clause 1.2.10.3 below in this

definition, any information or data of any nature, whether provided

orally or in writing or otherwise obtained and in any format or medium,

which –

1.2.10.1.1 is “taxpayer information”, which means any information provided

by a taxpayer or obtained by SARS in respect of the taxpayer,

including biometric information;

1.2.10.1.2 is ‘SARS Confidential Information’ as defined and regulated in

accordance with Chapter 6 of the Tax Administration Act, 2011,

(Act No 28 of 2011) and section 4 of the Customs and Excise Act,

1964 (Act No 91 of 1964);

1.2.10.2 in relation to Service Provider, subject to sub-clause 1.2.10.3

immediately below in this definition, any information or data of any

nature, whether provided orally or in writing and in any format or

medium, which is clearly designated in writing by Service Provider, at

the time of disclosure to SARS, as being Confidential Information,

and which written designation is in each case acknowledged by

SARS, by SARS initialling such designation;

1.2.10.3 does not include information that (i) is lawfully publicly available to, or

lawfully in the Receiving Party’s possession, at the time of disclosure

thereof by the Furnishing Party (whether before or after the Effective

Date) to the Receiving Party; or (ii) is independently developed or

learned by the Receiving Party without reference to or use of the

Confidential Information of the Furnishing Party; or (iii) is in or enters

the public domain without breach of this Agreement or any other


obligation owed by the Receiving Party to the Furnishing Party; (iv)

the Receiving Party receives from a Third Party without restriction on

disclosure and without breach of a non-disclosure obligation; provided

always that notwithstanding the foregoing –

1.2.10.3.1 the onus will at all times rest on the Receiving Party to establish

that such information falls within such exclusions;

1.2.10.3.2 the information disclosed will not be deemed to be within the

foregoing exclusions merely because such information is

embraced by more general information that is publicly available or

in a Party’s possession;

1.2.10.3.3 any combination of features will not be deemed to be within the

foregoing exclusions merely because individual features are

publicly available or in a Party’s possession, but only if the

combination itself is publicly available or in a Party’s possession;

and

1.2.10.3.4 the determination of whether information is Confidential

Information will not be affected by whether or not such information

is subject to, or protected by, common law or statute related to

copyright, patent, trademarks or otherwise.

1.2.11 “Customer Data” means all information, whether or not Confidential

Information, entered into supported assets by or on behalf of SARS,

Governmental Entities and Taxpayers, and information derived from

such information, including as stored in, processed by, or transmitted

through the supported assets;

1.2.12 "Customer PPS&G" means the Customer’s policies, procedures,

processes, standards, guidelines, and other similar issuances (including

any updates, amendments or revisions) that are applicable to the

Services or the Service Provider from time to time, as communicated to


the Service Provider by the Customer;

1.2.13 "Data" means any data as defined in the Electronic Communications

and Transactions Act, Act no 25 of 2002 and includes Personal

Information as defined in section 1 of Protection of Personal Information

Act No. 4 of 2013, and any other applicable legislation in the jurisdiction

where the Services are to be provided, supplied, stored, collected,

collated, accessed or processed on behalf of the Customer by the

Service Provider. In respect of the Customer, "Data" include

information relating to Taxpayers;

1.2.14 "Deliverable" means any materials that are provided by the Service

Provider to the Customer as part of the Services pursuant to this

Agreement, including the Software, Documentation, specifications or

other documentation and any deliverables under a Project;

1.2.15 "Deficiency" means any error, problem, non-conformity or defect

resulting from any Deliverable deviating from its documentation or

specifications; or incorrect or incomplete documentation;

1.2.16 "Disclosing Party" being either of the Parties referred to in clauses

1.2.26.1 and 1.2.26.2 whose Confidential Information is disclosed;

1.2.17 "Documentation" means the documentation to be furnished by the

Service Provider as set forth in this Agreement and as listed in Annexe

".........." hereto. [Note to Bidder: to be included in final agreement]

1.2.18 "Effective Date" means [_______________________], notwithstanding

the date of signature by the last signing Party hereto; [Note to Bidder: this will be the date upon which this agreement becomes effective. To be determined as per award if an award is made];

1.2.19 “Incident” means any event that is not part of the standard operation of

a service and which causes, or may cause, an interruption to, or a

reduction in, the quality of that service;

1.2.20 "Intellectual Property" means any know-how (not in the public

domain), invention (whether patented or not patented), design, trade


mark (whether registered or not registered), or Copyright Material

(whether registered or not registered), goodwill, processes, process

methodology and all other identical or similar intellectual property as

may exist anywhere in the world and any applications for registration of

such intellectual property. For the purposes of this definition, "Copyright Material" means any Material in which copyright subsists;

1.2.21 "Losses" means all losses, liabilities, costs, expenses, fines, penalties,

damages and claims, and all related costs and expenses (including legal

fees on the scale as between attorney and own client, tracing and

collection charges, costs of investigation, interest and penalties).

1.2.22 "Agreement" means the terms and conditions contained in the main

body of this Attachmate Software Support and Maintenance Services

Agreement;

1.2.23 "Maintenance Services" means the performance of such scheduled

and/or preventative maintenance as may be required for the purpose of

ensuring the continued functionality of the Software with its

specifications and the Documentation, including the identification and

notification of Problems, the provision and installation of workarounds,

patches, bug-fixes, Upgrades, enhancements and New Releases and all

maintenance activities described in Annexe “C” hereto. For the

avoidance of doubt, the provisions of this clause 1.2.23 will apply in

respect of all copies of the Software used by the Customer, including

those used by the Customer for disaster recovery purposes.

1.2.24 "New Release" means a new release of the Software incorporating

Upgrades, bug-fixes or enhancements to the Software and which is

generally a replacement for the Software. For the sake of clarity, New

Releases are usually identified by a change in the version number, for

instance a change from version 1 to version 2;

1.2.25 “New Services” means additional services required by the Customer

from time to time, that are related to the Services;

1.2.26 "the Parties" means the parties to this Agreement, being -


1.2.26.1 "Customer" which is the South African Revenue Service, an organ

of the State established in terms of the South African Revenue

Service Act 34 of 1997;

1.2.26.2 "Service Provider" which is [________________] Registration

Number [_________________], a company registered in the

Republic of South Africa, and its successors in title and permitted

assigns;

1.2.27 "Problem" means the underlying cause of one or more Incidents; or

may mean the occurrence of a problem or error in the Software reported

by the Customer to the Service Provider, including a Deficiency;

1.2.28 “Project” means a set of tasks and other work relating to the Services

that are requested by the Customer after the Effective Date and

performed by the Service Provider thereafter: provided that (a) the work

is discrete and non-recurring; (b) the work requires start-up, planning,

execution and closure, (c) the completion of the work is likely to result in

a change to the environment in which the Services are provided; and (d)

the work is not required for the Service Provider to:

1.2.28.1 meet the Service Levels,

1.2.28.2 meet the Service Provider’s current obligations under the Agreement,

or

1.2.28.3 meet any other obligations of the Service Provider under this

Agreement.

The Parties may agree to refer to other aggregations of work that do not

meet the requirements of this definition of the term ‘Projects’ as projects.

In such case, such Projects will be in scope and will not attract additional

charges;

1.2.29 "Receiving Party" means the Party, other than the Disclosing Party,

that receives disclosure of any Confidential Information;

1.2.30 "Repo Rate" means the interest rate (percent per annum) at which the

South African Reserve Bank lends money to private banks;


1.2.31 "SANAS" means the South African National Accreditation System, a

national accreditation body recognised by the South African

Government;

1.2.32 "Services" means the services, functions and responsibilities provided

by the Service Provider to the Customer as detailed in this Agreement

and as they may evolve or be supplemented, enhanced, modified or

replaced in accordance with the terms of the Agreement; and in

particular means: (i) the Maintenance Services; (ii) the Support Services;

(iii) training Services; (iv) consultancy Services and any services related

to those detailed in (i) to (iv) above;

1.2.33 “Service Level” means a quantitative standard of performance of the

Services that Service Provider is required to satisfy in its performance of

the Services, as are detailed under Annexe “D”;

1.2.34 "Service Level Credit" means a penalty amount which will be payable

by the Service Provider for its failure to meet a Service Level;

1.2.35 "Service Level Failure" means the Service Provider's failure to meet a

Service Level;

1.2.36 "Software" means the Attachmate computer software programmes that

are licensed to the Customer by LICENSOR, including (i) those

Attachmate programme licences which are held by the Customer as at

the Effective Date; and (ii) any additional licensed Attachmate software

programmes which the Customer may procure licenses to (either itself or

as part of the Services from the Service Provider) during the Term.

Reference to the term "Software" will include any Upgrades and New

Releases of the Software. The Software which is licensed to the

Customer as at the Effective Date is detailed in Annexe "A" hereto.

Annexe “A” may be modified during the Term to incorporate details of

licenses granted to the Customer subsequent to the Effective Date;

1.2.37 "Software Licence Procurement Services" means, at the Customer's

specific request (which will be provided in the Customer's sole

discretion), the Service Provider's procurement of licences to the


Software and related products on behalf of the Customer and delivery of

the Software and related products to the Customer;

1.2.38 "Staff" means any employee, independent contractor, agent, consultant,

sub-contractor or other representative of either Party;

1.2.39 "Support Services" means the provision of services by the Service

Provider to the Customer whereby the Service Provider resolves all

Incidents and Problems and provides consultancy and development

services in respect of or related to the Software to ensure the continued

functionality of the Software in accordance with its specifications and the

Documentation, which services may include the provision of telephonic

and on-site assistance, remote access support, bug fixes, work-arounds

and temporary fixes, patches and Upgrades and all support activities

described in Annexe “C” hereto. For the avoidance of doubt, the

provisions of this clause 1.2.39 will apply in respect of all copies of the

Software used by the Customer, including those used by the Customer

for disaster recovery purposes;

1.2.40 "Taxpayer" means a person who is subject to the tax laws and

regulations of the national or provincial governmental entities in South

Africa;

1.2.41 "Term" means the term of the Agreement which includes the Initial

Term and any Renewal Terms as defined in clause 3 below;

1.2.42 “Third Party” means any person or entity, whether an individual,

trustee, corporation, partnership, limited partnership, limited liability

company, trust, unincorporated organisation, business association, firm,

joint venture, governmental unit, agency or other body (other than the

Customer or Service Provider);

1.2.43 “Third Party service provider” means a Third Party which provides

goods or services which relate to the Services to SARS, either directly or

on a Pass Through Expense Basis;

1.2.44 "Time and Materials Basis" means the basis on which the Service

Provider will charge the Customer for services explicitly designated as


such and which is based on the time spent and the materials utilised to

execute such services. All such time will be billed in accordance with

the time and materials rates set forth in Annexe "B" hereto;

1.2.45 "Upgrade" means any change or improvement to the Software or any

component thereof that relates to or affects the operating performance of

such Software or an aspect of such Software, but does not change the

basic operation or functionality of the Software. For the sake of clarity,

Upgrades are usually identified by a change in the version number, for

instance a change from version 1.1 to version 1.2; and

1.2.46 "Verification Agency" means a BEE Verification Agency contemplated

by the BEE Codes which, at the time of the issue of any certificate or

confirmation of any aspect of the Service Provider's BEE Status for

purposes of this Agreement, is -

1.2.46.1 a verification agency accredited by SANAS; or alternatively

1.2.46.2 a verification agency that has been issued with a valid pre-

assessment letter from SANAS.

1.3 Any substantive provision, conferring rights or imposing obligations on a

Party and appearing in any of the definitions in clause 1 or elsewhere in this

Agreement, will be given effect to as if it were a substantive provision in the

body of this Agreement.

1.4 Words and expressions defined in any clause will, unless the application of

any such word or expression is specifically limited to that clause, bear the

meaning assigned to such word or expression throughout this Agreement.

1.5 Terms other than those defined within this Agreement will be given their

plain English meaning, and those terms, acronyms, and phrases known in

the information technology industry will be interpreted in accordance with

their generally accepted meanings.

1.6 Subject to clauses 1.7, 1.8, 1.12, 1.13 and 1.14, defined terms appearing in

this Agreement in title case will be given their meaning as defined, while the

same terms appearing in lower case will be interpreted in accordance with

clause 1.5 above, and will, unless the context otherwise requires, include


the terms as defined.

1.7 Reference to "days" will be construed as calendar days unless qualified by

the word "business", in which instance a "business day" will be any day

other than a Saturday, Sunday or public holiday as gazetted by the

government of the Republic of South Africa from time to time. Any

reference to "business hours" will be construed as being the hours

between 07h00 (seven o’clock in the morning) and 17h00 (five o’clock in

the afternoon) on any business day. Any reference to time will be based

upon South African Standard Time being Greenwich Mean Time plus 2

(two) hours.

1.8 Unless specifically otherwise provided, any number of days prescribed will

be determined by excluding the first and including the last day or, where the

last day falls on a Saturday, Sunday or public holiday as gazetted by the

government of the Republic of South Africa from time to time, the next

succeeding business day.

1.9 Where figures are referred to in numerals and in words, and there is any

conflict between the two, the words will prevail, unless the context indicates

a contrary intention.

1.10 No provision herein will be construed against or interpreted to the

disadvantage of a Party by reason of such Party having or being deemed to

have structured, drafted or introduced such provision.

1.11 The expiration or termination of this Agreement will not affect such of the

provisions of this Agreement as expressly provide that they will operate

after any such expiration or termination or which of necessity must continue

to have effect after such expiration or termination, notwithstanding that the

clauses themselves do not expressly provide for this.

1.12 The words "include" and "including" mean "include without limitation" and

"including without limitation". The use of the words "include" and

"including" followed by a specific example or examples will not be

construed as limiting the meaning of the general wording preceding it.

1.13 Any reference in this Agreement or any other agreement or document to


"this Agreement" will be construed as a reference to this Agreement as

amended, varied, supplemented in accordance with the provisions of this

Agreement, or novated from time to time.

