Request for Proposal Selection of Service Provider …...Employees’ States Insurance Corporation Confidential Page 1 of 63 Request for Proposal Selection of Service Provider for

Employees’ States Insurance Corporation Confidential Page 1 of 63

Request for Proposal

Selection of Service Provider

for

Operations and Maintenance

of

Project Panchdeep, ESIC Draft Prime Services Agreement

(Volume III)

RFP for Selection of Service Provider for Panchdeep O&M Volume III: Draft Prime Service Agreement


1 RFP Structure The RFP documents are those stated below, and should be read in conjunction with Addendum/ Corrigendum issue if any. Addendum/ Corrigendum will be published only on the website of the ESIC (www.esic.nic.in/tenders). Prospective bidders are requested to visit ESIC website on regular basis.

The Request for Proposal or RFP (this document) for selection of Service Provider is segregated into the following three volumes: Volume I: Scope of Services

Volume I of RFP intends to bring out all the details with respect to scope of services required from the Service Provider that ESIC deems necessary to share with the potential bidders.

Volume II: Commercial and Bidding Terms

Volume II of the RFP details the General Terms & Conditions with respect to the bid process management including the evaluation criteria and bid submission forms to be adopted for the proposed project. Volume III: Draft Prime Services Contract

Volume III of the RFP details out the Draft Prime Services Contract (PSA) & SLA for the proposed engagement and outlines the contractual, legal terms & conditions applicable for the proposed engagement. Draft agreement may be suitably modified at the time of award of contract. Annexures to RFP Annexure 01 - Existing Base System Annexure 02 - Existing DC and DRC Asset Details Annexure 03 - SLA Annexure 04 - Indicative Scope of Panchdeep Operations and Maintenance

Activities Annexure 05 - List of Locations (for information only) Annexure 06 - Transition Responsibilities of Service Provider Annexure 07 - Profile of Software Manpower required for Additional Software Application Functionalities Development and Change Request Annexure 08 - Profile of the Project Team The Information security management system (ISMS) policies and Application SRS and CR’s will be provided to potential bidder, in CD, on submission of request from potential bidder, on their letterhead with Non-Disclosure Agreement. The

http://www.esic.nic.in/tenders



information may be collected from Room No. 16 ICT Division, ESIC Headquarters (Extension Building), Ground Floor Indian Express building. It may also be collected at the end of the Pre-bid Conference on submission of requisite documents. This volume is the Volume III of the RFP.

2 – Prime Services Agreement

THIS AGREEMENT is made this [...…] the day of […………...], 2018, by and between:

1. The Employees’ State Insurance Corporation, a statutory body constituted

under an Act of Parliament (Employees’ State Insurance Act, 1948), and having its principal offices at Panchdeep Bhawan, CIG Marg, New Delhi 110 002 (hereinafter referred to as "ESIC" which expression shall unless excluded by or repugnant to the subject or context, mean and include its successors, administrators and assigns) of the ONE PART,

AND

2. [……………………….], a company organized and existing under the Indian

Companies Act, 1956 and having its registered office at […………………………………………..] (Herein after referred to as "Service Provider" which expression shall unless excluded by or repugnant to the subject or context, mean and include its successors and permitted assigns) of the OTHER PART.

(Unless repugnant to the context or meaning thereof the ESIC and Service Provider are hereinafter collectively referred to as the “Parties” and singly as “Party”). WHEREAS

ESIC had rolled out IT Project Panchdeep, an integrated solution covering all its operations at its offices of the Head office, Regional Directors, Sub Regional office, Divisional office, Branch Offices, Dispensaries, Hospitals and State Directorates, to support the provision of insurance and medical care services. Now, ESIC has decided to select a Service Provider for continued Operations & Maintenance of Project Panchdeep as more fully described in the Request for Proposal (RFP). The present scope of work, selected agency has to carry out is O&M of DC at Delhi and DR at Hyderabad Application support, hardware support and provide onsite application developers and facilitate ESIC in procuring AMC and ATS of software components. The O&M of existing application and existing network component at edge locations will not be in the scope



A. ESIC had accordingly issued its Notice Inviting Tender No. ________ dated [

___ ] (hereinafter referred to as the “NIT”), inviting technical and commercial proposals for undertaking the Project and, inter alia, provision of Services under SLAs (as defined hereinafter) and had prescribed in the said NIT, amongst others, the technical and commercial terms and conditions for undertaking the Project.

B. The Service Provider had prior to the submission of its bid pursuant to the NIT (hereinafter referred to as the “Bid”) (a) received and reviewed the documents comprising the NIT and related tender documents to the Prospective bidders, and the further data/information as has been furnished by ESIC subsequent to the issue of the NIT, (b) inspected the various representative locations intended to be covered by the Project, and (c) had performed and/or undertaken all such other investigations, studies and analysis which the Service Provider has deemed necessary or prudent to do in connection with its Bid.

C. After evaluation of the bids received pursuant to the said NIT including the Bid of the Service Provider, the ESIC has accepted the Bid of the Service Provider and selected it and had issued to the Service Provider its Letter of Intent [No. ……………………..] Dated [………………………..] .

D. Pursuant to LOI the ESIC and the Service Provider are accordingly entering into this Agreement for undertaking and execution of the Operations & Maintenance of Project Panchdeep subject to and on the terms and conditions set forth hereinafter.

NOW THEREFORE, IN CONSIDERATION OF THE FOREGOING AND THE RESPECTIVE PROMISES, COVENANTS AND AGREEMENTS SET FORTH HEREIN, THE ADEQUACY AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED AND INTENDING TO BE LEGALLY BOUND THE PARTIES HERETO HEREBY AGREE AND THIS AGREEMENT WITNESSETH AS FOLLOW:

Article 1:

1 Definitions and Interpretation

1.1 Definitions.

In this Agreement: the following expression when beginning with capital letters shall have, unless repugnant to the context or meaning thereof, the meaning hereinafter respectively assigned to them: "Accounting Year" means the financial year commencing from the first day of April of a calendar year and ending on the thirty-first day of March of the



immediately following calendar year.

"Additional Services" mean the Services referred to in Clause 3.5

“Additional Charges” means the charges for any assets or services required beyond the scope of RFP.

“Assets” or “Project Assets” means the entire hardware and software, programs, network or any other information technology infrastructure components and all other assets tangible or intangible forming part of the DC & DR. "Applicable Laws" means Information Technology Act 2000 and other laws, brought into force and effect by GOI or a concerned State Government including rules, regulations and notifications made thereunder, and judgments, decrees, injunctions, writs and orders of any court of record, applicable to this Agreement and the exercise, performance and discharge of the respective rights and obligations of the Parties hereunder, as may be in force and effect during the subsistence of this Agreement.

"Applicable Permits" means all clearances, licenses, permits, authorizations, no objection certificates, consents, approvals and exemptions required to be obtained or maintained under Applicable Laws in connection with the establishment, operation and maintenance of the ESIC Gateway, Data Centre and Disaster Recovery Centre and provision of services during the subsistence of this Agreement.

"Appointed Date" means […………, 200…….] being the date on which the ESIC issued the LOI to the Service Provider or such later date that the Parties may mutually agree.

"Bank" means scheduled bank or a Nationalized Bank having a branch in New Delhi.

“Bank Rate” means the rate of interest specified by the Reserve Bank of India from time to time in pursuance of section 49 of the Reserve Bank of India Act, 1934 or any replacement of such Bank Rate for the time being in effect. "Base System Staff Support" means the staff or personnel provided and supervised by Service Provider to work on a full-time basis to provide the Services as envisaged hereof. "Benchmark Requirements" shall have the meaning ascribed thereto in



Clause 4.2 hereof. “Bespoke Software” means the software designed, developed, tested and deployed by the Service Provider for the purposes of provision of Services and includes the source code along with associated documentation, which is the work product of the development efforts involved in the Project and the improvements and enhancements effected during the term of the Project, but does not include the third party software products (except for the customization components on such products), proprietary software components and tools deployed by the Service Provider. "Bid" means the documents in their entirety comprised in the bid submitted by the Service Provider in response to the NIT in accordance with the provisions thereof; "Bid Security / EMD" the security provided by the [Service Provider] to the ESIC along with the Bid in a sum of Rs. 1 Crore (Rupees One Crore only) in accordance with the Tender Notice and which is to remain in force until substituted by the Performance Security. "Business Day" means every day in the week except Sundays and National holidays on which the offices of the ESIC are closed. "Change" shall have the meaning ascribed thereto in Clause 7.3.1 hereof. "Change Control Process" shall have the meaning ascribed thereto in Clause 7.3.1 Hereof. "Change in Law" means the occurrence of any of the following after the date of Bid adversely affecting the rights or performance of obligations of a Party; a. the enactment of any new Indian law; b. the repeal, modification or re-enactment of any existing Indian law; c. the commencement of any Indian law which has not entered into effect until

the date of Bid; d. a change in the interpretation or application of any Indian law by a

judgement of a court of record which has become final, conclusive and binding, as compared to such interpretation or application by a court of record prior to the date of Bid; or

e. Any change in the rates of any of the Taxes. "Codes" means the computer programme code and if not otherwise specified include both Object Code and Source Code. "COE" means ESIC's Common Operating Environment, being a set of IT standards for office systems, hardware, software (including programming



