MASTER SUPPLY AND SERVICES AGREEMENT BETWEEN THE CROWN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF TRANSPORTATION. - and - ACCENTURE INC.

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1 MASTER SUPPLY AND SERVICES AGREEMENT BETWEEN THE CROWN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF TRANSPORTATION - and - ACCENTURE INC.

2 TABLE OF CONTENTS ARTICLE 1 SCOPE Agreement Acknowledgments by Contractor Exclusivity and Minimum Volumes Changes to Scope of the Agreement... 3 ARTICLE 2 STRUCTURE OF AGREEMENT AND INTERPRETATION Contents of the Agreement Schedules to the Agreement Exhibits to the Agreement Module Appendices to the Agreement Incorporated GTA Fare System Technical Specifications... 5 ARTICLE 3 TERM OF AGREEMENT Initial Term Renewal Term ARTICLE 4 PROJECT BLUEPRINT Project Blueprint Development Acceptance and Review... 8 ARTICLE 5 RESPONSIBILITIES OF PARTIES Contractor Responsibilities Ministry Responsibilities... 9 ARTICLE 6 RELATIONSHIP MANAGEMENT AND ADMINISTRATION Access to Premises Access to Information Authorized Representatives Project Committees Reports Security Financial and Performance Audits and Assessments Resources Conflict of Interest Occupational Health and Safety ARTICLE 7 GENERAL FINANCIAL TERMS AND CONDITIONS Pricing and Payment Financial Security and Performance Bonds Price Protection Risk of Loss Insurance Obligations Contractor Proof of Insurance Workplace Safety and Insurance Board Not a Limit on Liability No Encumbrance by Contractor ARTICLE 8 CONFIDENTIALITY Acknowledgment Exclusions Operation of Law Obligations Page i

3 TABLE OF CONTENTS (continued) 8.5 Return of Confidential Information Relief Termination Survival ARTICLE 9 PRIVACY AND FREEDOM OF INFORMATION General Contractor Obligations under FIPPA Requests for Personal Information Designated Contractor Representative Contractor Compliance with this Article Employer/Employee Security Statement Contractor s Handling of Personal Information Security of Personal Information Security Violations Extraterritorial Measures Acknowledgement of MFIPPA by Contractor Survival ARTICLE 10 INTELLECTUAL PROPERTY General Ministry Ownership and Control General Contractor or Contractor Representatives Ownership and Control Rights and Waivers Granted to Ministry Rights and Waivers Granted to Contractor Rights on Default Use of Personal Knowledge Survival ARTICLE 11 INTENTIONALLY DELETED (EQUIPMENT TERMS AND CONDITIONS) ARTICLE 12 GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS ARTICLE Ministry Contractor Manufacturer s Warranty Continuing Effect of Representations and Warranties Page INTENTIONALLY DELETED (GENERAL SYSTEM AND SOFTWARE WARRANTIES) ARTICLE 14 TERMINATION AND REMEDIES Ministry Terminable Default Contractor Remedies Contractor Terminable Default Ministry Remedies for Contractor Terminable Default Ministry Remedies for Contractor Failure to Meet Deliverables Standards Termination for Convenience Procedure Upon Termination ARTICLE 15 RISK MANAGEMENT PROVISIONS No Indirect Damages Contractor Limitation of Liability to Ministry Group Ministry Limitation of Liability to Contractor Group Application of Limitations Rights and Remedies Cumulative INTENTIONALLY DELETED (General Indemnity) Intellectual Property Indemnities Confidentiality Indemnification ii

4 TABLE OF CONTENTS (continued) 15.9 Third Party Suit Indemnity Defence Survival ARTICLE 16 GENERAL ASSIGNMENT General Assignment by Contractor Assignment by Ministry ARTICLE 17 NOTICE ARTICLE 18 DISPUTE RESOLUTION Legal Remedies for Disputes Three-Tiered Dispute Resolution Negotiation Mediation Further Proceedings Performance to Continue Survival ARTICLE 19 GENERAL Entire Agreement Amendments Non-Waiver Independent Parties Force Majeure Governing Law and Jurisdiction Currency Counterparts Further Assurances Time of the Essence Binding Effect SCHEDULE A GLOSSARY OF TERMS SCHEDULE B CHANGE MANAGEMENT PROCEDURES SCHEDULE C AUTHORIZED REPRESENTATIVES SCHEDULE D CONTRACTOR REPRESENTATIVE SECURITY STATEMENT SCHEDULE E SECURITY PROCEDURES SCHEDULE F CONTRACTOR PROVIDED INTELLECTUAL PROPERTY SCHEDULE G PAYMENT SCHEDULE H BONDS SCHEDULE I MINISTRY OBLIGATIONS SCHEDULE J ESCROW AGREEMENTS EXHIBIT 1 RFP EXHIBIT 2 PROPOSAL MODULE APPENDIX A DEVELOPMENT, IMPLEMENTATION AND OPERATION OF LAUNCH 1 SYSTEM MODULE APPENDIX B DEVELOPMENT OF PROJECT BLUEPRINT Page iii

5 TABLE OF CONTENTS (continued) MODULE APPENDIX C DEVELOPMENT, PROCUREMENT, INSTALLATION AND ACCEPTANCE OF THE CENTRAL SYSTEM MODULE APPENDIX D MAINTENANCE, SERVICE AND OPERATION OF THE CENTRAL SYSTEM MODULE APPENDIX E PROCUREMENT AND INSTALLATION OF FIELD EQUIPMENT FOR MUNICIPAL SYSTEMS AND TTC INITIAL SYSTEM MODULE APPENDIX F PROCUREMENT AND INSTALLATION OF FIELD EQUIPMENT FOR GO TRANSIT SYSTEM MODULE APPENDIX G MAINTENANCE, SERVICE AND OPERATION OF FIELD EQUIPMENT FOR MUNICIPAL SYSTEMS, THE GO TRANSIT SYSTEM AND THE TTC INITIAL SYSTEM MODULE APPENDIX H MAINTENANCE OF THIRD PARTY NETWORKS MODULE APPENDIX I DISASTER RECOVERY MODULE APPENDIX J CONTRACT TRANSITION OUT SERVICES MODULE APPENDIX K CONSULTING SERVICES MODULE APPENDIX L SERVICE LEVEL AGREEMENT Page iv

6 MASTER SUPPLY AND SERVICES AGREEMENT BETWEEN THE CROWN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF TRANSPORTATION AND ACCENTURE INC. This Master Supply and Services Agreement is entered into as of the Effective Date by and between the Crown in right of Ontario as represented by the Minister Of Transportation ( Ministry ), and Accenture Inc., ( Contractor ). The parties agree as follows: ARTICLE 1 SCOPE 1.1 Agreement Ministry desires to purchase and Contractor desires to provide all of the goods, equipment, hardware, software and services, which shall comprise the GTA Fare System as defined herein. In general, and without compromising the specific terms and conditions of this Agreement, it is intended that Contractor will build and operate the GTA Fare System for Ministry and the Ministry Group as defined herein. The Central System functions of the GTA Fare System will be operated by Contractor in Ontario, which site is owned or controlled by Contractor. The GTA Fare System will be scaleable to any number of Service Providers in Ontario. The GTA Fare System will be usable by all members of the public in Ontario. It is anticipated that many of the GTA Fare System Deliverables, including but not limited to hardware or equipment Deliverables ( Hardware ), Software and support services, will be supplied to Contractor by its Subcontractors. Consequently, Contractor, as the operator of the GTA Fare System, will be the primary licensee of all GTA Fare System Software procured from its Subcontractors and Contractor will sublicense that Software to Ministry or Ministry Group. Where the Software of Subcontractor remains under the control of Contractor, such as in the Central System functions of the GTA Fare System, Ministry will only exercise its sublicense rights in the event of certain specified defaults of Contractor giving rise to Ministry s rights of termination of this Agreement. Ministry s intention is to obtain and use only one operational copy of the Central System Software in Revenue Service. Where the Software of Subcontractor is integrated into Hardware under the control of Ministry or Service Providers, such as field equipment, sublicense rights will be exercised by Ministry or Service Providers as part of the use of such Hardware. All GTA Fare System Hardware procured from Subcontractors will be owned by Ministry or Service Providers, but certain of that Hardware, particularly Hardware that is part of the Central System of the GTA Fare System will be given over to the care and control of Contractor as operator of the GTA Fare System. With respect to the holding of funds paid by transit users ( Cardholders ), the Ministry will execute such documents as are necessary to allow for such funds to be held in the account of a Person with appropriate financial authority before the Central System commences accepting or generating revenue. The Ministry does not have the authority to hold such funds in its capacity. 1.2 Acknowledgments by Contractor Contractor acknowledges and accepts that: this Agreement is made pursuant to the Request for Qualifications issued on December 22, 2004, Contractor s response dated February 4, 2005 in response thereto, the Request for Proposals issued 1

7 on October 7, 2005 and all revisions thereto issued by Ministry to Contractor by addenda ( RFP ) and Contractor s Proposal dated January 13, 2006 in response thereto (the Proposal ); (c) (d) (e) Ministry has relied on the accuracy and completeness of the Proposal (which is incorporated herein by reference) in making its Contractor selection in accordance with the RFP procedures and will continue to rely on this Agreement, including the Proposal, as a complete statement of all terms and conditions including, but not limited to, pricing, under which Contractor shall develop, procure, implement, operate and maintain all aspects of the GTA Fare System. As a matter of procurement fairness, Ministry cannot accept or negotiate any material variances to the scope or pricing of the GTA Fare System as specified in the Proposal except in accordance with the RFP or this Agreement; Ministry derives its authority to enter into this Agreement as agent for the Service Providers (as defined below) from: (i) the GTA Fare System Procurement Governance Agreement entered into between Ministry and certain Service Providers on the 14 th day of June, 2005 as amended, restated or supplemented from time to time (the Governance Agreement ); and (ii) the GTA Fare System Operating Agreement to be entered into between Ministry and certain Service Providers prior to execution of this Agreement and may be restated or supplemented from time to time (the Operating Agreement ). Contractor will be provided the Operating Agreement for review upon its execution, provided that Ministry will not provide those confidential parts of the Operating Agreement dealing with Ministry s and Service Provider s business affairs which do not affect Contractor s rights and obligations under this Agreement. Ministry guarantees that the Governance Agreement referenced above grants Ministry the authority to act on behalf of all Service Providers to the extent expressly provided for in the Governance Agreement, committing as though they were parties to this agreement and requiring them to fulfill those obligations of Ministry under this Agreement which pertain to them. Ministry is entering into this Agreement on its own behalf with respect to the Deliverables under Module Appendix A, Module Appendix B, Module Appendix C, Module Appendix D, Module Appendix I, Module Appendix J, Module Appendix K and Module Appendix L (each of which is defined in Section 2.4 below); Ministry is entering into this Agreement on behalf of the following, as agent: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) the Greater Toronto Transit Authority; The Hamilton Street Railway Company; The Regional Municipality of York; The Corporation of the City of Mississauga; The Corporation of the City of Burlington; The Corporation of the City of Brampton; The Corporation of the Town of Oakville; The Regional Municipality of Durham; and Toronto Transit Commission for the TTC Initial System as described in the Governance Agreement 2

8 (collectively the Service Providers, which defined term as used throughout this Agreement shall also include new service providers as they may be added in accordance with Section 1.4 below) with respect to the Deliverables under Module Appendices E through H (each of which is defined in Section 2.4 below), inclusive. It is anticipated, but not guaranteed, that the Regional Municipality of Durham will be a signatory to the Governance Agreement and Ministry will acquire the authority to act as its agent. 1.3 Exclusivity and Minimum Volumes (c) Provided the Contractor is in compliance with the terms and conditions of this Agreement including compliance with Final Design Review, the GTA Fare System Technical Specifications and Service Levels, the Contractor shall be the exclusive provider of the Deliverables, except for Third Party Agency Network Management Services, during the Initial Term to Ministry and all Service Providers who have executed the Operating Agreement by the Effective Date provided that for equipment Deliverables the exclusivity only applies up to the equipment volumes specified in the Service Provider Financially Related Metrics in Appendix C of the RFP. For avoidance of doubt, (i) Ministry and Service Providers reserve the right in all cases to provide Third Party Agency Network Management Services internally; (ii) the Contractor is providing Third Party Agency Network Management Services on a non-exclusive basis; and (iii) if Contractor is in breach of any terms and conditions of the Agreement as referenced above, or if Ministry or a Service Provider wishes to procure equipment Deliverables beyond the volumes specified in the Service Provider Financially Related Metrics in Appendix C of the RFP, Ministry and Designated Persons reserve the right to contract with other parties for such Deliverables. Provided Contractor is in compliance with the terms and conditions of this Agreement including compliance with Final Design Review, the GTA Fare System Technical Specifications and Service Levels, Ministry guarantees that it will purchase a minimum of fifty percent (50%) of the overall equipment volume as set out in the Service Provider Financially Related Metrics in Appendix C of the RFP. For avoidance of doubt, the foregoing guarantee shall also not apply to the extent that the required Deliverables fail to reach the guarantee because of an act or omission of Contractor or a Contractor Representative. Other than the foregoing, Ministry makes no representation regarding the volume of Deliverables required under this Agreement. 1.4 Changes to Scope of the Agreement General The scope of this Agreement may be extended or minimized from time to time in accordance with this Agreement, to enable other municipalities and service providers to avail themselves of the goods and services provided herein and to enable Ministry, the Service Providers (current and future) or municipalities to procure certain other goods and services in accordance with the RFP, or to enable Service Providers to no longer be participants in the Project. Any such changes to scope of services shall amend this Agreement in accordance with the Change Management Procedures in Schedule B. If Contractor can reasonably demonstrate that the Operating Agreement contains material terms and conditions relating to the obligations of Contractor which were not revealed to Contractor during the RFP process and which have a material and detrimental impact on Contractor s Proposal or this Agreement, then Ministry and Contractor shall consider such change in accordance with the Change Management Procedures in Schedule B. Incorporation of Enhancements in Deliverables (i) Ministry and Contractor expect that during the Initial Term and any Renewal Term of this Agreement, enhancements or improved replacements for the technology and Hardware designated in the Final Design Review, the GTA Fare System Technical Specifications or the Proposal shall become available. Contractor will use all reasonable efforts to provide 3

9 written notice to Ministry of any such enhancements or improvements, describing the new or improved technology or Hardware. Ministry may, at its discretion, direct Contractor to develop, procure, deliver and install such enhanced or improved technology or Hardware. (ii) All changes pursuant to subsection 1.4(i) above shall be implemented in accordance with the Change Management Procedures set out in Schedule B. ARTICLE 2 STRUCTURE OF AGREEMENT AND INTERPRETATION 2.1 Contents of the Agreement As used herein, the term Agreement means: (i) this Master Supply and Services Agreement; (ii) Schedules to this Agreement specified in Section 2.2 below (the Schedules ); (iii) the Exhibits to this Agreement specified in Section 2.3 below; (iv) the set of Module Appendices specified in Section 2.4 below, which each provide the specific terms and conditions applicable to a Module of Deliverables and which collectively provide for the development, procurement, implementation, operation and maintenance of the GTA Fare System; (v) Final Design Review; (vi) the Project Blueprint (but only to the extent not addressed in Final Design Review); and (vii) the GTA Fare System Technical Specifications as specified in Section 2.5 below. In the event that there are any inconsistencies between the Master Supply and Services Agreement and the Schedules, the Master Supply and Services Agreement, together with Schedule A, shall prevail over the remaining Schedules. Schedule A shall have the same level of priority as the Master Supply and Services Agreement. In the event that there are any inconsistencies between any of the components of this Agreement, the terms and conditions of the Master Supply and Services Agreement and the Schedules shall prevail overall and the remaining documents shall be read in the following priority, from highest to lowest: (i) Final Design Review, when completed by the Parties based on the terms herein; (ii) the Project Blueprint (as defined herein) as will form part of Module Appendix B when completed by the Parties based on the terms herein; (iii) the set of Module Appendices specified in Section 2.4 below but for the Project Blueprint and Final Design Review, which each provide the specific terms and conditions applicable to a Module of Deliverables and which collectively provide for the development, procurement, implementation, operation and maintenance of the GTA Fare System, and which Module Appendices will be completed by the Parties as part of Final Design Review based on the Agreement, including Contractors' Proposal, RFP and the GTA Fare System Technical Specifications; (iv) the RFP; (v) the GTA Fare System Technical Specifications; and (vi) the Proposal. 2.2 Schedules to the Agreement The following are the schedules to this Master Agreement (collectively, the Schedules and individually, each a Schedule ): (c) (d) (e) (f) (g) Schedule A Glossary of Terms and Interpretation; Schedule B Change Management Procedures; Schedule C Authorized Representatives; Schedule D Contractor Representative Security Statement; Schedule E Security Procedures; Schedule F Contractor Provided Intellectual Property; Schedule G Payment; 4

10 (h) (i) (j) Schedule H Bonds; Schedule I Ministry Obligations; and Schedule J Escrow Agreements. 2.3 Exhibits to the Agreement The following are the exhibits to this Master Agreement incorporated by reference (collectively, the Exhibits and individually, each an Exhibit ): Exhibit 1 RFP; and Exhibit 2 Proposal. 2.4 Module Appendices to the Agreement The following are the Module Appendices to this Master Agreement (collectively the Module Appendices and individually each a Module Appendix ) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) Module Appendix A Development, Implementation and Operation of the Launch 1 System; Module Appendix B Development of Project Blueprint; Module Appendix C Development, Procurement, Installation and Acceptance of the Central System; Module Appendix D Maintenance, Service and Operation of the Central System; Module Appendix E Procurement and Installation of Field Equipment for Municipal Systems and TTC Initial System; Module Appendix F Procurement and Installation of Field Equipment for GO Transit System; Module Appendix G Maintenance, Service and Operation of Field Equipment for Municipal Systems, the GO Transit System and the TTC Initial System; Module Appendix H Maintenance of Third Party Networks; Module Appendix I Disaster Recovery; Module Appendix J Contract Transition Out Services; Module Appendix K General Consulting Services; and Module Appendix L Service Level Agreement. 2.5 Incorporated GTA Fare System Technical Specifications The following technical documents are incorporated into this Agreement by reference (the GTA Fare System Technical Specifications ), which also constitute Appendix G of the RFP unless otherwise stated below: Part 1 Scope of Work; 5

11 (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) Part 2 Central System Specifications; Part 3 GO Transit Service Provider Specification; Part 4 Municipal Service Provider Specification; Part 5 General Design Requirements and Devices Specification; Part 6 Services Specification; Part 7 System Assurances; Part 8 Performance Standards; Part 9 Business Rules; Part 10 Launch 1 System; Part 11 GTA Open Interface Specifications, Volume 1, and Volumes 2 through to 5 as reviewed by Contractor; Part 12 Security Architecture Specification; and Glossary. For avoidance of doubt, the GTA Fare System Technical Specifications shall include all revisions thereto issued by Ministry to Contractor by addenda under the RFP process. 2.6 FINAL DESIGN REVIEW Accenture shall, with the assistance of the Ministry, acting reasonably, develop a requirements mapping document that maps Final Design Review to the GTA Fare System Technical Specifications and shall use commercially reasonable efforts to identify on such mapping document which, if any, of the GTA Fare System Technical Specifications are not addressed in Final Design Review. With respect to any GTA Fare System Technical Specifications which are not addressed in Final Design Review, Ministry (acting reasonably) shall determine whether such requirements still apply to the Agreement, in which case such requirements shall be addressed by the Contractor; or do not still apply to the Agreement, in which case the Parties shall prepare and execute a Variance, on such terms mutually agreed by the Parties, with respect to such requirement. In accordance with the foregoing, and for greater certainty, the Parties acknowledge and agree that Final Design Review is intended to provide a design baseline for the GTA Fare System in accordance with Section 6.5 of Part 7 of the GTA Fare System Technical Specifications. Accordingly and further to Section 2.1 of this Agreement, the Parties agree as follows: (i) upon completion and approval of Final Design Review (or any element thereof) in accordance with the terms of this Agreement, in the event of a conflict or contradiction between a requirement set out in Final Design Review and a requirement set out in the GTA Fare System Technical Specifications, the requirement set out in Final Design Review shall prevail, provided that the requirements of the GTA Fare System Technical Specifications shall continue to apply in the event that: (1) the GTA Fare System Technical Specifications contain information or details supplemental, but not contradictory, to an element of Final Design Review: or 6

12 (2) the GTA Fare System Technical Specifications contain items or requirements that are not addressed in or relevant to Final Design Review (provided that such items or requirements are not the subject of Variance); (ii) any and all references to the GTA Fare System Technical Specifications set out in this MSSA, the Schedules or the Module Appendices shall: in all cases and at all times be subject to any Variances prepared and executed by the Parties in accordance with this Section; and upon completion and approval of Final Design Review in accordance with the terms of this Agreement, in all cases be read and interpreted so as to give effect to Section 2.6(c)(i); and (iii) notwithstanding any of the foregoing, the GTA Fare System Technical Specifications may at all times be used as a reference to provide context and clarification. ARTICLE 3 TERM OF AGREEMENT 3.1 Initial Term Subject always to the provisions of Article 14 (Termination and Remedies) herein, this Agreement shall take effect on the Effective Date and shall continue in full force and effect for a period of ten (10) years (the Initial Term ), provided that: (i) Ministry has given its acceptance of the Launch 1a System in accordance with Module Appendix A; and (ii) the Parties have approved the Project Blueprint to be developed in accordance with Article 4 (Project Blueprint) below and Module Appendix B which Project Blueprint shall be incorporated herein and form part of Module Appendix B by reference. In the event that the Parties cannot reach agreement on the Project Blueprint within the specified time frame, Ministry shall have the right to terminate this Agreement, in which event Ministry shall reimburse Contractor verifiable costs and fees incurred to date for the development of the Project Blueprint provided that the failure to reach agreement on the Project Blueprint is not because of a Contractor Terminable Default, and thereafter Ministry shall have no further payment obligations to Contractor. The Launch 1a System shall be successfully completed, accepted and available for demonstration to the public by the Demonstration Date. In the event that the Launch 1a System is not successfully completed and accepted in accordance with this Agreement, Ministry shall have the right to exercise any of the remedies available to it under Sections 14.4 and 14.5 of this Agreement; provided that, if Contractor reasonably believes that delay or failure for any reason of the Launch 1a System was the fault of Ministry, in whole or in part, then Contractor shall have the right, either before or after exercise by Ministry of any of its remedies, to make claims for compensation or other relief through the Dispute Resolution process specified in Article 18 of this Agreement. 3.2 Renewal Term Subject always to the provisions of Article 14 (Termination and Remedies) herein, this Agreement may be renewed, at Ministry s sole option, by written notice given by Ministry, not less than six (6) months prior to the end of the Initial Term or each Renewal Term (as defined below), for one (1) additional term of three (3) years ( Renewal Term ) on the same terms and conditions as provided herein, unless the Parties agree otherwise, in writing and in accordance with the Change Management Procedures of Schedule B. Thereafter, Ministry may renew this Agreement for two (2) further terms of three (3) years each, provided that: (i) Ministry notifies Contractor in writing, not less than six (6) months prior to the end of the current Renewal Term, of Ministry's intention to further renew this Agreement; and (ii) Contractor has not notified Ministry, within thirty (30) days from receipt of such notice of Ministry's intent to renew, of Contractor's desire not to renew this Agreement. Such further renewal(s) shall be on the same terms and conditions as provided herein, unless the Parties agree otherwise, in writing and in accordance with the Change Management Procedures of Schedule B. 7