1.14 This Agreement incorporates the Annexes, which Annexes will have the

same force and effect as if set out in the body of this Agreement. In this

Agreement the words "clause" or "clauses"; and "Annexe" or

"Annexes" refer to clauses of; clauses of; and annexes to this Agreement

respectively.

2 INTRODUCTION

2.1 The Customer requires the specialist expertise and knowledge of the

Service Provider to perform the Services. The Service Provider represents

that it has the necessary expertise, skill, know-how, qualifications and

ability to undertake the work required in terms of the Services.

2.2 The Customer hereby appoints the Service Provider, and the Service

Provider hereby accepts such appointment, to perform the Services for the

Customer, upon the terms and conditions contained herein.

3 COMMENCEMENT AND DURATION

3.1 This Agreement will commence upon the Effective Date and will endure for

a period of 36 (thirty-six) months thereafter ("Initial Term") unless

terminated in accordance with the provisions of this Agreement.

3.2 Upon expiry of the Initial Term, the Customer has the right to renew this

Agreement for 2 (two) consecutive periods of 12 (twelve) months

("Renewal Term"), subject to either Party's right either before or after such

renewal, to terminate this Agreement in accordance with the provisions of

this Agreement.


4 AGREEMENT STRUCTURE

4.1 Agreement

4.1.1 This Agreement provides a framework for, and the general terms

applicable to, the Services that the Service Provider will provide to the

Customer under this Agreement.

4.1.2 This Agreement is supplemented with annexes and appendices.

4.2 Annexes and appendices

4.2.1 By written agreement, the Parties may, from time to time, include under

the Agreement, additional annexes and appendices pertaining to the

Services provided by the Service Provider to the Customer under the

Agreement.

4.2.2 The provisions of this Agreement will, unless otherwise agreed in writing,

apply to each annexe and appendix hereto.

4.2.3 The Service Provider will provide the Services to the Customer subject

to the terms and conditions of the Agreement generally and subject to

the terms and conditions set forth in the relevant annexes and

appendixes hereto.

4.3 Proposals by the Service Provider

4.3.1 In the event that the Service Provider provides the Customer with a

proposal for Services, New Services and/or Projects pursuant to this

Agreement, the terms and conditions of such proposal will at all times be

subject to the terms and conditions of the Agreement. For the avoidance

of doubt, any terms and conditions incorporated in any proposal which

conflict with the terms and conditions of the Agreement will be null and

void.


4.4 Order of precedence

In the event of a conflict between the Agreement and any annexe or

appendix hereto, the terms and conditions of this Agreement will prevail

over that contained in any annexe or appendix to this Agreement.

5 SOFTWARE PROCUREMENT SERVICES

5.1 During the Term, the Customer may, in its sole discretion, request the

Service Provider to provide the Software Licence Procurement Services.

5.2 Where the Customer requests the Service Provider to provide Software

Licence Procurement Services, the Service Provider will, prior to procuring

the Software, submit a pricing proposal to the Customer. The Service

Provider undertakes to achieve the best possible prices for Software

procured by it and will ensure that its pricing proposal will at a minimum

always apply the agreed discounts applicable to the Licensor list price for

the Software, as set forth in Appendix B-1 hereto.

6 MAINTENANCE AND SUPPORT SERVICES

6.1 Maintenance Services:

6.1.1 Service Provider responsibilities: The Maintenance Services will be

provided for the duration of this Agreement. In providing the

Maintenance Services, the Service Provider will-

6.1.1.1 promptly notify the Customer of any Upgrades or New Release of the

Software;

6.1.1.2 provide with each notification, release notes specifying: (i) the nature

of such Upgrades or New Release; and (ii) any adverse effects which

the Upgrades or New Release may be expected to have, including,

without limitation, any expected degradation in performance of the

Software. The Service Provider undertakes that such release notes

will contain sufficient information to enable the Customer to determine

whether such Upgrade or New Release will be appropriate to the

Customer's requirements. Should the Customer wish to review the

Upgrades or New Release, then the Customer will notify the Service


Provider in writing accordingly;

6.1.1.3 procure, within 7 (seven) days of receipt of a notification referred to in

clause 6.1.1.2, that it delivers to the Customer the object code of the

Upgrade or New Release in machine readable form together with any

amendments to the Documentation (or updated Documentation, as

the case may be) which will be necessary to describe and enable

proper use of the improved facilities and functions of the Upgrade or

New Release;

6.1.1.4 ensure that it is available at all times during any Customer evaluation

period to provide assistance to the Customer in this respect; and

6.1.1.5 continue to provide any Maintenance Services and/or Support

Services to the Customer in respect of the release in use by the

Customer in the event that the Customer elects not to evaluate and/or

install the Upgrades or New Release.

6.1.2 Customer Responsibilities:

The Customer will, at its election evaluate the Upgrade or New Release

and will indicate to the Service Provider whether it wishes to install such

Upgrade or New Release.

6.1.3 Commencement of Maintenance Services:

6.1.3.1 The Service Provider will provide the Maintenance Services -

6.1.3.1.1 from the Effective Date and in respect of Software already installed

at the Customer prior to the Effective Date;

6.1.3.1.2 in respect of Software procured by the Service Provider under this

Agreement, from the date of installation of the Software by the

Customer; and

6.1.3.1.3 in respect of Software procured by a Third Party service provider

on behalf of the Customer after the Effective Date, from the date

that the Customer informs the Service Provider of the installation

of the Software.


6.2 Support Services:

6.2.1 The following terms will apply to the Service Provider's provision of

Support Services:

6.2.1.1 The Service Provider will provide the Support Services in accordance

with the procedures detailed in Annexe "C" hereto.

6.2.1.2 The Support Services will be provided during business hours.

6.2.1.3 The Service Provider will, at its expense, supply all items necessary

or required for the Support Services.

6.2.1.4 Where the Software become defective, the Service Provider will

repair or replace same.

6.2.1.5 The Service Provider undertakes that in providing the Support

Services it will use its Commercially Reasonably Efforts to ensure that

the Software functions error-free and to maintain the Software's

continued compliance with its specifications and the Documentation.

The Service Provider will, on an ongoing basis apply its best

endeavours to provide proactive preventative maintenance and

advice in an effort to ensure that the Software will function error-free

and will continue to comply with its specifications and the

Documentation. In addition, the Service Provider will identify the

nature and cause of the Problem, advise the Customer thereof and

provide the Customer with future avoidance advice as well as

undertaking any necessary preventative measures to minimise

recurrence of the Problem.

6.2.2 Request for Support Services:

The Customer will request the assistance of the Service Provider with

regard to any Deficiencies in the Software which it may identify in

accordance with the procedure set forth in Annexe "C" hereto.

6.3 Training Services

The Service Provider will provide training Services related to the Software,


to the Customer and/or the Customer’s Staff in accordance with Annexe

"C" or as requested by the Customer.

7 OTHER SERVICES

7.1 New Services

7.1.1 From time to time, the Customer may require New Services from the

Service Provider. In response to a request from the Customer, the

Service Provider will submit a proposal that complies with the terms of

this clause and this Agreement generally, within no later than 5 (five)

business days after Service Provider's receipt of the Customer’s request.

The proposal will be in writing and will contain: (i) sufficient detail as to

the New Services to be provided; (ii) an implementation plan; (iii) the

amount, schedule and method of payment; (iv) the timeframe for

performance; and (v) the applicable completion and acceptance criteria.

7.1.2 The Customer may in its sole discretion allocate Service Levels to New

Services.

7.1.3 If the Customer accepts the proposal for the provision of the New

Services, such services will be recorded in an annexe to this Agreement,

with such New Services being governed by the terms and conditions of

this Agreement.

7.1.4 For any services required by the Customer for which the Service

Provider wishes to tender or bid and which are the subject of the

Customer's general tender or procurement procedures, the Service

Provider will be required to comply with the specific requirements in

respect of such tender or procurement procedure and general

procurement policy requirements, notwithstanding anything to the

contrary set out in this Agreement. The Customer does not in any way

guarantee that the Service Provider will be the successful bidder should

it in fact be eligible to bid for the work in question.

7.2 Projects

7.2.1 The Service Provider will perform Projects upon request by the


Customer. All Projects will be new initiatives over and above the

Services and will be recorded in separate annexes to this Agreement.

7.2.2 The Customer may, in its sole discretion, allocate Service Levels to

Projects.

7.2.3 The Customer may decide to perform Projects itself, award Projects to

the Service Provider, or award Projects to Third Party service providers

in its sole discretion.

7.2.4 It is agreed that with regard to any Projects which are awarded to a Third

Party service provider and which may have a direct impact or directly

interface or overlap with Services provided by the Service Provider

hereunder, the Service Provider agrees to cooperate with such Third

Party service provider, where necessary.

7.2.5 In the event that any Project is requested by the Customer, the Service

Provider will quote to the Customer a reasonable fee for such Project

and the Parties will promptly meet to discuss such quote and to

negotiate the scope of the Project in question. If the Parties do not reach

agreement, the Customer may elect in its sole discretion to have the

Service Provider perform the Project and the Service Provider will

perform the Project on a Time and Materials Basis. Additional expenses

or costs incurred by the Service Provider in respect of any Project for

hardware or materials used by the Service Provider as part of the

Project will only be chargeable to the Customer where the Customer has

pre-approved such expenses or costs in writing.

7.3 Consultancy Services

The Service Provider will provide ongoing consultancy services in the

Service Provider’s specialist fields of activity related to the operation and

improved/increased use of the Software, including the advice specified

in Annexure “C”, as may be reasonably requested by the Customer

from time to time in writing.

8 DELIVERY


8.1 In the case of Software licenses procured by the Customer under this

Agreement and generally in respect of all Upgrades and New Releases, the

risk in and to the Software will only pass to the Customer upon delivery as

evidenced by the Customer's signature to the Service Provider's delivery

note. For the avoidance of doubt, the Service Provider will bear all liability

for any Deficiencies, including any latent or patent defects, identified by the

Customer.

8.2 Should any Deliverable be delivered to the Customer in a damaged or

substandard condition, the Customer will be entitled to return such

Deliverable to the Service Provider, at the Service Provider's cost, in which

event the Service Provider will refund to the Customer the full amount paid

by the Customer in respect thereof or replace the Deliverable with the

equivalent Deliverable, delivered in an acceptable condition.

9 ESCALATION PROCEDURES

Escalation of matters related to this Agreement will be in accordance with

each Party's respective escalation procedure, which procedure is set forth in

Annexe "C" hereto.

10 SERVICE COMPATIBILITY

10.1 The Service Provider will cooperate with all Third Party service providers of

the Customer to coordinate its provision of the Services with the services

and systems of such Third Party service providers. Subject to reasonable

confidentiality requirements, such cooperation will include providing: (a)

applicable written information concerning any or all of the Service Provider

resources, data and technology strategies used in providing the Services;

(b) reasonable assistance and support services to such Third Party service

providers; and (c) access to systems and architecture configurations of the

Service Provider to the extent reasonably required for the activities of such

Third Party service providers. The Customer will procure that relevant Third

Party service providers to the Customer provide the Service Provider with

their reasonable cooperation, where reasonably requested by the Service

Provider.


10.2 The Service Provider will immediately notify the Customer if an act or

omission of a Third Party service provider may cause a problem (including

a Problem) or delay in providing the Services and will work with the

Customer to prevent or circumvent such problem or delay.

11 TESTING

11.1 Pre-delivery Testing

Prior to presenting any Deliverables (including any enhancements to the

Software, Upgrades, New Releases, bug fixes, work arounds or

patches) to the Customer for Acceptance Testing, the Service Provider

will carry out Pre-delivery Testing in order to ensure that the Deliverable

functions in accordance with the relevant specifications and the

Documentation for same.

11.2 Acceptance Testing

11.2.1 The Customer may elect to carry out Acceptance Testing of the

Deliverables and the Service Provider will be available to liaise with the

Customer regarding any queries arising with regard to a Deliverable and

its related documentation and will assist the Customer with its evaluation

of Deliverable and its related documentation.

11.2.2 Should the Customer not accept the Deliverable (and its related

documentation), the Customer will provide the Service Provider with

written notice of its non-acceptance. The Service Provider will correct

any Deficiencies within 24 (twenty four) hours of receiving the

Customer's notice, whereafter the Deliverable will be resubmitted to

Acceptance Testing in accordance with this clause.

11.2.3 If the Service Provider is unable to correct such Deficiencies within a

period of 14 (fourteen) days, the Customer will be entitled to a refund of

the fees paid for such Deliverable and related documentation and will

return the Deliverable and related documentation to the Service

Provider. Such refund will be made within 14 (fourteen) days of receiving

the Customer's notice of non-acceptance as contemplated in clause

11.2.2 above.


11.2.4 The Service Provider will ensure that the Deliverable and any

enhancements, Upgrades, New Releases, bug fixes, work-arounds and

patches procured in terms of this Agreement are compatible with the

information technology and telecommunications standards and

architectures of the Customer. This information is available to the

Service Provider upon prior written request.

12 SUBCONTRACTORS

12.1 The Service Provider may not sub-contract its obligations under this

Agreement without the prior written consent of the Customer which consent

may be withheld by the Customer in its sole discretion.

12.2 Should the Customer consent to such appointment, the Service Provider

will in no event be relieved of its obligations under this Agreement as a

result of its use of any subcontractors. The Service Provider will at all times

be responsible to the Customer for fulfilment of all the Service Provider's

obligations under this Agreement and will remain the Customer’s sole point

of contact regarding the Services, including with respect to payment.

12.3 The Service Provider will supervise the activities and performance of each

subcontractor and will be jointly and severally liable with each such

subcontractor for any act or failure to act by such subcontractor.

13 HEALTH, SAFETY AND SECURITY PROCEDURES AND GUIDELINES

13.1 The Service Provider will ensure that its Staff will at all times, whilst on the

Customer's premises, adhere to the standard health, safety and security

procedures and guidelines applicable to the Customer's Staff, as such

procedures and guidelines may be changed by the Customer from time to

time and are available to the Service Provider on request. Should the

Customer at any time have reason to believe that any member of the

Service Provider's Staff is failing to comply with such standard health,

safety and security procedures and guidelines, the Customer will be entitled

to deny such member of Service Provider's Staff to any or all of the

Customer's premises and require the Service Provider to replace such

member of Staff without delay.