products) and telecommunications and a common set of processes for the maintenance, continuous update and renewal of those standards. COE provides a standard environment for users to communicate and collaborate and to view, store, and share and move information. "Company" means the Company acting as the Service Provider under this Agreement. “Commercial off the shelf” or “COTS” means such software or hardware, general technology or computer products that are readymade and available for sale, lease, and license to the general public off the shelf. “Confidential Information" means all information including ESIC Data (whether in written, oral, electronic or other format) which relates to the technical, financial and business affairs, ESICs, suppliers, ESIC Stakeholders and Users, products, developments, operations, processes, trade secrets, design rights, Intellectual Property rights, know-how, all other information and data including relating to Project Systems, Services, ESIC Sites, facilities and operation and maintenance of the Systems and provision of Services and personnel of each Party and its Affiliates which is disclosed to or otherwise learned by the other Party (whether a Party to this Agreement or a SLA) in the course of or in connection with this Agreement (including without limitation such information received during negotiations, ESIC Site visits and meetings in connection with this Agreement or a SLA). "COD" or "Commencement of Operations Date" shall have the meaning ascribed thereto in Clause 12.1. "Conditions Precedent for Obligations of ESIC" shall have the meaning set forth in Clause 2.2. "Contract Period" means the period starting on date of signing of the contract and ending on the expiry of 02 year from the Transition Acceptance Date. The contract period may be extended by Renewal Term as defined in Clause 2.2.4. "Cure Period" means the period specified in this Agreement for curing any breach or default of any provision of this Agreement by the Party responsible for such breach or default and shall:

a. commence from the date on which a notice is delivered by one Party to the other Party asking the latter to cure the breach or default specified in such notice;

b. not relieve any Party from liability to pay Damages or compensation under the provisions of this Agreement; and

c. not in any way be extended by any period of Suspension under this Agreement;



provided that if the cure of any breach by the Service Provider requires any reasonable action by him that must be approved by the ESIC or its Monitoring Agency, the applicable Cure Period shall be extended by the period taken by the ESIC or its Monitoring Agency to accord their approval. "Deficiency" means any breach or nonperformance of that Agreement by Service Provider or any other act, omission, event, or occurrence that may give rise to a claim against Service Provider relating to the subject matter of that Agreement (whether contract, tort, or otherwise). "Deliverables" means the products, infrastructure and services agreed to be delivered by the Service Provider in pursuance of this Agreement and includes all documents related to the solution user manual, technical manual, design, process and operating manuals, service mechanisms, policies and guidelines such as digital certificate/PKI related, smart card related, inter alia payment and/or process related source code and all its modifications and all relevant reports, as specified in the RFP; "Dispute Resolution Procedure" means the procedure for resolution of Disputes set forth in Article 19. "Document" or "Documentation" means documentation in printed or written form, tapes, discs, drawings, computer programmes, writings, reports, photographs, films, cassettes, or expressed in any other written, electronic, audio or visual form. "Effective Date" means the date of this Agreement. "Emergency" means a condition or situation that is likely to endanger the security of the ESIC Data or prevents the availability of the System for a period exceeding 24 hours continuously individuals on or about the System including Users thereof or which poses an immediate threat of material damage to any of the Project Assets. "Encumbrances" means in relation to the System including Project Assets, any encumbrances such as mortgage, charge, pledge, lien, hypothecation, security interest, assignment, privilege or priority of any kind having the effect of security or other such obligations, and shall include any designation of loss payees or beneficiaries or any similar arrangement under any insurance policy pertaining to the System, where applicable herein. "Equipment" is the equipment at DC and DR. "ESIC Data" means all proprietary data and information of ESIC or pertaining to or of Stakeholders and/or Users stored on, transmitted by or generated out of



Project operations and transactions, documents and related information including User Data which the Service Provider obtains, is available on possesses or processes in the context of providing the Services to the Users pursuant to this Agreement and the SLAs including ESIC data being transmitted on the System. “ESIC Proprietary Information” shall have the meaning ascribed thereto in Clause 15.8. "ESIC Representative" means such person or persons as may be authorized in writing by the ESIC to act on its behalf under this Agreement and shall include any person or persons having authority to exercise any rights or perform and fulfill any obligations of the ESIC under this Agreement; "Force Majeure Event" shall have the meaning ascribed thereto it in Clause 17.1. "GOI" means the Government of India; "Good Industry Practice" means the practices, methods, techniques, designs, standards, skills, diligence, efficiency, reliability and prudence which are generally and reasonably expected from a reasonably skilled and experienced operator engaged in the same type of undertaking as envisaged under this Agreement and which would be expected to result in the performance of its obligations by the Service Provider in accordance with this Agreement, Applicable Laws and Applicable Permits in reliable, safe, economical and efficient manner. "Government" means GOI and Governments of concerned States where any part of the System is located. "Government Agency" means any commission, board, authority, instrumentality, agency or municipal and other local authority or statutory body or any other authority or agency under the control of the Government or concerned State Government, as the case may be, and having jurisdiction over all or any part of the System or the performance of all or any of the Services or obligations of the Service Provider under or pursuant to this Agreement; "Implementation Period" means the period beginning from the Appointed Date and ending on Implementation Completion Date. “Implementation Completion Date” shall mean the date set forth in the Project Completion Schedule in accordance with the provisions of this Agreement. "Implementation Plan" is the transition, migration, and implementation plan



set forth in the tender and in accordance of which Service Provider shall establish and complete the Systems and take charge of providing the Services and substitute its own off-site facilities and capabilities for facilities and capabilities currently maintained by ESIC. The Implementation Plan includes a time schedule, management and staffing plan, communications and hardware requirements, programming requirements, plan for parallel operations, remedial response and escalation procedure, testing and acceptance criteria, performance measurements, and budget. "Development" means any enhancement, addition, modification, revision, or fix to, or any new version of any portion of, the System, other than ordinary Maintenance activities. “Infringement Claims” shall have the meaning ascribed thereto in Clause 15.6. "Insurance Cover" means the aggregate of the maximum sums insured under the insurances taken out by the Service Provider pursuant to this Agreement and when used in the context of any act or event, it shall mean the aggregate of the maximum sums insured and payable in relation to such act or event. “Intellectual Property Rights" means all know-how, processes, trade secrets, written designs, copyrights, moral rights, rights in databases, patents, logos, trademarks and service marks and other intellectual property rights in the System, and/or services including their design and architecture and all software and programs forming part thereof including their upgrades, systems and compilation rights (whether or not any of these are registered and including applications for registration). "Maintain" or "Maintenance" means any correction or modification of a System or related Equipment to correct bugs or errors insofar as such correction or modification (a) does not materially improve or add functionality or features to the System, or (b) is required to cause the System to comply with any new statutory, federal, state or local regulatory, or other governmental requirements. "Material Adverse Effect" means a material adverse effect of any act or event on the ability of either Party to perform any of its obligations under and in accordance with the provisions of this Agreement and which act or event causes a material financial burden or loss to either Party. “Material Breach” means a breach by either Party of any of its obligations under this Agreement or of any provision of this Agreement which has or is likely to have a Material Adverse Effect on the Project and such Party shall have failed to cure; "Quarterly Operations and Maintenance Charge" shall have the meaning



ascribed thereto in Clause 11.1 hereto. "Monitoring Agency" means person or persons selected by the ESIC to perform one or more of the ESIC’s duties and functions under this Agreement. “Object Code” means machine readable form of the Code. "O&M" means the operation and maintenance of the System and includes all matters connected with or incidental to such operation and maintenance and provision of Services in accordance with this Agreement.

"O&M SLA” means the operation and maintenance contract entered into simultaneously herewith between the Service Provider and the ESIC for the performance of all or any of the O&M obligations of the Service Provider with respect to the System, and effective from the ‘Transition Acceptance Date’. "Performance Measurement Factors" are objective criteria used to evaluate Service Provider's achievement of the Performance Objectives and Benchmark Requirements. "Performance Objectives" shall have the meaning ascribed thereto in Clause 4.1 hereof. “Performance Security” shall have the meaning ascribed thereto in clause 11 hereof. "Project Agreements" means this Agreement, and any other agreements or contracts that may be entered into by the Service Provider with any person in connection with matters relating to, arising out of or incidental to the Project. "Project Completion Schedule" means the progressive Project Milestones set forth in the tender for completion of the Base System and COD of system in accordance with this Agreement. "Project Milestones" mean the project milestones set forth up to COD. "Proprietary Information" means processes, methodologies and technical and business information, including drawing designs, formulae, flow charts, data and computer programs already owned by, or granted by Third Parties to, a Party hereto prior to its being made available under this Agreement or an SLA. “Quarterly Payment” means the payment ESIC shall pay to the Service Provider for all the services rendered to ESIC in observance of this agreement which includes inter alia hardware, software, networking and all services rendered under project Panchdeep. The only exception admissible is Additional services.