13 In all cases, the Parties agree that should Ministry request Contractor to provide Transition Out Services, Contractor shall provide such services and the Term shall continue until the expiration of the Transition Out Period, as defined herein. 3.3 For greater certainty, the Term of this Agreement as referenced hereunder shall include the Initial Term, any Renewal Term and the Transition Out Period. ARTICLE 4 PROJECT BLUEPRINT 4.1 Project Blueprint Development Commencing within five (5) Business Days following the Effective Date Contractor shall develop, with Ministry collaboration, a Project Blueprint. The Project Blueprint relating to the GTA Fare System shall be completed no later than June 26, Upon completion of the Project Blueprint, Ministry shall provide written notification to the Contractor of the Executive Committee s approval and the Contractor shall, with Ministry collaboration, develop the Final Design Review. The Project Blueprint, together with the Final Design Review, shall meet all of the objectives and requirements of the GTA Fare System Technical Specifications including, without limitation, Part 7, Section 6.2, Preliminary Design Review, unless Ministry waives (pursuant to a Variance or otherwise) any such specific objective or requirement in writing. The Project Blueprint will also: Provide the Project milestones for the remainder of the Project ( Milestones ). The milestones provided in the Project Timeline, as set out in the GTA Fare System Technical Specification, Part 7, section 3.0, Exhibit 4 shall be used in the development of the Milestones, and once accepted by Ministry shall be contractually binding completion dates; and Include the Final Project Schedule that reflects all time related determinations arising out of Ministry and Contractor s collaboration in developing the Project Blueprint. The Final Project Schedule is to be prepared in conformance with the requirements of System Assurances Technical Specification, Part 7, section 3.0, Project Schedule. Once accepted by Ministry, the Final Project Schedule, as revised, shall be contractually binding on the Parties. Contractor shall provide its services with respect to the development of the Project Blueprint in accordance with Module Appendix B (Development of Project Blueprint). 4.2 Acceptance and Review Each Deliverable or Module of Deliverables to be provided under this Agreement shall be accepted or reviewed, as applicable, in accordance with the Project Milestones and the Final Project Schedule. In the event that a Deliverable or Module of Deliverables fails to meet the acceptance or review criteria as specified in the Project Blueprint or Final Design Review, including but not limited to cure periods which are part of the time related determinations to be made in the Final Project Schedule, Ministry shall have the right, but not the obligation, to exercise any or all of the remedies available to it under this Agreement. For avoidance of doubt, the acceptance and review criteria shall be consistent with the performance standards described in Final Design Review, the Service Level Agreement and the GTA Fare System Technical Specifications and in no way shall such criteria deviate from, or alter, such performance standards unless the Ministry, in its discretion, specifically agrees otherwise in writing. ARTICLE 5 RESPONSIBILITIES OF PARTIES 5.1 Contractor Responsibilities 8

14 (c) (d) Contractor shall be primarily responsible for implementing the GTA Fare System and for operating, supporting and maintaining the GTA Fare System during the Initial Term, any Renewal Periods and the Transition Out Period. Contractor may, with the prior written approval of Ministry, engage other Subcontractors for specialized goods, equipment and services Deliverables, provided that the costs associated therewith are included in the Contract Ceiling Price specified in this Agreement. Contractor is not required to notify Ministry of Subcontractors already referenced in Exhibit 2 as Subcontractors with whom Contractor has formed a Prime/Subcontractor Arrangement as defined in Exhibit 1. Contractor shall have overall responsibility for the provision of the Deliverables to Ministry, and shall be responsible and liable to Ministry for Contractor s own acts and omissions, and those of its Contractor Representatives, including, but not limited to its Subcontractors, in the same manner as if such acts or omissions were those of Contractor. Without limiting the foregoing provisions of this Section, any provisions of this Agreement imposing any liability or obligation on Contractor to the members of the Ministry Group, or any obligation on Contractor to indemnify the members of the Ministry Group, shall be interpreted to apply to any acts or omissions of any Contractor Representative, including, without limitation, any Subcontractors, in addition to applying to acts or omissions of Contractor. Contractor shall be solely responsible for all payments to its Contractor Representatives. Contractor agrees to indemnify and hold harmless the members of the Ministry Group for any such claims for payment, or any other claim or action of any nature or kind whatsoever that a Contractor Representative may have against Contractor arising out of, or as a result of the fulfillment by Contractor Representative of its obligations and responsibilities to Contractor relating to this Agreement, including, but not limited to, claims by Contractor Representative s employees, or the release to Ministry Group of Contractor Group Provided Intellectual Property belonging to Subcontractors that is not made in accordance with this Agreement. Contractor shall cause every Person with whom it subcontracts in accordance with the immediately foregoing provision to be bound by the terms of this Agreement insofar as they apply to the Deliverables to be provided by the Subcontractor. No subcontract entered into by Contractor shall impose any obligation or liability upon the members of the Ministry Group to any Subcontractor. The foregoing subsections 5.1 and shall survive the expiration or termination of this Agreement. Contractor undertakes to commence provision of the services and development of the Deliverables, particularly as they relate to the Launch 1 System and to the Project Blueprint, within five (5) Business Days following the execution of this Agreement. 5.2 Ministry Responsibilities Ministry Obligations Subject to subsection 5.2 below and the assignment provisions of Article 16 (General Assignment), Ministry shall be responsible, on its own behalf or as agent, as applicable, for all of obligations specified in Schedule I to this Agreement (the Ministry Obligations ). Limitations (i) Ministry may, in its sole discretion, allow a Service Provider to enter into a contractual arrangement with Contractor for any Deliverables related to the GTA Fare System to be used exclusively by such Service Provider, in which case Ministry shall no longer have responsibility, liability or obligation to Contractor with respect to the subject matter of the specific contractual arrangement and Contractor shall have all such obligations, responsibilities and liabilities with and to the Service Provider. The terms of such 9

15 arrangement shall be as the Service Provider and Contractor agree provided such terms and conditions shall not impose any obligation or liability on Ministry. (ii) Ministry may, in its sole discretion, assign any or all of its obligations to a Service Provider(s) with respect to any Deliverables to be used exclusively by such Service Provider(s) and may assign any and all rights, including, without limitation, rights of enforcement against Contractor to such Service Provider(s) with respect to such Deliverables for a specified period of time within the Initial Term or any Renewal Term, provided that Ministry shall remain liable and responsible for its obligations hereunder until such time as the assignee agrees in writing with Contractor to assume all or such part of Ministry s obligations as may be so assigned. (c) ARTICLE 6 Ministry shall co-operate with Contractor to facilitate the obligations of Contractor in this Agreement by providing timely responses to reasonable requests of Contractor. RELATIONSHIP MANAGEMENT AND ADMINISTRATION 6.1 Access to Premises Contractor is responsible for ensuring that Ministry and each Designated Person has reasonable access to Contractor sites (as specified in the Proposal or Final Design Review) for the purpose of enabling Ministry or any applicable Designated Person to perform its obligations or exercise its rights under this Agreement or to deliver, install, maintain, inspect, disconnect or remove any equipment, hardware or software selected by and/or provided by Ministry (or its suppliers) that is located at such sites, provided that as a condition of such right of access, Ministry shall comply, and cause any applicable Designated Person to comply with all applicable Contractor policies governing privacy and security of which Ministry has prior written notice. Notwithstanding the foregoing, Ministry shall not disconnect or remove any equipment, hardware or software in the normal course (i.e.: not in the event of a dispute of any kind) if, in so doing, Contractor is adversely affected in its ability to meet any of its obligations under this Agreement. Subject to Section 6.6 (Security), Ministry shall permit Contractor reasonable access to any designated Ministry sites, and shall ensure Contractor has reasonable access to Service Provider sites, (as specified in the Proposal, GTA Fare System Technical Specifications or Final Design Review) for the purpose of enabling Contractor to deliver, install, maintain, inspect, disconnect or remove any Contractor property or any Deliverable located at a designated Ministry site or Service Provider site, provided that as a condition of such right of access, Contractor shall comply, and cause any Contractor Representatives to comply with all applicable Ministry and Service Provider policies governing safety, privacy and security of which Contractor has prior written notice. 6.2 Access to Information Ministry shall provide or cause to be provided to Contractor such information as Contractor may reasonably require to perform its obligations under this Agreement. Should Contractor request that Ministry provide any information in accordance with this Section, such information shall be provided in accordance with and subject to Section 6.6 (Security), Article 8 (Confidentiality) and Article 9 (Privacy and Freedom of Information) of this Agreement. 6.3 Authorized Representatives Ministry and Contractor shall each appoint one Person as its representative (each an Authorized Representative ), each such Authorized Representative to have the position of Project Director or such higher position or other position as may be determined by the Parties, through whom, as far as is reasonably possible, the Parties shall communicate with each other under this Agreement. The Authorized 10

16 Representative of each Party shall: (i) have the overall responsibility for coordinating the performance of such Party s obligations under this Agreement; and (ii) have the authority to provide notices to the other Party under this Agreement. Each Party may replace its Authorized Representative and shall promptly notify the other of the contact information of any replacement in accordance with the terms of this Agreement. An Authorized Representative may delegate his or her responsibility with respect to communications relating to an identifiable matter by giving written notice of that delegation to the other Party. Such notice shall set out the name and contact information of the individual to whom responsibility is being delegated and a description of the scope of that delegation. Ministry shall have the right at any time and, from time to time, to request Contractor to change its Authorized Representative. Contractor shall replace its Authorized Representative as soon as reasonably possible, and shall ensure that the replacement has the qualifications, skills and experience reasonably necessary to fulfill the role of Authorized Representative. If Contractor fails to remove its Authorized Representative as Ministry requests, then Ministry may suspend the affected portion of the Deliverables by delivery of written notice of such suspension to Contractor. Such suspension shall in no way relieve Contractor of any obligation contained in this Agreement or entitle Contractor to an extension of time for provision of the Deliverables, additional payment or to resort to the Change Management Procedures in this Agreement. Once compliance is achieved, Contractor shall be entitled to and shall promptly resume provision of the Deliverables. 6.4 Project Committees The Contactor acknowledges that Ministry and Service Provider have formed, or are intent on forming, certain Project committees as follows and Contractor shall participate in such committees as provided herein: Ministry and Service Providers have jointly formed project committees composed of technical, management and/or senior representatives of each of Ministry and Service Providers as described below (the Project Committees ). The purpose of the Project Committees is to serve as a forum to review, discuss and make decisions on any matter relating to the Deliverables, including, without limitation: Reviewing any problems relating to the Deliverables; and Considering or making any recommendations for any modifications to the Deliverables, including, without limitation, the equipment, software, network or other items used to provide the Deliverables, or to this Agreement. Any changes to this Agreement shall be in accordance with the provisions herein, including those provisions dealing with Schedule B (Change Management Procedures). The Governance Agreement, signed in June, 2005, establishes a minimum of 2 Project Committees to oversee the procurement and implementation of the Deliverables: An Executive Committee A Steering Committee The Executive Committee makes timely decisions on budgets, contracts and schedules as specified in the Governance Agreement. Ministry s Executive Sponsor is the chair of the Executive Committee. The Committee is to meet at least 4 times per year or at major milestones needing the Committee s approval. Each Service Provider is to provide one executive representative. Meetings of the Executive Committee will be at a Ministry site in Toronto. The Executive Committee has the power to alter the committee 11

17 structure and rules of conduct. Contractor s Project Executives (as defined in the Request for Qualifications) shall attend by invitation for specific agenda items. The Steering Committee provides overall management and advice, monitors progress, recommends adjustments and provides any necessary approvals. It is chaired by Ministry appointed Project Director. Ministry and each Service Provider have a representative on the Committee. The Steering Committee will meet at least once a month or more frequently as determined by the chair, acting reasonably, at a Ministry site in Toronto. The Steering Committee has the power to create its own operating rules and to create subcommittees including a proposed implementation sub-committee from time to time to assist in carrying out its mandate ( Implementation Sub-committee ). Contractor s Authorized Representative (Contractor Project Director) shall attend by invitation for specific agenda items. Ministry and Service Providers intend to establish an Implementation Sub-committee responsible for timely monitoring and providing advice on the ongoing GTA Fare Systems development and implementation in accordance with the approved Final Design Review. The Implementation Sub-committee would receive direction from the Steering Committee and make recommendations to the Steering Committee as required. Membership would include Contractor s Project Director, Ministry s Project Director, and a representative from each of Service Providers and Ministry. Contractor Project Director and Ministry project Director will be non-voting representatives on sub-committee. The Steering Committee will appoint a chair of the Implementation Sub-committee. The sub-committee will meet monthly or more frequently as determined necessary by chair, acting reasonably. Meetings of the Implementation Sub-committee may alternate between a Ministry site and a Contractor site in Toronto. A minute of each meeting will be produced. The Parties agree to execute and maintain copies of these minutes. No charges shall be payable to Contractor or Ministry in respect of meetings of the Project Committees or sub-committees whether such committees are created under the Governance Agreement, the proposed Operating Agreement or this Agreement and each of the Parties hereto shall bear its own cost of such meetings. An Operating Agreement between Ministry and Service Providers is currently under development. It will provide a description of governance and accountability for the operations of the GTA Fare System under this Agreement. Nothing in this Section shall restrict the rights of Ministry or Service Providers to alter the committees identified herein or to otherwise establish committees which they may determine to be necessary for the furtherance of the Project. 6.5 Reports Each Party shall deliver to the other Party: all reports as required pursuant to Final Design Review or the GTA Fare System Technical Specifications; and such additional information as the other Party, acting reasonably, requests to enable the requesting Party to perform any of its obligations or to exercise any of its rights hereunder. 12

18 6.6 Security Contractor shall comply with, and shall ensure that all Contractor Representatives comply with the procedures, systems and policies with respect to security set out in Schedule E (Security Procedures) hereto. Contractor shall provide Ministry or its Designated Persons with access to and copies of such documents and records, including, without limitation, those involving contractual arrangements between Contractor and any third party, as may be reasonably necessary to enable Ministry to confirm, to its reasonable satisfaction, which shall be determined in its sole discretion, acting reasonably, that Contractor has implemented and is maintaining the security standards, procedures and systems that it is required to implement and maintain pursuant to this Agreement. Contractor agrees, upon the request of Ministry, to allow Ministry or its Designated Persons to meet with Contractor s manager(s) of system and physical security for the purpose of discussing Contractor s security standards, procedures and systems insofar as they may relate to Ministry or its Designated Persons, or this Agreement. Such review shall include, without limitation, the procedures and means used by Contractor to deal with matters such as disaster recovery, physical destruction, introduction of errors, disclosure of Confidential Information to unauthorized Persons, hacking and other attacks on the system, similar risks, and audit techniques. 6.7 Financial and Performance Audits and Assessments Maintenance and Retention of Records During the Initial Term, every Renewal Term and for a period of seven (7) years following the termination or expiry of this Agreement, Contractor shall, at its cost and expense, retain and maintain in Canada, in an organized, accessible mode, all books, records and documentation relating to the Project, in accordance with all generally accepted accounting principles and Ministry s record retention policies. Ministry, Service Provider or any Person, on behalf of Ministry or a Service Provider, conducting any audits under this Section 6.7, shall have access to all relevant premises, sites, books, records, and documentation relating to the Project and be entitled to access such books of account, records, reports and other papers, and to take extracts therefrom. Contractor shall make available or cause to be made available such reasonable information and material as may be required and otherwise give such cooperation as may be required. The audit report shall be in such format and address such issues as determined by Ministry in its sole discretion. Annual Audit An independent auditing firm retained and paid for by Ministry (the Auditors ) shall, on fifteen (15) days notice to Contractor, conduct an annual audit of all financial and operational controls, systems, databases, all operations, transaction clearings and settlement, books, records and documentation relating to the Project and shall report to Ministry, without limitation, as to the accuracy of all systems processing, financial management, financial controls, Service Provider settlement and Central System (as defined herein) performance. The audit shall be conducted in accordance with Canadian generally accepted auditing standards and may involve such other periodic checks and procedures as required by the auditors scope of work, which are generally required by such auditors in support of such annual audits. In making the report to Ministry, the Auditors shall be deemed for all purposes to be acting as experts and not arbitrators and the determination of the Auditors shall be final and shall not be disputed by either Party unless shown to be manifestly in error within thirty (30) days of such determination. (c) Spot Audits 13

19 Provided (i) Ministry co-ordinates all audits under this subsection (c), (ii) the total number of spot audits in any twelve (12) month period starting from the Effective Date does not exceed two times the number of Service Providers in Revenue Service, Ministry or Service Provider shall be entitled at any time upon seventy-two (72) hours notice to Contractor, except where Ministry or Service Provider has reason to believe that a fraud or breach of privacy has occurred, in which case no prior notice will be provided, and Ministry or Service Provider shall be entitled, at any time, to perform audits specifically to investigate the suspected fraud or breach of privacy, to perform audits of all financial and operational controls, systems, databases, all operations, transaction clearings, books, records and documentation relating to the Project, including, without limitation, clearing and settlement, handling of exception items, write-offs, transfer of funds between accounts, and any other processes, to validate the accuracy and efficacy of such processes and Contractor agrees to cooperate with such audit. Ministry will use reasonable efforts to minimize any disruption to Contractor s business operations in carrying out such audits. The costs to Ministry and Service Providers of such audits shall be their responsibility if the report indicates a variance within five percent (5%) of the number or numbers relating to the issue or issues giving rise to such audit in the systems-generated financial reports or any existing audit with respect to the same time period, or at the cost and expense of Contractor if (i) the variance is greater than five percent (5%) with respect to financial information, (ii) a breach of any security, privacy or confidentiality provisions of this Agreement is shown to have occurred, or (iii) a material variance with respect to any other matter exists. Any Person retained by Ministry or Service Provider to conduct a review or audit hereunder shall have all the rights otherwise available to Ministry hereunder. (d) (e) (f) (g) (h) (i) Contractor shall: (i) pay for all audits pursuant to (c) above which show the indicated variance; and (ii) make financial reparations to Service Providers or Ministry, as applicable, if the audits pursuant to and (c) indicate underpayments by Contractor to Service Providers or Ministry or overpayments by Service Providers or Ministry to Contractor within thirty (30) days of date of notice from Ministry. The audit rights herein shall survive for seven (7) years after expiry or termination of the Term. Contractor shall ensure that Contractor Representatives provide access to Ministry or any Person, as directed by Ministry, to request information and cooperate fully with any audit(s) related to the provision of the Deliverables under this Agreement. For avoidance of doubt, Ministry and Service Providers shall have no liability whatsoever for any costs Contractor or Contractor Representatives may incur in the exercise of the audit rights provided in this Agreement by Ministry, Service Providers, or by any Person on their behalf. The audit reports arising under Section 6.7 shall be the property of Ministry and the audit reports arising under subsection 6.7(c) shall be the property of Ministry or the respective Service Provider on whose behalf the audit is conducted. Subject to FIPPA and MFIPPA, in the event the information to be accessed under subsection 6.7 or (c) were to be of a proprietary nature as so specified by Contractor, in writing, Ministry shall ensure such information is treated as confidential in accordance with Article 8, provided that Ministry and the Service Providers are permitted to share the information on a confidential basis with each other, Personnel within their individual organizations and with any Person acting on behalf of either of Ministry or the Service Provider who is under an obligation of confidentiality to keep such information confidential. 6.8 Resources 14

20 Named Persons The Deliverables shall be provided by Contractor Representatives, as Contractor deems necessary, provided that the Persons named in Exhibit 2 (Proposal) (including Key Resources) shall perform the activities assigned to them therein. Contractor shall not replace any of the Persons named in Exhibit 2 (including Key Resources) without the prior written approval of Ministry which approval shall not be unreasonably withheld. Ministry reserves the right to interview any proposed replacement resources as part of Ministry's approval process. Supervision Contractor s Project Director shall supervise Contractor Representatives assigned to provide the Deliverables and he/she shall have authority to fully represent Contractor throughout the Project. (c) Competent Persons Contractor shall use the most appropriate methods in providing the Deliverables based on generally accepted principles and industry standards prevailing at the time and place such Deliverables are provided and shall retain the services of only skilled and competent Persons in sufficient number to provide the Deliverables in a timely manner, strictly in accordance with the requirements of this Agreement. (d) Replacements 6.9 Conflict of Interest Ministry may require Contractor to replace a Person assigned to provide the Deliverables with another Person having equal qualifications and experience if, after the commencement of this Agreement, that Person is solely judged by Ministry, acting reasonably, to be unacceptable, leaves the Project for any reason or is otherwise unavailable. The replacement shall be made by Contractor within a reasonable time and shall be subject to the approval of Ministry which approval shall not be unreasonably withheld. If Contractor fails to remove such Person or fails to furnish skilled and experienced Persons for the proper provision of the Deliverables, then Ministry may suspend the affected portion of the Deliverables by delivery of written notice of such suspension to Contractor. Such suspension shall in no way relieve Contractor of any obligation contained in this Agreement or entitle Contractor to an extension of time for provision of the Deliverables, additional payment or to resort to the Change Management Procedures in this Agreement. Once compliance is achieved, Contractor shall be entitled to and shall promptly resume provision of the Deliverables. Contractor shall: avoid any Conflict of Interest in the performance of its contractual obligations; disclose to Ministry in writing without delay any actual or potential Conflict of Interest that arises during the performance of its contractual obligations; and (c) comply with any requirements prescribed by Ministry to resolve any Conflict of Interest. In addition to all other contractual rights or rights available at law or in equity, Ministry may immediately terminate this Agreement upon giving notice to Contractor where: Contractor fails to disclose an actual or potential Conflict of Interest; Contractor fails to comply with any requirements prescribed by Ministry to resolve a Conflict of Interest; or (c) Contractor s Conflict of Interest cannot be resolved. The foregoing obligations of Contractor also apply with respect to Contractor Representatives to the extent any of them are involved in carrying out any obligations of Contractor. This Section shall survive any termination or expiry of this Agreement Occupational Health and Safety 15