13.2 The Service Provider hereby agrees and undertakes, in terms of section

37(2) of the Occupational Health and Safety Act, 1993, to ensure that the

Service Provider and the Service Provider's Staff comply with the aforesaid

Act and accept sole responsibility for all health and safety matters relating

to the provision of the Services, or in connection with or arising out of such

Services, for the duration of this Agreement, including with regard to the

Service Provider Staff and ensuring that neither the Customer's Staff nor

any Third Party service providers Staff's health and safety is endangered in

any way by the Service Provider's activities or conduct in providing the

Services.

14 FEES AND PAYMENT

The Charges applicable to the Services are set out in Annexe "B" hereto.

The relevant invoicing requirements and payment terms are also stipulated

in the aforementioned annexe.

15 INTELLECTUAL PROPERTY RIGHTS

15.1 The Customer retains all right, title and interest in and to the Customer's

Intellectual Property, including the Customer's Intellectual Property that is

used in connection with Services or incorporated into any deliverable

hereunder.

15.2 The Customer will retain all right, title and interest in and to all Deliverables

developed or generated for the Customer in terms of this Agreement. The

Service Provider hereby irrevocably assigns, transfers and conveys to the

Customer without further consideration all of its right, title and interest in

such Deliverables, including all Intellectual Property rights and/or other

proprietary rights in such materials and where such materials have not yet

been created, all future copyright therein (with immediate effect from the

date that such copyright comes into existence). Where the Service Provider

does not hold the right, title and interest in such Deliverables, including all

Intellectual Property rights and/or other proprietary rights in such materials,

the Service Provider will procure the rights as set out above for SARS from

the relevant Third Party service provider.


15.3 Other than Third Party commercial, widely available off the shelf software

("Commercial Software"), the Service Provider will not introduce into the

Customer's environment any Third Party Intellectual Property for the

continued duration of this Agreement or otherwise use such Third Party

Intellectual Property to provide the Services without first obtaining the

Customer's consent thereto. The Service Provider will be responsible for

obtaining a licence on behalf of the Customer and in the Customer's name,

to use such Third Party Intellectual Property from the Third Party service

provider.

15.4 With respect to Third Party Intellectual Property that is Commercial

Software, the Service Provider will consult with the Customer before

implementing any Commercial Software. Such consultation will specifically

address, among other things, the Customer's options and costs at

expiration or termination. The Service Provider's rights to implement such

Commercial Software will be subject to the Service Provider's obligations in

respect of change control.

15.5 The Service Provider will not, without the Customer's express prior written

consent, use any Third Party Intellectual Property licensed to the Customer

for any purpose whatsoever. The Service Provider acknowledges that such

unauthorised use of Third Party Intellectual Property licensed to the

Customer may constitute a breach of the provisions of the license

agreement/s in terms of which such Third Party Intellectual Property is

licensed to the Customer. Should consent be granted to the Service

Provider to use Third Party Intellectual Property licensed to the Customer,

the Service Provider undertakes that it will only use such Intellectual

Property strictly in accordance with the provisions of the relevant consent.

16 ALIGNMENT IN LICENCE QUANTITIES (TRUE-UP)

16.1 Before the anniversary of the Effective Date of the Agreement, but no later

than within 20 (twenty) business days of the anniversary date of the

Effective Date, the Service Provider will present the Customer with a

reconciliation of the Attachmate licences deployed by the Customer and on

Customer devices. The Customer must respond within 10 (ten) business


days to the Service Provider with disputes regarding the number of licences

reported.

16.2 In terms of the reconciliations for product licences that have been agreed

by the Customer, the true-up number will be the total number of Attachmate

product licences deployed in excess of the number of licences of the

Attachmate product that the Customer has previously purchased. The

true-up number will be calculated for each Attachmate product. The

Customer will be obliged to purchase the true-up number of licences for

each product where the true-up number is greater than zero. The Service

Provider will charge the Customer at the price of a new licence (excluding

any maintenance provision) plus 12 (twelve) months’ maintenance.

16.3 At any time during the Term the Service Provider may approach the

Customer with reports indicating the true-up number for any product.

16.3.1 The Customer must respond within 10 (ten) business days to Service

Provider with a dispute regarding the number of licences reported.

Subject to any dispute being resolved, the Customer will be obliged to

purchase the true-up number of licences for such a product where the

true-up number is greater than 1,000 (one thousand).

16.4 At any time during the Term, the Customer may approach Service Provider

with a request to purchase additional licences.

16.4.1 The Service Provider will provide the Customer with a quotation for such

additional licences (excluding any maintenance provision).

16.5 The Service Provider and the Customer will work together to resolve each

disputed item arising from this clause 16 in accordance with clause 30.


17 DATA PROTECTION AND CONFIDENTIALITY

17.1 The Service Provider will not utilise the Customer's Data for any purpose

other than that of providing the Services under this Agreement.

17.2 The Service Provider will not possess or assert any lien or other right

against or to the Customer's Data.

17.3 No Customer's Data, or any part thereof, will be sold, assigned, leased, or

otherwise disposed of to Third Parties by the Service Provider or

commercially exploited by or on behalf of the Service Provider, its

employees or agents.

17.4 The Customer may at any time on written request to the Service Provider

require that the Service Provider immediately return to the Customer or

destroy any Customer Data and may, in addition, require that the Service

Provider furnish a written certification to the effect that upon such return it

has not retained in its possession or under its control, either directly or

indirectly, any such Customer Data or material.

17.5 The Service Provider will implement on or before the Effective Date, and

thereafter maintain, appropriate safeguards against the unauthorised

access to, and destruction, loss, or alteration of, the Customer's Data in the

Service Provider’s possession which safeguards are: (i) acceptable to the

Customer, and (ii) no less rigorous than the most rigorous of the practices

maintained by the Customer or the Service Provider as of the Effective

Date.

17.6 The Service Provider, together with its Staff and authorised sub-contractors

will be required to sign the Customer's Oath of Secrecy prior to performing

any Services.

17.7 The Receiving Party acknowledges the great importance of the Confidential

Information to the Disclosing Party and, where applicable, Third Party

proprietors of such information, and recognises that the Disclosing Party

and/or Third Party proprietors may suffer irreparable harm or loss in the

event of such information being disclosed or used otherwise than in

accordance with this Agreement. In this regard each Party will maintain the


confidentiality of the other Party’s Confidential Information, using at least

the same efforts as it uses to maintain the confidentiality of its own

Confidential Information, and as otherwise required under applicable law,

the terms of this Agreement and the Customer's Oath of Secrecy.

17.8 The Receiving Party agrees and undertakes -

17.8.1 except as permitted by this Agreement, not to disclose or publish any

Confidential Information in any manner, for any reason or purpose

whatsoever without the prior written consent of the Disclosing Party and

provided that in the event of the Confidential Information being

proprietary to a Third Party, it will also be incumbent on the Receiving

Party to obtain the consent of such Third Party;

17.8.2 except as permitted by this Agreement, not to utilise, employ, exploit or

in any other manner whatsoever use the Confidential Information for any

purpose whatsoever without the prior written consent of the Disclosing

Party and provided that in the event of the Confidential Information being

proprietary to a Third Party, it will also be incumbent on the Receiving

Party to obtain the consent of such Third Party;

17.8.3 to restrict the dissemination of the Confidential Information to only those

of its Staff members who are actively involved in activities for which use

of Confidential Information is authorised and then only on a "need to

know" basis and the Receiving Party will reasonably initiate, maintain

and monitor internal security procedures to prevent unauthorised

disclosure by its Staff prior to giving any Staff, access to any Confidential

Information; and

17.8.4 to take all practical steps, both before and after disclosure, to impress

upon its Staff who are given access to Confidential Information the

secret and confidential nature thereof.

17.9 All Confidential Information disclosed by the Disclosing Party to the

Receiving Party or which otherwise comes to the knowledge of the

Receiving Party, is acknowledged by the Receiving Party -

17.9.1 to be proprietary to the Disclosing Party or where applicable, the


relevant Third Party proprietor; and

17.9.2 not to confer any rights of whatsoever nature in such Confidential

Information on the Receiving Party.

17.10 The Receiving Party will protect the Confidential Information in the manner,

and with the endeavour, of a reasonable person protecting their own

Confidential Information. In no event will the Receiving Party use less than

reasonable efforts to protect the confidentiality of the Confidential

Information.

17.11 The Customer may retain Confidential Information to the extent required by,

and for the duration of, any Services performed for the Service Provider in

terms of agreements between the Parties, provided that the Service

Provider has not waived performance of such Services.

17.12 The Service Provider will procure that its Staff who have access to the

Confidential Information of the Customer, give a written undertaking in

favour of the Customer in regard to the Confidential Information on

substantially the same terms and conditions contained within this

Agreement in a form prescribed by the Customer. The Service Provider will

further procure that such Staff execute the Customer's standard Oath of

Secrecy. The Customer will be entitled to deny a Service Provider Staff

access to its premises or prevent such Staff member from conducting any

work in relation to the Services, should the Customer not be in receipt of a

signed undertaking from such Staff member. The Service Provider's failure

to obtain receipt of the undertaking referred to in this clause 17.12 will in no

way detract from the Service Provider's obligations in terms of this

Agreement and will be deemed a material breach of this Agreement.

17.13 Exceptions to this clause 17

17.13.1 The Parties record that this clause 17 will not be applicable where the

Receiving Party discloses Confidential Information to its attorneys or

auditors, provided that such disclosure is reasonably required by the

Receiving Party for the purposes of conducting its business activities.

17.13.2 The Parties record that notwithstanding any provision in this Agreement,


the Customer may disclose any Confidential Information regarding the

Service Provider’s performance of the Services to the proprietor of the

Software.

17.14 In the event that the Receiving Party is required to disclose the Confidential

Information pursuant to any law, regulation or court order, the Receiving

Party –

17.14.1 will advise the Disclosing Party thereof prior to disclosure, if possible;

17.14.2 will take such steps to limit the extent of the disclosure to the extent that

it lawfully and reasonably practically can;

17.14.3 will afford the Disclosing Party a reasonable opportunity, if possible, to

intervene in the proceedings; and

17.14.4 will comply with the Disclosing Party's requests as to the manner and

terms of any such disclosure.

18 AUDITS

18.1 The Service Provider will allow the Customer, its auditors (including internal

audit Staff and external auditors) and inspectors as the Customer may from

time to time designate in writing, access at all reasonable times to any

facility or part of a facility at which either the Service Provider or any of its

subcontractors is providing the Services, to the Service Provider's Staff,

and its facilities, data and records relating to the Services for the purpose of

performing audits and inspections of either the Service Provider or any of

its subcontractors to (i) verify the accuracy of the Service Provider's

charges and invoices; (ii) verify the integrity of the Customer's Data; (iii)

examine the Service Provider's performance of the Services; and (iv) verify

compliance with this Agreement.

18.2 The Service Provider will provide to the Customer's auditors and inspectors

such assistance and co-operation as they may reasonably require. The

Customer will procure that any such audit will not unreasonably disrupt the

Service Provider's business operations and will comply with the Service

Provider's reasonable security or confidentiality requirements.


18.3 The Service Provider will maintain a complete audit trail of all financial and

non-financial transactions resulting from the Agreement as is reasonably

necessary to give effect to the provisions of this clause 18. The Service

Provider will maintain and provide the Customer access upon request to

the records, documents and other information that make up such audit trail

until the later of: (i) 5 (five) years after termination of the Agreement; (ii) all

pending matters relating to the Agreement (e.g. disputes) are closed; or (iii)

such other period as is required by applicable law in relation to those

records, documents or other information.

18.4 The provisions of this clause 18 will apply to the Service Provider’s

subcontractors and the Service Provider will, prior to subcontracting any

Services, procure the subcontractor’s acceptance thereof.

19 WARRANTIES

19.1 General Warranties:

The Service Provider warrants that it will for the duration of this Agreement:

(i) use adequate numbers of qualified staff with suitable training,

accreditation, education, experience and skill to perform the Services; (ii)

use and adopt any standards and processes required under this

Agreement; and (iii) provide the Services with promptness and diligence

and in a workmanlike manner and in accordance with the practices and

high professional standards used in well-managed operations performing

services similar to the Services.

19.2 Intellectual Property warranties:

The Service Provider warrants that it will at all times perform its

responsibilities under this Agreement in a manner that does not infringe, or

constitute an infringement or misappropriation of, any Intellectual Property

or other proprietary rights of any Third Party.

19.3 Service Provider authority and Licensor undertaking:

19.3.1 The Service Provider warrants that it: (i) will at all times be authorised to

procure licenses from Licensor and that it will be authorised to support


and maintain the Software by Licensor; (ii) has all the necessary

licences, certificates, authorisations and consents required under the

laws of the Republic of South Africa or under any other applicable

jurisdiction for the provision of the Software and/or Services under this

Agreement; (iii) will comply with all legal requirements and with the terms

and conditions of all licences, certificates, authorisations and consents

required for the provision of the Software and/or Services; and (iv) will

ensure that upon the date of delivery of the Software, possession or use

thereof by the Customer within the territories in which the Customer

takes receipt thereof will not breach any law or regulation of those

territories or of the territory from which the Software was sourced.

19.3.2 Should the Service Provider, for whatsoever reason and at any time

during the Term of this Agreement, no longer be appropriately

accredited or authorised to provide the Services, the Service Provider

will immediately inform the Customer thereof in writing and this

Agreement may, at the Customer’s option, be terminated immediately or

on such date as is determined by the Customer. The Service Provider

will be required to repay any pre-paid amounts that the Customer may

have paid in respect of the Services.