"Re.", "Rs." or "Rupees" or “Indian Rupees” means the lawful currency of the Republic of India. "Replacement Service Provider" means any third party that ESIC or its monitoring agencies appoint to replace Service Provider upon expiry of the Term or earlier termination of this Agreement or the SLA to undertake the Services or part thereof. "Required Consents" means the consents, waivers, clearances and licenses to use ESIC's Intellectual Property Rights, rights and other authorizations as may be required to be obtained for the use of software and other items that ESIC or its monitoring agencies are required to make available to Service Provider pursuant to this Agreement or any SLA issued pursuant to this Agreement. "Service" or "Services" means all of the services to be provided by Service Provider to ESIC under this Agreement, including the Base Services and Additional Services. “Scheduled Transition completion Date” will be defined at the time of LOI. “Service Level Agreement or “SLA” means in relation to O&M the Operation and Maintenance SLA, to be issued by ESIC to the Service Provider immediately upon the execution of this Agreement by the Parties in the form and detailed in the tender “Source Code” means the human-readable form of the Code and related System documentation, including all comments and any procedural code such as job control language. “Stakeholders” means the Insured persons, employers having dealing with or required to deal with ESIC under any law for the time being in force and effect or otherwise, ESIC employees, Medical Staff of both ESIC and State directorates, including all hospitals and dispensaries of ESIC and State Directorates, banks, financial institutions, professionals engaged by or acting on behalf of ESIC or any of the Stakeholders, ESIC or its Monitoring Agencies, investors and persons including citizens using the Services and the Government. "Sub-Contractor" means any person, firm or company engaged by the Service Provider for providing certain services to the Service Provider which are material and necessary to the delivery of the Services. "System" or "Systems" means (a) all computer programs (both source code and object code, unless otherwise indicated) including, without limitation, software, firmware, application programs, operating systems, files, and utilities;(b) supporting documentation for such computer programs, including, without limitation, input and output formats, program listings, narrative descriptions,



operating instructions and procedures, user and training documentation, special forms, and source code; (c) the tangible media on which such programs are recorded, including without limitation chips, tapes, disks, and diskettes (d) All the underlying infrastructure. “Service Provider” means the successful lead bidder bidding for the subject work and signatory to this agreement and representative for execution of the work for itself as well as members. “Service Provider Personnel” shall have the meaning ascribed thereto in Clause 9.1. “Service Provider Proprietary Information” shall have the meaning ascribed thereto in Clause 16.9. "System Works" means all works and things necessary to complete the System in accordance with this Agreement. “Service Provider’ Default” shall have the meaning ascribed thereto in Clause 18.2.2 "Service Provider Work Space" shall have the meaning ascribed thereto in Clause 17.1. "Service Provider Work Space Equipment and Services" shall have the meaning ascribed thereto in Clause 17.1. "Taxes" means any Indian taxes including GSTN, and any impost or surcharge of like nature (whether Central, State or local) charged, levied or imposed on the goods, materials, equipment and services incorporated in and forming part of the System or any fee or octroi levied or collected by any Government Agency on the whole or any part of the traffic or goods while in transit on the System, but excluding any interest, damages and other sums in relation thereto imposed on any account whatsoever. For the avoidance of doubt, Taxes shall not include taxes on corporate income. "Term" means the Initial Term and all Renewal Term as defined in Clause 2.2.4. "Termination" means the expiry of the Term or termination of this Agreement in terms of Article 18. "Termination Notice" means the communication issued in accordance with this Agreement by one Party to the other Party terminating this Agreement; “Transition Completion Certificate” shall have the meaning set forth in Clause 10.1. "Transition Acceptance Certificate" shall have the meaning set forth in Clause 10.2.



“Transition Acceptance Date” shall have the meaning set forth in Clause 10.2.4. "Termination Assistance" shall have the meaning ascribed thereto in Clause 18.3. "User" means a person who is a stakeholder of ESIC and who or for whom the System or any part thereof is used. “User Data” means the data which the Service Provider obtains, possesses or processes in the context of providing the Services to the Users pursuant to this Agreement and the SLA. "Vesting Certificate" shall have the meaning set forth in Clause 18.5. "Year" means a 12 month period beginning on the Effective Date and each anniversary thereafter during the Term.

1.2 Interpretation

1.2.1 In this Agreement, unless the context otherwise requires, 1.2.1.1 references to any legislation or any provision thereof shall include

amendment or re-enactment or consolidation of such legislation or any provision thereof so far as such amendment or re-enactment or consolidation applies or is capable of applying to any transaction entered into hereunder;

1.2.1.2 references to laws of India or Indian law or regulation having the force of law shall include the laws, acts, ordinances, rules, regulations, bye laws or notifications which have the force of law in the territory of India and as from time to time may be amended, modified, supplemented extended or re-enacted;

1.2.1.3 references to a "person" and words denoting a natural person shall be construed as a reference to any individual, firm, company, corporation, society, trust, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two or more of the above and shall include successors and assigns;

1.2.1.4 the table of contents, headings or sub-headings in this Agreement

are for convenience of reference only and shall not be used in, and shall not affect, the construction or interpretation of this Agreement;



1.2.1.5 the words "include" and "including" are to be construed, without limitation and shall be deemed to be followed by “without limitation” or “but not limited to” whether or not they are followed by such phrases;

1.2.1.6 references to "construction" include, unless the context otherwise

requires, investigation, design, developing, engineering, procurement, delivery, transportation, installation, implementation, testing, commissioning and other activities incidental to the construction and implementation shall be construed accordingly;

1.2.1.7 any reference to any period of time shall mean a reference to that

according to Indian Standard Time; 1.2.1.8 any reference to day shall mean a reference to a calendar day; 1.2.1.9 references to a "business day" shall be construed as a reference to a day

(other than a Sunday) on which banks in Delhi are generally open for business;

1.2.1.10 any reference to month shall mean a reference to a calendar month as

per the Gregorian calendar; 1.2.1.11 references to any date, period or Project Milestone shall mean and

include such date, period or Project Milestone as may be extended pursuant to this Agreement;

1.2.1.12 any reference to any period commencing "from" a specified day or date

and "till" or "until" a specified day or date shall include both such days or dates, provided that if the last day of any period computed under this Agreement is not a business day, then the period shall run until the end of the next business day;

1.2.1.13 the words importing singular shall include plural and vice versa; 1.2.1.14 references to any gender shall include the other and the neutral gender; 1.2.1.15 "indebtedness" shall be construed so as to include any

obligation (whether incurred as principal or surety) for the payment or repayment of money, whether present or future, actual or contingent;

1.2.1.16 references to the “winding-up”, “dissolution”, “insolvency”, or

“reorganization” of a company or corporation shall be construed so as to include any equivalent or analogous proceedings under the law of the jurisdiction in which such company or corporation is incorporated or any jurisdiction in which such company or



corporation carries on business including the seeking of liquidation, winding-up, reorganization, dissolution, arrangement, protection or relief of debtors;

1.2.1.17 any reference at any time to any agreement, deed, instrument,

license or document of any description shall be construed as reference to that agreement, deed, instrument, license or other document as amended, varied, supplemented, modified or suspended at the time of such reference, provided that this Sub-clause shall not operate so as to increase liabilities or obligations of the Authority hereunder or pursuant hereto in any manner whatsoever;

1.2.1.18 any agreement, consent, approval, authorization, notice,

communication, information or report required under or pursuant to this Agreement from or by any Party or the shall be valid and effective only if it is in writing under the hands of duly authorized representative of such Party or the Monitoring Agency, as the case may be, in this behalf and not otherwise;

1.2.1.19 references to Articles, Clauses, Sub-clauses in this Agreement

shall, except where the context otherwise requires, mean references to Articles, Clauses, Sub-clauses to this Agreement and references to a Paragraph shall, subject to any contrary indication, be construed as a reference to a Paragraph of the Schedule in which such reference appears; and

1.2.1.20 The damages payable by either Party to the other of them as set

forth in this Agreement, whether on per diem basis or otherwise.

1.2.2 Unless expressly provided otherwise in this Agreement, any Documentation required to be provided or furnished by the Service Provider to the ESIC and/or the Monitoring Agency shall be provided free of cost and in two soft copies and three hard copies, and if the ESIC and/or the Monitoring Agency is required to return any such Documentation with their comments and/or approval, they shall be entitled to retain two copies thereof.

1.2.3 The rule of construction, if any, that a contract should be interpreted

against the parties responsible for the drafting and preparation thereof, shall not apply.

1.2.4 Any word or expression used in this Agreement shall, unless

otherwise defined or construed in this Agreement, bear its ordinary



English meaning and, for these purposes, the General Clauses Act 1897 shall not apply.

1.2.5 Except where this Agreement expressly requires a Party to act fairly

or reasonably, a Party may exercise any discretion given to it under this Agreement in its absolute discretion and the exercise of that discretion shall not be challengeable on grounds that the Party did not exercise its discretion fairly or reasonably.

1.3 Priority of Agreements and Errors/Discrepancies

1.3.1 This Agreement, and all other documents forming part of this Agreement are to be taken as mutually explanatory and, unless otherwise expressly provided elsewhere in this Agreement, the priority of this Agreement and other documents forming part hereof shall, in the event of any conflict between them, be in the following order:

(a) this Agreement; and (b) all other agreements and documents forming part hereof; i.e. the Agreement at (a) above shall prevail over the agreements and documents at (b) above.

1.3.2 In case of ambiguities or discrepancies within this Agreement, the

following shall apply:

a. between two or more Clauses of this Agreement, the provisions of a specific Clause relevant to the issue under consideration shall prevail over those in other Clauses;

b. Between any value written in numerals and that in words, the latter shall prevail.

Article 2

2 SCOPE OF THE PROJECT, CONDITIONS PRECEDENT, AGREEMENT AND TERM

2.1 Scope of the Project: The scope of the Project shall include provision by the Service Provider to ESIC of the following:

a. scope of work, Service Provider has to carry out O&M of DC at Delhi and DR at Hyderabad hardware, existing application and provide onsite application developers and facilitate ESIC in procuring AMC and ATS of software components. The O&M of existing network component at edge location will not be in the scope.



b. Performance and fulfillment of all other obligations of the Service Provider in accordance with the provisions of this Agreement and matters incidental thereto or necessary for the performance of any or all of the obligations of the Service Provider under this Agreement.