21 With respect to Contractor Representatives, Contractor will be responsible for meeting all of the "employer" obligations under the Occupational Health and Safety Act (Ontario) (the "OHSA") and shall ensure that all Deliverables are provided in accordance with the OHSA and its regulations. This includes, but is not limited to, the duties to: provide a safe workplace, provide information and educate workers on workplace hazards, appoint a competent supervisor, prepare and provide a health and safety policy, implement a comprehensive health and safety program to support such policy and take every reasonable precaution to protect the health and safety of Contractor Representatives. In the event of (i) an accident causing death, (ii) critical injury (as prescribed by O.Reg. 834, R.R.O. 1990, as amended), or (iii) disabling injury to Contractor Representatives, Contractor shall notify both Ministry and the affected Service Provider immediately, and, within five (5) Days of such event, provide Ministry with a detailed report which shall include the information listed below: (i) (ii) (iii) (iv) (v) employer information, contact name, contact telephone number; description of the accident/incident (who, what, when, where, how); description of the injury; recommendations to prevent a future occurrence; and confirmation that all legislative notification requirements have been fulfilled. (c) (d) ARTICLE 7 Contractor shall immediately notify both Ministry and the affected Service Provider of any Ministry of Labour ("MOL") orders or charges issued to Contractor. Copies of all MOL orders or charges shall be provided immediately to Ministry and the affected Service Providers. Contractor acknowledges and agrees to comply with the requirements of all legislation pertaining to the Workplace Hazardous Materials Information System and provide the Deliverables in accordance with the health and safety requirements of all applicable Laws and Regulations. GENERAL FINANCIAL TERMS AND CONDITIONS 7.1 Pricing and Payment The pricing and payment terms for each Deliverable or Module of Deliverables shall be as set out in the Agreement, including applicable Module Appendix, Schedule G, the RFP and the Proposal. The total price for all the Deliverables shall not exceed the Contract Ceiling Price, subject only to changes to the Deliverables made in accordance with the Change Management Procedures in Schedule B. Either of Ministry or Contractor may invoke a price review in accordance with the mutually acceptable Price Review Plan on thirty (30) days notice to the other Party at the following times and for the following periods of the Agreement: at any time during the twelve (12) month period between and including the sixtieth (60th) and seventy-second (72nd) months after the Effective Date for the prices applicable for the period from and including the seventy-second (72nd) month to the one hundred and twentieth (120th) month following the Effective Date; and at any time during the twelve (12) month period between and including the eighty-fourth (84th) month and the ninety-sixth (96th) month following the Effective Date for the prices applicable during the Renewal Terms. 16

22 If a price review is invoked by either Party, the procedures in the Price Review Plan will apply. The pricing arrived at by the Third Party Price Reviewer in accordance with the Price Review Plan and agreed to by the Parties shall be implemented with all applicable amendments made to the Agreement for the applicable period(s). If an agreement cannot be reached between the Parties on any revision to the pricing, the pricing established in Appendix C will continue to prevail except that in any twelve (12) month period of a Renewal Term, the applicable pricing shall be the pricing prevailing during the last twelve (12) months of the Initial Term factored by the applicable Consumer Price Index (CPI) in accordance with the CPI provision of the RFP. For avoidance of doubt, only those specific pricing agreeable to by both Parties will be binding on both Parties and form the basis to implement an amendment to the Agreement. 7.2 Financial Security and Performance Bonds Contractor will be responsible for ensuring, throughout the Term of this Agreement, that all Contractor Representatives are financially secure and able to meet their commitments to Contractor. As security for the performance of all of Contractor s duties, obligations and covenants under this Agreement, on the Effective Date of this Agreement, Contractor shall deliver to Ministry, or as Ministry may direct, both a Performance Bond and a Labour and Materials Payment Bond of Contractor as principal, and a third party, which is mutually acceptable to the Parties, as surety, in favour of Ministry, as obligee, substantially in the form of the documents in Schedule H in the amounts as follows: a Performance Bond having a term of four (4) years to be in effect continually for the periods and in the amounts as follows: (i) a total value of $10 Million commencing on the Effective Date of this Agreement for the first twelve (12) months of this Agreement. (ii) a total value of $15 Million for the period commencing on the first (1 st ) day of the thirteenth (13 th ) month immediately following the Effective Date of this Agreement until the end of the twenty-fourth (24th) month immediately following the Effective Date of this Agreement). (iii) a total value of $25 Million for the period commencing on the first (1 st ) day of the twenty-fifth (25th) month immediately following the Effective Date of this Agreement until the end of the thirty-sixth (36th) month immediately following the Effective Date of this Agreement). (iv) a total value of $40 Million for the period commencing on the first (1 st ) day of the thirtyseventh (37 th ) month immediately following the Effective Date of this Agreement until the end of the forty-eighth (48 th ) month immediately following the Effective Date of this Agreement). a series of Performance Bond having to be in effect successively as follows: (i) a total value of $20 Million effective for a term of three (3) years for the period commencing on the first (1 st ) day of the forty-ninth (49 th ) month immediately following the Effective Date of this Agreement for the remainder of the Initial Term and any Renewal Term. (c) a Labour and Materials Payment Bond having a term of three (3) years to be in effect continually for the periods and in the amounts as follows: (i) a total value of $15 Million for the period commencing on the first (1 st ) day of the thirteenth (13th) month immediately following the Effective Date of this Agreement until the end of the twenty-fourth (24 th ) month immediately following the Effective Date of this Agreement) (ii) a total value of $25 Million for the period commencing on the first (1 st ) day of the twenty-fifth (25 th ) month immediately following the Effective Date of this Agreement until the end of the thirty-sixth (36 th ) month immediately following the Effective Date of this Agreement) 17

23 (iii) a total value of $35 Million for the period commencing on the first (1 st ) day of the thirtyseventh (37 th ) month immediately following the Effective Date of this Agreement until the end of the forth-eighth (48 th ) month immediately following the Effective Date of this Agreement). (d) (e) The Performance Bond and the Labour and Materials Payment Bond shall be issued by a surety licensed and registered with the Financial Services Commission of Ontario (FSCO) to conduct business in Surety and Fidelity insurance products in Ontario. Such bonds shall be maintained in place by Contractor at such amount and at such times during the Initial Term and each Renewal Term of this Agreement as provided herein. Contractor shall deliver the Performance Bond to Ministry prior to the Effective Date. Annual premiums for such bonds will be included in the quoted price. When accepted by the Ministry, such bonds shall be incorporated into this Agreement by reference and form part of Schedule H. 7.3 Price Protection The price of all COTS Software and all standard, non-customized Hardware (including, for illustration purposes, non-configured fare cards, handhelds, PCs, servers and network devices) shall be, at the time of supply to Ministry, equivalent to or better than the prices charged for similar quantities of the same products by commercial suppliers under normal operating conditions ( Best Price ). If Ministry can demonstrate to Contractor that the price charged by Contractor for any of the products described in this Section 7.3 is greater than the Best Price, Contractor shall refund to Ministry the difference between the price charged to Ministry and the Best Price effective from the date the Best Price was identified to Contractor by Ministry. 7.4 Risk of Loss Unless otherwise provided in the applicable Module Appendix, all risks of loss of tangible Deliverables supplied hereunder by Contractor shall only pass to Ministry upon delivery thereof to Ministry or Service Provider specified address in Ontario at a secure location designated by Ministry or Service Provider. 7.5 Insurance Obligations Contractor Contractor hereby agrees to put in effect and maintain insurance for the Initial Term, and any Renewal Term, at its own cost and expense, with insurers having a secure A.M. Best rating of B + or greater, or the equivalent, all the necessary and appropriate insurance that a prudent person in the business of Contractor would maintain including, but not limited to, the following: commercial general liability insurance on an occurrence basis for third party bodily injury, personal injury and property damage, to an inclusive limit of not less than Five Million Dollars ($5M) per occurrence, Five Million Dollars ($5M) products and completed operations aggregate. The policy is to include the following: (i) the Ministry Group as additional insureds with respect to liability arising in the course of performance of Contractor s obligations under, or otherwise in connection with, this Agreement (ii) (iii) contractual liability coverage cross-liability section (iv) employers liability coverage (or compliance with the Workplace Safety and Insurance provisions of this Agreement entitled Workplace Safety and Insurance Board is required) 18

24 (v) (vi) (vii) 30 day written notice of cancellation, termination or material change tenants legal liability coverage (if applicable and with applicable sub-limits) non-owned automobile coverage with blanket contractual coverage for hired automobiles (c) errors & omissions liability insurance, insuring liability for errors and omissions in the performance or failure to perform the services contemplated in this Agreement, in the amount of not less than Ten Million Dollars ($10M) per claim and in the annual aggregate. Property insurance to a sum insured commensurate to the full replacement cost value of the asset(s), insured, against the perils of all risks of physical loss or damage. The policy must include the following: (c) loss payable in favour of Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation and the Service Providers replacement cost value waiver of subrogation 7.6 Proof of Insurance Contractor shall provide Ministry with proof of the insurance required by this Agreement in the form of valid certificates of insurance that reference this Agreement and confirm the required coverage, before the execution of this Agreement by Ministry, and renewal replacements on or before the expiry of any such insurance. Upon the request of Ministry, copies of certificates for each insurance policy shall be made available to it. Contractor shall ensure that each of its Subcontractors obtains all the necessary and appropriate insurance that a prudent Person in the business of the Subcontractor would maintain and that the Ministry Group are named as additional insureds with respect to any liability arising in the course of performance of the Subcontractor's obligations under the subcontract for the provision of the Deliverables. 7.7 Workplace Safety and Insurance Board Contractor is responsible for all costs associated with workplace accidents and all premiums or assessments owing to the Workplace Safety and Insurance Board (the "WSIB"), or applicable insurance company as related to the Deliverables. Upon request of Ministry, Contractor shall furnish evidence of coverage for Contractor and Contractor Representatives under the Workplace Safety and Insurance Act ( WSIA ) or the applicable insurance policy, as related to the Deliverables. Ministry may deduct from any monies payable or returnable to Contractor under this Agreement, such sums of money sufficient to cover any of Contractor's default to the WSIB or the insurance company for assessments or premiums and any costs for income replacement, medical aid or rehabilitation, arising from an accident. 19

25 7.8 Not a Limit on Liability Neither the minimum amounts of insurance or bond coverage referred to in this Agreement, nor any approval or waiver of any such coverage by Ministry, shall be construed to, limit, expand or qualify, in any manner, the liabilities and obligations imposed on Contractor pursuant to this Agreement and, shall not preclude Ministry from taking such other actions as are available to it under any provisions of this Agreement or otherwise at law or in equity. For greater certainty, in the events that the amounts paid or payable to Ministry pursuant to any and all insurance or bonds are insufficient to cover the damages claimed by Ministry, Ministry shall have the right to claim directly against Contractor for all such shortfalls, subject only to the Risk Management Provisions of Article 15 of this Agreement. 7.9 No Encumbrance by Contractor Under no circumstances will Contractor or Contractor Representatives Encumber any property, whether tangible or intangible, of any member of the Ministry Group which might come under the possession or under the control of Contractor or Contractor Representatives pursuant to this Agreement. ARTICLE 8 CONFIDENTIALITY 8.1 Acknowledgment Both Parties acknowledge that the protection of the Confidential Information by any Recipient is of vital importance to any Disclosing Party. 8.2 Exclusions No exceptions or exclusions specified in the definition of Confidential Information shall apply to Personal Information. 8.3 Operation of Law No Recipient shall be liable for any disclosure of Confidential Information if disclosure is required by applicable Laws and Regulations, provided that the Party relying on this Section, to the extent permitted by applicable Laws and Regulations, notifies the Disclosing Party in writing of any such requirement as soon as legally permissible, so that the Disclosing Party may seek a protective order or take such other action as it deems appropriate. If Confidential Information is also Personal Information, the requirements of Article 9 (Privacy and Freedom of Information) shall govern any such disclosure of Personal Information. Contractor acknowledges and agrees that any Confidential Contractor Information supplied to Ministry or any Designated Person may be disclosed by Ministry or any Designated Person where Ministry or any Designated Person is obligated to do so under FIPPA or MFIPPA, by an order of a court or tribunal or pursuant to a legal Proceeding. 8.4 Obligations With respect to the Confidential Information of a Disclosing Party, the Recipient shall: use that Confidential Information only in accordance with this Agreement and only for the purpose of fulfilling its obligations and exercising its rights under this Agreement and shall not use, manipulate or exploit that Confidential Information in any other manner; maintain that Confidential Information in strict confidence using at least the same degree of care to protect that Confidential Information as the Recipient would take, or would reasonably be expected to take, to protect its own Confidential Information of a like nature and, in any event, 20

26 using a standard no less than a reasonable degree of care commensurate with the nature and sensitivity of the Confidential Information in question; (c) (d) (e) (f) except for any disclosure that is expressly authorized in writing by the Disclosing Party, disclose Confidential Information only to its representatives who: (i) have a need-to-know; (ii) are bound by a written contract to keep the Confidential Information of third parties confidential at least to the same extent as set forth in this Agreement; (iii) are provided with reasonable instructions by the Recipient of the confidential nature of the Disclosing Party's Confidential Information; and (iv) with respect to Confidential Information of Ministry and Service Providers, are Contractor Representative individuals who are bound by a Contractor Representative Security Statement; not make copies or partial copies of that Confidential Information or modify it, other than as expressly permitted under this Agreement; upon demand, inform the Disclosing Party of the location of its Confidential Information and the measures that the Recipient has taken to preserve its confidentiality; and notify the Disclosing Party immediately upon becoming aware of any loss of or inability to account for or unauthorized copying, disclosure or use of that Confidential Information by the Recipient or by any employees, subcontractors or agents to whom the Recipient has disclosed that Confidential Information and make every commercially reasonable effort to minimize the effect of any such use or disclosure. In addition to the foregoing, where Confidential Information is also Personal Information, Article 9 (Privacy and Freedom of Information) shall apply to such Confidential Information, and in the event of an inconsistency between the provisions of Article 8 and Article 9 with respect to such information, the provisions of Article 9 shall prevail. 8.5 Return of Confidential Information 8.6 Relief Each Recipient shall immediately return the Confidential Information of the Disclosing Party to the Disclosing Party on or before any date as may be specified by the Disclosing Party in writing, and if so requested by the Disclosing Party, ensure that all copies of the Confidential Information have been destroyed, except for: (i) any materials for which ownership is conveyed hereunder; and (ii) any materials for which any licenses or other rights are granted hereunder and which licenses or other rights survive after the date specified by the Disclosing Party. Notwithstanding the foregoing in this Section, subject to any applicable Laws and Regulations and the Recipient s compliance with this Agreement, the Disclosing Party shall not at any time during the Initial Term and any Renewal Term of this Agreement request that the Recipient return or destroy any of the Disclosing Party s Confidential Information that the Recipient requires to exercise any right or perform any obligation hereunder. Each Party, as the Recipient, acknowledges and shall require all Persons under its control to acknowledge, that each Disclosing Party, and its suppliers value its Confidential Information (including but not limited to the copyright, proprietary rights, and/or trade secret interests that are embodied in the Confidential Information) and that disclosure or unauthorized use of that Confidential Information shall cause immediate irreparable injury to the Disclosing Party. Consequently, Contractor or Contractor Representatives, as Recipient, agrees that in addition to any other remedies that any member of the Ministry Group may have, Ministry or any member of the Ministry Group shall be entitled to seek injunctive or other equitable relief as is available to it, as a matter of right, to prevent the breach or the further breach of this Agreement. Further, Ministry, on behalf of the Ministry Group, agrees that in addition to any other remedies that Contractor, as Disclosing Party, may have, Contractor shall be entitled to seek such equitable relief as is available to it, as a matter of right, to prevent the breach or the further breach of this Agreement. 21

27 8.7 Termination Upon expiration or termination of this Agreement, the Recipient shall: (i) return all Confidential Information disclosed to it by the Disclosing Party and all copies thereof, regardless of form; (ii) destroy any such Confidential Information that cannot be returned with the prior written consent of the Disclosing Party; and (iii) furnish to the Disclosing Party, as soon as reasonably practicable but, in any event, within twenty (20) Business Days of such termination or request, as the case may be, a certificate signed by an executive of the Recipient attesting to such return or destruction. Such certificate shall be in such form as the Disclosing Party may reasonably request. 8.8 Survival The provisions of this Article 8 shall survive termination or expiration of this Agreement. ARTICLE 9 PRIVACY AND FREEDOM OF INFORMATION 9.1 General Contractor Obligations under FIPPA Contractor and Ministry acknowledge and agree that all Records are governed by FIPPA. Contractor agrees that FIPPA applies to all Records, including Records held by Contractor, Records created by Contractor in the course of providing the Deliverables, and Records provided to Contractor by Ministry prior to the termination or expiry of this Agreement. Contractor agrees to keep the Records secure and to provide them to Ministry on demand and, in any event, to return all of them to Ministry before the termination or expiry of this Agreement, with no copy or portion kept by Contractor or its Contractor Representatives. The provisions of this Article 9 shall survive the termination or expiry of this Agreement. 9.2 Requests for Personal Information Contractor agrees to provide Records to Ministry on demand for the purposes of an access request or if a privacy issue arises. In these circumstances, Contractor must provide all Records requested of Contractor to Ministry s Freedom of Information and Privacy Co-ordinator, within seven, (7) Days of being directed to do so by Ministry Representative. For purposes of this Article 9, the address of Ministry's Freedom of Information and Privacy Coordinator is: Freedom of Information and Privacy Office 2nd Floor, Suite University Ave. Toronto, ON M5G 1Y8 Attention: Freedom of Information and Privacy Coordinator The above address may be changed from time to time by notice in writing from Ministry Representative or Ministry's Freedom of Information and Privacy Coordinator. 9.3 Designated Contractor Representative Contractor may deliver written notice to Ministry designating an employee to be in charge on its behalf for the management of Personal Information, including but not limited to, access to information and protection of privacy. Until such notice is delivered, Contractor s Authorized Representative is designated as such employee in charge. 9.4 Contractor Compliance with this Article 9 Contractor shall advise its Contractor Representatives of the requirements of this Article 9, and associated requirements set out elsewhere in this Agreement, and take appropriate action to ensure compliance by 22

28 such Contractor Representatives with the terms of this Article 9. In addition to any other liabilities of Contractor pursuant to this Agreement or otherwise at law or in equity, Contractor shall be liable for all claims arising from any non-compliance with this Article 9 by Contractor and Contractor Representatives. Contractor warrants that each Contractor Representative provided or used by it to provide the services pursuant to this Agreement is under a written obligation to Contractor requiring such person to comply with the terms of this Article Employer/Employee Security Statement To emphasize the significance of confidentiality to Contractor Representatives, Contractor shall request each Contractor Representative who is involved in any way in providing the services under this Agreement, to execute a Contractor Representative Security Statement as between itself and each Contractor Representative in the form of Schedule D and shall provide an original copy of each executed Contractor Representative Security Statement to Ministry prior to providing or using such person to provide any services under this Agreement. 9.6 Contractor s Handling of Personal Information Contractor shall not access any Personal Information unless Ministry determines, in its sole discretion, that access is permitted under FIPPA and is necessary in order to provide the services pursuant to this Agreement. Contractor shall not directly or indirectly use, collect, disclose or destroy any Personal Information for any purposes that are not authorized by Ministry under this Agreement. For greater certainty, Contractor shall not disclose any Personal Information to any unauthorized third party. Contractor shall immediately notify Ministry of any third party request for any information and specifically Personal Information or Confidential Information, including pursuant to an extraterritorial court order or warrant. Contractor agrees to keep all Personal Information secure and to provide Personal Information to Ministry on demand and, in any event, to return all Personal Information to Ministry before the termination or expiry of this Agreement, with no copy or portion retained by Contractor. In addition, Contractor agrees that it will not give, exchange or sell to other parties any Personal Information (except for the purpose of providing the services if authorized by this Agreement, or except if required by order of a court or tribunal), without first obtaining: the written consent of Ministry; and in respect of any Personal Information, the informed written consent of the individuals to whom the information pertains. 9.7 Security of Personal Information Contractor shall keep all Personal Information in a physically secure location and separate from all of its other records and databases. Contractor shall not place, input, match, insert or intermingle, nor shall it permit any person to place, input, match, insert or intermingle, any data or records in any form whatsoever into or with any records or database containing any such Personal Information. Contractor shall ensure that access to Personal Information is restricted to those Contractor Representatives who have a need to know it and who have been specifically authorized to have such access for the purpose of providing the services and for whom a Full Criminal Record ( FCR ) clearance has been obtained. Notwithstanding anything to the contrary in this Agreement, prior to providing access to any Personal Information to any individuals who are not employees of Contractor or Contractor Representatives, Contractor shall inform each of those individuals of the confidential nature of the Personal Information and shall require the respective individuals, in its agreement with the individuals, not to disclose the information to any Person. In addition, Contractor shall require each Contractor Representative who is an 23