19.3.3 The Service Provider will obtain, within a period of 30 (thirty) days of the

Effective Date, a written undertaking from Licensor in favour of the

Customer confirming that Licensor will, in the event that the Service

Provider ceases to provide the Services to the Customer in terms of this

Agreement (whether as a result of the Service Provider losing its

accreditation or distributorship rights with Licensor, as a result of the

Service Provider ceasing to trade or going into liquidation or as a result

of a material breach by the Service Provider of this Agreement), take

over and continue to provide the Services to the Customer in

accordance with the terms of this Agreement or enlist a third party

service provider (acceptable to the Customer) to do so on its behalf,

such that there is a minimal or no disruption in the Services provision to

the Customer.

19.4 Product specific warranties:


The Service Provider warrants that it will at all times: (i) ensure that any

Software and the Documentation will be free from Deficiencies and will

comply in all respects with the technical and functional specifications

therefore as agreed by the Parties; (ii) take all reasonable and necessary

steps to ensure that the Services and all Deliverables (including the

Software) will be free of Destructive Elements provided that where a

Destructive Element is a reasonable and necessary component of a

deliverable, such Destructive Element will be recorded in writing by the

Parties and will not constitute a breach of this warranty. In the event of a

breach of this warranty, the Service Provider will immediately take all

reasonable steps to remedy such breach or, if not possible, ameliorate the

impact of the Destructive Element; (iii) ensure that in respect of Software

which operate or are dependent on a Microsoft platform or operating

system, that such Software will, at all times, be and remain compatible and

operate in conjunction with the then current Microsoft Release; and (iv) the

Software and/or all components thereof, once installed and/or

implemented, will process any date and time data correctly and all date-

related output and results produced by the Software will comply with the

Gregorian calendar.

19.5 Regulatory requirements:

The Service Provider warrants that it is and will remain for the duration of

this Agreement, fully cognisant of and compliant with any relevant

legislative or regulatory requirements and/or rulings or codes of practice of

any competent authority or industry body that has jurisdiction over the

provision of or is relevant to the Services and/or Software. The Service

Provider will be responsible for any fines and penalties arising from any

non-compliance with any law, legislative enactment or regulatory

requirement, code or ruling of any competent authority or industry body

relating to the delivery or use of the Services.

19.6 Documentation:

The Service Provider warrants that it will provide and maintain

Documentation so that it: (i) accurately reflects the operations and

capabilities of any and all Software and training courses; (ii) is accurate,


complete and written in a manner easily understood by the Customer; and

(iii) is promptly updated from time to time to reflect any change.

19.7 Tax Clearance:

The Service Provider warrants that, as of the Effective Date, it is and will for

the duration of the Agreement remain compliant with all applicable laws and

regulations relating to taxation in the Republic of South Africa. The Service

Provider warrants further that it will deliver to the Customer, on the Effective

Date and on each anniversary thereof for the duration of the Agreement, a

valid tax clearance certificate issued for the then-current year. If the

Service Provider fails to provide such a certificate, the Customer may

terminate the Agreement in accordance with the provisions of clause 26.2

below. The Customer will have no liability to the Service Provider with

respect to such termination.

20 BROAD BASED BLACK ECONOMIC EMPOWERMENT

20.1 The Service Provider warrants that for the duration of this Agreement it will,

at a minimum, maintain a BEE Status level of a Level ________

Contributor, based on the BEE Generic Scorecard.

20.2 The Service Provider will be required to provide a Verification Certificate to

the Customer on an annual basis on each anniversary of the Effective

Date; and prior to the expiry of the Service Provider's previously applicable

certificate.

20.3 The Customer may, at its own cost and in its sole discretion, audit (whether

by internal or external auditors) all information provided by the Service

Provider in terms of this clause, provided that where such audit exercise

reveals discrepancies and inaccuracies in the information provided by the

Service Provider to the Customer (other than for minor or insubstantial

discrepancies), the cost of such audit will be borne by the Service Provider.

21 RISK OF LOSS

Subject to clause 8, each Party will be responsible for risk of loss of, and

damage to, any hardware or other asset of the other in its possession or under


its control. Any hardware in the possession or control of the Service

Provider’s subcontractors or agents (including couriers, freight companies and

the like) will be deemed to be under the control of the Service Provider.

22 INDEMNITIES

22.1 General indemnity:

Without in any way detracting from the rights of the Customer in terms of

this Agreement, the Service Provider hereby indemnifies and holds the

Customer harmless from any and all Losses which may be suffered as a

result of any breach of the provisions of this Agreement by the Service

Provider or its Staff.

22.2 Intellectual Property indemnity:

In addition to any other remedy available to the Customer, the Service

Provider irrevocably and unconditionally agrees to indemnify in full and on

demand and to keep the Customer so indemnified from and against all

claims, demands, actions, proceedings and all Losses, costs and expenses

(including legal and other professional advisers’ fees), which are made or

brought against or incurred or suffered by the Customer resulting from any

claim by a Third Party that the use by the Customer of the Software and its

related Documentation supplied by the Service Provider infringes the

Intellectual Property rights of that Third Party.

23 PUBLICITY

No announcements relating to this transaction and of any nature whatsoever

will be made by or on behalf of a Party relating to this transaction without the

prior consent of the other Party.

24 CO-OPERATION

The Parties undertake at all times to co-operate with each other in good faith

in order to carry out this Agreement.

25 LIMITATION OF LIABILITY


25.1 The Parties agree that, in the event of a breach of any of the provisions of

the Agreement, the defaulting Party will be liable to the other Party for all

Losses which constitute direct and/or general damages.

25.2 Subject to clauses 25.3 and 25.4, the Parties agree that, in the event of a

breach of any of the provisions of the Agreement, the defaulting Party will

not be liable to the other Party for any Losses which constitute indirect,

special and/or consequential damages.

25.3 Notwithstanding anything to the contrary set forth in clause 25.2 above or

the Agreement in general, the Parties agree that they will be liable to the

other for -

25.3.1 Losses which constitute indirect, special and/or consequential damages

where such damages are caused by a breach of any Intellectual

Property and/or Confidential Information undertaking contained in the

Agreement; and

25.3.2 all Losses which arise out of their dishonesty or gross negligence

regardless of whether such Losses arise out of contract or delict; and/or

25.3.3 any Third Party claims arising from or related to the death or bodily injury

of any agent, employee, customer, business invitee, or other person

caused by the delictual conduct of such Party.

25.4 Notwithstanding anything to the contrary set forth in this clause 25 or the

Agreement in general, the Service Provider agrees that it will be liable to

the Customer for all Losses (whether these are special, indirect or

consequential, direct and/or general damages and which will not be subject

to any limitation of liability) where the Losses incurred by the Customer are

occasioned by the breach by the Provider of the provisions of clause 19

above.

26 TERMINATION

26.1 If a Party commits a material breach of this Agreement and fails to remedy

such breach within 14 (fourteen) days of written notice requiring the breach

to be remedied, then the Party giving the notice will be entitled, at its option,


either to claim specific performance of the defaulting Party's obligations

whether or not such obligations have fallen due for performance (with or

without claiming damages) or to cancel this Agreement (with or without

claiming damages) in which case the cancellation will take effect on the

date of the notice.

26.2 If the Service Provider fails to adhere to any legal requirement or breaches

the provisions of clause 19 above and/or any term or condition of any

licence, authorisation or consent required for the provision of the Services

and which failure or breach the Customer, in its sole discretion, considers

to be detrimental to the Customer; then the Customer will be entitled, but

not obliged, to immediately terminate this Agreement on written notice to

the Service Provider, in which event such termination will be without any

liability to the Customer and without prejudice to any claims which the

Customer may have for damages against the Service Provider.

26.3 A Party's remedies in terms of this clause 26 are without prejudice to any

other remedies to which such Party may be entitled in law.

27 TERMINATION FOR CONVENIENCE

The Customer may terminate this Agreement for convenience and without

cause at any time by giving the Service Provider at least 90 (ninety) days prior

written notice designating the termination date. The Customer will have no

liability to the Service Provider with respect to any such termination, other than

pro rata refunding to the Service Provider such actual annual maintenance

fees that the Service Provider may have paid to the Licensor on the

Customer’s behalf and cannot using reasonable commercial efforts recover

from the Licensor. The Service Provider must provide the Customer with

proof, acceptable to the Customer, of such payment.

28 EFFECT OF TERMINATION

The termination of this Agreement will not relieve the Parties hereto of any

liabilities, obligations, expenses or charges accruing up to date of such

termination and all rights accruing to either Party to the said date of

termination will likewise remain in full force and effect.


29 TERMINATION/EXPIRATION ASSISTANCE

On termination of this Agreement, the Service Provider will, at no additional

cost to the Customer, provide all reasonable information and assistance to the

Customer to enable the Customer or a Third Party designated by the

Customer to take over the Service Provider's obligations under this

Agreement.

30 DISPUTES

30.1 In the event of there being a dispute, but save where otherwise provided in

this Agreement, such dispute will be resolved in accordance with the rules

of the Arbitration Foundation of Southern Africa ("AFSA") as provided for

below.

30.2 In the event of any such dispute arising between the Parties relating to or

arising out of this Agreement, including a dispute as to the validity,

implementation, execution, interpretation, rectification, termination or

cancellation of this Agreement, the Parties will forthwith meet to attempt to

settle such dispute, and failing such settlement within a period of 14

(fourteen) days of first meeting, the said dispute will on written demand by

either Party be submitted to arbitration in Johannesburg in accordance with

the rules of AFSA.

30.3 Should the Parties fail to agree in writing on an arbitrator within 10 (ten)

days after arbitration has been demanded, the arbitrator will be nominated

at the request of a disputant by AFSA.

30.4 The decision of the arbitrator will be binding on the Parties to the arbitration

after the expiry of the period of 20 (twenty) days from the date of the

arbitrator's ruling if no appeal has been lodged by any Party. A decision

which becomes final and binding in terms of this clause 30.4 may be made

an order of court at the instance of any Party to the arbitration.

30.5 Nothing herein contained will be deemed to prevent or prohibit a disputant

from applying to the appropriate Court for urgent relief or for judgment in

relation to a liquidated claim.


30.6 Any arbitration in terms of this clause 30 will be conducted in camera and

the Parties will treat as confidential and not disclose to any Third Party

details of the dispute submitted to arbitration, the conduct of the arbitration

proceedings or the outcome of the arbitration, without the written consent of

all the disputants.

30.7 The provisions of this clause 30 will continue to be binding on the Parties

notwithstanding any termination or cancellation of the Agreement.

31 FORCE MAJEURE

31.1 Delay or failure to comply with or breach of any of the terms and conditions

of this Agreement by either Party if occasioned by or resulting from an act

of God or public enemy, fire, explosion, earthquake, perils of the sea, flood,

storm or other adverse weather conditions, war declared or undeclared,

civil war, revolution, civil commotion or other civil disorder, sabotage, riot,

strikes, lock-outs or other labour disputes, blockade, embargo, sanctions,

epidemics, act of any Government or other Authority, compliance with law,

regulations or demands of any Government or Governmental agency,

limitations imposed by exchange control or foreign investment or other

similar regulations or any other circumstances of like or different nature

beyond the reasonable control of the Party so failing, will not be deemed to

be a breach of this Agreement nor will it subject either party to any liability

to the other. It is understood that neither Party will be required to settle any

labour dispute against its will.

31.2 Should either Party be prevented from carrying out any contractual

obligation by any circumstance described above, such obligation will be

postponed provided the Party suffering such circumstance notifies the other

Party to this Agreement within 7 (seven) days of becoming aware thereof.

The Parties will thereupon promptly meet to determine whether an

equitable solution can be found.

31.3 Should such force majeure circumstance last continuously for a period of

14 (fourteen) days, and no mutually acceptable arrangement is arrived at

by the parties at within a period of 7 (seven) days thereafter, either Party

will be entitled to terminate the Agreement with immediate effect.


32 NON-EXCLUSIVITY

32.1 The Service Provider is appointed to provide the Services to the Customer

on a non-exclusive basis and the Customer shall not be precluded from

obtaining services that may be similar or identical to the Services from any

other service provider.

32.2 Nothing contained herein shall in any way be construed or constitute a

guarantee in favour of the Service Provider that the Service Provider will

receive any work or contract from the Customer for services in the future,

whether under this Agreement or otherwise.

33 NOTICES AND DOMICILIA

33.1 Domicilia:

The Parties choose as their respective domicilia citandi et executandi for the

purpose of legal proceedings and for the purposes of giving or sending any

notice provided for or necessary in terms of this Agreement, the following

addresses –

Name Physical Address TelefaxCustomer Office of the Commissioner

Block A299 Bronkhorst StreetNieuw MuckleneukPretoria0181

(marked for the urgent attention of the Group Executive: Corporate Legal Services)

Office of the Commissioner(012) 422 5250

(marked for the urgent attention of the Group Executive: Corporate Legal Services)

Name Physical Address TelefaxService Provider

provided that a Party may change its domicilium to any other physical

address or telefax number by written notice to the other Party to that effect.

Such change of address will be effective 7 (seven) days after receipt of the

notice of the change of domicilium.


33.2 Notices:

All notices to be given in terms of this Agreement will be in writing and -

33.2.1 if delivered by hand during business hours, be rebuttably presumed to

have been received on the date of delivery;

33.2.2 if sent by telefax during business hours be rebuttably presumed to have

been received on the date of successful transmission of the telefax; any

telefax sent after business hours or on a day which is not a business day

will rebuttably be presumed to have been received on the following

business day.

33.3 Actual receipt:

Notwithstanding the above, any notice given in writing, including one sent

by data message, actually received by the Party to whom the notice is

addressed, will be deemed to have been properly given and received,

notwithstanding that such notice has not been given in accordance with the

provisions of this clause.

33.4 The Parties record that whilst they may correspond via e-mail during the

currency of this Agreement for operational reasons, no formal notice

required in terms of this Agreement, nor any amendment or variation to this

Agreement may be given or concluded via e-mail.

34 GENERAL

34.1 Whole agreement:

This Agreement constitutes the whole of the agreement between the

Parties hereto relating to the matters dealt with herein and, save to the

extent otherwise provided herein, no undertaking, representation term or

condition relating to the subject matter of this Agreement not incorporated

in this Agreement will be binding on any of the Parties.