2.2 Conditions Precedent for obligations of ESIC 2.2.1 The obligations of ESIC hereunder shall become effective only upon a. Furnishing of the Performance Security by the Service Provider in

accordance with the provisions of this Agreement to ESIC; and b. Applicable Permits, if any, required by the Service Provider to undertake

the execution and implementation of this Agreement.

2.2.2 Service Provider shall notify ESIC in writing promptly the satisfaction of each of the Conditions Precedent. In the event the Conditions Precedent are not satisfied within 30 (Thirty days) of the execution of this Agreement by the Parties, the Service Provider shall be deemed to be in breach of this Agreement entitling the ESIC in its sole discretion to terminate this Agreement forthwith by a communication in writing to the Service Provider and to encash the Performance Security and appropriate the proceeds thereof as Damages without being liable to the Service Provider for the same in any manner whatsoever.

Without prejudice to the foregoing the ESIC may in its sole and absolute

discretion extend the period set forth hereinabove for satisfaction of the conditions precedent set forth in the tender. Above on such terms as may be deemed appropriate by ESIC, provided, however, such grant of further time for satisfaction of condition precedent shall not entitle the Service Provider to any extension of time for completion of the Project, save and except as provided in this Agreement.

2.2.3 Provision of Base System and Base Services. During the Contract

Period and in accordance with the provisions of this Agreement, the Service Provider shall Operate & Maintain the Project Panchdeep indicated in the foregoing paragraphs.

2.2.4 Contract Period.

a. The initial term of this Agreement shall be deemed to have commenced on date of signing of this agreement and, unless terminated earlier in accordance with the provisions hereof shall continue for a period of 02 year from Transition Completion Date. Out of this, last six months or less, as decided by ESIC, will be for transition out.

b. This Agreement may be renewed by ESIC in its sole and absolute discretion and option for a further term up to period of one year the



"Renewal Term") by giving to the Service Provider written notice at least three months prior to the expiration date of the Initial Term.

Article 3

3 SERVICE PROVIDER OBLIGATIONS AND REPRESENTATIONS

3.1 General Obligations 3.1.1Subject to and on the terms and conditions set forth in this

Agreement, the Service Provider shall at its cost and expense procure, finance for and undertake the study, design, engineering, procurement, and operation and maintenance of the Project.

3.1.2The Service Provider shall comply with all Applicable Laws and Applicable Permits in the performance of its obligations under this Agreement.

3.1.3Without prejudice to Clauses 3.1.1 and 3.1.2 above, the Service

Provider shall discharge its obligations in accordance with Good Industry Practice and as a reasonable and prudent person in the business of providing services similar to the Services.

3.1.4Without prejudice to Clauses 3.1.1, 3.1.2 and 3.1.3 above the

Service Provider shall at its own cost and expense observe, undertake, comply with and perform, in addition to and not in derogation of its obligations elsewhere set out in this Agreement, the following:

1. make, or cause to be made, necessary applications to the relevant

Government Agencies with such particulars and details, as may be required for obtaining all Applicable Permits (other than those required to be obtained by ESIC as expressly set forth in this Agreement) and obtain such Applicable Permits in conformity with the Applicable Laws;

2. Facilitate procurement, as required, the appropriate proprietary rights,

licenses, agreements and permissions for materials, methods, Codes, COTs, Equipment, licenses and other Intellectual Property Rights, Licensed Programmes, Licensed Software, processes and systems including third party systems used or incorporated into the Systems;

3. ensure that it and its contractors comply with all Applicable Permits and

Applicable Laws in the performance by it or them of any of the Service Provider’s obligations under this Agreement; and

4. During the Term of this Agreement the Service Provider shall:



a. take all reasonable and proper care of the Project Assets which will

include all upgradation/enhancements and improvements to meet the current needs of the Project;

b. keep all the tangible Project Assets inventory duly marked in as good and serviceable condition (reasonable wear and tear expected) and/or the intangible Project Assets suitably upgraded subject to the relevant Specifications and Standards as at the date the Service Provider takes control of and/or first uses the Project Assets and during the entire Term of the Agreement.

c. ensure that any instructions or manuals supplied by the manufacturer of any of the Project Assets for use thereof are followed by the Service Provider and all persons who will be responsible for the operations of the Project Assets;

d. take such steps as may be recommended by the manufacturer of the

Project Assets or as may, in the reasonable opinion of the Service Provider, be necessary to use the Project Assets in a safe and secure manner;

e. keep the duly marked Project Assets/ inventory suitably housed and in

conformity with any statutory requirements from time to time applicable to them;

f. With respect to the Project Assets located at sites/locations other than

ESIC ensure and procure access thereto to the authorized personnel of ESIC and its designated/Monitoring Agency and to persons authorized by either of them for inspection including condition thereof including conditions at the site thereof.

g. not use or permit the use of any of the Project Assets in contravention of

any Applicable Law of Applicable Permits; h. use the Project Assets exclusively for the purpose of providing the

Services under and in accordance with this Agreement; i. not sell, offer for sale, assign, create Encumbrance, sub-let any of the

Project Assets or permit use any of the Project Assets by third party without prior express written approval of ESIC;

j. use the Project Assets only in accordance with the provisions of this

Agreement and those contained in the SLAs;



k. maintain comprehensive insurance in accordance herewith; l. transfer the ownership of the duly marked Project Assets/inventory

(not already with ESIC or with any of its Monitoring Agencies) including the Base System the source code object code, associated documentation which is the work product of the development efforts involved in the Project or otherwise required for use of the System for provision of Services pursuant hereto to ESIC or its Monitoring Agencies, in accordance with the terms of this Agreement;

m. ensure the integration of the software with hardware to be

installed as part of the System or the current Project Assets to ensure and procure smooth operations of the entire architecture of the Systems for provision of smooth and efficient Services to all the Stakeholders of ESIC or to its Monitoring Agencies in an efficient and speedy manner strictly in accordance with this Agreement and SLA;

n. prepare and provide (i) documentation for Users in form of a User's

Manual, (ii) a clear plan for training, educating and hand holding of the Users during the Term of this agreement;

o. provide training to the persons designated by ESIC and/or its

designated Monitoring Agency in the use, operation and Maintenance of the Systems and applications including trouble shooting after the issue of Transition Acceptance Certificate; and as per the training modules jointly agreed upon by the parties, keeping in view that ESIC and its other stake holders should be able to sustain and continue with all the services after exit of Service Provider after the project is completed/any extension granted ends.

p. Obtain a certificate from ESIC or its designated Monitoring Agencies on

achievement and completion of each Project Milestones/Modules. q. Comply with , prescribed e-governance standards, insofar as the same

apply to the provision of the Services pursuant hereto; r. Comply with the SLAs and ISMS (Information Security Management

System) policies prescribed by ESIC and industry best practices.

s. use reasonable endeavors to report forthwith in writing to ESIC and to each of ESIC Monitoring Agencies all identified intrusions attempts (whether successful or not) by unauthorized persons (including unauthorized persons who are employees of any Party) either to gain access to or interfere with ESIC's or any of its nominees, stakeholders and Users data, facilities or Confidential Information;



t. upon request in writing, by ESIC or its nominee(s), participate in regular meetings with ESIC or its designated Monitoring Agencies for review of safety, health and information technology security matters; and

u. Promptly report in writing to EISC any act or omission of which it becomes aware, that could have an adverse effect on the proper conduct of safety and information technology security at ESIC's Facilities.

3.1.5 The Service Provider shall carry out the Transition Plan and to that end perform the tasks shown in the Transition Plan, and to cooperate fully with ESIC as necessary to carry out the Transition Plan in a timely and efficient manner in accordance and consistent with the provisions of this Agreement.

3.1.6 Commencing on the COD, the Service Provider shall commence

providing ESIC with the Base Services set forth in in the tender document and Services in respect of which the ESIC has issued SLAs, in accordance with the Project Schedule and performance requirements set forth in the Transition and Implementation Plan.

3.2 Obligations relating to Project Agreements 3.2.1It is expressly agreed that the Service Provider shall at all times

be responsible and liable for all of its obligations under this Agreement notwithstanding anything contained in the Project Agreements or any other agreement and no default under any Project Agreement on this Agreement or any other agreement shall excuse the Service Provider from its obligations or liability hereunder or any other such Agreement.

3.2.2The Service Provider shall ensure that no Project Agreement

contains without the prior written consent of the ESIC, any provision which has or may have the effect of imposing any financial liability or obligation on the ESIC and in the event that any replacement or amendment made thereto to this effect without such consent, the Service Provider shall not enforce such replacement or amendment nor permit enforcement thereof against the ESIC and ESIC shall not be under any obligation on this account.

3.2.3The Service Provider shall ensure that each of the Project

Agreements/Sub- Contract contains provisions that entitle the ESIC to step into such agreement, in its sole discretion, in substitution of the Service Provider in the event of Termination



or Suspension.

3.3 Obligations regarding Operations and Maintenance In this Agreement the obligations of the Service Provider shall include provision of Services, establishment, operation and maintenance of ESIC Data Centre at New Delhi and the Disaster Recovery Center at Hyderabad and provide onsite application developers and facilitate ESIC in procuring AMC and ATS of software components.