29 individual to whom any of the Personal Information will be provided to agree, in writing, to be bound by the covenants of Contractor hereunder with respect to the Personal Information. Contractor shall make its Contractor Representatives aware of the requirements of FIPPA and of the importance of maintaining the privacy and security of personal information through on-going staff training and communication. Contractor shall ensure Contractor Representatives make their employees aware of the requirements of FIPPA and of the importance of maintaining the privacy and security of personal information through on-going staff training and communication. Contractor shall ensure that Contractor Representatives are subject to the same controls as set out in this Article 9 and otherwise in this Agreement including, without limitation, in respect of security, audit, and notification procedures. Contractor shall ensure the security and integrity of Personal Information and shall protect it against loss, alteration and destruction and against access by unauthorized Persons, and shall select, implement, use and maintain the most appropriate products, tools, measures and procedures to do so. Contractor shall have in place, prior to execution of this Agreement, physical and electronic security measures to ensure security and integrity of the Personal Information and the Confidential Information, including security against unauthorized disclosures, access and use, including but not limited to, firewalls, encryption and other privacy enhancing technologies. Ministry reserves the right to require Contractor to implement other specific security measures that, in the reasonable opinion of Ministry, would improve the adequacy and effectiveness of Contractor's measures to ensure the security and integrity of Personal Information, provided that if Contractor can demonstrate to Ministry's reasonable satisfaction that (i) the other security measures exceed the security measures previously required to be implemented by Contractor under this Agreement, and (ii) the other specific security measures would result in additional costs to Contractor, Contractor may submit a claim for costs under the Change Management Procedures. Contractor shall implement automated auditing and control systems to record the identity of persons accessing, viewing, altering, deleting or using Personal Information or Confidential Information, or attempting to do so, which systems must be able to record the date and time of any such actions and must flag unauthorized attempts. Contractor shall have in place a process for advising Ministry of such unauthorized access attempts. Contractor shall ensure that the design of the system incorporates mechanisms to comply with Ministry notice requirements under FIPPA. 9.8 Security Violations Contractor shall immediately report to Ministry, upon becoming aware, of any security violations or attempted security violations or any unauthorized use or access of Personal Information and/or Confidential Information, or any security violation or attempted violations or any unauthorized use or access at any sites at which the Personal Information or Confidential Information is accessed, operated or maintained by or on behalf of Contractor. 9.9 Extraterritorial Measures Contractor shall implement technological systems and processes to ensure that all information constituting Personal Information remain within Canada. Contractor shall ensure that all Personal Information is stored, maintained and processed only in Canada, including all electronic files, back-up tapes and hardcopy versions of information. Contractor shall obtain prior written consent of Ministry before any such information can be stored, maintained, or processed outside of Canada. Contractor shall ensure that Records containing Personal Information or Confidential Information are always in the sole custody of, and accessible only by (i) the Ontario Government; (ii) Service Providers; and (iii) Contractor and Contractor Representatives for the purpose expressly authorized in this Article 9 and in accordance with the requirements in this Agreement. 24

30 9.10 Acknowledgement of MFIPPA by Contractor Contractor acknowledges and agrees that information provided by Service Providers, but for the Greater Toronto Transit Authority, is governed by MFIPPA. Contractor acknowledges and agrees that information provided by the Greater Toronto Transit Authority, is governed by FIPPA. The foregoing obligations of Contractor in this Article 9 also apply to information provided by Service Providers Survival The provisions of this Article 9 shall survive the expiration or termination of this Agreement. ARTICLE 10 INTELLECTUAL PROPERTY 10.1 General Ministry Ownership and Control Subject to the licence and sublicense rights granted under this Agreement, as between the Ministry Group and the Contractor Group, the Ministry Group owns or controls, and shall continue to own or control, all rights, title and interests in and to all components of the GTA Open Interface Standard; all other components of the Ontario Materials; all Ontario Data; all other parts of the Confidential Information, but for Confidential Information owned by Contractor and Contractor Representatives; all Special Works; all improvements and modifications to any or all of the above and all Intellectual Property Rights to all of the above (collectively, the Ministry Group Intellectual Property ). Third-Party Ontario Materials shall be owned and controlled by respective third parties. For the avoidance of doubt, Ministry Group Intellectual Property does not include any Contractor Group Provided Intellectual Property, as defined herein, including but not limited to any derivative intellectual property or any modification to any intellectual property supplied by Contractor or any member of the Contractor Group, provided that under no circumstances shall such Contractor Group Provided Intellectual Property which may be embedded in the GTA Open Interface Standard be used to contravene the provisions of subsection 10.1 immediately below. Under no circumstances shall Contractor or Contractor Representatives: (i) assert, or attempt to assert, in any way any rights over Ministry Group Intellectual Property other than those expressly set out in this Agreement; (ii) use Ministry Group Intellectual Property in Competitive Commercialization against Ministry or the Broader Public Sector; or (iii) impair, or attempt to impair, Ministry s objectives of open access with respect to the GTA Open Interface Standard General Contractor or Contractor Representatives Ownership and Control Subject to the licence and sublicense rights granted under this Agreement, as between Contractor Group and the Ministry Group, Contractor Group owns or controls and shall continue to own or control, all rights, title and interests in and to the Custom-Developed Software, the Licensed Development Tools, all other Proprietary Supplier Materials, all other Contractor Platform Software and materials, all improvements and modifications to any or all of the above and all Intellectual Property Rights to all of the above (collectively, the Contractor Group Provided Intellectual Property ). All Contractor Group Provided Intellectual Property that is identifiable during Final Design Review shall be itemized in Schedule F, with the exception of Confidential Information of Contractor or any member of Contractor Group which in and of itself does not form a materially identifiable component of the Deliverable such as know-how or show-how and which, therefore, cannot reasonably be itemized, but which will form part of the background development capability of Contractor. Schedule F shall be provided by Contractor in accordance with the Final Project Schedule and shall be updated thereafter from time to time as further Contractor Group Provided Intellectual Property is identified. All listed Software shall be tagged as COTS Software or Non-COTS Software, as defined in this Agreement. 25

31 Contractor shall be responsible under this Agreement for entering into, and fully maintaining at all times during the Term of this Agreement, licenses with all Subcontractors (the Subcontractor Licenses ) for all Software of each such Subcontractor, under which: (i) Contractor shall have and shall exercise the rights to use all of the Software of Subcontractor for all purposes necessary to develop, integrate, implement and operate the GTA Fare System, including, but not limited to the Central System which shall be run at a Contractor owned or controlled location in Ontario, such location to be determined from time to time by mutual agreement of Ministry and Contractor. (ii) Contractor shall have and shall exercise its rights to provide to the Ministry Group and members of the public, rights to access any and all parts of the GTA Fare System for all operational purposes within the geographical territory of Ontario, in accordance with the GTA Fare System Technical Specifications. (iii) Contractor shall be enabled, by way of the escrow agreement for the Non-COTS Software Source Materials specified in Section 10.5 below, to use and access, for all development, maintenance and support purposes necessary to the fulfillment of all functions of the GTA Fare System, any and all parts of any Subcontractor s Non-COTS Software Source Materials which such Subcontractor is unable or unwilling to maintain and support and which, as a consequence, places Contractor in a default of this Agreement which gives rise to Ministry s right of termination of this Agreement. (iv) Contractor shall have and shall exercise the right to grant sublicenses to Ministry for all of Contractor s rights under subsections 10.2(i) through (iii) immediately above. All such sublicenses will survive termination of the license between Contractor and Subcontractor and/or termination of this Agreement between Ministry and Contractor. Immediately upon execution of this Agreement, Contractor shall provide to Ministry certificates from each and every Subcontractor stating that Contractor has been granted all of the above rights by the Subcontractor for all its Non-COTS Software listed, or to be listed in Schedule F ( Certificates ). Failure to deliver any or all such Certificates from all Subcontractors shall place Contractor in default of this Agreement. (c) Contractor shall be responsible under this Agreement for entering into and fully maintaining, during the currency of any Subcontractor Licenses (which, for greater certainty, shall be the Term of this Agreement), all related maintenance and support agreements with each Subcontractor for that Subcontractor s licensed Software, and all such agreements shall be made assignable to Ministry and Designated Persons on Ministry s written direction to Contractor and the applicable Subcontractor Rights and Waivers Granted to Ministry Contractor hereby grants to Ministry and Designated Persons, for the Term of this Agreement, at no costs other than those expressly specified in this Agreement, (i) non-exclusive, irrevocable licences to all of Contractor Group Provided Intellectual Property, including, but not limited to COTS and Non-COTS Software, and (ii) non-exclusive, irrevocable sublicenses to all of the Contractor Group Provided Intellectual Property belonging to Subcontractors, including, but not limited to COTS and Non-COTS Software, for all of the purposes specified in subsection 10.2 above, provided that, except for such rights to Software which is in the care and control of the Ministry Group for operational purposes in the normal course (such as field equipment), Ministry and Designated Persons shall only exercise their sublicensee rights pursuant to subsection 10.2 if: 26

32 (i) (ii) (iii) there is a Contractor Terminable Default giving rise to Ministry s rights of termination hereunder; Ministry has given notice to Contractor of its intention to terminate this Agreement; and the applicable Subcontractor has not agreed in writing, within ten (10) days after receipt of written notice from Ministry, to maintain and support its Non-COTS Software directly for Ministry in accordance with all of the terms and conditions of its support and maintenance agreement with Contractor. It is a fundamental term and condition of this Agreement that Contractor shall ensure at all times during the Term of this Agreement that: (i) it has all such rights and authorities as are necessary to make the grants of rights in this Section on behalf of all members of the Contractor Group and that under no circumstance shall it include, in any Deliverable, any Intellectual Property to which Contractor does not have all rights necessary to include it in the licenses granted by Contractor to Ministry hereunder; (ii) it has caused and shall continue to cause all members of the Contractor Group to meet and continue to meet all of the software escrow obligations set out in Section 10.5 below; and (iii) it has obtained from all applicable members of the Contractor Group, or from any Person in a position to assert moral rights (as those rights are defined in the Copyright Act (Canada)), written waivers of all rights of integrity and all moral rights in relation to all Software components of Contractor Provided Intellectual Property, which waivers may be enforced by Ministry or its Successors, or any Designated Persons, as applicable, without restriction in pursuit of their rights under this Agreement Rights and Waivers Granted to Contractor Ministry, on behalf of itself and all Designated Persons, hereby grants to Contractor a non-exclusive, royalty free licence for the Initial Term, any Renewal Period and Transition Out Period to use the Ministry Group Intellectual Property and to exercise all necessary Intellectual Property Rights therein for any and all purposes reasonably necessary to fulfill Contractor s obligations and responsibilities under this Agreement, including but not limited to the development, operation and maintenance of the GTA Fare System. This licence includes the right to sub-licence to Contractor Representatives, but strictly and only as necessary to enable them to fulfill their particular obligations to Contractor hereunder Rights on Default Ministry and Contractor each acknowledge that, notwithstanding Contractor s license rights and Ministry s and Designated Persons sublicense rights to the Non-COTS Software Source Materials of each Subcontractor, Ministry, Designated Persons and Contractor shall only need to access and use those Source Materials of any such Subcontractor to continue to operate, maintain, develop and improve the GTA Fare System in the event that the applicable Subcontractor is unable or unwilling to fulfill its obligations hereunder. Therefore, to balance the legitimate interests of each of Ministry, Designated Persons, Contractor and Subcontractor, Ministry and Contractor agree that, concurrently with the execution of this Agreement, (i) they shall enter into a software escrow agreement with respect to Contractor s own Non- COTS Software, and (ii) Contractor and each Subcontractor shall enter into separate Software escrow agreements with Contractor, Ministry and Designated Persons as named beneficiaries thereunder. The Source Material escrow agreements shall be made with a nationally recognized escrow agent, in accordance with industry standards, under which all of the Non-COTS Software Source Materials shall be held by the escrow agents and made accessible only to Contractor or Ministry and Designated Persons, and used in accordance with the licence restrictions set out above. Contractor acknowledges and agrees that Ministry or Designated Persons may further license or sub-licence its or their rights hereunder, as required, to qualified third-party suppliers, provided that such third party suppliers have entered into confidentiality and noncompete agreements which protect Contractor Group s Intellectual Property Rights. The Software escrow agreements referenced herein shall be incorporated into this Agreement by reference as Schedule J. 27

33 10.6 Use of Personal Knowledge Each Party understands and agrees that the Personnel of members of the Contractor Group and the Ministry Group, in the course of this Agreement, may acquire Personal Knowledge. Subject to Article 8 and Article 9 and any other statute under which the Ministry Group has the discretion or obligation not to disclose any records or other information, the use of such Personal Knowledge by Personnel of Contractor Group or of the Ministry Group in the ordinary course of their employment, does not constitute a breach of this Agreement; provided, however, that nothing in this Section grants to any Party, or Personnel, the right to obtain any rights which impair or restrict any pre-existing Intellectual Property Rights in Ministry Group Intellectual Property or Contractor Group Provided Intellectual Property, including, but not limited to a patent in respect of any such Personal Knowledge Survival The provisions of this Article 10 shall survive the expiration or termination of this Agreement. ARTICLE 11 ARTICLE 12 INTENTIONALLY DELETED (EQUIPMENT TERMS AND CONDITIONS) GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS 12.1 Ministry Ministry covenants and agrees with and represents and warrants as follows to Contractor and acknowledges and confirms that Contractor is relying on such covenants, agreements, representations and warranties: Ministry has full rights, and authority to execute this Agreement and to perform its obligations hereunder; neither the execution, nor delivery of this Agreement, nor the consummation of the transactions contemplated herein, nor compliance with nor performance of the provisions of this Agreement, shall: (i) conflict with, or result in a breach of, or constitute a default under any agreement or instrument, written or oral, to which Ministry is a party or by which it is bound, or (ii) require that it obtain any further consent, approval or action of any other person, entity or organization; (c) (d) (e) (f) Ministry shall use the Deliverables in accordance with all applicable Laws and Regulations to which Ministry is subject; in exercising its powers and discharging its obligations and duties under this Agreement, Ministry shall at all times act honestly and in good faith; Ministry has been fully authorized and appointed by Service Providers to act as agent for them for the purpose of entering into this Agreement and in relation to the Deliverables described herein; and this Agreement constitutes a legally valid and binding obligation of Ministry enforceable against Ministry in accordance with its terms. 28

34 12.2 Contractor Contractor covenants and agrees with and represents and warrants as follows to Ministry and acknowledges and confirms that Ministry is relying on such covenants, agreements, representations and warranties (as well as the warranties set out elsewhere in this Agreement: Contractor is a corporation that is validly existing under the laws of Ontario and Contractor has all necessary corporate power, authority and capacity to enter into this Agreement and to perform its obligations hereunder; the entering into of this Agreement by Contractor and the performance of its obligations hereunder has been authorized by all necessary corporate action; neither the execution nor delivery of this Agreement, nor the consummation of the transactions contemplated herein nor compliance with nor performance of the provisions of this Agreement shall: (i) conflict with, or result in a breach of or constitute a default under any agreement or instrument, written or oral, to which it is a party or by which it is bound, or (ii) require Contractor to obtain any consent, approval or action of any other persons or entities and any such required approval has been obtained as of the Effective Date; (c) (d) (e) (f) this Agreement constitutes a legally valid and binding obligation of Contractor enforceable against it in accordance with its terms, subject only to applicable bankruptcy, insolvency and other similar laws affecting the enforceability of the rights of creditors generally, the general principles of equity and that equitable remedies such as specific performance and injunction are available only in the discretion of a court; Contractor shall perform, and require its Contractor Representatives to perform, or provide all Deliverables in a professional and workmanlike manner by duly competent and trained individuals that have the requisite experience to provide the Work, and in accordance with all best practices as may be defined or otherwise acknowledged by the IT service industry from time to time and which are described in Contractor s Proposal and at such Service Levels as are set out in the applicable Module Appendices and the GTA Fare System Technical Specifications; all Deliverables shall be free of all material errors due to faulty design or workmanship and the media on which the Deliverables are contained shall be free of defects in materials and workmanship. All Deliverables shall have, and shall continue to comply with, in all material respects, the qualities, functions and features described in the associated written specifications set out in: (i) the applicable Module Appendix or elsewhere in this Agreement; (ii) Final Design Review; (iii) the GTA Fare System Technical Specifications; and (iv) any Change Order or Variance agreed to by the Parties. Nothing in this subsection (e) shall operate or be construed, however, as to restrict, lessen or derogate from, in any way, Contractor s obligation to strictly comply with the Service Levels. If, during the Term of this Agreement, the Deliverables fail to conform in all material respects to Final Design Review or the GTA Fare System Technical Specifications or if defects in materials and workmanship exist on the media on which the Deliverables are contained, Contractor shall, as applicable, either replace the defective Deliverables without charge to Ministry or Service Provider or attempt to correct defects at the same levels of effort as specified in Final Design Review or the GTA Fare System Technical Specifications. Until the material defects in the Deliverables or the media in which the Deliverables are contained are corrected, all support or maintenance fee payments for the applicable Deliverable shall be dealt with in accordance with Section 14.5 below; each Deliverable has been priced on the basis of its own fair market value, to the best of Contractor s ability; 29

35 (g) (h) (i) (j) (k) (l) Contractor shall continue to comply with all applicable Laws and Regulations to which Contractor is subject, which are in any way related to or connected with the conduct of the business of Contractor, the Deliverables or this Agreement; Contractor shall provide the Deliverables to Ministry in accordance with the terms and conditions provided herein; in exercising its powers and discharging its obligations and duties under this Agreement, Contractor shall at all times act honestly and in good faith; the Deliverables or their use do not and shall not in any way infringe or otherwise violate the Intellectual Property Rights or other proprietary rights of any Person and Ministry and Service Providers shall continue to have quiet use and enjoyment of same; there is no existing, pending or threatened litigation or other Proceeding before any court, arbitrator, or governmental or administrative body that affects the validity or enforceability of this Agreement or that, to the best of its knowledge having taken all reasonable steps therefor, would have an effect on Contractor s ability to perform its obligations hereunder; and Virus Warranty. (i) Contractor shall immediately give notice to Ministry if any computer viruses, disabling code (i.e. computer Software code that, if invoked, would have the effect of disabling or otherwise shutting down all or any portion of the Software), time bombs (i.e., disabling code that is automatically invoked at a pre-set), trap doors or Trojan horses (i.e., computer Software code that, if invoked, would subvert or circumvent any security features of the Software), undocumented features, or similar items (any such item, a Virus ) are or may be contained in the Software provided by Contractor pursuant to this Agreement. The notice shall contain sufficient information to identify and locate the Virus, and shall describe the operation and effects of the Virus and the steps to be taken to remove the Virus from the Software. In addition, without Ministry s prior written consent, which consent Ministry may withhold in its sole discretion, Contractor shall not, for any reason or at any time (either during or after the Initial Term and any Renewal Term of this Agreement), invoke or otherwise use any disabling code that may be contained in the Software. (ii) All Software or Software media in use in the GTA Fare System, either by Contractor directly or by a third party pursuant to this Agreement, shall be free of Viruses. (iii) Immediately prior to providing the Software or Software media for use in the GTA Fare System, Contractor shall check it to ensure that it is free from Viruses. (iv) In the event that a Virus is found in the Software or Software media, and without prejudice to any other rights or remedies of Ministry, Contractor shall at its own expense either immediately remove the Virus from the Software or Software Media and shall remedy the situation to the satisfaction of Ministry Manufacturer s Warranty Contractor shall cause all manufacturers warranties and guaranties provided with respect to any goods or services to be given directly in favour of Ministry, when permitted by the manufacturer, or shall assign all rights Contractor shall have against the manufacturer for breach of warranty or other representation to the extent same are assignable, provided that absence of approval from manufacturer or non-assignability shall not invalidate or otherwise diminish Contractor s warranty obligations to Ministry under this Agreement. 30

36 12.4 Continuing Effect of Representations and Warranties Each of the Parties hereto agrees that its respective covenants, representations and warranties contained in this Article 12 are continuing covenants, representations and warranties, and shall apply and be true and correct at all times during the Initial Term and any Renewal Term. ARTICLE 13 ARTICLE 14 INTENTIONALLY DELETED (GENERAL SYSTEM AND SOFTWARE WARRANTIES) TERMINATION AND REMEDIES 14.1 Ministry Terminable Default The occurrence of any one or more of the following shall constitute a Ministry Terminable Default: (c) delay by Ministry in providing its obligations to Contractor pursuant to Schedule I, Sections 1 to 5, such that Contractor is materially impeded from fulfilling its obligations under this Agreement, where such delay continues uncured for a period of ninety (90) days after the date of receipt by Ministry of notice thereof from Contractor (with reasonable particulars of the delay and the consequential impact on Contractor), or such longer period as the parties, acting reasonable, may agree to; failure by Ministry to pay to Contractor amounts owing (that are not disputed by Ministry), pursuant to Schedule I, Section 6, within the timeframes in accordance with the terms and conditions specified in this Agreement, if such failure to pay occurs three (3) times in any twelve (12) month period; or material breach by Ministry of Ministry s confidentiality, security or privacy obligations set out in this Agreement where such breach, if capable of being cured, is not cured within thirty (30) days of receipt of notice thereof (such notice to include particulars of the breach in reasonable detail), or repeated breach by Ministry of any one or more of the confidentiality, security or privacy obligations at any time during the Term Contractor Remedies Upon occurrence of a Ministry Terminable Default, Contractor may initiate Termination Proceedings, unless such Ministry Terminable Default was directly attributable to acts or omissions of Contractor. For breach by Ministry of any of the Ministry Obligations other than those specified in Section 14.1 above, Contractor s sole remedy shall be to seek recovery of direct damages. Without limiting the generality of the foregoing, direct damages shall include auditable and verifiable costs directly flowing from a delay by Ministry which is unreasonable in the circumstances, but which does not constitute Ministry Terminable Default pursuant to subsection Contractor Terminable Default The occurrence of any one or more of the following shall constitute a Contractor Terminable Default: breach of any representation, warranty or covenant made by Contractor in this Agreement where such breach, if capable of being cured, continues uncured for a period of thirty (30) days following receipt of notice thereof by Ministry (such notice to include particulars of the breach in reasonable detail), or repeated breach of any one or more of the representations, warranties or covenants made by Contractor in this Agreement; failure by Contractor to maintain Business Continuity as follows: 31