34.2 Addition, variation, deletion and cancellation:

No addition to or variation, deletion, or agreed cancellation of all or any


clauses or provisions of this Agreement will be of any force or effect unless

in writing and signed by the Parties.


Confidential

34.3 Waiver:

No waiver of any of the terms and conditions of this Agreement will be

binding or effectual for any purpose unless in writing and signed by the

Party giving the same. Any such waiver will be effective only in the specific

instance and for the purpose given. Failure or delay on the part of either

Party in exercising any right, power or privilege hereunder will not constitute

or be deemed to be a waiver thereof, nor will any single or partial exercise

of any right, power or privilege preclude any other or further exercise

thereof or the exercise of any other right, power or privilege.

34.4 Cession, assignment, delegation:

Save as otherwise herein provided, neither this Agreement nor any part,

share or interest therein nor any rights or obligations hereunder may be

ceded, assigned, delegated or otherwise transferred without the prior

written consent of the other Party.

34.5 Severability:

All provisions and the various clauses of this Agreement are,

notwithstanding the manner in which they have been grouped together or

linked grammatically, severable from each other. Any provision or clause

of this Agreement which is or becomes unenforceable in any jurisdiction,

whether due to voidness, invalidity, illegality, unlawfulness or for any other

reason whatever, will, in such jurisdiction only and only to the extent that it

is so unenforceable, be treated as pro non scripto and the remaining

provisions and clauses of this Agreement will remain of full force and effect.

The Parties declare that it is their intention that this Agreement would be

executed without such unenforceable provision if they were aware of such

unenforceability at the time of execution hereof.

34.6 Consent or approval:

Any consent or approval required to be given by any Party in terms of this

Agreement will, unless specifically otherwise stated, not be unreasonably

withheld.


34.7 Counterparts:

This Agreement may be executed in one or more counterparts, each of

which will be deemed an original, and all of which together will constitute

one and the same Agreement as at the date of signature of the Party last

signing one of the counterparts. The Parties undertake to take whatever

steps may be necessary to ensure that each counterpart is duly signed by

each of them without delay.

35 BENEFIT OF THE AGREEMENT

This Agreement will inure for the benefit of and be binding upon the

successors in title and permitted assigns of the Parties hereto or any of them.

36 APPLICABLE LAW AND JURISDICTION

36.1 Applicable law:

This Agreement will in all respects be governed by and construed under the

laws of the Republic of South Africa.

36.2 Jurisdiction:

The Parties hereby irrevocably and unconditionally consent to the non-

exclusive jurisdiction of the North Gauteng High Court, Pretoria in regard to

all matters arising from this Agreement.

37 COSTS

Save as may be otherwise provided herein, each Party will bear and pay its

own legal costs and expenses of and incidental to the negotiation, drafting,

preparation and implementation of this Agreement.


Confidential

38 SIGNATURE

The Parties agree that this Agreement will not be valid unless signed by 2

(two) authorised signatories of the Customer. The Service Provider’s company

secretary will upon request furnish the Customer with such documentation as

may reasonably be required by the Customer to establish the authority of the

Service Provider signatories. Signed on behalf of the Parties, each signatory

hereto warranting that he or she has due authority to do so.

SIGNED at _________________________

For and on behalf of SOUTH AFRICAN REVENUE SERVICE

Signature Signature

Name of Signatory Name of Signatory

Designation of Signatory Designation of Signatory

Date: Date:


SIGNED at _________________________ on _________________________

For and on behalf of

[SERVICE PROVIDER NAME]

Signature

Name of Signatory

Designation of Signatory


ANNEXE "A" – Software Schedule

(* Note: Annexe “A” will be updated from time to time to reflect the Customer’s

actual [XXX] license holding).

[Note to Bidder: This is will be populated prior to contract signature. Note the requirement of the tender for the Bidder to ascertain the currently licensed Licensor products from Licensor]


Confidential

ANNEXE "B" – Charges Schedule

1 GENERAL

1.1 This Annexe “B” (Charges Schedule) details how the Charges payable by

the Customer to the Service Provider pursuant to this Agreement are to be

calculated, invoiced and paid.

1.2 Charges under this Annexe “B” (Charges Schedule) are the only amounts

payable by the Customer to the Service Provider for the Services or

otherwise in connection with this Agreement, and no other charges,

expenses, costs or other amounts incurred by the Service Provider will be

chargeable to or payable by the Customer to the Service Provider, except

as provided in clause 8 of this Annexe "B".

1.3 Unless otherwise specifically provided in this Agreement, the Charges will

include all incidental expenses (e.g. travel and lodging, document

reproduction and shipping) that the Service Provider incurs in performing

the Services. Prices for New Services and Projects under clause 8 of this

Annexe must similarly include all incidental expenses.

1.4 The Service Provider will not be entitled to (i) impose or seek payment of

any amounts or charges under the Agreement other than the Charges; (ii)

establish any new types of charges under the Agreement; or (iii) modify any

of the Charges under the Agreement; unless the Customer has agreed

thereto in writing.

2 INVOICING REQUIREMENTS AND PAYMENT

2.1 Except as expressly set forth in this Annexe "B" or elsewhere in the

Agreement, the Service Provider will invoice the Customer for the Charges

(other than for Projects) on a monthly basis in arrears on or before the 5 th

(fifth) business day of the month following the month in which the Services

were performed or the applicable Software was accepted by the Customer.


2.2 Projects will be invoiced monthly, upon the Customer’s acceptance of

delivery milestones, unless otherwise agreed between the Parties.

2.3 Each invoice provided by the Service Provider will contain or have attached

such information, and be in such form and on such media as the Customer

may reasonably request.

2.4 Subject to clause 2.4 of this Annexe, invoiced Charges will be reduced by 1

(one) percent if the Customer does not receive the invoice by the 20th

(twentieth) day of the month in which the Service Provider is obligated to

deliver such invoice; and by consecutive further reductions of 1 (one)

percent for each month thereafter until the Customer receives the invoice.

2.5 The Customer will not be obliged to pay any amounts that are invoiced

more than 120 (one hundred and twenty) days after the Services were

rendered.

2.6 Each invoice will consist of or have attached:

2.6.1 a statement of the total amount due which will be itemised per Service.

The Service Provider will provide to the Customer the calculation of the

Charges under the algorithms of this Annexe “B";

2.6.2 the Service Provider’s estimate of the Charges that are to be approved

by the Customer for any work to be performed by the Service Provider

Staff on a Time and Materials Basis prior to commencement of such

work;

2.6.3 copies of daily time cards signed by an authorised Customer

representative and the reference number generated by the Customer’s

service desk for any work performed by the Service Provider Staff on a

Time and Materials Basis; and

Draft Attachmate Software Maintenance & Support Services Agreement Page 2

2.6.4 any additional details and information reasonably specified by the

Customer, in the format reasonably specified by the Customer from time

to time.

2.7 The Service Provider will maintain complete and accurate records of, and

supporting documentation for, the amounts invoiced to and payments made

by the Customer hereunder in accordance with generally accepted South

African accounting practice (compliant with IAS and IFRS) applied on a

consistent basis.

2.8 Within 10 (ten) days after the Customer’s request, the Service Provider will

provide the Customer with any other documentation or information

reasonably required in order to verify the accuracy of the Charges on an

invoice and its compliance with the requirements of the Agreement.

2.9 The Service Provider will verify that each invoice is complete and accurate

and that it conforms to the requirements of the Agreement (including by

carrying out detailed checks of each invoice) before issuing the invoice to

the Customer.

2.10 The Service Provider will provide appropriately skilled Service Provider

Staff as the Customer’s point of contact for answering invoicing queries.

Such individuals will respond promptly to any billing queries. If required by

the Customer, such Service Provider Staff will meet with the applicable

Customer Staff to review a draft of the invoice, prior to the issuance of each

invoice.

2.11 The Customer will pay undisputed Charges to the Service Provider

following receipt of each invoice that is accurate and meets the

requirements of this Agreement. The due date for such payment will be 30

(thirty) days from the Customer's receipt of the invoice.


2.12 The Customer may set off any amounts due from the Service Provider

pursuant to this Agreement against any Charges payable by the Customer

pursuant to this Agreement. If the amounts payable by the Service

Provider to the Customer exceed the Charges payable by the Customer to

the Service Provider pursuant to an outstanding invoice under this Annexe

“B” then, at the Customer’s option, the Service Provider will either (i) issue

a credit note for the net amount which the Customer may set off against

any other invoices rendered by the Service Provider; or (ii) pay the amount

to the Customer.

3 TAX, DUTIES AND CURRENCY ISSUES

3.1 Unless otherwise specified, all Charges and expenses are recorded

inclusive of Value Added Tax. The Service Provider will be financially

responsible for all taxes associated with the Services and will comply with

all applicable laws relating to tax and tax invoices.

3.2 All Charges, fees and expenses set out in this Agreement are inclusive of

any export and import tax.

3.3 The Charges are stated in South African Rand and will be quoted, invoiced

and paid in South African Rand. Subject only to the adjustments

contemplated in clause 4 of this Annexe “B”, the Charges are not subject

to adjustment due to any currency fluctuations for the duration of the

Agreement.

4 ADJUSTMENT IN CHARGES

4.1 The monthly Charge for Maintenance Services and Support Services will

be adjusted in accordance with clause 6.1 of this Annexe “B”.

4.2 The Personnel rates for Support (both during and outside business hours),

as per Annexe “A” will be fixed for the Initial Term.

4.3 Any adjustment of the Personnel rates for Support will be subject to written

agreement between the Parties.


4.4 On the first anniversary of the Effective Date, and on each subsequent

anniversary upon which this Agreement is operative, the Parties will meet

to discuss an adjustment of the Charges, based on the following formula:

4.4.1 [Note to Bidders – details of Bidder response to the Pricing Tables

in the RFQ will be incorporated into the final agreement]

In reaching any agreement on an adjustment to the Charges, the Customer

agrees to consider reasonable sensitivity factors advanced by the Service

Provider.

5 DISPUTED CHARGES AND INVOICING ERRORS

5.1 The Customer may withhold payment of any charges and/or Charges that

the Customer disputes in good faith (or, if the disputed charges have

already been paid, the Customer may withhold an equal amount from a

later payment), including disputes in respect of an error in an invoice or an

amount paid. If the Customer withholds any such amount:

5.1.1 the Customer will promptly notify the Service Provider that it is disputing

such charges and/or Charges; and

5.1.2 the Parties will promptly address such dispute in accordance with clause

30 of the Agreement.

5.2 If the dispute relates to (or is equal to (in the case of disputed charges that

have already been paid by the Customer)) only certain of the Charges

included on an invoice, then the Customer will pay the undisputed amounts

in accordance with the provisions of this Annexe "B".

5.3 If an invoice is identified as incorrect by the Customer, the Service Provider

will either (i) issue a correct invoice if the amount stated on the invoice has

not yet been paid; or (ii) make a correction on the next invoice if the amount

has been paid by the Customer; provided, however, that Service Provider

will refund any overpayments with interest calculated at the Repo Rate for

the number of days from the date of the Customer’s payment to the date of

the refund. The Customer will not be responsible for paying interest on


undercharged amounts, if any.

6 ONGOING SERVICES

6.1 Services

6.1.1 For purposes of this clause 6.1, "Software" will mean the Attachmate

computer software programmes licensed to the Customer. For the

avoidance of doubt, the meaning assigned to the term "Software" in the

Agreement shall not apply to this clause 6.1.

6.1.2 The annual Charge for Maintenance Services and Support Services will

be divided into 12 (twelve) equal monthly payments (“monthly Charge for Maintenance”) and will be invoiced to the Customer monthly in

arrears.

6.1.3 The Customer’s Software holding at the Effective Date is set out in

Annexe “A” and the monthly Charge for Maintenance, calculated in

accordance with clauses 6.1.2 and 6.1.4 of this Annexe “B”, is [R ____].

6.1.4 The annual Charge for the Service Provider’s provision of the

Maintenance Services and Support Services will be less than or equal to

_____% (_____________ percent) of the then current list price of the

Software and shall apply on a per license basis. For purposes of clarity,

the annual Charge shall be calculated by (i) determining the percentage

of the then current list price of the Software (which shall not be a

percentage higher than _____% (____________ percent); (ii) multiplying

the applicable percentage referred to in (i) above by the then current list

price of the Software; and (iii) multiplying the value determined in (ii)

above by the number of Software licenses held by the Customer.

6.1.5 The annual Charge for Maintenance Services and Support Services

(and the monthly Charge for Maintenance) will be adjusted pro rata from

the beginning of the month following the month in which the Customer

increased or decreased its Software holding.

6.2 Training Services


In respect of training services provided by the Service Provider to the

Customer, the Service Provider will provide the Customer with a

quotation for such training Services as the Customer may from time to

time require. The Service Provider will only commence rendering the

training Services on the receipt of a valid Customer purchase order for

such training Services. Any training Services will be provided on a Time

and Materials Basis and in accordance with the provisions of this

Annexe "B".

7 CHARGES ON A TIME AND MATERIALS BASIS

7.1 In accordance with and subject to the provisions of the Agreement, certain

Services and Projects are to be charged on a Time and Materials Basis.

This method of charging and the amount to be charged will at all times be

subject to the Customer's written pre-approval. Time and Materials Charges

will be the product of the units of time (e.g., hour, day) and the applicable

personnel rates detailed in Appendix B-2 (Personnel Rates and Skill

Classifications) ("Personnel Rates").

7.2 Personnel Rates are set forth by skill classification and on an hourly, daily,

weekly, monthly and quarterly basis. If there is no Personnel Rate for a

skill classification required for the performance of the work to be performed

on a Time and Materials Basis, the Service Provider’s rate for such skill set

will be the lowest rate applicable for the next closest skill set specified in

Appendix B-2 (Personnel Rates and Skill Classifications), which will be

subject to written approval by the Customer.