3.4 Base Services. The Service Provider shall provide ESIC with the following

Base Services:

a. Operate, manage, and maintain the Systems (including Base System) in accordance with the terms of this Agreement including O&M in accordance with Operation and Maintenance SLA.

b. It shall provide such information and reports as set forth in this Agreement including Schedules, subject to such additions and changes as ESIC and Service Provider may agree on.

c. ESIC may copy and distribute any or all Documentation and media provided

by Service Provider, including User manuals, solely for ESIC's own use and for use of its Stakeholder and Users.

d. Correct any errors in the Systems, or related reports or other output that

come to Service Provider's attention. When such errors are attributable to either malfunctions of Service Provider's Equipment or Systems or errors of Service Provider' operators, programmers, or other personnel, Service Provider shall take such corrective/remedial action as may be required without any additional charge or cost to the ESIC;

e. The acquisition and creation of additional Equipment, not covered in the

scope of Work of O&M of Project Panchdeep, shall be the subject of a capital budget jointly developed and agreed by the Parties. As and when required by ESIC the Service Provider shall jointly prepare the capital budget for the purpose of identifying any capital expenditures or modifications to Equipment expected to be made available for new existing sites that the parties mutually agree are necessary for Service Provider to provide the Services requested by ESIC, including any proposed capital items individually.

f. Service Provider shall operate and maintain the data and voice



telecommunications network necessary and required for provision of Services, it being agreed that all Applicable Permits therefore required by Applicable Laws to be obtained by ESIC shall be facilitated by Service Provider for which ESIC shall provide any signed document/form as may be required for the purpose.

g. Service Provider shall store and safeguard storage media containing ESIC's

data when in the custody of Service Provider. Service Provider shall make tapes containing copies of ESIC's data then residing on the System (the "Backup Tapes") in accordance with the procedures set forth at DC & DR. Service Provider shall send the Backup Tapes to the off-site storage facility identified in such Schedule, or to any other facility Service Provider may select in consultation with ESIC, subject to it meeting required specifications and standards therefore, to replace such facility. Service Provider shall be given access, at its request, to any such facility during normal business hours and subject to reasonable security procedures or other restrictions in effect at the time of access. To the extent required ESIC agrees to provide to the Service Provider, subject to reimbursement of associated costs of media and delivery charges, with copies of the Backup Tapes, at such intervals, in such quantities, and in such format as Service Provider may request and ESIC may agree.

3.5 Additional Services. If ESIC requests Service Provider to perform any Service that is not included in Base Service, then Service Provider shall provide and ESIC shall pay for such service "Additional Service" upon terms and conditions set forth herein, for provision thereof, which shall be mutually agreed between ESIC and the Service Provider, but which shall not be less than the actual cost incurred by the Service Provider. All details of any such matter will be settled before providing the services.

3.6 Base Systems Staff As the Base Systems Staff , Service Provider shall assign

a full-time personnel and staff as set forth in as per tender.

Service Provider shall cause its personnel while they are present at ESIC's facilities to comply with reasonable security requirements imposed by ESIC. ESIC shall have the right to disapprove of the assignment of any Service Provider personnel who ESIC reasonably believes to be unqualified or lacking required experience or unruly with regard to their performance or conduct.

3.7 Hours of Operation. Beginning on the COD the Service Provider shall provide the Services on the terms set forth in this Agreement including the terms set forth in tender. [Note: This should also include time of operation, days on which services are to be provided e.g. business days etc.]



3.7.1 The times of operation and provision of Services may be modified, with the approval of ESIC, for the following: (a) Regularly scheduled System Maintenance, (b) System Maintenance required as a result of matters beyond Service Provider's reasonable control, (c) System capacity shortfalls and events beyond Service Provider's control, (e) special jobs, testing procedures, or other services that are given priority at the request of ESIC.

3.8 Discontinuance of Services. Individual Services may be discontinued

within the project duration by mutual consultations. ESIC reserves the right to foreclose the contract by intimating the Service provider 90 days in advance. In such eventuality payment shall be released for the period services are provided by the service provider.

3.9 Obligations prior to commencement of execution

Prior to commencement of Operation and Maintenance of the Systems, the Service Provider shall:

a. Submit to the ESIC and designated Monitoring Agency, its detailed

design, implementation, methodology, architecture, quality assurance procedures and the study, procurement, engineering and implementation time schedule for Transition of the Project in accordance with the Transition & Implementation Plan.

b. appoint its representative(s) duly authorized to deal with the ESIC in respect of all matters under or arising out of or relating to this Agreement;

c. undertake, do and perform all such acts, deeds and things as may be necessary or required before commencement of construction/implementation under and in accordance with this Agreement, the Applicable Laws and Applicable Permits; and

d. Make its own arrangements for quarrying under and in accordance with the Applicable Laws and Applicable Permits.

3.10 Monthly progress reports and Review Meetings:- During the contract period, the Service Provider shall, not later than 7 (seven) days after the close of each month, furnish to the ESIC and its designated Monitoring Agency a monthly report on progress of work and shall promptly give such other relevant information as may be required by the ESIC and its designated Monitoring Agency for review of progress of work in a joint monthly meeting to be held after receipt



of the progress report. 3.11 Inspection

During the contract period, the ESIC or ESIC’s designated Monitoring Agency shall inspect the work/Systems/Modules/applications at least once a month and make a report of such inspection (the "Inspection Report") stating in reasonable detail the defects or deficiencies, if any, with particular reference to the scope of the Project and Specifications and Standards. ESIC and/or its designated Monitoring Agency shall send a copy of the Inspection Report to the Service Provider within 7 (seven) days of such inspection and upon receipt thereof, the Service Provider shall rectify and remedy the defects or deficiencies, if any, stated in the Inspection Report. Such inspection or submission of Inspection Report by the ESIC’s designated Monitoring Agency shall not relieve or absolve the Service Provider of its obligations and liabilities hereunder in any manner whatsoever unless and until the defects/deficiencies pointed out are rectified to the satisfaction of ESIC.

3.12 Tests a. For determining that the Systems/applications/programs/modules and

part thereof conform to the Specifications Standards, procedures and applicable rules, the ESIC’s designated Monitoring Agency shall require the Service Provider to carry out or cause to be carried out Tests, at such time and frequency and in such manner as may, be specified by the ESIC’s designated Monitoring Agency from time to time in accordance with Good Industry Practice for quality assurance during the Transition and Operations & Maintenance of Systems. The Service Provider shall with due diligence carry out or cause to be carried out all the tests in accordance with the instructions of the ESIC’s designated/ Monitoring Agency and furnish the results thereof to the said ESIC’s designated Monitoring Agency. For the avoidance of doubt, the costs to be incurred on any Test shall be borne solely by the Service Provider.

b. In the event that results of any tests conducted, establish any defects or deficiencies in the System/application/programs/module, the Service Provider shall carry out remedial measures and furnish a report to the ESIC’s designated/Monitoring Agency in this behalf. The ESIC’s designated Monitoring Agency shall require the Service Provider to carry out or cause to be carried out tests to determine that such remedial measures have brought the Systems into compliance with the Specifications and Standards, and the procedure set forth here shall be repeated until such Systems conform to the required Specifications and Standards. For the avoidance of doubt, tests shall be undertaken in addition to and independent of the tests that shall be carried out by the Service Provider for its own quality assurance in accordance with Good Industry Practice.



3.13 Delays during execution If the Service Provider does not achieve any of the Project Milestones or the ESIC’s designated Monitoring Agency shall have reasonably determined that the rate of progress of Systems is such that Transition completion is not likely to be achieved by Scheduled Transition Completion Date, it shall notify the Service Provider to this effect, and the Service Provider shall take remedial measures within 15 (fifteen) days of such notice and by a communication inform the ESIC or its designated/Monitoring Agency in reasonable detail about the steps it took or proposes to take to expedite progress and the period within which it shall be completed.

3.14 With respect to each SLA as per tender, the Service Provider warrants and

represents to the ESIC, that: a. The Service Provider has full capacity and authority and all necessary

Approvals to enter into and perform its obligations under the Project and the SLA and to provide the Services pursuant thereto including materials and services.

b. Each SLA upon issue thereof in accordance with this Agreement shall constitute legally valid binding obligation of the Service Provider;

c. The Service Provider is experienced in managing and providing works similar to the Services set forth in the Project Panchdeep and each SLA and that it will perform the Services with all due skill, care and diligence so as to comply.

d. The Services set forth in the Project and each SLA will be provided and rendered by appropriately qualified, trained and experienced personnel;

e. Service Provider has and will have all necessary licenses, approvals, consents of third parties and all necessary technology, hardware and software to enable it to provide the Services pursuant to Project and each SLA;

f. Service Provider will use its reasonable endeavors to ensure that the equipment, software and hardware supplied and/or used in the course of the provision of the Services pursuant to each SLA, are operational and functional.

Article 4

4 PERFORMANCE 4.1 Performance Objectives. Service Provider shall provide Services to the ESIC

and ESIC Affiliates/Stakeholders and Users, in accordance with the performance objectives as per tender, The Performance Objectives are to be evaluated on the basis of the SLAs.



4.2 Periodic Review of Standards. The Parties agree to confer at least once each year for purposes of setting or resetting the Performance Objectives and Benchmark Requirements by mutual consent.

4.3 Performance Reports and Reviews. During the Term of this Agreement:

a. At least once each calendar month, Service Provider shall provide to ESIC and its designated Monitoring Agency a written report comparing the actual performance of Services for ESIC with the appl icable Performance Objectives and Benchmark Requirements, and containing such other information with respect to the performance of the Services for ESIC as may be reasonably requested by ESIC.

b. Representatives of Service Provider and ESIC or i ts des ignated Monitoring Agency shall meet as often as may be reasonably requested by either party, but no less often than once each calendar quarter, to review Service Providers’ performance of Services under this Agreement and to discuss technical plans, financial matters, system performance, service levels and for any other matters related to the Project and this Agreement that may be reasonably requested by either party.

c. Service Provider shall provide ESIC and its designated Monitoring Agency with performance briefings and reports which may be reasonably modified by Service Provider from time to time. However, except with the consent of ESIC, no such modification of those procedures shall reduce in any material respect the type, detail, or frequency of the information provided to ESIC.