37 (i) any failure in Business Continuity that continues for more than five (5) successive days; (ii) seven (7) or more failures to maintain Business Continuity (for any length of time) in any month; or (iii) fifteen (15) or more failures to maintain Business Continuity (for any length of time) in any three consecutive months; (c) (d) (e) (f) (g) (h) (i) failure by Contractor to maintain insurance in accordance with Article 7 of this Agreement where such failure, if capable of being cured, continues uncured for thirty (30) days following receipt of notice thereof by Ministry; failure by Contractor to maintain the Performance and Labour and Materials Payment Bonds in accordance with Article 7 of this Agreement where such failure, if capable of being cured, continues uncured for thirty (30) days following receipt of notice thereof by Ministry; appointment of a trustee, receiver, receiver and manager, interim receiver, custodian, liquidator, provisional liquidator, agent for a secured creditor or other Person with similar powers in respect of Contractor or in respect of all or a substantial portion of the property or assets of Contractor where such appointment has a material adverse effect on Contractor s ability to fulfill its obligations hereunder; Contractor becomes insolvent, admits its inability to pay or fails to pay its debts generally as they become due, acknowledges its insolvency, makes an assignment in bankruptcy or any other assignment for the benefit of creditors generally, or files any proposal, notice of intention or petition or otherwise commences or consents to or acquiesces in the commencement of any Proceeding seeking any reorganization, arrangement, compromise, composition, compounding, extension of time, moratorium or adjustment of some or all of the liabilities of Contractor under the Companies Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada), or the Winding-up and Restructuring Act (Canada) or any other bankruptcy, insolvency, moratorium, reorganization or analogous law of any applicable jurisdiction, where such Proceeding is not stayed or vacated within thirty (30) days of its commencement, or applies for, consents to or acquiesces in the appointment in any manner (judicially or extra-judicially) of a trustee, receiver, receiver and manager, interim receiver, custodian, liquidator, provisional liquidator, agent for a secured creditor or other Person with similar powers in respect of Contractor or in respect of all or a substantial portion of the property or assets of Contractor; (i) breach by Contractor or any Contractor Representative of any of the confidentiality, security or privacy obligations set out in this Agreement where such breach, if capable of being cured, is not cured within thirty (30) days of receipt of notice thereof (such notice to include particulars of the breach in reasonable detail), (ii) any such breach which Ministry, acting reasonably, determines is incurable, or (iii) repeated breach by Contractor or any Contractor Representative of any one or more of the confidentiality, security or privacy obligations at any time during the Term. For avoidance of doubt, if Ministry determines, acting reasonably, that the breach cannot be cured, then the occurrence of the breach will constitute a Contractor Terminable Default; Contractor does not successfully complete the Launch 1 System in accordance with this Agreement; Contractor does not complete the Project Blueprint within the specified time frames, which failure continues uncured for a period of thirty (30) days following notice thereof (giving particulars of the breach in reasonable detail) from Ministry to Contractor; 32

38 (j) Contractor fails to correct an infringement or alleged infringement of third party Intellectual Property Rights pursuant to Section 15.7 below Ministry Remedies for Contractor Terminable Default In the event of Contractor Terminable Default, Ministry may terminate this Agreement or any Module of Deliverables without further notice, unless such Contractor Terminable Default was directly attributable to acts or omissions of Ministry Ministry Remedies for Contractor Failure to Meet Deliverables Standards Contractor acknowledges and confirms that the timely performance of obligations and the adherence to Service Levels under this Agreement are critical. If Contractor does not perform its obligations in accordance with the specifications herein, Ministry may enforce the following remedies, subject to any specific provisions agreed to in the Service Level Agreement. The following remedies shall apply up to the point that Ministry elects to terminate this Agreement on grounds that Contractor s failure to perform constitutes a Contractor Terminable Default pursuant to subsection 14.3, and shall continue to apply in the event Ministry elects not to terminate or to defer termination of this Agreement notwithstanding that Contractor s non-performance constitutes Contractor Terminable Default. For avoidance of doubt, Ministry s decision to extend the time to successfully complete the Launch 1 System under this Section 14.5 shall in no way prejudice Ministry s rights to subsequently terminate this Agreement under Section Remedies for Late Delivery of Launch 1a (i) If the Launch 1a System is successfully completed and accepted between one (1) and thirty (30) calendar days later than the originally scheduled Launch 1a Demonstration Date, then ninety percent (90%) of the total amounts invoiced for Launch 1a will be payable within thirty (30) days of Ministry s receipt of a proper invoice from Contractor. The remaining ten percent (10%) of invoice amounts will not be paid. (ii) If the Launch 1a System is successfully completed and accepted between thirty-one (31) and sixty (60) calendar days later than the originally scheduled Launch 1a Demonstration Date, then eighty percent (80%) of the total amounts invoiced for Launch 1a will be payable within thirty (30) days of Ministry s receipt of a proper invoice from Contractor. The remaining twenty percent (20%) of invoice amounts will not be paid. (iii) If the Launch 1a System is successfully completed and accepted between sixty-one (61) and ninety (90) calendar days later than the originally scheduled Launch 1a Demonstration Date, then seventy percent (70%) of the total amounts invoiced for Launch 1a will be payable within thirty (30) days of Ministry s receipt of a proper invoice from Contractor. The remaining thirty percent (30%) of invoice amounts will not be paid. (iv) If the Launch 1a System is not successfully completed and accepted within ninety-one (91) calendar days following the originally scheduled Launch 1a Demonstration Date, then Contractor will not be paid for any services or work delivered as part of its Launch 1a solution, unless Ministry elects, in its sole discretion, to continue with Launch 1a from this point, in which case only fifty percent (50%) of the amounts invoiced will be paid. Remedies for Non-Performance of Service-Related Deliverables (i) With respect to all on-going service-related Deliverables, excluding services with respect to the Central System, for each month that the performance of any such Deliverable remains outstanding, a percentage of the payment owing with respect to such Deliverable, according to the 33

39 following escalating schedule shall be deducted by Ministry or Service Provider, as applicable: in the first month, three percent (3%); in the second consecutive month, six percent (6%); and in the third consecutive month, and every month thereafter, twelve percent (12%); and (ii) With respect to all on-going service-related Deliverables pertaining to the operation of the Central System, for each month that the performance of any such service Deliverable remains outstanding, Ministry shall deduct three percent (3%) of the total price of such service Deliverable to be provided. (c) (d) Intentionally Deleted Shortfall In the event the deductions provided for herein does not fully cover the out of pocket costs directly incurred by Ministry or a Service Provider to mitigate the consequences to Ministry and Service Provider's business of Contractor's non-performance, Contractor shall be liable to Ministry and Service Provider for the shortfall. Such costs shall be auditable, verifiable and reasonable. The provisions of this Section 14.5 and (d) shall be interpreted and applied in accordance with specific measurement criteria and compensation amounts set out in the Service Level Agreement developed pursuant to Module Appendix L Termination for Convenience Ministry may, in its sole discretion, without liability and without prejudice to any other rights or remedies under this Agreement or at law or in equity, terminate this Agreement at any time upon giving at least one hundred and twenty (120) days prior written notice to Contractor. Should Ministry terminate this Agreement pursuant to this Section, Ministry shall compensate Contractor for any damages suffered by Contractor as a direct result of the early termination under this Section 14.6 provided the amount required to be paid by Ministry does not exceed an amount equal to the aggregate of: (c) all sums due to Contractor for Deliverables actually provided by, or on behalf of, Contractor up to the date specified in the termination notice for delivery of the Deliverables; out-of-pocket direct costs reasonably required to be incurred by Contractor as a direct result of the termination under this subsection to the extent that (i) such costs would not have been incurred if the termination had not occurred, (ii) Contractor has taken commercially reasonable steps to mitigate those costs, and (iii) Contractor is able to submit documentation to Ministry verifying that such costs have actually been incurred; and early termination costs calculated in accordance with the Dispute Resolution Process set out in Article 18. Other than as set out in subsections 14.6 and and (c) Ministry shall have no further liability to Contractor with respect to exercising its early termination right under this Section For avoidance of doubt, this Agreement shall continue until the expiration of the Transition Out Period, if the Transition Out Services are requested by Ministry in accordance with the terms herein Procedure Upon Termination If Ministry terminates this Agreement or the provision of certain Deliverables or Module of Deliverables pursuant to Section 14.4 (Ministry Remedies for Contractor Terminable Default), then: 34

40 (i) Ministry shall have the right to reimbursement of verifiable Ministry termination-related costs, including, without limitation, (1) all costs associated with re-tendering for such terminated Deliverables, (2) the Transition Out Services in accordance with Module Appendix J, and (3) any additional cost to Ministry in respect of any price differential between Deliverables provided by Contractor and Deliverables that shall be provided by the new contractor. In this regard, Ministry shall be entitled but not obligated to exercise its rights under the Performance Bond or Labour and Materials Payment Bond, as applicable, specified in subsection 7.2 and (c). The exercise of these rights shall not in any way diminish the rights as specified in Section 7.8. (ii) Ministry shall, within three hundred and sixty-five (365) calendar days after the termination date, provide to Contractor a detailed breakdown of such Ministry termination-related costs under subsection (iii) below. Notwithstanding the foregoing, with respect to any price differentials, Ministry shall give notice to Contractor as soon as reasonable under the circumstances, and shall then draw on the Performance Bond or Labour and Materials Payment Bond, as applicable. (iii) Contractor shall: (1) reimburse Ministry for Ministry termination-related costs set out in the cost breakdown provided in accordance with subsection (i) above; and (2) Contractor shall pay to Ministry the amounts within sixty (60) days after the date of receipt of the detailed cost breakdown. In the event of termination or expiration of this Agreement for any reason, the following shall apply: (i) any termination or expiration of this Agreement shall not affect any obligations or liabilities of either Party that: (1) have accrued under this Agreement prior to such termination or expiration; or (2) arise thereafter under any provision of this Agreement that survives such termination or expiration. (ii) Contractor acknowledges and agrees that orderly transition forms an integral component of the termination/expiration provisions of this Agreement. For the Transition Out Period, Contractor shall, acting reasonably, ensure that the effect of such termination/expiration on the operations, in whole or in part of Ministry and Service Provider, is minimal, and in particular, any disruption in any obligations to be performed by Contractor under this Agreement is minimal. Without limitation to the foregoing, orderly transition requires that there be (i) no significant harm or prejudice to Ministry or a Designated Person attributable to Contractor or Contractor Representative; (ii) continuation of all performance standards and Service Levels; (iii) no disruption to revenue collection attributable to Contractor or Contractor Representative; and (iv) no material costs to Ministry or a Designated Person attributable to Contractor or Contractor Representative. Where Ministry requests that Transition Out Services be provided by Contractor, Contractor shall provide such services in accordance with Module Appendix J (Contract Transition Out Services) and Final Design Review. (iii) Upon the termination or expiration of this Agreement and subject always to Contractor s obligations to provide Transition Out Services: (1) Contractor shall be required to deliver to Ministry all Personal Information and Confidential Information, information specifically created for and related to the Project, 35

41 and any copies of such information unless specifically permitted otherwise in this Agreement; (2) Contractor shall immediately cease to be (and shall immediately cease to represent itself to be) authorized to provide the Deliverables; and Contractor shall cease to provide, and shall cause all Contractor Representatives to immediately cease to provide, the Deliverables, effective as of the termination or expiration of this Agreement; and (3) Contractor shall ensure that Ministry or its Designated Persons have all required licences and relevant Deliverables for use of all components of the GTA Fare System to enable Ministry to continue to use the GTA Fare System, including in accordance with Section 10.3 above. ARTICLE 15 RISK MANAGEMENT PROVISIONS 15.1 No Indirect Damages Except as otherwise expressly provided in Section 15.4, neither Party including, in the case of Ministry, the Ministry Group or any member thereof, shall be liable to the other Party for any consequential or indirect damages resulting from or arising in connection with this Agreement or the provision or use of the services or the provision or use of any Deliverables, including, without limitation, loss of revenues, even if such Party has been advised of the possibility of such damages by such other Party. For purposes of clarity, the Parties acknowledge that any damages awarded by a court of competent jurisdiction against a Party as a result of a third party claim for personal injury or tangible personal or property damage against such Party (resulting solely because of the acts or omissions of the other Party to this Agreement) constitutes direct damages of such Party and shall not be deemed to be a form of indirect damage suffered by such Party Contractor Limitation of Liability to Ministry Group EXCEPT AS SPECIFICALLY PROVIDED ELSEWHERE IN THIS ARTICLE 15, INCLUDING, BUT NOT LIMITED TO SECTIONS 15.1 AND 15.4, THE LIMIT ON THE TOTAL CUMULATIVE LIABILITY OF CONTRACTOR TO THE MINISTRY GROUP, FOR ANY CLAIMS ARISING OUT OF THIS AGREEMENT SHALL BE FIFTY (50) MILLION DOLLARS IN THE AGGREGATE; PROVIDED THAT, PERSONAL INJURY (INCLUDING BODILY INJURY) OR DEATH, WHETHER SUFFERED BY ANY THIRD PARTY OR A MEMBER OF THE MINISTRY GROUP, IS CAPPED AS FOLLOWS: (i) TEN (10) MILLION DOLLARS PER OCCURRENCE; AND (ii) A TOTAL AGGREGATE OF FIFTY (50) MILLION DOLLARS OVER EVERY FIVE (5) YEAR PERIOD OF THE TERM. CONTRACTOR S LIABILITY FOR HARM TO RECORDS OR DATA SHALL ONLY APPLY WITH RESPECT TO RECORDS OR DATA FOR WHICH CONTRACTOR HAS OPERATIONAL CONTROL 15.3 Ministry Limitation of Liability to Contractor Group EXCEPT AS SPECIFICALLY PROVIDED ELSEWHERE IN THIS ARTICLE 15, THE LIMIT ON THE TOTAL CUMULATIVE LIABILITY OF ALL MEMBERS OF THE MINISTRY GROUP TO CONTRACTOR AND CONTRACTOR REPRESENTATIVES, FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE ALL OUTSTANDING PAYMENTS OWING UNDER ALL MODULE APPENDICES OUTSTANDING UNDER THIS AGREEMENT AT THE TIME THE CLAIM AROSE AND TO WHICH THE CLAIM IS LINKED. 36

42 15.4 Application of Limitations THE LIMITATIONS OR EXCLUSIONS OF LIABILITY SET OUT IN THIS ARTICLE 15 DO NOT APPLY TO: (i) ANY CLAIM ARISING FROM WILFUL MISCONDUCT OR GROSS NEGLIGENCE; (ii) ANY BREACH OF THE CONFIDENTIALITY OR PRIVACY PROVISIONS SET OUT IN THIS AGREEMENT; (iii) ANY CLAIM THAT THE SERVICES OR DELIVERABLES INFRINGE ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY; OR (iv) ANY CLAIMS FOR FRAUD COMMITTED UNDER THIS AGREEMENT. SUBJECT TO THE FOREGOING, THE LIMITATIONS SPECIFIED IN THIS ARTICLE 15 SHALL APPLY REGARDLESS OF THE CAUSES OR CIRCUMSTANCES GIVING RISE TO THE CLAIM, EVEN IF SUCH CLAIM IS BASED ON BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORT, AND SHALL SURVIVE A FUNDAMENTAL BREACH OR FAILURE OF ESSENTIAL PURPOSE OF THIS AGREEMENT Rights and Remedies Cumulative No right or remedy referred to in this Agreement, except if expressly stated as such, is intended to be exclusive, but each shall be cumulative and in addition to, and not in substitution for, any other right or remedy referred to herein or now or hereafter existing in equity, at law, by virtue of statute, or otherwise and each such right and remedy may be exercised by a Party from time to time concurrently or independently and as often and in such order as the Party may deem expedient INTENTIONALLY DELETED (General Indemnity) 15.7 Intellectual Property Indemnities Despite any limitations of liability set out elsewhere in this Agreement, Contractor shall defend, indemnify and hold harmless any and all members of the Ministry Group from and against any and all liability, losses, costs, damages, expenses, or claims made by any third party, including, in this case, members of the Contractor Group other than the Contractor, in any way arising from any infringement of that third party Intellectual Property Rights that results from or is alleged to result from: (c) the provision of the Deliverables by Contractor; the exercise by Ministry Group members of any rights under this Agreement; or the use or disposal by any Ministry Group members of anything supplied by Contractor as a result of this Agreement. Notwithstanding the foregoing, Contractor will not have any obligation to indemnify any member of the Ministry Group against infringement claims to the extent that the infringement claim is based upon: (i) modifications to Deliverables made by or on behalf of members of the Ministry Group in a manner that causes the infringement, unless such modification has been approved by Contractor, (ii) use of any item in combination with any hardware, software or other products or services in a manner that causes the infringement and where such combination was not within the reasonable contemplation of the Parties given the intended use of the item, (iii) the failure of a member of the Ministry Group to use corrections or enhancements to such Deliverables that are made available by Contractor, or (iv) detailed, nondiscretionary designs or specifications provided by members of the Ministry Group to Contractor that caused such infringement claim. If any such performance, exercise of rights, use or disposal is held, or is likely, in the reasonable opinion of Ministry, to be held to constitute an infringement, inducement of infringement or violation of any Intellectual Property Rights, and such performance, exercise of rights, use or disposal is enjoined or 37

43 threatened to be enjoined or held or threatened to be held improper by way of declaration, then Contractor shall, at its expense, either: (d) (e) obtain such rights and waivers as are necessary so that such performance, exercise of rights, use or disposal becomes non-infringing; or replace or modify the Deliverables so that the infringing portion no longer infringes (without any loss of quality or functionality), to Ministry s satisfaction. Contractor shall make every reasonable effort to correct the situation with minimal effect upon the operations of the Ministry Group members. If neither of the foregoing alternatives is reasonably available, Ministry may terminate all or any part of this Agreement without further obligation or liability to Contractor and without prejudice to any other rights and remedies as may be available to any of the members of the Ministry Group under this Agreement, or at law or in equity. Contractor shall refund to Ministry all amounts paid with respect to such infringing Deliverables Confidentiality Indemnification Contractor agrees at all times to defend, indemnify and hold harmless the members of the Ministry Group from and against any and all liability, losses, costs, damages, expenses (including all reasonable legal, expert and consultant fees), causes of action, and Proceedings in any way based upon, occasioned by or attributable to a breach by Contractor or Contractor Representatives of its obligations under Article 8 (Confidentiality) Other Third Party Suit Indemnity Subject to Section 15.2: Contractor shall defend in the name of and for the Ministry Group, any suit or Proceeding brought against any member of the Ministry Group to the extent that any such suit or Proceeding is based upon, occasioned by, or attributable to, any act or omission of Contractor, or any member of the Contractor Group, in the course of the performance of this Agreement, provided that Contractor is notified in writing within twenty (20) Business Days of Ministry being notified in writing or served with any such suit or Proceeding, and that Contractor is given authority, information and assistance, by Ministry at Contractor s expense, to defend same. Ministry may elect to defend any suit or Proceeding in accordance with the procedure set out in Section Contractor shall pay all damages, costs and expenses (including all reasonable legal, expert and consultant fees) finally awarded against, or included in any settlement pre-approved by the Ministry Group or incurred by the Ministry Group in any suit or Proceeding based on a claim described in subsection 15.9 above, provided that Contractor shall not be responsible for any settlement of a claim made by the Ministry Group without Contractor s prior written consent Defence (c) The provisions of this Section 15.9 shall not affect the provisions in Section Contractor shall, at its expense, to the extent requested by the Attorney General of Ontario, participate in or conduct the defence of any Proceedings against any members of the Ministry Group and any negotiations for their settlement. Ministry may elect to participate in or conduct the defence of any such Proceedings by notifying Contractor in writing of such election without prejudice to any other rights or remedies of Ministry under this Agreement. 38

44 Each Party participating in the defence shall do so by actively participating with the other s counsel. No settlement shall be entered into by Contractor unless it has obtained the prior written approval of the Attorney General of Ontario. If Contractor is requested by the Attorney General of Ontario to participate in or conduct the defence of any such Proceedings, Ministry agrees to co-operate with and assist Contractor to the fullest extent possible in the Proceedings and any related settlement negotiations. If Ministry conducts the defence of any such Proceedings, Contractor agrees to co-operate with and assist Ministry to the fullest extent possible in the Proceedings and any related settlement negotiations Survival The provisions of this Article 15 shall survive the termination or expiry of this Agreement. ARTICLE 16 GENERAL ASSIGNMENT 16.1 General This Agreement shall be binding on the Parties and their respective successors and permitted assigns. Any purported assignment in contravention of this Section shall be void Assignment by Contractor Ministry selected Contractor because of its expertise, reputation and ability to fulfill the requirements of the Project. Contractor shall not assign or transfer its interest in this Agreement without the prior written consent of Ministry (which consent may be arbitrarily withheld). Contractor shall not require Ministry s consent where the Assignment represents an internal restructuring of Contractor for business reasons which do not affect Ministry or Service Providers or the Project, provided that such restructuring does not result in the assignment of this Agreement to an entity which does not have the financial stability or capability to meet all of Contractor s obligations hereunder, including, but not limited to its indemnity and bonding obligations. Contractor will provide written notice thirty (30) days prior to such internal restructuring Assignment by Ministry Ministry, acting on its own behalf and as agent, may at any time decide not to participate in the GTA Fare System and Ministry, acting on its own behalf and as agent, may with at least ninety (90) days prior written notice to Contractor, and, where required, the consent of Contractor, which shall be given or withheld by Contractor within the first forty-five (45) days of the ninety (90) day notice period and which, if withheld, shall be in writing with reasons, assign, in whole or in part, its rights and obligations under this Agreement to any Person(s) ( Assignee(s) ) with the financial and technical capability to take on its rights and obligations under this Agreement, in which case any reference to Ministry set out herein shall be deemed to include the Assignee(s). If no notification of consent (or non-consent) has been given by Contractor within the first forty-five (45) days of the ninety (90) day notice period, the consent shall be deemed to have been given. Ministry shall not require consent of Contractor to assign this Agreement in the following circumstances: (i) the assignment represents an internal restructuring of Ministry, (ii) the assignment is to be made to any Successors, or (iii) the assignment is to be made to a private sector entity which cannot reasonably be construed to be a competitor of Contractor or Subcontractor with respect to the type of deliverables or services to be provided hereunder. When the Assignee(s) accept(s) the assignment from Ministry, this Agreement, including those rights of further assignment, shall be assigned, in whole or in part, to the Assignee(s) who shall succeed to and become vested with any of the rights, powers, responsibilities, obligations and liabilities of Ministry, acting 39