7.3 Chargeable Time

7.3.1 For Services performed on a Time and Materials Basis, the Service

Provider may charge for travel time only if the Staff performing such

Services are required to travel to a Customer’s office other the

Customer’s offices located in the Head Office Campus in Brooklyn,

Pretoria.

7.3.2 The Service Provider's Staff will accurately complete daily time sheets

showing the actual time spent performing the work that is chargeable on


a Time and Materials Basis.

7.3.3 The Service Provider will perform the work to be performed on a Time

and Materials Basis in a productive and efficient manner (including using

Service Provider Staff charged at the lowest appropriate rate).

7.4 The Service Provider will not charge the Customer for time spent by

Service Provider Staff for performing work that is otherwise included in the

Services and included in the Charges.

7.5 The Service Provider will not charge the Customer for time spent by

Service Provider Staff in remedying Service Provider errors.

8 NEW SERVICES

8.1 Subject to the provisions of the Agreement, in the event any New Services

are requested by the Customer, the Service Provider will either:

8.1.1 to the extent that the New Services, or any elements thereof, is one

priced in the Service Provider’s Tender Response and where such

prices were acceptable to the Customer, provide such New Services or

elements thereof for such charges; or

8.1.2 to the extent that the New Services or any elements thereof is not priced

in the Service Provider’s Tender Response proposal, quote to the

Customer a reasonable fixed or unit price for such New Services and the

Parties will promptly meet to discuss such quote. If the Parties do not

reach agreement after such a proposal, the Customer may elect in its

sole discretion to have the Service Provider perform the New Services,

and Service Provider will perform the New Services on a Time and

Materials Basis at the Personnel Rates.

9 TERMINATION/EXPIRATION ASSISTANCE

Subject to the provisions of the Agreement, the Service Provider may charge

for assistance required by the Customer to effect an orderly handover of the

Services (“Termination/Expiration Assistance”) to a Third Party service

provider prior to the effective date of termination or expiration, but only to the

extent it employs incremental resources to provide such assistance, with such


resources being charged to the Customer on a Time and Materials Basis. The

Service Provider will use Commercially Reasonable Efforts to perform the

assistance without deploying incremental resources. The Service Provider will

obtain the Customer's written consent before deploying incremental resources.

10 EXTRAORDINARY EVENTS

10.1 In the case of an Extraordinary Event, the Service Provider’s Charges will,

subject to approval by the Customer, be equitably adjusted. An

‘Extraordinary Event’ will mean a governmental reorganisation, a change in

law, the addition, reduction, or other elimination of a significant line of

operations or other similar organisational change to the Customer, but in

each case only if: (a) the event results in a material increase or decrease in

the Customer’s volumes and such increase or decrease in volumes causes

the average monthly Charges payable by the Customer to increase or

decrease by at least 20% (twenty percent) when compared to the average

amount invoiced monthly during the prior 6 (six) months; and (b) such

increase or decrease is solely attributable to the event described in clause

(a); and (c) such increase or decrease continues or is likely to continue for

a period of 6 (six) or more consecutive months.

10.2 In addition, a material paradigm shift in the technology on which the

Services are based) due to disruptive innovation that (a) increases or

decreases the Service Provider’s costs by at least 20% (twenty percent)

per month, and (b) such increase or decrease is solely attributable to the

event described herein; and (c) such increase or decrease continues or is

likely to continue for a period of six or more consecutive months, will also

be considered an Extraordinary Event.

10.3 Upon the occurrence of an Extraordinary Event under this clause 10 of this

Annexe "B", the Service Provider will cooperate fully with the Customer in

determining the Service Provider’s costs prior to the event and in assessing

the impact of the event.

11 TERMINATION CHARGES

The Customer will under no circumstances be liable for termination charges


pursuant to any termination or expiration of this Agreement.

12 CESSATION UPON PARTIAL TERMINATION OR REDUCTION IN REQUIREMENTS

If there is a termination of part of the Services in accordance with this

Agreement or if the Customer reduces its requirements for the Services, then

any Charges that relate to the Services that are no longer being performed will

immediately cease.

13 SERVICE LEVEL CREDITS

At the Customer's election, the Charges may be adjusted by the application of

Service Level Credits in accordance with Annexe “D” - Service Levels.


Appendix B-1: Service Pricing Tables

1. Percentage of list license price for XXX] License Maintenance

2. Discount / Mark-up on list price for purchase of [XXX] Licenses

(indicate a discount by minus sign in front of the percentage

given)

3. Monthly Charge for Maintenance (Rand Only), for the Software

listed in Annexe “A”

4. Proportion of monthly fixed Charge for Maintenance (point 3.

above) affected by CPI

5. Proportion of Personnel rates (points a and 2B. above)

affected by CPI

Note to Bidder: this Appendix will be populated based on the pricing worksheets submitted in response to the RFQ]


Appendix B-2: Personnel Rates and Skill Classifications

a. Personnel Rates for Support (during business hours) Per Hour Per Month Per Six Months

[XXX] Consultant

Senior [XXX] Consultant

Project Manager

2B. Personnel Rates for Support (outside business hours) Per Hour Per Month Per Six Months

[XXX] Consultant

Senior [XXX] Consultant

Project Manager

6.Proportion of Personnel rates (points 4a and 4b. above) affected by CPI[Note to Bidder: this Appendix will be populated based on the pricing worksheets submitted in response to the RFQ]


Confidential

ANNEXE "C" – Attachmate Software Maintenance and Support

Services Schedule

Further to the provisions of the Agreement relating to the description of the Services,

this Annexe sets forth details of the Maintenance Services and Support Services

that the Service Provider will provide to the Customer.

1 SINGLE POINT OF CONTACT

The Service Provider will provide a single point of contact for all

communications between the Parties relating to the performance, receipt and

use of the Services (‘Contacts’) as described in this clause 1 of this Annexe

"C" (the ‘SPOC’). The SPOC will provide primary support for resolution of

Incidents, Problems or requests relating to the Services and will provide a

seamless interface for other communications or activities relating to the

Services. The SPOC will provide the Customer with second level support

relating to the Services through the SPOC. For clarity, the SPOC will not be

used as the primary interface to the Service Provider by the Customer end

users.

1.1 Contacts

1.1.1 The Service Provider will log all Contacts. Contacts may relate to known

or suspected Incidents or Problems, requests for Changes or New

Services, or any questions relating to the use of the Services.

1.1.2 The Service Provider will report to the Customer monthly on the number

and status of Contacts received. Contacts will be categorized as follows:

(i) Incidents or Problems relating to the Services; (ii) questions relating to

the Services; (iii) requests for standard Changes; (iv) requests for non-

standard Changes; (v) other issues or questions relating to the Services;

or (vi) issues or questions that do not relate to the Services ("Out of

Scope Contacts").

1.1.3 The SPOC will be able to receive Contacts by email; telephone and

SMS and from any person or persons nominated by Customer.


1.1.4 With respect to Contacts that are received via telephone, the SPOC will

resolve as many such Contacts as possible during the initial Contact

without transferring or escalating the Contact.

1.2 Out of Scope Contacts

With respect to Contacts that do not relate to the Services, the Service

Provider will ensure that the person, who made the Contact on the

Customer’s behalf, is informed that the Contact is out of the scope of the

Services. No Charge will be levied by the Service Provider for the receipt

or notification of out of scope requests.

2 CONTACT LOGGING SYSTEM INTEGRATION

2.1 At the Customer’s election, Service Provider will develop and deploy

systems and provide software functionality (the ‘Integration Capability’) to

facilitate communication between the Customer’s "Remedy Incident

Management System" and the Service Provider’s "Contact and Incident

Tracking System".

2.2 The Integration Capability will allow (i) an Incident to be automatically

logged on the Service Provider’s Contact and Incident Tracking System

simultaneously with the logging of that Incident on the Customer’s Remedy

Incident Management System; and (ii) updates and status changes to the

Incident to be logged to both the Service Provider’s Contact and Incident

Tracking System and the Customer’s Remedy Incident Management

System. The integration may be implemented using web services.

2.3 The development, deployment and provision of the integration between the

Customer's Remedy Incident Management System and the Service

Provider’s Contact and Incident Tracking System will be performed at no

additional charge to the Customer.

2.4 The Integration Functionality will be made operational within 60 (sixty) days

of the Customer having given the Service Provider notice of its election to

have the Integration Functionality implemented.

2.5 The failure of the Integration Functionality will not excuse the Service


Provider from the performance of its duties under this Agreement including

those duties and Service Levels specified in Annexe “D”.

3 RESOURCES

The Service Provider will ensure that Service Provider Staff members

providing SPOC functions will be trained in, or will otherwise be made

knowledgeable about, the Services and the Customer environment. The

Service Provider will provide sufficient numbers of Staff with the requisite

training to be able to address Customer’s specific issues and questions. The

Service Provider will develop and maintain a knowledge base to aid its Staff

providing SPOC functions.

4 HOURS OF SERVICE

The Service Provider will provide contact information so that the Service

Provider Staff providing SPOC functions can be accessed as follows:

i) Matters relating to Critical and High Incidents: 24x7; and

ii) Matters relating to Medium and Low Incidents: 7:00 to 17:00 on business

days.

5 INCIDENT MANAGEMENT SERVICES

As part of the Support Services, the Service Provider will perform the Services

described in this clause 5 of this Annexe "C" (the ‘Incident Management Services’). The Service Provider will perform the Incident Management

Services in accordance with the processes and procedures set forth herein or

as determined by the Customer from time to time.

5.1 Incident Management Procedures

5.1.1 Development of Procedures

Within 10 (ten) business days after the Effective Date, the Service

Provider will prepare for the Customer’s review and approval detailed

Incident Management Services processes and procedures (the ‘Incident

Management Procedures’). Service Provider will incorporate the


Customer’s comments on such procedures and include such revised

procedures in the Customer PPS&G promptly but in no event later than

10 (ten) days after the Customer has provided its comments. The

Incident Management Procedures will be consistent with the processes

and procedures set forth in this clause 5.

The Service Provider will follow the Incident Management Procedures

from the date that they have been approved by the Customer. Before

such date, the Services Provider will follow the processes and

procedures regarding Incident Management that are set forth in this

clause 5, supplemented with Service Provider’s own standard processes

and procedures (to the extent they are not inconsistent with this clause

5).

5.1.2 Updates

The Service Provider will promptly update the Incident Management

Procedures to reflect any changes made by the Customer to the

Customers Incident management procedures. Service Provider will

submit the revised Incident Management Procedures to the Customer

for its review and approval in the same manner as set forth in clause

5.1.1 above.

5.2 Incident Recording

5.2.1 Recording Incidents

The Service Provider will record Incidents in the Service Provider’s

Incident tracking system immediately upon their earliest detection. The

manner in which an Incident may be detected include: (i) Contact as

detailed in clause 1.1 above; (ii) notification by Software suppliers; (iii)

notification by the Service Provider's other customers; (iv) on an Incident

being logged by the Customer on its own Remedy Incident Management

system in the event that integration has been implemented in terms of

clause 2 of this Annexe "C"; or (iv) from any other source.

5.2.2 Checking for the same or similar Incidents


To avoid duplicating an Incident, the Service Provider shall investigate

and assess whether any similar open Incidents have been logged and/or

recorded. If similar open Incidents have been logged and/or recorded,

the Service Provider will update the Incident information and link the

newly reported Incident to the existing Incident record. Further, Incidents

similar to any new Incidents will also be noted and addressed (including

being made a part of the Incident Management reporting to the

Customer) by the Service Provider. The Service Provider will identify

and analyse the reasons for any differences in the effectiveness of the

resolution for similar Incidents.

5.2.3 Incident Tracking System

At all times during the Term of the Agreement, the Service Provider will

utilise an electronic Incident tracking system capable of capturing and

storing appropriate information relating to each Incident, including the

information specified in this clause 5, in such Incident tracking system.

In the event that integration has been implemented in terms of clause 2

of this Annexe "C", such integration functionality will be maintained by

the Service Provider.

5.3 Classification

All Incidents will be classified in accordance with the process set forth in

this clause 5.3 of Annexe "C". The Service Provider will comply with the

then-current Customer PPS&G relating to Incident Management and will

interface closely with the Customer so as to correctly identify and classify

Incidents.

5.3.1 Process

The Service Provider will classify an Incident in accordance with the

Customer’s then-current Impact and Urgency classifications per the

Customer PPS&G. The classifications which are applicable at the

Effective Date are set out in clause 12 of Annexe “C”. If there is a

disagreement between the Parties as to the priority level that should be

assigned to an Incident, the priority level will be determined by the


Customer.

5.3.2 Re-categorisation of Recurring Incidents

The Service Provider will re-categorise recurring Incidents to a higher

Impact and Urgency classification in accordance with the Incident

Management Procedure.

5.3.3 Incident Record

The Service Provider will create and maintain an Incident record (trouble

ticket) for each Incident containing details of the Incident symptoms, an

initial Incident categorisation, and the impact of the Incident. The

Service Provider’s records of Incidents will be designed to enable the

Service Provider to measure and improve the affected processes,

provide information required for other Service management processes,

and report on progress.

In the event that the Customer elects to implement the Integration

Capability, the maintenance of the Incident record as specified in this

clause 5 will automatically and seamlessly update the corresponding

Incident record in the Customer’s Remedy Incident Management

System.

5.4 Communications

The Service Provider will keep the applicable Customer communication

interfaces (as specified in the Customer PPS&G) appraised of the status of

Incident Management Service activities on an ongoing basis in accordance

with the notification and escalation processes set forth in the Incident

Management Procedure. The Service Provider’s obligations in such regard

will include:

i) documenting and maintaining in the Incident Management

Procedures processes and procedures for notifying the Customer, of

Incidents, escalation paths, contacts and timescales;

ii) alerting the Customer of any Incidents in accordance with the Incident

Management Procedures;


iii) informing the Customer Incident manager about the estimated

maximum time to resolve the Incident, and appraising him or her of

progress on an ongoing basis;

iv) at the Customer’s request, providing the Customer with a preliminary

report of the Incident on an expedited basis; and

v) notifying the Customer’s Incident Management Services team

promptly in accordance with the Incident Management Procedure in

the event that an Incident is likely to require a Problem investigation,

including informing the Customer Problem Management team.