4.4 Inspections. Service Provider shall permit ESIC's Representatives and those of its designated Monitoring Agency to obtain reasonable access to the System Site and Service Provider's facilities used to provide the Services, for purposes of performing inspections or "walk-throughs" in connection with activities relating to ESIC's business. Service Provider shall provide ESIC's representatives with access to proprietary information or technology of Service Provider, on a confidential basis properly documented in advance of the inspection.

4.5 Quality Assurance and Reporting. Service Provider shall promptly report to ESIC (a) all malfunctions in Systems discovered by Service Provider, (b) any knowledge of circumstances that could reasonably result in malfunction or lead to a delay in the performance of the Services pursuant to in this Agreement, and (c) Service Provider's proposed solution to items (a) and (b), including a detailed description of all solutions to such problems.



ESIC and its designated Monitoring Agency shall have the right to receive and review all quality assurance reports produced by Service Provider. Service Provider shall accommodate reasonable ESIC and/or its Monitoring Agency’s requests to expand, alter, or modify Service Provider's quality assurance procedures.

4.6 System Capacity Shortfalls. ESIC acknowledges that in instances of high demand or system outages, demands on the Service Provider's facilities may exceed the available capacity of the Systems. In any such instance, and without limiting, to the extent applicable, the ESIC shall be entitled to prioritize Services and otherwise curtail utilization temporarily of its facilities in accordance with reasonable procedures established for that purpose, which shall be provided to the Service Provider for its review at its request. On discerning the pattern of outages, the Service Provider will take all actions to augment the capacity of the system within O & M Agreement. In case augmentation is beyond the scope of this agreement it will make recommendations to ESIC for necessary augmentation promptly.

4.7 Disaster Recovery. Service Provider maintains, and shall continue to maintain throughout the Term of this Agreement, Disaster Recovery Centre and capabilities therefore that permit Service Provider to recover from a disaster and continue providing Services to ESICs and its Stakeholders seamlessly, in case of fault or malfunctioning of Data Centre. The Service Provider shall formulate and submit to ESIC or the Monitoring Agency expressly nominated in this behalf an executive summary of Service Provider disaster recovery plan, which may change from time to time. Service Provider shall test the operation and effectiveness of its disaster recovery plan at regular intervals and shall continue to provide Panchdeep services from Data Centre and Disaster Recovery Centre alternatively every quarter. The Service Provider shall continue to maintain throughout the term of this Agreement, a backup power supply system at DC & DR to guard against electrical outages.

4.8 Notice of Unauthorized Acts. Each party shall (a) promptly notify the other party of any material unauthorized possession, use, or knowledge, or attempt thereof, of the other party's data-processing files, transmission messages, or other Confidential Information by any person or entity that may become known to such party; (b) assist the other party in investigating such unauthorized acts and taking action to prevent the continuation or recurrence thereof; and (c) provide reasonable cooperation with respect to any litigation or other action deemed necessary by the other party to protect its proprietary rights.



Article 5

5 MAINTENANCE REQUIREMENT AND O&M MONITORING

5.1 Maintenance Requirements The Service Provider shall ensure that at all times on and from COD till the effective date of Termination (the “Operation Period”) the Systems conform to the maintenance requirements set forth in the tender.

5.2 Maintenance Manual Not later than thirty days prior to the Transition Completion Date, the Service Provider shall, in consultation with the ESIC designated its Monitoring Agency, evolve a maintenance manual (the "Maintenance Manual") for the regular and preventive maintenance of the Systems in conformity with the Maintenance Requirements, safety requirements and Good Industry Practice and Service Provider shall ensure adherence to the same. The Maintenance Manual shall be revised as and when required and updated once every twelve months.

5.3 Maintenance Programme 5.3.1 Not later than thirty days prior to Transition Completion Date, the

Service Provider shall provide to the ESIC and the ESIC designated/Monitoring Agency, its proposed annual programme of preventive, urgent and other scheduled maintenance (the "Maintenance Programme") of the System to comply with the Maintenance Requirements, Maintenance Manual and safety requirements. Such Maintenance Programme shall include:

a. preventive maintenance schedule; b. arrangements and procedures for carrying out urgent remedial actions; c. criteria to be adopted for deciding maintenance needs; d. intervals and procedures for carrying out inspection of all elements of the

Systems; e. intervals, not more than 03 months, at which the Serv i ce Prov ider

shall carry out periodic maintenance; f. arrangements and procedures for carrying out safety related measures;

and g. Intervals for major maintenance and the scope thereof.

5.3.2 Within 15 (fifteen) days of receipt of the Maintenance Programme, the

ESIC or its designated/Monitoring Agency shall review the same and convey its comments to the Service Provider with particular reference to its conformity with the Maintenance Requirements, Maintenance Manual and safety requirements.



5.4 Monthly status reports During Operation Period, the Service Provider shall, not later than 7 (seven) days after the close of each month, furnish to the ESIC and the ESIC designated Monitoring Agency a monthly report stating in reasonable detail the condition of the Systems including its compliance or otherwise with the Maintenance Requirements, Maintenance Manual, Maintenance Programme and safety requirements, and shall promptly give such other relevant information as may be required by the ESIC and the ESIC designated Monitoring Agency. 5.5 Inspection The ESIC’s designated/Monitoring Agency shall be entitled to inspect the System at least once a month. It shall make a report of such inspection (the "O&M Inspection Report") stating in reasonable detail the defects or deficiencies, if any, with particular reference to the Maintenance Requirements, Maintenance Manual, the Maintenance Programme and safety requirements, and send a copy thereof to the ESIC and the Service Provider within 7 (seven) days of such inspection for remedial actions required, if any. 5.6 Tests For determining that the Systems conform to the Maintenance Requirements, the ESIC designated Monitoring Agency shall require the Service Provider to carry out or cause to be carried out tests specified by it in accordance with Good Industry Practice. The Service Provider shall with due diligence carry out or cause to be carried out all such tests in accordance with the instructions of the ESIC designated Monitoring Agency and furnish the results of such tests forthwith to the ESIC designated Monitoring Agency. 5.7 Remedial measures 5.7.1 The Service Provider shall repair or rectify the defects or deficiencies, if any, set forth in the O&M Inspection Report or in the test results and furnish a report in respect thereof to the ESIC designated Monitoring Agency and the ESIC within 15 (fifteen) days of receiving the O&M Inspection Report or the test results, as the case may be; provided that where the remedying of such defects or deficiencies is likely to take more than 15 (fifteen) days, the Service Provider shall submit progress reports of the repair works once every week until such works are completed in conformity with this Agreement. 5.7.2 The ESIC designated Monitoring Agency shall require the Service Provider to carry out or cause to be carried out tests, at its own cost, to determine that such remedial measures have brought the Systems into compliance with the Maintenance Requirements shall be repeated until the



Systems conform to the Maintenance Requirements. In the event that remedial measures are not completed by the Service Provider in conformity with the provisions of this Agreement, the ESIC shall be entitled to recover Damages from the Service Provider under and in accordance with the provisions of this Agreement.

5.8 Damages for breach of maintenance obligations 5.8.1 In the event that the Service Provider fails to repair or rectify any

defect or deficiency set forth in the Maintenance Requirements within the period specified therein, it shall be deemed to be in breach of this Agreement and the ESIC shall be entitled to recover Damages, to be calculated and paid for each day of delay until the breach is cured, as mentioned in respective SLAs as estimated by the ESIC designated technical Monitoring Agency. Recovery of such Damages shall be without prejudice to the rights of the ESIC under this Agreement, including the right of Termination thereof. 5.9 ESIC's right to take remedial measures 5.9.1 In the event the Service Provider does not maintain and/or repair the Systems or any part thereof in conformity with the Maintenance Requirements, the Maintenance Manual or the Maintenance Programme, as the case may be, and fails to commence remedial works within 15 (fifteen) days of receipt of the O&M Inspection Report or a notice in this behalf from the ESIC or the ESIC designated technical Monitoring Agency, as the case may be, the ESIC shall, without prejudice to its rights under this Agreement including Termination thereof, be entitled to undertake such remedial measures at the risk and cost of the Service Provider, and to recover such cost from the Service Provider. In addition to recovery of the aforesaid cost, a sum as mentioned in respective SLAs shall be paid by the Service Provider to the ESIC as Damages. 5.9.2 The ESIC shall have the right and the Service Provider hereby expressly grants to the ESIC the right to recover the costs and Damages specified as per tender T&Cs directly by deduction from the Quarterly Operations and Maintenance Charges as if such costs and Damages were O&M Expenses.

Article 6

6 DISCLAIMER 6.1 Disclaimer 6.1.1 The Service Provider acknowledges that prior to the execution of this

Agreement, the Service Provider has, after a complete and careful examination, made an independent evaluation of the NIT, the scope of the Project Panchdeep, Specifications and Standards, local conditions,



volumes and all information provided by the ESIC or by reference ESIC’s website, and has determined to its satisfaction the accuracy or otherwise thereof and the nature and extent of difficulties, risks and hazards as are likely to arise or may be faced by it in the course of performance of its obligations hereunder. Save as otherwise expressly provided in this Agreement, the ESIC makes no representation whatsoever, express, implicit or otherwise, regarding the accuracy and/or completeness of the information provided by it and the Service Provider confirms that it shall have no claim whatsoever against the ESIC in this regard.