45 on its own behalf and as agent, that have been assigned to it, and Ministry, acting on its own behalf and as agent, shall be discharged from any such rights, powers, responsibilities, obligations and liabilities under this Agreement. After the appointment of any Assignee(s), this Agreement or, as set out in the assignment, any part of this Agreement, shall continue in effect for the benefit of the Assignee(s) and all Designated Persons in respect of any actions taken or omitted to be taken by Ministry, acting on its own behalf and as agent. ARTICLE 17 NOTICE All notices, requests, approvals, consents and other communications ( Notices ) required or permitted under this Agreement, other than operational notices or communications required in the course of the provision of the services, and except as otherwise expressly permitted or required under this Agreement, shall be in writing to the respective Parties as follows: if to Ministry, Greater Toronto Transit Authority 20 Bay Street, Suite 600 Toronto, ON M5J 2W3 Attention: Managing Director & CEO Facsimile: (416) Telephone: (416) , extension 5501 Electronic Mail: gary.mcneil@gotransit.com With a copy to: PRESTO Systems Project Office 20 Bay Street, Suite 600 Toronto, ON M5J 2W3 Attention: Ernie Wallace, Executive Project Director Facsimile: (416) Telephone: (416) , extension 5112 Electronic Mail: ernie.wallace@gotransit.com if to Contractor, Accenture Inc. 160 Elgin Street, Suite 2100 Ottawa, ON K2P 2P7 Attention: Alden Cuddihey, Partner Facsimile: (613) Telephone: (613) Electronic Mail: alden.cuddihey@accenture.com and may be hand delivered, sent by facsimile, electronic mail or other similar form of recorded transmission or by registered express mail or courier with the capacity to verify receipt of delivery. If hand delivered, or sent by facsimile, electronic mail or other similar form of recorded transmission, the Party sending such notice shall to confirm receipt on the date such notice is transmitted. Any Party may change its contact information, as set out in this Section, for notification purposes by giving the other Parties notice of the new contact information and the date upon which it shall become effective in accordance with the terms of this subsection. A notice shall be deemed to have been received as of the next Business Day following its transmission pursuant to this Section. 40

46 ARTICLE 18 DISPUTE RESOLUTION 18.1 Legal Remedies for Disputes The Parties hereby agree to utilize the following escalation procedure to resolve any dispute, question, claim, or other matter arising out of or relating to this Agreement (collectively, a Dispute ) prior to resorting to any legal remedies Three-Tiered Dispute Resolution The Parties agree that any Dispute shall be referred for dispute resolution by high-level negotiation, mediation or arbitration in the manner hereinafter described. For greater certainty, a Party may refer a Dispute to dispute resolution under the provision of this Article 18 by the delivery of a notice requesting dispute resolution to the other Parties, which notice shall set out the Dispute in reasonably sufficient detail (a Dispute Notice ) Negotiation In the event a Party issues a Dispute Notice to the other Parties, the Authorized Representative or equivalent of each Party shall meet and make a good faith effort to resolve the Dispute as set out in the Dispute Notice in a prompt manner and, for the purpose of same, each Party shall provide its negotiator with full and timely disclosure of all relevant facts, information and documents to facilitate such negotiation. Negotiations shall be commenced within thirty (30) Business Days of the delivery of a Dispute Notice and shall, unless all Parties agree otherwise, be concluded within thirty (30) Business Days of their commencement. In the event that a resolution satisfactory to all Parties is achieved through such negotiations, the Parties shall issue a joint statement detailing the manner in which the Dispute has been resolved Mediation If the Dispute has not been resolved through high-level negotiation as contemplated in Section 18.3, the Dispute will be referred to structured negotiation with the assistance of a mediator appointed by mutual agreement of the Parties within thirty (30) Business Days of any Party issuing a supplementary Dispute Notice requesting mediation. If a mutual agreement is not reached within the timelines set out above, then Ministry, acting in good faith, may appoint a mediator and provide the other Parties with written notice of such appointment. If Ministry fails to appoint a mediator within fifteen (15) Business Days, either Party by giving notice to the other may move the Dispute to arbitration; provided that arbitration shall only proceed with the mutual consent of both parties. The mediator shall be an independent person who, by training and experience, has the professional qualifications and the mediation skills to mediate any Dispute that may arise among the Parties to this Agreement. If the Parties achieve a resolution of the Dispute, the mediator shall confirm the resolution in writing. If the Parties do not resolve the Dispute within thirty (30) Business Days of the appointment of the mediator, the mediator shall provide a written confirmation that the Parties were unable to resolve the Dispute Further Proceedings Provided that they act reasonably, any Party may (in this Section, the Complainant ), within thirty (30) Business Days of the delivery of the mediator s confirmation that the Parties were unable to resolve their Dispute, either commence court Proceedings or issue to the other Party (in this Section, the Respondent ) a supplementary Dispute Notice requesting arbitration ( Complaint ) in accordance with the provisions of Article 17 (Notice). The following arbitration procedures will be applicable only if both Parties agree to proceed by way of arbitration. The arbitration will be conducted by a single arbitrator. The Complaint shall describe with 41

47 reasonable particularity the subject matter of the Dispute and shall nominate an arbitrator (the Proposed Arbitrator ). The Proposed Arbitrator shall determine the Dispute unless, within ten calendar days of receipt of the Complaint (the Response Period ), the Respondent, by written notice to the Complainant, objects to the appointment of the Proposed Arbitrator. If, within the Response Period, the Respondent objects to the appointment of the Proposed Arbitrator and the Complainant and the Respondent do not otherwise agree on the appointment of an arbitrator, the arbitrator may be appointed by a judge of the Superior Court of Justice sitting in Toronto upon application of either party. The arbitration will take place in Toronto, Ontario and will be conducted in English. Except as otherwise provided in this Section 18.5, the arbitration will be governed by the Arbitration Act, 1991, S.O. 1991, c. 17. Unless the arbitrator otherwise determines, the fees of the arbitrator and the costs and expenses of the arbitration will be borne and paid equally by the parties. To the extent not otherwise provided for in this Section 18.5, the procedure to be followed will be as agreed to by the parties, or, in default of such agreement, as determined by the arbitrator. Unless the Parties agree otherwise, the decision of the arbitrator shall be final and binding as between the parties to this Agreement and there shall be no rights of appeal of any kind. Judgement upon the award, including any interim award, rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration shall be kept confidential and the existence of the arbitration Proceeding and any element of it (including but not limited to any pleadings, briefs or other documents submitted and exchanged and testimony or other oral submissions and any awards made) shall not be disclosed beyond the arbitrator, the parties, their counsel and any person to whom disclosure is necessary to the conduct of the Proceeding, except as may be lawfully required in judicial Proceedings relating to the arbitration or otherwise Performance to Continue Notwithstanding that a matter has been referred to dispute resolution under the provisions of this Article 18, the Parties shall, throughout the period of dispute resolution, endeavour to perform their respective obligations under the terms of this Agreement to the best of their abilities Survival The provisions of this Article 18 shall survive termination or expiry of this Agreement. ARTICLE 19 GENERAL 19.1 Entire Agreement This Agreement, including any Schedule(s), Exhibits attached hereto and Module Appendices made hereunder, constitutes the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes any prior agreements, understandings, negotiations and discussions, whether oral or written, between the Parties, other than Contractor s response to the Request for Qualification and the RFP and neither Party may rely upon any prior understanding, negotiations or discussions in interpreting this Agreement. In the event there are any inconsistencies between this Master Supply and Services Agreement and the Schedules or Exhibits, the Master Supply and Services Agreement, together with Schedule A, shall prevail over the remaining Schedules. Schedule A shall have the same level of priority as the Master Supply and Services Agreement Amendments Except as expressly set out in this Agreement, neither this Agreement, nor any term or provision hereof, including any Module Appendix or document made a part thereof or agreed to in connection therewith, may be amended or modified in any respect whatsoever except in writing signed by the Parties Non-Waiver 42

48 No delay or omission on the part of either Party in exercising any right or remedy nor any failure to enforce compliance under this Agreement shall operate as a waiver thereof, unless expressly agreed to in writing by such Party. Any such written waiver shall refer to a specific failure to comply and shall not have the effect of waiving any subsequent failures to comply. The single or partial exercise of any right or remedy under this Agreement by either Party shall not preclude any other or further exercise of such right or remedy Independent Parties Contractor and all members of the Ministry Group are to be considered at all times and for all purposes as independent contractors. This Agreement does not create and is not intended to create an agency or employment relationship, partnership, joint-venture, or other similar association between Contractor and all members of the Ministry Group. Neither Contractor nor any members of the Ministry Group shall have the right to bind the other to any agreement with any third party or to incur any obligation or liability on behalf of the other Party. Except as expressly provided for in this Agreement or with respect to new Service Providers, neither Contractor nor any members of the Ministry Group shall represent, directly or indirectly by conduct, to any third party that it is an agent, employee, partner, or joint-venturer of the other Force Majeure Except as expressly provided otherwise in this Agreement, dates and time by which a Party is required to render performance under this Agreement shall be postponed automatically to the extent and for the period of time that such Party is prevented from meeting them by causes, events or circumstances beyond its reasonable control (unless avoidable by the exercise of reasonable foresight or due diligence including, without limitation, alternate sources, workaround plans or other means). Such causes shall include but not be limited to acts of God, acts of war, acts of terrorism, riots, strikes, labour disruptions or lockouts. The Party prevented from rendering performance shall: notify the other Party immediately of the commencement and nature of such cause and the probable consequences thereof, and immediately of the termination of such occurrence; and at the request of the other Party, submit cogent evidence to demonstrate the reality of the circumstances, facts and dates contained in the first notification. Non performance under this Section shall not be a default under this Agreement nor a ground for termination of this Agreement, provided that, in the event that non-performance has continued for a period of more than thirty (30) consecutive days and is unlikely to be cured within a reasonable period of time thereafter, either party may apply to have this Agreement modified or terminated, depending on the circumstances and extent of effect on the performance of this Agreement.. This application shall be made in accordance with and shall be governed by the provisions of Article 18, Dispute Resolution Governing Law and Jurisdiction This Agreement and the rights and obligations of the Parties shall, be governed by, subject to, and, interpreted, in accordance with the laws of the Province of Ontario and, the Laws and Regulations of Canada applicable therein, but without regard to conflict of laws provisions. 43

49 19.7 Currency All monetary amounts referred to in this Agreement shall be in Canadian dollars Counterparts This Agreement may be executed by the Parties in one or more counterparts, either by original signature or facsimile transmission, each of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each Party and delivered to the other Party Further Assurances Each of the Parties hereto shall, at its own expense and, upon the request of another Party hereto, at any time and, from time to time, promptly execute and deliver or, cause to be executed and delivered, all such further acknowledgements, consents, assurances and other documents, and promptly do, or cause to be done, all such further acts and things as that other Party may reasonably request in order fully to effect the purposes of this Agreement or any Module Deliverables Time of the Essence Time is and shall be in all respects of the essence of this Agreement Binding Effect This Agreement shall enure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns. 44

50 SCHEDULE A GLOSSARY OF TERMS ARTICLE 1 DEFINITIONS 1.1 Defined Terms In this Agreement, the following definitions apply: Agreement shall have the meaning ascribed thereto in Section 2.1; Appendix C means Appendix C of the Proposal (Contractor s Financial Response Tables), as amended pursuant to Amending Agreement No. 1 dated as of August 31, 2008; Appendix K means Appendix K of the Proposal (Contractor s Financial Response Tables), as amended pursuant to Amending Agreement No. 1 dated as of August 31, 2008; Archives Act refers to the Archives Act, R.S.O. 1990, c. A.27; Assignee(s) shall have the meaning ascribed thereto in Section 16.3; Authorized Representative shall have the meaning ascribed thereto in Section 6.3; Auditors shall have the meaning ascribed thereto in Section 6.7; Bankruptcy and Insolvency Act (Canada) refers to the Bankruptcy and Insolvency Act (R.S. 1985, c. B- 3); Best Price shall have the meaning ascribed thereto in Section 7.3; Broader Public Sector means public bodies in the province of Ontario, other than agencies, boards, commissions and Crown corporations, as determined by Ontario in its sole discretion at any time and from time to time. Without excluding any public bodies (whether on the basis of funding or otherwise), and solely by way of example, Broader Public Sector includes municipalities, municipal organizations, transit agencies in Ontario, school boards and publicly-funded academic, health, and social service entities; Business Continuity means failure of any component of the GTA Fare System which have a material and adverse effect on the operation of the GTA Fare System. Business Day means any day which is not a Saturday or a Sunday, or a day observed as a holiday under a law of the Province of Ontario or a federal law of Canada applicable to the Province of Ontario; Business Requirements shall have the meaning ascribed thereto in the RFP. Central System means the central system forming part of the GTA Fare System which is described in Final Design Review and the GTA Fare System Technical Specifications; Central System Infrastructure (CSI) Milestone means the installation of the Central System hardware and software in the data center;

51 Certificates shall have the meaning ascribed thereto in subsection Companies Creditor Arrangement Act (Canada) refers to the Companies Creditor Arrangement Act (R.S. 1985, c. C-36); Competitive Commercialization means exploitation of Intellectual Property Rights in competition with the owner of those Intellectual Property Rights with the effect of making a net monetary gain. Complaint shall have the meaning ascribed thereto in Section 18.5; Complainant shall have the meaning ascribed thereto in Section 18.5; Computer Code means computer programming code and software programs (including both object and source code) executable or not executable, including any Reusable Code; Confidential Information means all information of Disclosing Party that is confidential by its nature or in the circumstances in which it is received and is identified as confidential or as a trade secret and whether recorded or not, and however fixed, stored, expressed or embodied, which comes into the knowledge, possession or control a Recipient in connection with this Agreement, including: (c) (d) information relating to Intellectual Property, including algorithms, Computer Code, designs, drawings, flowcharts, formulae, Intellectual Property Rights, Inventions, patterns, plans, procedures, processes, reports, schematics, specifications, templates, and working papers; electronic data, other than Ontario Data and Personal Information, stored or processed by Contractor; new information derived at any time from any such information whether created by the Disclosing Party or any third party; and Confidential Information, except where Personal Information is expressly separated from Confidential Information for specific purposes under this Agreement, including, but not limited to Section 9.9 of this Agreement. but, unless it is Personal Information, Confidential Information shall not include information that: (c) (d) (e) ceases to benefit from protection as confidential information or as a trade secret under legislation or at law as a result of Disclosing Party s use or disclosure under this Agreement for any purpose whatsoever that is not expressly excluded by this Agreement; is or becomes generally available to the public without fault or breach by Recipient, but only after that information becomes generally available to the public; Recipient can demonstrate to have been rightfully obtained by Recipients, without any obligation of confidence of any kind, from a third party who had the right to transfer or disclose it to Recipient free of any obligation of confidence; Recipient can demonstrate to have been rightfully known to or in the possession of Recipient, free of any obligation of confidence, when disclosed; or is independently developed by Recipient without the use of any Confidential Information of the Disclosing Party; Conflict of Interest includes, but is not limited to, any situation or circumstance where:

52 in relation to the RFP process, the proponent has an unfair advantage or engages in conduct, directly or indirectly, that may give it an unfair advantage, including but not limited to (i) having or having access to information in the preparation of its proposal that is confidential to Ministry or Service Providers and not available to other proponents; (ii) communicating with any person with a view to influencing preferred treatment in the RFP process; or (iii) engaging in conduct that compromises or could be seen to compromise the integrity of the open and competitive RFP process and render that process non-competitive and unfair; or in relation to the performance of its contractual obligations in this Agreement, Contractor s or Contractor Representatives other commitments, relationships or financial interests (i) could or could be seen to exercise an improper influence over the objective, unbiased and impartial exercise of its independent judgement; or (ii) could or could be seen to compromise, impair or be incompatible with the effective performance of its contractual obligations; Contract Ceiling Price means the total evaluated price submitted by the Contractor for all the Deliverables as set out in the Financial Response Tables of Contractor s Proposal. Contractor Group includes Contractor, Contractor Representatives and any peripheral third party suppliers to either Contractor or Contractor Representative. Peripheral third party suppliers means any supplier of goods or services which is providing such supply under a general supply agreement which does not reference the GTA Fare System specifically; Contractor Group Provided Intellectual Property shall have the meaning ascribed thereto in Section 10.2; Contractor Representative means an employee, director or officer of Contractor; a Subcontractor providing Deliverables on behalf of Contractor; or an employee, director, officer of such Subcontractor; or any other Person for whom Contractor is responsible, any of whom is involved in the provision of the Deliverables on Contractor s behalf; Contractor Terminable Default has the meaning ascribed to it in Section 14.3; Copyright Act (Canada) refers to the Copyright Act (R.S. 1985, c. C-42); COTS Software means (i) any and all Commercial off the Shelf Software (as that term is generally understood in the IT Industry) which has not been modified in any way for the purposes of this Agreement by any member of the Contractor Group, and which remain commercially available during the Initial Term of this Agreement, any Renewal Term, including any Transition Out Period included therein, and, for the purposes of this Agreement, (ii) complex and/or significant software products having a limited market but which are available from multiple resellers, each of which has all means, knowledge and development tools necessary to maintain, support and enhance the said COTS Software for all purposes required by Ministry under this Agreement. CPIC means the Canadian Police Information Centre; Custom-Developed Software means, collectively, all Non-COTS Software and Computer Code (including both object and source code forms, unless otherwise specified) recorded in any form or upon any medium, and developed or produced by Contractor or its Subcontractors as a result of this Agreement, consisting of: the Supplier-Developed Software; and the Supplier Materials, if any, that are incorporated into any of the foregoing

53 Despite the foregoing, Custom-Developed Software excludes all Special Works, Ontario Data, Personal Information, Ontario Materials, and Confidential Information belonging to the OPS and Designated Persons; Custom Documentation means all Documentation developed or produced by Contractor or its Subcontractors as a work product of this Agreement, whether developed or produced for use by Contractor or its Subcontractors under this Agreement or for use by Ministry or others; Deliverables means all Work, all Ministry Group Intellectual Property, all Contractor Provided Intellectual Property, all tangibles, including, without limitation, all equipment, hardware, networks, facilities and services of any kind to be provided by Contractor pursuant to Contractor s Proposal and this Agreement. Demonstration Date means no later than twelve (12) months after the Effective Date and no sooner than ten (10) months after the Effective Date. Designated Person means Service Providers, Assignees (as defined in Section 16.3) and all of their and Ministry s advisors, agents, Personnel, Subcontractors or sublicensees acting pursuant to this Agreement and any other service providers that may be added to this Agreement from time to time and, for greater certainty, includes any third party provider of a front-end e-purse capability. Directives shall have the meaning ascribed thereto in Schedule D, Section 2 and Schedule E, Section 4. Disaster Recovery Plan and Disaster Recovery Services shall have the meanings ascribed thereto in the GTA Fare System Technical Specifications. Disclosing Party means, with respect to Confidential Information, any member of the Ministry Group or Contractor or Contractor Representatives, as applicable, disclosing Confidential Information; Dispute shall have the meaning ascribed thereto in Section 18.1; Dispute Notice shall have the meaning ascribed thereto in Section 18.2; Documentation means all documents, whether in printed or electronic form, including installation guides, instructional materials, layouts, maintenance materials, manuals, system documentation, training materials, and user guides related to this Agreement, and includes all developments and modifications to the foregoing; Effective Date means the date on which this Agreement takes effect, which is the date this Agreement is executed by the Ministry; Encumber or Encumbrance means any encumbrance of any kind whatsoever, and includes an assignment, charge, hypothec, hypothecation, lien, mortgage, pledge, security interest, trust or deemed trust (whether contractual, statutory or otherwise arising), or other right or Claim of others; Equipment Payment Framework shall have the meaning ascribed to it in Schedule G, Payment, Section 8; Exhibit(s) shall have the meaning ascribed thereto in Section 2.3; Final Design Review means the completion of the PRESTO design Documentation, save for those documents included in the Operational Documentation Review, the objective of which is to validate the design and verify that it satisfies the requirements established in this Agreement and, upon completion and approval, to establish the design baseline;

54 Final Project Schedule means the high level project schedule provided as part of Project Blueprint in accordance with section 4.1, provided that same may be revised, as mutually agreed by the Parties, from time to time as the Presto Systems Project proceeds; FIPPA means the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as amended or replaced from time to time; Force Majeure shall have the meaning ascribed thereto in Section 19.5; Full Criminal Record or FCR refers to a category of criminal record information that contains personal information, conviction history and any other police-related information; General Consulting Services shall have the meaning ascribed thereto in Module Appendix K; GO Transit System shall consist of: (c) (d) (e) the on-board, in-station and back office equipment and software for GO Transit rail and bus services; the same functions as the Municipal Systems, but in the GO Transit operating environment; in addition to the equipment aboard its buses (similar to the Municipal Systems), equipment at each of its rail stations for fare card transactions, including handheld devices for GO Transit enforcement officer to verify fare payment on board its trains as a continuation of its proof of payment program; point of sale devices at designated locations (including third party locations) to allow customers to purchase and load added value onto their fare cards; and any other Deliverables more particularly outlined in the Module Appendices. Governance Agreement shall have the meaning ascribed thereto in Section 1.2; Government Systems means collectively and individually any computer, data, network facility, systems, software, including and internet, telephones, facsimile and other equipment of Ministry, the Ontario Government or any of the Designated Persons; GTA Fare System means the Fare System described in Final Design Review and the GTA Fare System Technical Specifications; GTA Fare System Technical Specifications shall have the meaning ascribed thereto in Section 2.5; GTA Open Interface Standard means all Documentation, including, but not limited to, the set of specifications, in particular Volumes 1 through to 5 reviewed by Contractor, that describe the interface between the fare card, devices, and the Central System, to which Contractor must certify compliance in the design, development, delivery, maintenance and support of all components of the GTA Fare System and all custom Software, or applicable code, and other Deliverables that embody the GTA Open Interface Standard; and GTA Open Interface Specifications refers to Part 11 of the GTA Fare System Technical Specifications, Volumes 1 through to 5; Hardware shall have the meaning ascribed thereto in Section 1.1; Implementation Sub-committee shall have the meaning ascribed thereto in Section 6.4;