5.5 Resolution and Recovery

The Service Provider will provide the necessary Incident Management

Services to resolve Incidents and return the affected Services to full

performance in accordance with this Agreement, including the Service

Levels, as soon as possible with the least possible impact on the

operations of the Customer and the affected users.

The Service Provider will provide the Customer with prior notice of any

temporary ‘work-around’ or permanent solution that:

i) may have a further impact on the Services or on the Customer;

ii) represents a departure from the Customer’s processes; or

iii) materially increases or is likely to materially increase the workload of

the Customer’s Staff or the Customer’s systems or the Customer’s

costs.

In addition to the Incident Management Procedures, the Service Provider

will follow the processes as determined by the Customer with regard to

Incidents classified as ‘Critical’ in terms of clause 12 of this Annexe “C”.

5.6 Completion and Closure of Incidents

Only the Customer will be entitled to close Incidents. The Customer may

use any means necessary to verify that the Incident has actually been


resolved. If the Incident has not been resolved, the Service Provider will re-

commence Incident resolution and will resolve the Incident.

The Service Provider will participate in Incident post mortem and

improvement activities to prevent the re-occurrence of the Incident.

5.7 Incident Management Services Outputs

The outputs of Incident Management Services include the Service

Provider's provision of:

i) Incident Management Procedures; and

ii) Management information relating to Incident Management Services,

as requested by the Customer from time to time (e.g. status,

updates, efficiency and effectiveness, other management or

performance metrics).

6 PROBLEM MANAGEMENT SERVICES

As part of the Support Services, the Service Provider will perform the Problem

Management Services described in this clause 6 (the ‘Problem Management

Services’) and will do so in accordance with the processes and procedures set

forth or referred to herein or as determined by the Customer from time to time.

In performing the Problem Management Services, the Service Provider will

minimise the adverse effect of Problems on the Customer’s operations, the

Services and proactively minimise the impact and prevent the occurrence of

Problems.

6.1 Problem Management Procedures

6.1.1 Development

Within 10 (ten) business days after the Effective Date, the Service

Provider will prepare for the Customer’s review and approval detailed

Problem Management processes and procedures for the Services (the

‘Problem Management Procedures’). The Service Provider will

incorporate the Customer’s comments on such procedures and include

such revised procedures in the Customer PPS&G promptly but in no


event later than 10 (ten) days after the Customer has provided such

comments. The Problem Management Procedures will be consistent

with the processes and procedures set forth in this clause 6.

The Service Provider will follow the Problem Management Procedures

from the date that they have been approved by the Customer. Before

such date, the Services Provider will follow the processes and

procedures regarding the Problem Management Services that are set

forth in this clause 6 supplemented with the Service Provider’s own

standard processes and procedures (to the extent they are not

inconsistent with this clause 6).

6.1.2 Updates

The Service Provider will promptly update the Problem Management

Procedures to reflect any changes made by the Customer to the

Customer’s Problem Management Procedures. The Service Provider

will submit the revised Problem Management Procedures to the

Customer for its review and approval in the same manner as set forth in

clause 6.1.1 of this Annexe "C".

6.2 Proactive Problem Management

The Service Provider will monitor all relevant sources of information

reporting known Problems and inform the Customer within 2 (two) business

days of publication of any known Problem that may affect the Services or

the Software in any way.

The Service Provider will use Commercially Reasonable Efforts to

proactively prevent Problems, including by means of performing trend

analysis and identifying potential Incidents and/or Problems before they

occur. The Service Provider will use Commercially Reasonable Efforts to

prevent failures from spreading. Service Provider will identify and

investigate weaknesses of infrastructure components.


6.3 Problem Control

The Service Provider will be responsible for identifying Problems and

investigating their root cause in accordance with the terms of this clause

6.3 of Annexe "C" (‘Problem Control’). When the Problem investigation

has resulted in the identification of the root cause of a Problem and a

resolution to the Problem, the Problem will be classified as a "Known

Error". In performing Problem Control, Service Provider will perform the

following Services:

6.3.1 Problem Identification and Recording

The Service Provider will associate and record details of all Incidents

caused by one or more Problem(s) with such Problem(s), including

Incidents that recur or are expected to recur, as well as any single

significant Incident.

6.3.2 Problem Classification

The Service Provider will analyse Problems and classify them in

accordance with the Customer’s then-current Impact and Urgency

classifications. The Customer's impact and urgency classifications which

are applicable at the Effective Date are set forth in clause 12 of this

Annexe “C”. The analysis will include an impact analysis assessing the

seriousness of the Problem and its effect on the Services. The Service

Provider will confer with the Customer in formulating these

classifications and categorisations. If there is a disagreement as to the

priority level that should be assigned to a Problem, the priority level will

be that prescribed by the Customer. Factors to be considered in

determining the classification of a Problem will include:

i) Category - identifying the relevant domain, for example hardware or

software (including Software);

ii) Impact - on the Customer's business;

iii) Urgency - extent to which deferral of the solution is acceptable;


iv) Priority; and

v) Status - e.g., Problem, Known Error, resolved, closed pending post

implementation review.

These classifications and categorisations will be updated to reflect any

changes during the resolution of the Problem. For example, new

Incidents may increase the Impact and Urgency, and accordingly

Priority, of a Problem.

6.3.3 Problem Investigation and Resolution

i) The Service Provider will investigate and diagnose each Problem

to achieve resolution.

(ii) The Service Provider will perform the Error Control activities

described below in clause 6.4 of this Annexe "C".

(iii) If a temporary fix requires modification of infrastructure, the

Service Provider will implement it with the Customer in

accordance with the Customer’s PPS&G.

(iv) Service Provider will comply with and interface with the

Customer’s PPS&G processes.

(v) Service Provider will correctly identify Problems and investigate

and monitor the Problem(s) to resolution.

(vi) Service Provider will participate in formal root cause analysis to

identify the origin of each Problem that (i) resulted from a High

Impact Incident; or (ii) results in repeat Incidents.

(vii) Once the Service Provider has identified the root cause of a

Problem and a method of resolving it, such Problem will be

classified as a Known Error. The Service Provider will record all

Known Errors against the current and potentially affected

Services in addition to the element at fault and any workarounds.

A Known Error will not be closed until it has been resolved.


(viii) The Service Provider will use Commercially Reasonable Efforts

to eliminate the root cause of each of the types of Problems

specified in clause 6.3.3 of this Annexe "C" and prevent

recurrence of such Problem, including by means of performing a

detailed review of each such Problem.

(ix) The Service Provider will facilitate Problem Management

Service investigations and review of Problems, including

identifying Problem trends.

(x) The Service Provider will adhere to the mutually agreed

Problem escalation path for each Problem severity group.

(xi) The Service Provider will report to the Customer during the

normal reporting cycle the results of any root causes analyses

conducted with respect to Problems that were not the result of a

High Impact Incident.

(xii) The Service Provider will conduct all root cause analyses in

accordance with the applicable procedures set forth in the

Customer's PPS&G.

(xiii) With respect to each Problem that:

gave rise to a Service Level Failure, or

results from a High Impact Incident,

the Service Provider will provide the Customer with: (1) a plan

for correcting such Problem and preventing its recurrence; (2)

reasonable evidence that the Problem has been corrected and

will not recur, and (3) a detailed explanation of Service

Provider’s contingency plan.

6.4 Error Control

The Service Provider will monitor and manage Known Errors until they are

successfully resolved (‘Error Control’). The Service Provider will perform

Error Control in accordance with the Operational Change Management


Procedures and evaluate the changes in a Post-Implementation Review, as

described in Clause 6.5 of this Annexe "C". The Service Provider will

monitor and report on all Known Errors from their identification through to

their resolution.

6.5 Problem Closure and Post-Implementation Review (“PIR”)

When Problems are resolved, Service Provider will record Problems and

Known Errors as resolved. Only the Customer will close Problems. Once

implemented, all Changes to resolve Problems and Known Errors will be

reviewed in a PIR. The Customer will not close the Problem until (i) the

PIR has been completed, (ii) any other steps mandated by the Customer

have been completed, and (iii) the Parties agree (acting reasonably) that

the Change(s) was (were) implemented in such a fashion so as to resolve

the Problem or Known Error. In such case, all related Problem and Known

Error records, together with their associated Incident records, will be closed

by the Customer. For Problems designated as major by the Customer, a

separate Problem review will promptly be undertaken jointly by Service

Provider and the Customer to identify:

i) what aspects of the Problem Management Services were/were not

performed well;

ii) how the performance of the Problem Management Services can be

improved; and

iii) recommendations for the Service Provider to prevent a recurrence of

the Problem.

6.6 Communications

The Service Provider will keep the Customer communication interfaces

appraised of the status of Problem Management Service activities in

accordance with the Problem Management Procedure notification and

escalation processes. The Service Provider’s obligations will include:

i) alerting the Customer of any Problems in accordance with the Service

Levels; and


ii) at the Customer’s request, providing a preliminary report of the

Problem on an expedited basis to the Customer.

6.7 Problem Management Services Outputs

The outputs of Problem Management Services include the provision by the

Service Provider of:

i) Problem Management Procedures;

ii) a Known Error database, which is a subset of the Problem

Management Services system;

iii) up-to-date Problem records (updated with information about status,

Known Errors, solutions and/or workarounds);

iv) closed Problem records (once the root cause has been eliminated

and the Problem resolved);

v) matches of Incidents to Problems and Known Errors;

vi) Problem reports indicating history and status of Problems,

categorised by type, time period, and status as reasonably requested

by the Customer from time to time; and

vii) management information relating to Problem Management Services

as requested by the Customer from time to time (e.g., status,

updates, efficiency and effectiveness, other management or

performance metrics).

7 CONSULTING SERVICES

7.1 Consulting Services

The Service Provider will provide to the Customer consulting Services as

reasonably requested by the Customer in accordance with this clause 7 (the

‘Consulting Services’). Unless the Consulting Service requested by the

Customer falls within the scope of one or more of clauses 7.1.1 to 7.1.6

below, all Consulting Services will be provided by the Service Provider on a

Time and Materials Basis or, if the Parties agree, on a fixed price basis.


The nature of Consulting Services will be reasonably related to the Software

and the implementation thereof.

Consulting Services listed in clauses 7.1.1 to 7.1.6 are Services that the

Service Provider will provide to the Customer at no charge:

7.1.1 Future Technology Delivery

The Service Provider will proactively identify strategies and approaches

for future technology delivery related to the Software. The Service

Provider will assist the Customer in setting the Customer’s technology

direction and strategy. The Service Provider will assist the Customer in

aligning the Customer’s technical Software architecture with its business

and technical strategies.

7.1.2 Management of Technology Offerings

The Service Provider will advise the Customer in the management and

representation of the Software and related service offerings to the

Customer’s internal clients.

7.1.3 Identification of Product and Enhancement Opportunities

The Service Provider will identify product and enhancement

opportunities for improved performance, and notify the Customer of such

opportunities or on request make a presentation of such opportunities to

the Customer.

7.1.4 Maintaining Industry Knowledge

The Service Provider will maintain applicable levels of industry

knowledge of the Customer’s operations.

7.1.5 Participating in Forums

The Service Provider will maintain applicable levels of participation and

input into forums and conferences, user groups, trade associations, and

similar organisations; supporting the development of a clear, concise,

strategic direction for the Services.


7.1.6 Assist in making decisions

The Service Provider will ensure that the standards and architecture

decisions (including a change in means of transport) with respect to the

Services will be compatible with the Customer’s requirements and will be

subject to the Customer approval in its sole discretion.

8 MAINTENANCE AND SUPPORT SERVICES

8.1 General Obligations

The Service Provider will provide Maintenance Services and Support

Services for the Software.

The Service Provider’s obligations with regard to Maintenance and Support

will include the services as are set out in this clause 8 of Annexe "C".

8.2 Maintenance

The Service Provider will provide Maintenance Services in accordance with

the provisions of the Agreement (and the relevant manufacturer’s

instructions or as otherwise mutually agreed in writing) for the Software on

an ongoing basis to minimise disruption to the Customer’s business, the

Services and the end users (‘Preventive Maintenance’). The Service

Provider’s Preventative Maintenance obligations will include:

8.2.1 performing routine maintenance (in accordance with manufacturer

instructions); remote and/or on-site inspections (including predictive fault

investigation testing and diagnosis) and repair services;

8.2.2 unless directed otherwise by the Customer, implementing corrections

and solutions in relation to the activities set out in the previous

paragraph so that the Software will, on an ongoing basis:

(i) operate in accordance with the manufacturer’s specifications; and

(ii) perform in accordance with this Agreement;

8.2.3 maintaining and updating maintenance and repair records relating to the

Software and conducting trend analysis and predictive Incident


Management Services and Problem Management Services;

8.2.4 maintaining active subscription to user/developer/engineering

information services that are made available by the manufacturer of the

Software;

8.2.5 informing the Customer within the timeframes specified in Annexe “D” (Service Levels) of any notices that are communicated in the

subscriptions in clause 8.2.4 of this Annexe "C" that may affect the

Customer operation of the Software; and

8.2.6 at the Customer’s request, where an item of Software is going out of

manufacturer support, ensuring that such Software is replaced or

upgraded before the support period has expired in accordance with the

Customer PPS&G.

9 SUPPORT

9.1 The Service Provider will provide services to resolve Incidents and

Problems in accordance with the procedures developed and agreed for

Incidents and as defined in clause 5 of this Annexe “C” and for Problems

as defined in clause 6 of this Annexe ”C”:

9.2 The Support Services include the provision of telephonic or onsite

assistance as determined by the Customer and as determined by the

classification of the Incident or Problem.

10 OTHER SERVICES

10.1 General Support

10.1.1 The Customer may from time to time request, and the Service Provider

will provide, general services that include the development of

customisations and general assistance relating to the Software but that

fall outside the scope of the Maintenance Services and Support

Services. Such general support will be provided on a Time and

Materials Basis and will be charged in accordance with the Appendix B-2

(Personnel Rates).