6.1.2 The Service Provider acknowledges and hereby accepts the risk of

inadequacy, mistake or error in or relating to any of the matters set forth in Clause 6.1.1 above and hereby acknowledges and agrees that the ESIC shall not be liable for the same in any manner whatsoever to the Service Provider, the promoters of the Service Provider and their Associates or any person claiming through or under any of them.

Article 7

7 PROJECT MANAGEMENT AND CHANGE CONTROL PROCESS 7.1 Principal Contacts 7.1.1 Each Party shall designate and maintain a Lead Project Officer within

its organization as its Representative who shall be available to the other Party for purposes of discussing all work and business between them.

7.1.2 ESIC Representative and Service Provider Representative shall be

duly authorized in writing by ESIC and Service Provider respectively to act on their respective behalf under this Agreement and shall have the authority to exercise the rights or perform and fulfill the obligations of the ESIC and Service Provider respectively under this Agreement.

7.2 Project Management. The management of the Project on and from the Effective Date till Termination including the Operation Period shall be carried out in accordance with T&Cs of tender. For the said purpose the Service Provider shall appoint a Project Manager or its Lead Project Officer shall act as Project Manager.

7.3 Change Control Process.



7.3.1 All changes to the Systems ( for Changes beyond the scope of this

agreement) that would materially alter the functionality of such Systems (a "Change") shall be controlled using a formal change control process to be implemented by ESIC and Service Provider within agreed timelines.

Article 8

8 SERVICE PROVIDER PERSONNEL

8.1 Personnel assigned by Service Provider to perform the Services shall be employees of Service Provider, and under no circumstances will such personnel be considered employees of ESIC or its Monitoring Agencies. Service Provider shall have the sole responsibility for supervision and control of its personnel and for payment of such personnel's entire compensation, including salary, deduction of income taxes and all other applicable taxes and providing workmen compensation, insurance, employee and disability benefits and all other levies and benefits as per laws of the land, outgoings and payouts and for similar compliances with all Applicable Laws with respect to it and its contractors and subcontractor’s personnel including laws relating to contract labour and shall be responsible for all employer obligations including those of principal employer and shall indemnify and keep indemnified the ESIC against all claims, demands, actions, proceedings, costs, and expenses suffered or incurred on any account relating to personnel of Service Provider ( “Service Provider Personnel”) at all times.

8.2 Service Provider shall ensure that sufficient Service Provider Personnel are assigned to perform the Services and that all such personnel have appropriate required qualifications and experience to perform the Services. ESIC or its Monitoring Agencies shall have the right to require the removal or replacement of any Service Provider Personnel performing work under this Agreement if not satisfied with their performance, conduct, qualification or experience. In the event that ESIC or any of its Monitoring Agencies requests that any Service Provider Personnel be replaced, the substitution of such personnel shall be accomplished within a reasonable period (agreed by ESIC), of such request.

8.3 The Service Provider shall be responsible to provide on job training to employees of ESIC or its designated Monitoring Agencies with respect to the System and Services being provided by the Service Provider as and



when required by ESIC or its such Monitoring Agencies during the Term of this Agreement so as to enable ESIC to sustain all Serv ice Prov ider developed operations and systems after the end of Project or extension thereof. The parameters of the training required for these employees of ESIC and/or its Monitoring Agencies shall be communicated by ESIC to the Service Provider periodically.

8.4 In the event that ESIC or any of its Monitoring Agencies identifies any Service Provider Personnel as "Key Personnel", then the Service Provider shall not remove or replace such personnel from the Project including the Services without the prior written consent of ESIC unless such removal is the result of an unavoidable circumstance including but not limited to resignation, termination, medical leave or the like.

8.5 Nothing in this Agreement will limit the ability of Service Provider to freely assign or reassign Service Provider Personnel provided that Service Provider shall be responsible, at its expense, for transferring all appropriate knowledge from personnel being replaced to their replacements. ESIC or its designated Monitoring Agencies shall have the right to review and approve Service Provider's plan for any such; as agreed by ESIC;knowledge transfer. Service Provider shall maintain the same standards for skills and professionalism among replacement personnel as in personnel being replaced.

Article 9

9 Completion of Transition 9.1 Transition Completion Certificate 9.1.1 At least 07 (seven) days prior to the likely completion of Transition

and implementation of Operation and Maintenance thereafter, the Service Provider shall notify the ESIC and its designated technical Monitoring Agency of its intent to subject the Module to Tests. ESIC designated technical Monitoring Agency will validate the completion of Transition. The Service Provider shall provide such assistance as the said ESIC designated technical Monitoring Agency may reasonably require for validation.

9.1.2 Service Provider shall submit a self-certificate for completion of

Transition to ESIC detailing out how all the requirements targeted for completion of Transition are met. While ESIC will facilitate smooth transition, any gaps in transition will have to be filled and for this Service Provider shall have sole responsibility. ESIC or its monitoring agency will review the details, conduct the necessary tests, and may request any clarifications. Service



Provider shall clarify with additional details to the satisfaction of ESIC and fix any open items that are discovered during the tests/audits conducted by ESIC to the satisfaction of ESIC. The same has to be approved by ESIC.

• Transition Completion Certificate to be submitted by the Service Provider

must necessarily be accompanied with the following document:

a) List of Assets taken over

b) Details of deployment of Manpower with name and location of the placement in ESIC premises as per Solution Document

c) Report on requirement of AMC & ATS & Licenses from OEM for existing equipments & future IT hardware equipments requirement.

9.2 Transition Acceptance Certificate

ESIC or its monitoring agency will issue Transition Acceptance Certificate to the service provider on meeting the following requirements, subject to Clause 9.3.

9.2.1 Compliance report submitted under Clause 9.1.2 is found to be satisfactory on verification.

9.2.2 The system runs for a continuous period of 2 weeks with no Severity

Level – 1 (Critical) or Severity Level - 2 {High) incidents reported on the application. 9.2.3 In case any such (Severity Level - 1 or Severity Level - 2) incidents are reported in production, the same will have to be fixed and the fixes should be released into production, Transition will be treated as successful when the application and/or infrastructure is running for a continuous period of 2 weeks with no Severity Level – 1 {Critical) or Severity Level - 2 (High) incidents reported on the application and infrastructure after such release(s).

9.2.4 ESIC or its monitoring agency will mention ‘Transition Acceptance Date’ (TAD) in the Transition Acceptance Certificate.

TAD will not be before ……….. (the day following the Scheduled Transition Completion Date).

TAD will be the date of Transition Completion Certificate, if Transition is found to be complete in all respect.

In Case ESIC or its monitoring agency finds that the requirements for Transition Acceptance Certificate are not met transition period shall stand extended. In such case Service Provider will be required to submit fresh Transition Completion Certificate.



9.3 Withholding of Transition Acceptance Certificate 9.3.1 If the ESIC designated Monitoring Agency determines that readiness

for Operations & Maintenance of the Systems or any part thereof does not conform to the provisions of this Agreement, it shall forthwith make a report in this behalf and send copies thereof to the ESIC and the Service Provider. Upon receipt of this report, the Service Provider shall remedy and rectify such defects or deficiencies and thereupon ESIC designated/Monitoring Agency will re-validate the completion of Transition. Such procedure shall be repeated as necessary until the defects or deficiencies are rectified. No payment will be made for the transition period to the Service Provider and the period for payment quarter will commence from the “Transaction Acceptance Date” as mentioned in the Transaction Acceptance Certificate.

9.3.2 Notwithstanding anything to the contrary contained in Clause 9.3.1,

ESIC may, at any time after receiving a report from the ESIC designated technical Monitoring Agency, under that Clause, direct the ESIC designated technical Monitoring Agency to issue Transition Acceptance Certificate under Clause 9.2, and such direction shall be complied forthwith.

9.4 Rescheduling of Tests If the ESIC designated technical Monitoring Agency certifies to the ESIC and the Service Provider that it is unable to issue the Transition Acceptance Certificate, because of events or circumstances on account of which the Tests could not be held or had to be suspended, the Service Provider shall be entitled to re-schedule the Tests and hold the same as soon as reasonably practicable. 9.5 Termination due to delay in Transition Acceptance Date In the event the TAD does not occur within the time specified, unless the delay is on account of reasons solely attributable to the ESIC or due to Force Majeure, the ESIC shall be entitled to proceed to terminate this Agreement, apart from realization of damages accrued as per SLA. 30 days defect cure period notice will be provided.

Article 10

10 PERFORMANCE SECURITY 10.1 Performance Security

The Service Provider shall, for the performance of its obligations hereunder during the O & M Period, provide to the ESIC within 30 days of the Appointed Date, an irrevocable and unconditional guarantee from a Bank for a sum equivalent to 10% of the value of the contract, in the prescribed form set forth in tender. This performance guarantee should remain valid for a period of six month beyond Contract Period. Until such time the Performance Security is provided by the Service Provider pursuant hereto



and the same comes into effect, the Bid Security shall remain in force and effect, and upon such provision of the Performance Security pursuant hereto, the ESIC shall release the Bid Security to the Service Provider.