55 Independent Third Party Reviewer shall have the meaning ascribed thereto in the Price Review Plan provided in accordance with the Final Project Schedule; Initial Term shall have the meaning ascribed thereto in Section 3.1; Integration and Interface Testing (I&IT) Cycle 1 means the requirements specified in Appendix G - Part 7 - System Assurances, Section (Interface and Integration Testing), which remain unchanged except for the inclusion of the following item: the activities of Interface and Integration Testing shall be conducted over 6 independent cycles, 4 of which occur prior to deployment of Release 1.0 at Stage 1 and 2 of which occur prior to deployment of Release 1.1 at Stage 3a; Intellectual Property Rights means any intellectual or industrial property rights protected or protectable under the Laws and Regulations of Canada, any foreign country, or any political subdivision of any country, including any intellectual property rights protected by legislation (such as legislation governing copyrights, industrial designs, circuit topographies, patents or trademarks) or by common law (such as confidential information and trade secrets); and at any time in the future, with respect to any licence to exercise Intellectual Property Rights, includes any intellectual or industrial property rights protected or protectable at such time under the laws of Canada, any foreign country, or any political subdivision of any country; Invention means any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement to any of them, whether or not patentable; Launch 1a or Launch 1a System shall have the meaning ascribed thereto in the GTA Fare System Technical Specifications. Launch 1 System shall have the meaning ascribed thereto in the GTA Fare System Technical Specifications and Module Appendix A; Laws and Regulations means: (c) applicable federal, provincial or municipal laws, whether in Canada or any other jurisdiction, orders-in-council, by-laws, codes, rules, policies, regulations or statutes; applicable orders, decisions, judgments, injunctions, decrees, awards or writs of any court, tribunal, arbitrator, governmental authority or other Person having jurisdiction; and any requirements under or prescribed by applicable common law; Licensed Development Tools means any Supplier Materials that Contractor or its Subcontractors use or would need to use to develop or modify, implement or maintain the Custom-Developed Software and that may be required by Ministry, the Designated Persons, their advisors, agents, Personnel, Subcontractors or sublicensees to develop or modify, implement or maintain the Custom-Developed Software or to exercise the Intellectual Property Rights licensed to or assigned to Ministry and the Designated Persons as a result of any resulting Agreement; MFIPPA means the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, as amended or replaced from time to time; Milestones shall have the meaning ascribed to it in subsection 4.1; Minister means the minister responsible for Ministry or any other person duly authorized to act on behalf of the minister; Ministry means the Greater Toronto Transit Authority, assignee of the Ministry of Transportation;

56 Ministry Terminable Default has the meaning ascribed to it in Section 14.1; Ministry Group means any and all, as applicable, of Ministry, Designated Persons, the Ontario Public Service and the Broader Public Sector, members of the Executive Council of Ontario, City Council or Commission of the Service Providers, and their advisors, agents, appointees and employees. Ministry Group Intellectual Property shall have the meaning ascribed thereto in Section 10.1; Ministry Obligations shall have the meaning ascribed to it in Section 5.2. Ministry Representative means any individual appointed by Ministry to perform any task under this Agreement, however such Ministry Representative is only such for the purposes of the particular task so appointed by Ministry; Module Appendices and Module Appendix shall have the meaning ascribed thereto in Section 2.4; Module of Deliverables means a set of Deliverables grouped in accordance with their functional relationships, pricing, delivery, acceptance and/or review criteria and all related Deliverable specific legal terms; MOL shall have the meaning ascribed thereto in subsection 6.10(c). Municipal Systems means the separate systems procured for each Service Provider that is a municipality and shall include: (c) (d) (e) the on-board and back office equipment and software to accommodate and administer the fare cards; the fare card readers which read and deduct the appropriate fare when the contactless card is placed in the vicinity of the reader; the capability to transmit data by wireless means to a depot computer that shall store the data from each bus until it is uploaded to the Central System upon return of the bus to the bus depot; point of sales devices at designated locations (including third party locations) to allow customers to purchase and load value onto their fare cards; and any other Deliverables more particularly outlined in the Module Appendices; Non-COTS Software means any and all software which is not COTS Software; OHSA shall have the meaning ascribed thereto in subsection Ontario means Her Majesty the Queen in right of Ontario; Ontario Data means all data (including all information whether or not contained in or on any database or electronic information storage system or media owned by or in the custody or control of Ministry or a Designated Person) of any kind and in any form, provided by Ministry to Contractor to enable Contractor to provide the Deliverables or otherwise owned by or in the custody or control of Ministry or a Designated Person; all data that are created, developed, generated, prepared or produced pursuant to providing the Deliverables under this Agreement, all data that are created, developed, generated, prepared or produced as a result of any compilation of (whether combined or compiled with other data or not) or developments or modifications to the data described above, but where Contractor s data are combined or compiled with Ontario Data with Ministry s prior written permission, excluding Contractor s data that are proprietary to

57 Contractor immediately prior to the Effective Date or are proprietary to Contractor but are not first created or produced in the performance of Work; Ontario Government means Her Majesty the Queen in right of Ontario or any ministry, agency, board, commission, department, corporation or other legal entity of or owned by the Government of Ontario. Ontario Government Insignia means the visual identity of the government of Ontario and any Ontario government design, domain name, geographical indication, insignia, logo, official mark or other designation, indication, symbol or trademark, including any developments and modifications of them; Ontario Materials means: (c) (d) (e) (f) materials, including all algorithms, audio or video recordings, Computer Code, Documentation, images, reports, software development tools, specifications, Technical Information, and technologies, recorded in any form and on any media, that are proprietary to the Ontario Government or the Designated Persons and provided to Contractor to enable Contractor to provide the Deliverables; and all such materials that are created, developed, generated, prepared or produced as a result of any developments or modifications to the material described above; all Special Works; all procurement documents issued by Ministry; the GTA Open Interface Specifications (Part 11 of the GTA Fare System Technical Specifications, Volumes 1 through to 5, reviewed by Contractor); the GTA Open Interface Standard; and all Third-Party Ontario Materials; Ontario Public Service and OPS mean the ministries and other administrative units of Ontario over which ministers of Ontario preside, and for the purposes of this Agreement includes its agencies, boards, commissions, and Crown corporations; Operating Agreement shall have the meaning ascribed thereto in Section 1.2; Operational Documentation Review or ODR means the completion of the PRESTO operational Documentation, the objective of which is to validate the operational design and to verify that it satisfies the requirements established in this Agreement, and the completion and approval of which is a pre-requisite to putting the PRESTO system into revenue service; Operational Documentation Review (ODR) Milestone means the payment milestone which contains all operations manuals and related Documentation set out in Appendix C and Appendix K; Part 10 shall have the meaning ascribed thereto in Section 2.1. Party means Ministry or Contractor, and Parties means both of them; Permitted OPS Assignee means: any agency, board, commission or Crown corporation of the government of Ontario, any entity of the Broader Public Sector, and

58 (c) any non-governmental entity where assignment to such non-governmental entity is necessitated by alternative service delivery, backward or forward integration, outsourcing, privatization, partnering, procurement endeavours, or similar activity; Person means an individual, company, corporation, limited liability company, limited liability partnership, partnership, unincorporated association, government or government agency, authority or entity however designated or constituted and includes successors to the foregoing; Personal Information has the same definition as in subsection 2(1) of FIPPA, that is, recorded information about an identifiable individual or that may identify an individual, contained in any Record; Personal Knowledge means, in connection with any Personnel, concepts, ideas or know-how acquired by the individual that are not retained in any electronic, optical, printed, written or other recorded form, which relate to information technology and are of a generic technical nature, and not specific to the operation and activities of any member of the Ministry Group, that amount to no more than an enhancement of that individual's personal knowledge, skill or expertise and does not amount to an intentional memorization of the information by that individual for the purpose of retaining and subsequently using or disclosing it for commercial purposes that can be competitive with or to the economic detriment of any of the Parties to this Agreement. Personnel means collectively, in the case of each Party, individuals who provide services to such Party or any of its Subcontractors in connection with this Agreement, whether as employees or independent contractors; Platform whether Ministry or Contractor Platform (whichever is applicable), means any and all Confidential Information, systems, software, tools, utilities, methodologies, specifications, techniques, know-how, show-how, reports, data bases, courses, hardware and other materials (including, without limitation, all related intellectual and industrial property rights) either owned or controlled by Ministry or Contractor prior to the Effective Date of this Agreement, which are (i) specifically described in either this Agreement, or (ii) used or accessed by either Party in connection with the performance of this Agreement; PRESTO Systems Project means the GTA Fare System Project; Price Review Plan means the Price Review Plan referenced in the Final Project Schedule, as more specifically defined in the RFP; Privacy Laws means provisions of FIPPA and regulations made thereunder, as amended or replaced from time to time; MFIPPA and regulations made thereunder, as amended or replaced from time to time; and Personal Information Protection and Electronic Documents Act S.C. 2000, c.5, and regulations made thereunder, as amended or replaced from time to time; any other provisions of applicable laws dealing with access to information and/or protection of privacy which is applicable; Proceeding means any action, claim, demand, lawsuit, or other Proceeding; Procurement Card means the corporate credit card(s) used by Ministry, as may be changed from time to time; Procurement Card Protocols means the manner in which Contractor is required to process any payments under the Contract that Ministry elects to make by way of Procurement Card, which shall include the requirement to collect the authorized employee's name, the abbreviated Ministry name, the expiry date, the GST exemption number and the employee's authorization; contact the financial institution identified on the Procurement Card each time the Procurement Card is used for payment; (c) receive payment from the financial institution named on the Procurement Card once that institution authorizes payment; and (d) bear the cost of any and all charges relating to the use of the Procurement Card, including the financial institution's charges for payment through the Procurement Card;

59 Project means the GTA Fare System Project; Project Blueprint shall have the meaning ascribed thereto in Sections 3.1 and 4.1. Project Committees shall have the meaning ascribed thereto in Section 6.4; Proposal shall have the meaning ascribed thereto in subsection 1.2. Proposed Arbitrator shall have the meaning ascribed thereto in Section 18.5; Proprietary Supplier Materials means algorithms, Computer Code, Documentation, software development tools, Technical Information or technologies that are proprietary to Contractor immediately prior to the Effective Date or are proprietary to Contractor but are not first created or produced in the performance of Work, and that are incorporated into any Deliverables or that are used by Contractor to provide the Deliverables; Recipient means, with respect to Confidential Information, any member of the Ministry Group, Contractor or Contractor Representatives, as applicable, receiving Confidentiality Information; Records means information, materials and other records, however recorded, in the custody or control of the OPS. For the purposes of this definition, information, materials and other records are under the control of Ministry if they are integral to the performance of the agreement and (i) Contractor or Contractor Representatives are required to manage, use or dispose of them under this Agreement; or (ii) Ministry is bound by a statute or a contractual power or duty to carry out the activities to be performed under this Agreement or to manage such information, materials or other records. Renewal Term shall have the meaning ascribed thereto in Section 3.2; Replenishment Order shall have the meaning ascribed thereto in Module Appendix D, Section 6.2. Respondent shall have the meaning ascribed thereto in Section 18.5; Response Period shall have the meaning ascribed thereto in Section 18.5; Reusable Code means reusable code, libraries, routines, sub-routines, and utilities; Revenue Service shall have the meaning specified in the GTA Fare System Technical Specifications. RFP shall have the meaning ascribed thereto in subsection 1.2. Schedules shall have the meaning ascribed thereto in Section 2.2; Service Levels means the requirements specified in the Service Level Agreement (as developed in accordance with Module Appendix L) for delivery of the various Deliverables under this Agreement against which Contractor s performance under this Agreement shall be measured; Service Providers shall have the meaning ascribed thereto in Section 1.2; Software means all Computer Code and all Source Materials; Source Materials means in respect to Software, any and all source code development documentation, user materials and all other materials and information necessary to enable competent information and technology professionals to de-bug, maintain and improve Software independently and, without recourse, to the authors of the Software;

60 Special Works means architectural works, artistic works, choreographic works, cinematographic works, communications signals, dramatic works, engravings, musical works, performer s performances, photographs or sound recordings, in any form: that are proprietary to Ministry or a Designated Person, or that are acquired, created, developed, generated, prepared or produced by or for Ministry or a Designated Person and are provided to Contractor to enable Contractor to provide the Deliverables, including, without limitation, any project logo and domain names, or that are adapted, communicated, created, developed, generated, made, performed, prepared, produced, published, recorded, reproduced, stored, translated or otherwise arise out of the provision of the Deliverables by or on behalf of Contractor and Contractor Representatives, and that are either used by Contractor or Contractor Representatives, or to be provided as a result of this Agreement to Ministry for use by Ministry or others as Ministry determines, provided that: Special Works shall not include Contractor Group Provided Intellectual Property; Stage 1 through 3b, or any of them, means the controlled implementation phases for the GTA Fare System in accordance with the deployment approach as set out in the Final Project Schedule, the completion of which will signify completion of the design-deployment phase of the GTA Fare System; Subcontractor means, in the case of each Party, any contractor or subcontractor at any tier of that Party. Subcontractor Licenses shall have the meaning ascribed thereto in subsection Successor(s) shall have the same meaning as the term is used in the Governance Agreement, which definition is as follows: any ministry, agency, board, commission or Crown corporation of the Government; or any entity of the Broader Public Sector; Supplier-Developed Software means, collectively, all Computer Code (including both object and source code forms, unless otherwise specified) and the Custom Documentation, recorded in any form or upon any medium, and developed or produced by Contractor or its Subcontractors as a result of this Agreement, whether developed or produced for use by Contractor or its Subcontractors under this Agreement or for use by Ministry or others, and includes all developments and modifications to such Computer Code developed or produced by Contractor or its Subcontractors for Ministry from time to time, and includes all algorithms, flowcharts, formulae, interfaces, navigational devices, menus, menu structures or arrangements, icons, help, operational instructions, processes, scripts (including any application program interfaces), commands, syntax, and the literal and non-literal expressions of ideas that access, direct, manipulate, operate or otherwise affect the Deliverables; Despite the foregoing, Supplier-Developed Software excludes all Special Works, Ontario Data, Personal Information, Ontario Materials, Confidential Information belonging to OPS and Designated Persons, and Supplier Materials. Supplier Materials means all Proprietary Supplier Materials, all Third-Party Supplier Materials and all materials so designated in any Schedule or Exhibit to this Agreement. Despite the foregoing, Supplier Materials excludes all Ontario Data, Personal Information, Ontario Materials, Special Works, Supplier- Developed Software, Supplier Work Inventions, and Supplier Work Information;

61 Supplier Work Information means all Technical Information relating to the Deliverables developed or produced by Contractor or its Subcontractors in the performance of Work; Supplier Work Invention means any Invention conceived, or conceived and developed, solely or jointly by one or more of the Personnel of Contractor in the performance of Work; Technical Information means recorded information of a scientific or technical nature in any form and on any media, including any designs, drawings, know-how, methods, methodologies, patterns, plans, procedures, processes, reports, schematics, specifications, techniques, templates, and working papers, but does not include Custom-Developed Software, data, databases, Documentation, Inventions or software; Term begins on the Effective Date and, unless otherwise terminated in accordance with this Agreement, shall continue in effect until the later of the end of the Initial Term (as such term is defined in Section 3.1), any Renewal Term (as such term is defined in Section 3.2) and any Transition Out Period; Termination Proceedings means the following steps to be taken in all cases where Contractor, acting reasonably, and after exhausting all other remedies and recourses available to it, deems it necessary to terminate this Agreement for a Ministry Terminable Default: provide to Ministry a final sixty (60) day cure period during which Ministry shall use all reasonable efforts to cure the default in fulfilling the Ministry Obligations; and for a period of up to thirty-six (36) months from the date of providing written notice of its intent to commence Termination Proceedings, use all commercially reasonable efforts to minimize damage caused by such termination, including, where applicable, ensuring that Business Continuity is maintained, and ensuring that all Transition Out Services continue to be provided to Ministry. Third Party Agency Networks Management Services shall have the meaning ascribed thereto in the GTA Fare System Technical Specifications and in Operational Documentation Review; Third-Party Ontario Materials means any algorithms, Computer Code, content, data, Documentation, materials, software development tools, Technical Information, technologies, and any other recorded information in any form and on any media, and any components of the Ontario Materials, that are not proprietary to Ministry or Service Provider; and that are licensed by Ministry or Service Provider from any third parties; but only to the extent that they are protected by Intellectual Property Rights or are not to be disclosed pursuant to obligations of confidentiality; Third-Party Supplier Materials means any algorithms, Computer Code, content, data, Documentation, materials, software development tools, Technical Information, technologies, and any other recorded information in any form and on any media, that are not proprietary to Contractor; that are licensed by Contractor from any third parties and for which such licences are not acquired exclusively for the benefit of Ministry and the Designated Persons or are not to be assigned, sold or transferred to Ministry; that are not first created or produced in the performance of Work; and that are incorporated into any Deliverables or are used by Contractor to provide the Deliverables; but only to the extent that they are protected by Intellectual Property Rights or are not to be disclosed pursuant to obligations of confidentiality; Transition Out Period the period of time required by Ministry to successfully and completely transition to a new vendor or to transition the GTA Fare System internally, provided that such period shall not extend to more than thirty-six (36) months; Transition Out Fee means the fee to be paid to Contractor for the Transition Out Services as specified in this Agreement, and more specifically in the Proposal. Transition Out Services means the Deliverable to be provided in accordance with Module Appendix J, Contract Transition Out Services and Final Design Review;

62 TTC Initial System shall have the meaning ascribed thereto in the Governance Agreement. Virus shall have the meaning ascribed thereto in Article 12; Variance means a non-commercial variation to, or clarification or waiver of, any requirement set out in the GTA Fare System Technical Specifications, set out in writing and executed by both Parties; Winding-up and Restructuring Act (Canada) refers to the Winding-up and Restructuring Act (R.S. 1985, c. W-11); Work means all or part of the work performed, or required to be performed, under, or as a result of, this Agreement; Work Invention means any Invention conceived, or conceived and developed, in the performance of Work; Work Patent Application means a patent application on a Supplier Work Invention filed by or on behalf of Contractor or any of its assignees, related entities or Subcontractors or any of their advisors, agents or Personnel, in Canada or in any other country or international patent office; Workplace Safety and Insurance Act (Ontario) refers to the Workplace Safety and Insurance Act (S.O. 1997, c.16); WSIA shall have the meaning ascribed thereto in Section 7.7 and WSIB shall have the meaning ascribed thereto in Section 7.7. ARTICLE 2 INTERPRETATION 2.1 Number and Gender Words importing the singular number include the plural and vice versa and words importing gender include the masculine, feminine and neuter genders. 2.2 References to Legislation Any reference to a statute in this Agreement shall mean the statute in force as at the date hereof together with all regulations made thereunder, as the same may be amended, re-enacted, consolidated and/or replaced, from time to time, and any successor statute or regulation thereto, unless otherwise expressly provided. Any reference to a regulation in this Agreement shall mean the regulation in force as at the date hereof, as the same may be amended, consolidated and/or replaced, from time to time, and any successor regulation thereto, unless otherwise expressly provided. 2.3 Headings The division of this Agreement into separate articles, sections, subsections and schedules, the provision of a table of contents and the insertion of headings and captions are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. 2.4 Expressions such as herein In this Agreement, hereto, herein, hereby, hereunder, hereof, and similar expressions refer to this Agreement and not to any particular article, section, subsection or any other portion of this Agreement

63 2.5 Recitals The recitals to this Agreement are deemed to form part of this Agreement. 2.6 Severability It is the intention of the Parties that, if any provision of this Agreement shall be held invalid or unenforceable in any respect, such provision shall be enforced to the maximum extent permitted by law, and that the remaining provisions of this Agreement shall continue in full force and effect

64 SCHEDULE B CHANGE MANAGEMENT PROCEDURES 1. Definitions. In this Schedule, capitalized words used but not otherwise defined in this Change Management Schedule shall have the same meaning as set out in this Agreement. ADR Process has the meaning ascribed thereto in subsection 4(ii)(A) of this Schedule B. Change Date means the date by which a Change must be implemented by Contractor, as specified in the applicable Change Notice and determined in accordance with subsection 2(iii) of this Schedule B. (c) Change Notice has the meaning ascribed thereto in subsection 2 of this Schedule B. (d) Feasibility Notice has the meaning ascribed thereto in subsection 3(c)(i) of this Schedule B. (e) (f) Final Change Payment has the meaning ascribed thereto in subsection 4(i) of this Schedule B. Provisional Change Payment has the meaning ascribed thereto in subsection 2(iv) of this Schedule B. 2. Change Notice Giving Change Notice. Ministry shall give notice (the Change Notice ) to Contractor of the nature of each change Ministry requires Contractor to make. Contents of Change Notice. Each Change Notice: (i) (ii) (iii) (iv) must describe the change in sufficient detail to enable Contractor to implement the change; may specify the manner in which the change is to be implemented; may specify the Change Date by which each change is to be completed, which date may be determined by Ministry in its unqualified subjective discretion (taking into consideration the nature and extent of the work that Contractor would be expected to carry out to implement such change); and may specify a provisional estimate of the amount of money (if any) to be payable by Ministry to Contractor or by Contractor to Ministry (the Provisional Change Payment ), as a result of the implementation of each change and the timing and frequency of such Provisional Change Payment. Any such Provisional Change Payment shall be subject to adjustment in accordance with subsection Implementation of Changes Deadline for Implementing Changes. (i) Change Date Specified. Subject to subsection 3(c), if a Change Notice specifies a Change Date for a particular change, then Contractor shall fully implement that change by that Change Date

65 (ii) Change Date Not Specified. If a Change Notice does not specify a Change Date for a particular Change, then Contractor shall implement that change by such date as is mutually agreed upon by Ministry and Contractor. Manner of Implementing Changes (i) (ii) Manner Specified in Change Notice. Subject to subsection 3(c), if a Change Notice specifies the manner in which a change is to be implemented, then Contractor shall implement the change in the manner so specified. Manner Not Specified in Change Notice. Subject to the following, if a Change Notice does not specify the manner in which a change is to be implemented, then Contractor shall use reasonable efforts to implement the change in the most efficient manner possible. (c) Feasibility Notice (i) Despite subsections 3 or, if Contractor reasonably believes that it is not feasible to implement a particular change: (A) (B) in the manner, or by the Change Date, specified in the applicable Change Notice, Contractor shall promptly so notify Ministry (the Feasibility Notice ); (ii) (iii) (iv) a Feasibility Notice contemplated in respect of subsection 3(c)(i)(A) of this Schedule B shall specify in reasonable detail the manner in which Contractor reasonably believes the change can be implemented so as to give effect to the intent and purpose of the change in a manner that most closely resembles the manner specified in the Change Notice; and a Feasibility Notice contemplated in respect of subsection 3(c)(i)(B) of this Schedule B shall specify the earliest date by which Contractor reasonably believes the change can be implemented. Upon receipt of a Feasibility Notice, Ministry may give notice to Contractor to either: (I) (II) implement the change in the manner or by the date (as applicable) set out in the Feasibility Notice (in which case the Change Notice shall be deemed to be amended as provided in the Feasibility Notice, and Contractor shall implement the change in accordance with the change Notice as so amended) or in such manner or by such date as Ministry and Contractor otherwise agree; or implement the change in the manner and by the date (as applicable) set out in the original Change Notice (in which case Contractor shall use commercially reasonable efforts to implement the change in accordance with the original Change Notice). 4. Fee or Credit for Implementing Changes Provisional Change Fee/Credit Specified. If a Change Notice specifies the amount, timing and/or frequency of payment of a Provisional Change Payment for a particular change, then the