11 TRAINING

11.1 Provision

The Service Provider will, on receipt of an official Customer purchase order,

provide or facilitate training related to the Software. The Customer accepts

that the ability of the Service Provider to provide the training services may

be limited by seat availability or the schedule of the offered courses.

11.2 Training courses

11.2.1 The Customer may order and the Service Provider will provide any

Software related training course that is (a) commercially available as a

classroom course in the Republic of South Africa; or (b) available as

web-delivered content on the Internet.

11.2.2 In the event that the Service Provider cannot itself provide the training

requested by Customer, the Service Provider will facilitate the provision

of the training from a Third Party service provider. The facilitation of

training will include: making reservations; performing any administrative

task as necessary to ensure the training will be provided, making deposit

payments to the Third Party service provider (if any); making final

payments to the Third Party service provider (if any). In the event

training is facilitated by Service Provider from a Third Party service

provider, the charges for such facilitation will be made on a Pass

Through Expense Basis.

11.2.3 To the extent that the Service Provider does not itself provide a course,

the Service Provider can, subject to approval by the Customer, procure

the provision of the training Services from a Third Party service provider

on a Pass Through Expense Basis.


Confidential

12 CATEGORISATION OF PRIORITIES

The Customer impact and urgency classifications as of the Effective Date are

set out in the table in this clause 12 of Annexe "C".

Critical High Medium Low

Effect Extensive /

Widespread

Significant /

Large

Moderate / Limited Minor /

Localised

Impact Major

Service

disruption

affecting a

large

number of

customers

or

departments

Critical

Customer

business

commitment

s cannot be

met.

System or

application is

usable, however

with severe

restrictions.

Performance is

severely

degraded.

Customer

business

commitment

may be delayed.

Incident affecting

one or more

customers.

Performance levels

are within

acceptable limits.

Customer business

commitment can

still be met,

however a

resolution is

required.

Incident that

does not

directly affect

the

Customer's

business or

productivity

Workaround

is available

Urgency Immediate

resolution

required.

Resolution

required within 2

(two) days.

Resolution required

within 5 (five) days.

Resolution

required

within 20

(twenty)

days.


Confidential

13 ESCALATION

The Service Provider will escalate matters in the following order of priority,

starting with number one below –

No. Designation Name Telephone Cell phone email

1.

2.

3.

The Customer will escalate matters in the following order of priority, starting

with number one below –

No. Designation Name Telephone Cell phone email

1.

2.

3.

[Note to Bidder: this will be completed after award, if an award is made]


ANNEXE "D" – Service Levels

1 GENERAL

1.1 Annexe “D” sets out the Service Levels that will apply during the Term and

the method for calculating any Service Level Credits that may apply if

Service Provider fails to perform the Services in accordance with such

Service Levels.

1.2 Appendix D-1 sets out the Service Levels and Service Level Credits.

1.3 The measurements and Service Levels set forth in this Annexe “D” and its

Appendices will be used to measure Service Provider's performance of the

Services. During the Term, new Service Levels may be added or

substituted by written agreement between the Parties in order to achieve a

fair, accurate, and consistent measurement of the Service Provider's

performance of the Services.

1.4 Service Provider will monitor its performance of the Services with respect to

the Service Levels on a continuous basis.

1.5 Service Provider will measure and report on its performance of the Services

with respect to the Service Levels as set out in this Annexe “D”.

1.6 In the event of a dispute arising regarding the accuracy of the Service Level

reports produced by the Service Provider, reports produced by the

Customer from its Incident Management System will be regarded as correct

unless Service Provider can prove to the contrary.

2 SERVICE LEVELS

2.1 The Service Provider will perform the Services in accordance with the

Service Levels from the Effective Date.

2.2 From the Effective Date, the Service Provider will perform the services that

were performed by or provided to the Customer prior to the Effective Date,

and which correspond to the Services, in accordance with this Annexe “D”

2

and with at least the same degree of accuracy, completeness, efficiency,

quality, responsiveness and timeliness as was provided prior to the

Effective Date unless otherwise specifically provided for in this Agreement.

Moreover, Service Provider will perform the Services promptly, using

reasonable skill and care and in a professional and workmanlike manner.

Finally, Service Provider will perform the Services in accordance with any

other Service Levels specified in the Agreement.

3 CHANGES IN SERVICE LEVELS

3.1 The Service Levels will change annually on the anniversary of the Effective

Date, the Customer and the Service Provider will review the Service Levels

and will make adjustments to them as appropriate to reflect improved

performance capabilities associated with advances in the technology and

methods used to perform the Services. The Parties expect and understand

that the Service Levels will be improved over time.

4 STATUS OF SERVICE LEVEL CREDITS

4.1 The following will apply in respect of Service Level Credits:

4.1.1 The Service Level Credits are a price adjustment for the relevant period

to reflect the reduced level of Service performed by Service Provider and

are not an estimate of the loss or damage that may be suffered by the

Customer as a result of the Service Level Failure.

4.1.2 The payment of a Service Level Credit by the Service Provider is at

Customer's election and is without prejudice to, and will not limit, any

right the Customer may have to terminate this Agreement and/or seek

damages or other non-monetary remedies at law or in equity resulting

from, or otherwise arising in respect of, such Service Level Failure and

any resulting termination.

4.1.3 Notwithstanding the provisions of clauses 4.1.1 and 4.1.2 of this Annexe

"D", any claim for damages resulting from such Service Level Failure, in

respect of which a Service Level Credit has already been paid, will be

reduced by the amount of that Service Level Credit.


5 PERFORMANCE AGAINST SERVICE LEVELS

5.1 Measurement: Except as otherwise set out in the description of the

individual Service Level, Service Provider’s performance with respect to the

Service Levels will:

5.1.1 commence being measured by Service Provider on the Effective Date;

and

5.1.2 be measured against Service Provider’s actual performance of the

Services against the Service Levels and not merely against a sampling

of its performance of such Services.

5.2 Except as otherwise specifically provided herein, Service Provider will be

responsible for monitoring, measuring and reporting on performance as

required to apply the Service Levels, including the provision, installation

and support of any automated tools for this purpose.

5.3 The Customer will have the right to perform an audit on the tools described

above in Clause 5.2 of Annexe "D".

5.4 The Service Level measurement system implemented by Service Provider

will be documented. The documentation will be available for inspection by

the Customer and will include the following information regarding a Service

Level Failure:

5.4.1 the nature of the Service Level Failure;

5.4.2 the specific Service or Services that are impacted;

5.4.3 the start time and date of all Service Level Failures;

5.4.4 the time at and date on which Service is fully restored;

5.4.5 the root cause of the Incident or other event that gave rise to the Service

Level Failure;

5.4.6 the impact of the Service Level Failure on other components of the

Services and associated trend analyses; and


5.4.7 a summary of the steps Service Provider has taken to determine the root

cause of the Service Level Failure, the steps Service Provider has taken

to restore Service, and the steps Service Provider has taken to reduce,

to the extent reasonably possible, the likelihood that such Service Level

Failure will be repeated.

6 ACTIONS ON FAILURES

6.1 In respect of any Service Level Failure, the Service Provider will:

6.1.1 investigate, assemble, and preserve pertinent information with respect

to, and report on the causes of, the Incident, including performing an

appropriate root cause analysis of each Incident which led to the Service

Level Failure;

6.1.2 propose and execute a written corrective action plan;

6.1.3 advise the Customer of the status of remedial efforts being undertaken

with respect to such Incident. In this respect, Service Provider will track

the status of such remedial efforts and make available such progress

information to the Customer through an electronic on-line tool;

6.1.4 minimise the impact of the Incident, correct it, and resume meeting the

Service Level as soon as possible once it is corrected;

6.1.5 take the necessary Commercially Reasonable Efforts to employ

preventive measures so that the Incident does not recur, including

allocating additional Staff and resources to the performance of the

Services and proposing changes to the procedures it uses to perform

the Services; and

6.1.6 Service Provider will, on a monthly basis, perform trend analysis on the

Service Level performance data. If Service Provider or the Customer

identifies a trend in Service Level performance which reasonably

indicates a meaningful risk of failure to meet a Service Level in future,

then Service Provider will perform a root cause analysis with respect to

the trend, report to the Customer on its findings and use Commercially

Reasonable Efforts (as approved by the Customer) to prevent the


Service Level Failure from actually occurring.

7 REPORTING

7.1 Service Provider will issue a report (the ‘Service Level Report’) after the

end of each month during the Term of the Agreement, containing the

quantified performance of the Service Provider for the month with respect

to all the Service Levels as defined in this Annexe “D”. The Service Level

Report must be presented to the Customer on or before the 10 th (tenth)

business day after the end of the month being reported upon.

7.2 As part of the monthly Service Level Report required pursuant to clause 7.1

of this Annexe "D", Service Provider will provide the Customer with a soft-

copy report on Service Provider's performance against the Service Levels.

Detailed supporting information for each Report will be provided to the

Customer in soft-copy as reasonably requested by the Customer.

8 ENTITLEMENT TO SERVICE LEVEL CREDITS

8.1 In no event will the total, aggregate amount of Service Credits payable by

Service Provider for a calendar month exceed [XXX] (XXX percent) of the

amounts invoiced to the Customer by Service Provider for such month (the

‘At Risk Amount’), provided however that Pass Through Expenses and

Software purchase charges invoiced in any particular month will not count

in calculating such At Risk Amount.

8.2 For each Service Level Failure occurring during the Term, the Charges for

the month following the month in which the Service Level Failure occurred

may, at the Customer's election, be reduced by the Service Level Credits

calculated in accordance with Clause 9 of this Annexe "D".

8.3 If a single triggering event directly causes 2 (two) or more Service Level

Failures in any month; and but for such event, none of such Service Level

Failures would have occurred, then the Customer will be entitled to receive

only a single Service Level Credit (selected by the Customer) and Service

Level Credits will not apply to such other Service Level Failures.


9 CALCULATION OF SERVICE LEVEL CREDITS

9.1 For each of the following Service Levels (in respect of which Service Level

Credits are determined on a per-event or per-occurrence basis):

9.1.1 Appendix D-1 Clause 2;

9.1.2 Appendix D-1 Clause 2.2;

9.1.3 Appendix D-1 Clause 4; and

9.1.4 Appendix D-1 Clause 5;

the applicable Service Level Credit payable by Service Provider to the

Customer is contained in the definition of the Service Level itself.

9.2 Service Level Credits will be applied against the first monthly invoice

following the month in which the Service Level Failure(s) occurred. Service

Level Credits arising in respect of the last month of the term of the

Agreement will be withheld out of the final payment due.

10 EXCUSED PERFORMANCE

10.1 Where Service Provider can establish to the satisfaction of the Customer

that:

10.1.1 the cause of its failure to achieve a Service Level was a factor or factors

outside of the reasonable control of Service Provider;

10.1.2 Service Provider would have achieved such Service Level but for such

factor(s);

10.1.3 Service Provider used Commercially Reasonable Efforts to perform and

achieve that Service Level notwithstanding the presence and impact of

such factor(s); and

10.1.4 Service Provider is without fault in causing such factor(s);

10.2 No Service Level Credit will be assessed against Service Provider for any

resulting Service Level Failure and Service Provider will otherwise be

excused from achieving such Service Level for as long as the


circumstances relating to such factor(s) and preventing achievement of

such Service Level prevail and Service Provider continues to use its

Commercially Reasonable Efforts to prevent, overcome and mitigate the

adverse effects of such factor to the extent required to achieve the

applicable Service Level.


Appendix D-1: Service Levels and Service Level Credits

1 GENERALThis Appendix D-1 sets out each Service Level and the calculations;

definitions; targets; and Service Level Credit amounts for each.

2 MANUFACTURER NOTIFICATION SERVICE LEVEL

2.1 GeneralThe Manufacturer Notification Service Level measures the number of times

during the month that a notice from Licensor related to the Software is

received by Customer from Service Provider later than 2 (two) business

days after the release of the information by Licensor to Service Provider.

2.2 Service Level CreditFor each failure to convey the Licensor notification to the Customer within 2

(two) business days, Service Provider will pay the Customer a Service

Level Credit in an amount equal to R _______ (_______ Rand)

3 CONTACT RESPONSE SERVICE LEVEL

3.1 GeneralThe Contact Response Service Level measures the number of times the

time taken by the Service Provider to respond to a contact made by the

Customer is in excess of the times in the table (‘Contact Response Times’)

below.

Contact Response Times

Contact Priority TimeCritical or High Within 1 (one) hour

Medium or Low Within 2 (two) business hours

3.2 Service Level CreditFor each failure to respond to the contacts within the times specified above,

Service Provider will pay the Customer a Service Level Credit in an amount

equal to R _____ (____________ Rand).


4 ONSITE PRESENCE SERVICE LEVEL

4.1 General

The Onsite Presence Service Level measures the number of times the time

taken by the Service Provider to achieve an onsite presence in response to

a contact made by the Customer is in excess of the times in the table

(‘Onsite Presence Times’) below.

Onsite Presence Times

Contact Priority TimeCritical or High Within 90 (ninety) minutes

4.2 Service Level Credit

For each failure to achieve an onsite presence in response to a Customer

Contact within the time specified above, Service Provider will pay the

Customer a Service Level Credit in an amount equal to R________

(___________ Rand).

5 TIME TO RESOLVE INCIDENTS SERVICE LEVEL

5.1 GeneralThe Time to Resolve Incidents Service Level measures the number of

times the time taken by the Service Provider to restore Service is in excess

of the times specified in the table (‘Time to resolve Incident Times’) below.

Time to Resolve Incident Times

Contact Priority TimeCritical Less than 4 (four) business hoursHigh Less than 8 (eight) business hoursMedium Less than 5 (five) business days

5.2 Service Level CreditFor each failure to resolve an Incident in accordance with the time periods

specified above, Service Provider will pay the Customer a Service Level

Credit in an amount equal to R________ (___________ Rand).


ANNEXE "E" – DOCUMENTATION

To be updated from time to time.


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