66 Parties shall be bound by such terms, until such time as the Final Change Payment is determined under subsection 4. Final Change Payment. (i) Attempt to Reach Agreement. As soon as reasonably practicable after the implementation date of a change, the Parties shall endeavour to agree in writing upon the amount of money (if any) to be payable by Ministry to Contractor or by Contractor to Ministry (the Final Change Payment ), as a result of the implementation of that change and the timing and frequency of such Final Change Payment. (ii) No Mutual Agreement. (A) (B) If the Parties do not enter into the agreement referred to in subsection 4(i) of this Schedule B within ten (10) Business Days of the implementation date of the change in question, then subject to subsections 4(ii)(B) of this Schedule B, either Party may refer the determination of the amount, timing and/or frequency of payment of the Final Change Payment, if any, to the dispute resolution process contemplated in Article 18 of this Agreement (the ADR Process ). The amount of the Final Change Payment, if any, as determined under the ADR Process, shall be solely based on the increase or reduction in costs that Contractor would reasonably be expected to incur or benefit from as a result of the change in question, or the amount of Contractor s net profit derived directly from the delivery of the Deliverables in accordance with this Agreement, as determined in accordance with Canadian generally accepted accounting principles consistently applied, that Contractor would reasonably be deprived of as a result of the implementation of the change in question during the remainder of the term of this Agreement). 5. Where the amount of the Provisional Change Payment is not specified in the Change Notice, Contractor will not be obliged to implement the change unless and until such amount has been agreed by the Parties, unless the matter is an emergency in which case Contractor will be obliged to implement the change provided Ministry agrees in writing to pay fifty percent (50%) of the amount estimated by Contractor prior to commencement of work on the change. Payment of Contractor's estimated cost by Ministry in an emergency shall not in any way prejudice the Parties' right to a full determination of the Final Change Payment for the work in accordance with the provisions in Schedule B. 6. Contractor may initiate a change in accordance with this Schedule B

67 SCHEDULE C AUTHORIZED REPRESENTATIVES The initial Authorized Representatives are stated as follows: Contractor: Alden Cuddihey Partner 160 Elgin Street, Suite 2100 Ottawa, ON K2P 2P7 Ministry: Ernie Wallace Executive Project Director 20 Bay Street, Suite 600 Toronto, ON M5J 2W3-62 -

68 SCHEDULE D CONTRACTOR REPRESENTATIVE SECURITY STATEMENT Individual s Name: Firm: Accenture Inc. Position #: WHEREAS the Greater Toronto Transit Authority ( Ministry ), has entered into a contract with Accenture Inc.. ( Contractor ) pursuant to which the undersigned may have access to premises, computer systems, data, and other materials, software, network facility, systems, including and internet, telephones, facsimile and other equipment, and confidential and/or personal information of Ministry as well as of transit and municipal entities in the Province of Ontario participating in the GTA Fare System Project ( Service Providers ) (collectively, the Systems and Information, respectively); AND WHEREAS Contractor and Ministry are committed to protecting the Systems and Information from unauthorized access, use or disclosure; NOW THEREFORE in consideration of the premises and mutual agreements contained in this Contractor Representative Security Statement and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the undersigned agrees to comply with the following terms and conditions with respect to access to and usage of the Systems and Information: 1. The undersigned shall, both during and following the term of the aforementioned contract with Contractor, maintain confidential and secure all Information that is the property of Ministry, the Ontario Government and Service Providers that comes into his/her possession or under his/her control. The undersigned shall not disclose any Information he/she has accessed to anyone. 2. Where the undersigned is permitted access under the contract to Systems and Information, the undersigned shall comply with Ontario Government and Ministry information technology policies, standards and procedures, including as described in any Ministry security policies and in Corporate Management Directives such as the Information and Information Technology Security Directive; Information and Information Technology: Operating Procedure on Usage of I.T. Resources; and Information and Information Technology: Operating Procedure on Internet, Intranets and Extranets ( Directives ). Copies of these policies, standards and procedures, and Directives are available upon the undersigned s request. The undersigned shall also comply with any relevant technology policies, standards and procedures specified by Service Providers in respect of Systems and Information pertaining to Service Providers. 3. The undersigned shall use the Systems and Information only for the purpose of performing his/her duties and obligations to Contractor and the undersigned shall not use the Systems and Information for any other purpose without the prior written consent of Ministry. No Systems and Information shall be used for any unauthorized purposes or for personal use e.g., sending, receiving or downloading non-work related information and materials, accessing information about another person including address information. 4. Without limiting the generality of the foregoing, no Systems or Information shall be used for any illegal or unacceptable activity as described in the Directives, policies, standards and/or procedures or used in any manner that would be detrimental to Ministry s or a Service Provider s commercial, financial, operational or legal interests. 5. In addition, without limiting the generality of the foregoing, the undersigned shall not use the Systems to access any personal accounts or internet service providers or other alternate service providers, except for Ministry business purposes

69 6. The undersigned acknowledges and agrees that the Systems and Information are the property of the Ontario Government and Service Providers, and are highly valuable, confidential and material to the interests, business and affairs of the Ontario Government and Service Providers and that disclosure or improper use thereof will be detrimental to the interests, business, affairs and obligations of the Ontario Government and/or Service Providers. 7. The undersigned shall take reasonable precautions to maintain the secrecy of any passwords he/she may be given to access the Systems and Information. Reasonable precautions include, but are not limited to: not telling others his/her password or knowingly allowing them to observe while he/she enters it at a terminal; and frequently changing his/her password (and, if he/she suspects his/her password has been used by someone else, changing it immediately and notifying Contractor); and selecting random passwords that are not easy for others to guess. 8. The undersigned shall take reasonable precautions to protect against unauthorized access to the Systems and Information, whether such access is by electronic or any other means. Reasonable precautions include, but are not limited to: not leaving Systems unattended; use of password protected screen saver, not having simultaneous modem and network connections, reporting any suspicious circumstances or unauthorized individuals observed in the work area to Contractor. 9. The undersigned shall not remove, from Ontario Government or Service Provider premises, any property which belong to the Ontario Government, Service Providers, or third party property that is in the possession of the Ontario Government or Service Providers, without ensuring compliance with all Ministry and Service Provider s conditions for such removal. If the undersigned is permitted to remove any item of Equipment, the undersigned shall comply with all Ministry and Service Provider s security requirements to ensure the security and integrity of the Equipment and Information while the Equipment is out of Ministry s or Service Provider s premises. 10. This Contractor Representative Security Statement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable in that Province. 11. If any provision of this Contractor Representative Security Statement is invalid, unenforceable or illegal, such provision shall be deemed to be severed without affecting any other provision. 12. The undersigned agrees to do such further acts and things and execute such further documents as may be requested, from time to time, to more fully implement and give effect to the intents and purposes of this document. I have read and I understand the security policies stated above, and will comply with them and any other security policies issued in the future by Contractor, Ministry, the Ontario Government or Service Providers. I understand that failure to comply with these policies may result in disciplinary action by Contractor and/or civil or criminal prosecution in accordance with applicable statutes. Date: Name: Title:

70 SCHEDULE E SECURITY PROCEDURES 1. Security Clearance At Contractor s expense, Contractor shall ensure that Contractor Representatives who may have access to the GTA Fare System or a Ministry or Service Provider site, or who may have access to Personal Information, Confidential Information or Government Systems and other information and/or materials belonging to Ministry, Service Providers or belonging to a third party consultant to Ministry, or Service Providers are security cleared and approved, and that such clearances are completed prior to access by such individuals. Without restricting the generality of the foregoing, Contractor shall obtain FCR clearances for each Contractor Representative who will be accessing Personal Information and Confidential Information. Contractor shall ensure that Contractor Representatives, who are Canadians or permanent residents of Canada, fulfill FCR requirements by providing CPIC clearances at the FCR level. Other Contractor Representatives shall provide FCR equivalent clearances, such as the United State s National Crime Information Centre (NCIC) clearances, from the country they reside at the time prior to accessing the referenced System, sites or information within Canada. Contractor shall be required to provide proof that the clearances obtained for such individuals are equivalent to the FCR clearance. Under no circumstances shall a Contractor Representative with access to such information commence work without receiving FCR clearance, and all Contractor Representatives shall sign a release in order to allow Contractor to obtain such clearances. Ministry may, in its sole discretion, request the replacement of a Contractor Representative for whom a required FCR clearance has not been obtained or based on information arising from any of the background check(s). For security reasons, Contractor shall not retain any Person to provide the Deliverables whose background checks disclose an act, omission or conduct that is incompatible with the provision of the Deliverables and Contractor s obligations herein. Contractor shall ensure that no individual whose CPIC Level clearance is over sixty (60) months old shall be permitted access to a Ministry or Service Provider site or the GTA Fare System or be allowed to provide any of the above-referenced Deliverables. Contractor shall provide evidence to Ministry that all such CPIC clearances have been obtained as soon as possible but in any event, no later than fourteen (14) days prior to any Contractor Representative commencing work with respect to the GTA Fare System. In addition to the foregoing security requirements, any Contractor Representatives who will be providing Deliverables with respect to the development, maintenance and support services of Ministry security systems and security software shall be required to meet an additional level of security clearance. Contractor shall provide evidence to Ministry that each of the following have been applied for with respect to each such Contractor Representative, no later than fourteen (14) days prior to any such Contractor Representative commencing the above-referenced work with respect to the GTA Fare System: RCMP fingerprint check (or equivalent, as approved by Ministry) and Credit Bureau check. Contractor shall ensure that Contractor Representatives who are neither Canadians or permanent residents of Canada obtain fingerprint checks from police authorities from their resident countries. 2. Identification Suitable identification of vehicles and personnel shall be required for access to any Ministry or Service Provider premises. Each Contractor Representative shall carry and Contractor shall ensure that each Contractor Representative carries a photo-identification card. The identification card shall be in view at all times. Contractor shall be responsible for security of tools, materials and equipment belonging to Contractor or Contractor Representatives

71 3. Removal of Contractor Representatives If Contractor becomes aware that an individual, for whom the required clearance was previously obtained,: is subsequently convicted of an offence which poses a security risk to Ministry, given the nature of the offence; engages in conduct which would cause such Contractor Representative not to be security cleared and approved pursuant to Section 1 of this Schedule E; or (c) breaches any of the terms of the Contractor Representative Security Statement signed by that individual, then Contractor shall immediately notify Ministry with details and shall immediately remove such individual from the Project. Contractor shall, within a reasonable time, substitute a person of suitable qualification and experience which person shall be acceptable to Ministry. Within two (2) days of the receipt of a request from Ministry, Contractor shall remove or have removed from the Project, anyone who is found unacceptable by Ministry or a Service Provider, as determined by Ministry or Service Provider, in its unqualified subjective discretion, as a result of any security issues associated with that individual, and shall, within a reasonable time, substitute a person of suitable qualification and experience which person shall be acceptable to Ministry. 4. Security Standards Where Contractor or any Contractor Representative is permitted access to any Government Systems, Contractor shall, in the access to and use of the information and Government Systems, ensure compliance with the Service Providers information technology policies, standards and procedures, the Ontario Government and Ministry information technology policies, standards and procedures, including, without limitation, as described in any Ministry security policies and in the following Corporate Management Directives: Information and Information Technology: Operating Procedure on Usage of I.T. Resources and Information and Information Technology: Operating Procedure on Internet, Intranets and Extranets, and the Information and Information Technology Security Directive ( Directives ). Contractor shall ensure the Government Systems are used by Contractor and Contractor Representatives only for the purpose of performing the obligations under the provisions of this Agreement and that the Government Systems are not used by Contractor or Contractor Representatives for any other purpose without the prior written consent of Ministry. Contractor shall ensure that no Government System is used by Contractor or Contractor Representatives for any unauthorized purposes including for personal use. Without limiting the generality of the foregoing, Contractor shall ensure that no such Government System is used by Contractor or Contractor Representatives for any illegal or unacceptable activity as described in the Directives, policies, standards and/or procedures or used in any manner that would be detrimental to the commercial, financial, operational or legal interests of Ministry. Contractor acknowledges and agrees that the Government Systems are the property of the Government of Ontario, are highly valuable, and material to the interests, business and affairs of the Ontario Government and that disclosure or improper use thereof would be detrimental to the interests, business, affairs and obligations of the Government of Ontario. Contractor agrees not to grant access to the Government Systems to any persons for any reason whatsoever other than to those of Contractor Representatives who actually need to have access to the Government Systems for the purpose of enabling Contractor to perform its obligations in accordance with this Agreement. In this event, Contractor may grant access to such Government Systems to those Contractor Representatives as is reasonably necessary. Contractor shall issue appropriate directions to those Contractor Representatives to whom it has lawfully granted access to Government Systems hereunder to satisfy its obligations in this Agreement, and shall

72 obtain their agreement in writing to comply with Ministry s requirements herein in the form set out in Schedule D. Contractor shall be responsible to Ministry for the breach of this Agreement by it or its Contractor Representatives, including without limitation, any unauthorized access to and use of the Government Systems by any Contractor Representatives. Upon the request of Ministry, Contractor shall provide Ministry with a current list of Contractor Representatives to whom any access to the Government Systems has been granted. In the provision of Deliverables to Ministry and Service Providers, Contractor shall adhere to secure delivery requirements which shall meet or exceed Ministry s and Service Provider s requirements for the delivery of deliverables to their sites

73 SCHEDULE F CONTRACTOR PROVIDED INTELLECTUAL PROPERTY (Pursuant to section 10.2 of the Master Supply and Services Agreement, Schedule F will be developed in accordance with the Final Project Schedule.)

74 SCHEDULE G PAYMENT 1. Default Billing and Payment Process Subject to the payment provisions in the Module Appendices to this Agreement, the following process shall govern: (c) (d) Contractor shall provide Ministry with a monthly billing statement no later than ten (10) Business Days after the end of each month and that billing statement shall include (i) the reference number assigned to the Contract by Ministry; (ii) item numbers, date, sizes, quantities, unit prices, and with respect to invoices for services, the period of performance covered by the invoice; (iii) a brief description of the Deliverables provided for the relevant month; and (iv) taxes, if payable by Ministry, identified as separate items; if Ministry approves the billing statement, payment shall be made within thirty (30) days of such approval, provided that, if the relevant payment is subject to a withholding provision in this Agreement, payment will be withheld and made in accordance with the withholding provision; except for Launch 1A System, where a relevant payment is subject to a milestone(s) being achieved as set out in this Agreement, then payment will be made in accordance with the provision dealing with such milestone(s). Payment for Milestones shall be made to Contractor for deliverables in accordance with Appendix C and Appendix K; and Ministry may make payments under the Contract by way of Procurement Card and Contractor shall accept and process such payments in accordance with Procurement Card Protocols. Any subsection set out above that is not expressly replaced in Schedule G with an alternative provision shall remain in full force and effect. For avoidance of doubt, charges for the Deliverables shall be as set out in the Financial Response Tables of Contractor s Proposal, and payment shall be made in accordance with the payment schedule for the Deliverables in Appendix K and the provisions herein. 2. Interest on Late Payment If a payment is in arrears through no fault of Contractor, Ministry agrees to indemnify and save harmless Contractor for the damages, if any, Contractor suffers and claims against Ministry up to a maximum of the amount of interest that would have accrued on such payment from the date it was due under this Agreement until the date on which it was actually received by Contractor at the prevailing prejudgment rate(s) of interest under the Courts of Justice Act (Ontario). 3. Hold Back or Set Off Ministry may hold back payment or set off against payment if, in the opinion of Ministry acting reasonably, Contractor has failed to comply with any requirements of this Agreement. Notwithstanding the foregoing general right to set off, Ministry will withhold five percent (5%) of every invoice (with the exception of Launch 1 and Services provided during the operations phase of the Project) from payment for ninety (90) days from the date of receipt of the invoice, in order to verify that the relevant deliverables have been fully and completely received. Ministry shall have the right, in addition to any other remedy, to retain or deduct from any monies owing by Ministry to Contractor an amount sufficient to satisfy any amount owing or to be owed to Ministry or a Service Provider under this Agreement

75 4. No Expenses or Additional Charges There shall be no other charges payable by Ministry under this Agreement to Contractor other than the rates established under this Agreement. 5. Payment of Taxes and Duties Unless otherwise stated, Contractor shall pay all applicable taxes, including excise taxes incurred by or on Contractor's behalf with respect to this Agreement. 6. Ministry GST Exempt Ministry hereby certifies that the Deliverables, other than the Deliverables being acquired for the Service Providers as their agent, are required for the use of the Crown in right of Ontario and are therefore not subject to the federal Goods and Services Tax. 7. Withholding Tax Ministry shall withhold any applicable withholding tax from amounts due and owing to Contractor under this Agreement and shall remit it to the appropriate government in accordance with applicable tax laws. 9. Equipment Payment Framework Equipment installation and purchase charges will be paid in accordance with the following equipment payment framework (the Equipment Payment Framework ):

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78 SCHEDULE H BONDS

79 SCHEDULE H SAMPLE BONDS P Ministry of Transportation LABOUR AND MATERIALS PAYMENT BOND Bond No... Amount, $. Contract No... Know all Men by these Presents, that I (the Contractor) hereinafter called the Principal, and We (the Bonding Company) hereinafter called the Surety, are jointly and severally held and firmly bound unto Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation hereinafter called the Obligee, and her successors in the sum of..... (in words) dollars ($.) of lawful money of Canada, to be paid unto the Obligee, for which payment well and truly to be made we the Principal and Surety jointly and severally bind ourselves, our and each of our respective heirs, executors, administrators, successors and assigns by these presents. Sealed Sealed with our respective seals and dated this... day of.20.. Whereas by an agreement in writing dated the. day of (Date of Contract). 20, the Principal has entered into a contract with the Obligee, hereinafter called the Contract, for the GTA Fare System (Description of Work) as in the Contract provided, which Contract is by reference herein made a part hereof as fully to all intents and purposes as though recited in full herein. Now therefore the Condition of this Obligation is such that if the Principal shall at all times make payment to all creditors, as defined in the Act, for all labour, materials or services used or reasonably required for use in the performance of the Contract, or as the same be changed, altered or varied as hereinafter provided, to the satisfaction of the Obligee, and shall at all times full indemnify and keep indemnified the Obligee from and against all and any manner of loss, damage, expense, suits, actions, claims, liens, proceedings, demands, awards, payments, and liabilities arising out of or in any manner based upon or attributable to the claims of such creditors and shall fully reimburse and repay the Obligee for all outlay, expense, liabilities, or payments, incurred or undertaken to be made by the Obligee attributable to the claims of such creditors made pursuant to the Contract, then this obligation shall be void, but otherwise it shall be and remain in full force and effect

80 Provided always and it is hereby agreed and declared that the Obligee and the Principal have the right to change, alter and vary the terms of the Contract, and that the Obligee may in Her discretion at any time or times take and receive from the Principal any security whatsoever and grant any extension of time thereon or on any liability of the Principal to the Obligee. Provided further and it is hereby agreed and declared that the Principal and the Surety shall not be discharged or released from liability hereunder and that such liability shall not be in any way affected by any such changes, alterations, or variations, taking or receiving of security, or extension of time, as aforesaid, or by the exercise by the Obligee of any of the rights or powers reserved to Her under the Contract or by Her forbearance to exercise any such rights or powers, including (but without restricting the generality of the foregoing) any changes in the extent or nature of the deliverables and services to be provided, including design, build, operate and maintenance services as further described in the Contract, or by any dealing, transaction, forbearance or forgiveness which may take place between the Principal and the Obligee. Provided further and it is hereby agreed and declared that the Surety shall not be liable for a greater sum than that specified in this bond. SIGNED, SEALED AND DELIVERED BY THE SURETY IN THE PRESENCE OF Witness signs here Principal signs here and seal where applicable (Seal) SIGNED, SEALED AND DELIVERED BY THE SURETY IN THE PRESENCE OF Witness signs here Surety Company Officer signs here with seal (Seal)

81 BOND NO.. $.. In favour of... Bond Ontario Ministry Of Transportation Contract No

82 Ministry of Transportation PERFORMANCE BOND Bond No... Amount, $. Contract No... Know all Men by these Presents, that I (the Contractor) hereinafter called the Principal, and We (the Bonding Company) hereinafter called the Surety, are jointly and severally held and firmly bound unto Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation hereinafter called the Obligee, and her successors in the sum of..... (in words) dollars ($.) of lawful money of Canada, to be paid unto the Obligee, for which payment well and truly to be made we the Principal and Surety jointly and severally bind ourselves, our and each of our respective heirs, executors, administrators, successors and assigns by these presents. Sealed Sealed with our respective seals and dated this.... day of Whereas by an agreement in writing dated the... day of (Date of Contract).20.., the Principal has entered into a contract with the Obligee, hereinafter called the Contract, for the GTA Fare System. (Description of Work) as in the Contract provided, which Contract is by reference herein made a part hereof as fully to all intents and purposes as though recited in full herein. Now therefore the Condition of this Obligation is such that if the Principal shall at all times duly perform and observe the Contract or as the same be changed, altered or varied as hereinafter provided, to the satisfaction of the Obligee and shall at all times fully indemnify and keep indemnified the Obligee from and against all and any manner of loss, damage, expense, suits, actions, claims, liens, proceedings, demands, awards, payments and liabilities arising out of or in any manner based upon or attributable to the Contract and shall fully reimburse and repay the Obligee for all outlay expense, liabilities, or payments incurred or undertaken to be made by the Obligee pursuant to the Contract, then this obligation shall be void, but otherwise it shall be and remain in full force and effect

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