10.2 Appropriation of Performance Security Upon occurrence of a Service Provider Default or the Service Provider being otherwise liable for any amount to ESIC under or in accordance with this Agreement, the ESIC shall, without prejudice to its other rights and remedies hereunder or in law, be entitled to encash and appropriate the relevant amounts from the Performance Security as Damages for such Service Provider Default and/or for payment of any such liability, as the case may be. Upon such encashment and appropriation from the Performance Security, the Service Provider shall, within [30 (thirty)] days thereof, replenish, in case of partial appropriation, to its original level the Performance Security, and in case of appropriation of the entire Performance Security provide a fresh Performance Security, as the case may be, and the Service Provider shall, within the time so granted replenish or furnish fresh Performance Security as aforesaid failing which the ESIC shall be entitled to terminate this Agreement. Upon replenishment or furnishing of a fresh Performance Security, as the case may be, as aforesaid, the Service Provider shall be entitled to an additional Cure Period of [90 (ninety)] days for remedying the Service Provider Default, and in the event of the Service Provider not curing its default within such Cure Period, the ESIC shall be entitled to encash and appropriate such Performance Security as Damages, and to terminate this Agreement.

10.3 Release of Performance Security The Performance Security shall be released by ESIC after 180 days of the Termination or expiry of the Term of the contract, after appropriating therefrom all sums to which ESIC is entitled to claim or recover from the Service Provider pursuant to this Agreement, and provided the Service Provider is not in breach of this Agreement. If any claim or entitlement of ESIC is pending adjudication or is in arbitration, the Service Provider shall renew the Performance Security at least 30 days before the expiry of its validity for such further period so as to be valid for a period of 180 days after the adjudication of such claim or entitlement of ESIC. If the Service Provider shall fail to renew the same at least 30 days before the expiry of such renewed term if the Performance Security’s validity is expiring before the aforesaid period, ESIC shall be entitled to encash the Performance Security without being liable to the Service Provider for the same in any manner whatsoever. Upon request made by the Service Provider for release of the Performance Security along with the particulars establishing satisfaction of the requirements specified hereunder the ESIC shall release the Performance Security forthwith.



Article 11

11 PAYMENTS TO SERVICE PROVIDER 11.1 Quarterly Operations and Maintenance Charge.

ESIC shall pay to Service Provider the Quarterly Operations and Maintenance Charge in accordance with tender terms and conditions. Payment will be made after deduction of SLA penalty as applicable and TDS. 11.2 Taxes. 11.2.1 ESIC will pay taxes as per Service Provider invoices. When asked for by ESIC, the Service Provider shall be liable to provide details and proof of actual payments made to the authorities concerned in respect of the taxes so charged in the invoice and the ESIC will be at liberty to release the tax amount only after ensuring actual payments as such. The Service Provider agrees to reimburse and hold ESIC harmless from any deficiency (including damages and interest) relating to taxes that are its responsibility under this paragraph. For purposes of this Agreement, taxes shall include taxes incurred on transactions between and among ESIC on one hand and the Service Provider and its third party subcontractors on the other hand.

11.2.2 ESIC shall provide Service Provider with the original tax receipt of any taxes deducted and remitted by ESIC on payments made to Service Provider, under this Agreement. 11.2.3 In the event of any increase or decrease in the rates of taxes due to any change in Law after the date of submission BID during the Term of the Agreement, the same shall be to the account of the ESIC.

11.2.4 The Service Provider shall be responsible for its own tax liability and assessments including for any actions to minimize such liability to the extent legally permissible. In connection therewith, the Parties shall provide each other with (i) any required certificates, (ii) any relevant information regarding out-of- state or use of materials, equipment or services and (iii) any direct pay permits, exemption certificates or information reasonably requested by the other Party. 11.2.5 For avoidance of doubt it is expressly agreed that all taxes on income of the Service Provider including income arising from provision of Services pursuant hereto shall always be to the account of the Service Provider. 11.3 Time and Manner of Payment. ESIC shall pay Service Provider

(a) As defined in the Tender. and (b) for any other charges or expenses for which ESIC is responsible, such

invoice is to be submitted to ESIC by the Service Provider no sooner than the seventh calendar day of the month immediately following the



month to which the invoiced charges relate.

Each invoice for charges referred to in sub-clauses (a) and (b) above shall be accompanied by a statement of services rendered duly verified by N o mi na t e d Officer/Agency designated for the purpose by ESIC. 11.4 Proration. All periodic charges under this Agreement are to be computed on a calendar month basis and shall be prorated for any partial month. 11.5 Setoff. With respect to undisputed, liquidated amounts currently due to ESIC hereunder, such amounts may be set off or applied against amounts payable by that party hereunder, ESIC may set off or otherwise apply any amount payable by hereunder to the Service Provider against any other amount that may be payable to or claimed by the Service Provider whether pursuant to this Agreement or otherwise. 11.6 Shifting of DC/DR to third party location

11.6.1 ESIC has planned to shift its DC and /or DR IT infrastructure to third

party Service provider locations. In this case, ESIC will discontinue taking the services of O&M of DC and / or DR as quoted in price bid S. No 1 by giving 3 months’ notice.

11.6.2 However, in case DC or DR are shifted to third party, Service Provider

will continue the manpower services for operation of DC / DR sites which is not shifted.

11.6.3 In case both DC and DR are shifted to third party, Service Provider will continue the Application resources. Infra resources will be reduced as per requirement as mutually agreed.

Article 12

12 COD 12.1 Commencement of Operation Date

Commencement of Operations Date will be …………. The Service Provider shall ensure Commencement of Operations of ESIC IT Services, immediately after the obligations of previous Service Provider ends on ………. Article 13



13 ESIC RESPONSIBILITIES AND WARRANTIES The ESIC shall, at its own cost and expenses u n d e r t a k e , comply with and perform all of its obligations set out in this Agreement.

13.1 Cooperation and Assistance. ESIC shall cooperate with Service Provider with regard to the performance of Service Provider's obligations hereunder, including, and in each instance subject to normal security requirements and in a manner that is not unnecessarily disruptive to ESIC's business operations, by providing to Service Provider such information, data, access to ESIC Sites and premises, management decisions, approvals, and acceptances as may be reasonably required to permit Service Provider to provide the Services hereunder. ESIC shall also provide regular opportunity of meeting of SP’s personnel with its group of officers for exchange of domain knowledge as may be required for systems study, analysis, design and development and reviews thereof, as the Service Provider may require and request.

13.2 Support. The ESIC agrees to provide support to the Service Provider and undertakes to observe, comply with and perform, subject to and in accordance with the provisions of this Agreement and the Applicable Laws and Applicable Permits the following:

a. subject to the Service Provider complying with Applicable Laws, assist the Service Provider in procuring Applicable Permits to the extent the Government or any Government Agency is entitled to issue;

b. assist the Service Provider in procuring such of the Applicable Permits as the State Government can grant, in accordance with and subject to the Service Provider complying with Applicable Laws;

c. ensure and procure, subject to the Service Provider complying with the Applicable Laws, provision of all Applicable Permits required to be obtained by ESIC from any Government Agency or Government for implementation, operation and maintenance of the Project including provision of Services;

d. upon written request from the Service Provider, assist the Service Provider in obtaining access to all necessary infrastructure facilities and utilities, including water and electricity at rates and on terms no less favorable to the Service Provider than those generally available to commercial customers receiving substantially equivalent services;

e. support, cooperate with and facilitate the Service Provider in the implementation and operation of the Project in accordance with the provisions of this Agreement; and

f. Observe and comply with all its obligations set forth in this Agreement.



13.3 Maintenance of Equipment. All equipment owned or leased by ESIC used in connection with availing of Services by ESIC, other than the equipment in the Scope of Service Provider for O & M of Project Panchdeep, will be maintained by ESIC in good working order. 13.4 Representations and Warranties of the ESIC

The ESIC represents and warrants to the Service Provider that:

a. it has full power and authority to execute, deliver and perform its

obligations under this Agreement and to carry out the transactions contemplated herein and that it has taken all actions necessary to execute this Agreement, exercise its rights and perform its obligations, under this Agreement;

b. it has taken all necessary action under the Applicable Laws to authorize the execution, delivery and performance of this Agreement;

c. It has complied with Applicable Laws in all material respects.

Article 14

14 OWNERSHIP, DATA, AND CONFIDENTIALITY

14.1 Ownership of Systems. Except as otherwise provided in this Agreement, all Systems and related designs, documents and source code, executable files, Development Environment, related artifacts such as KBIDs, SOPs etc., shall be the exclusive property of the ESIC during the term of this agreement, upon the expiry of the Term of this Agreement and even thereafter.

14.2 Ownership of Improvements. 14.2.1 Without limiting the generality of Clause 14.1, as between the Parties

hereto, all Improvements to the Systems including all Intellectual Property Rights related thereto, shall be owned by and be the property of the ESIC. With respect to any Independent Improvement created or acquired or developed by ESIC using ESIC's own internal resources or using the Software Manpower provided by Service Provider for Additional Software Application Functionalities Development and Change Request or from third parties, all right, title, and interest in and to such Independent Improvement belong to and vest in ESIC. Service Provider agrees and undertakes to use the same only as part of the System and for provision of Services to ESIC and for no other purpose and/or for the benefit of any third party without prior express written consent of ESIC.



14.2.2 Notwithstanding anything to the contrary contained herein, the Service Provider shall not enter into any contract or arrangement pursuant to which any third party shall have responsibility for management and technical execution, on behalf of Service Provider, of Project implementation and execution including provision of Services, and O&M except to the extent necessary and with prior permission of ESIC. 14.2.3 In no event shall any contract or arrangement or any other subcontract entered into by the Service Provider relieve Service Provider of any responsibility for the performance of its obligations hereunder.

14.3 Provision of executable copy of Software to ESIC.

Service Provider shall deposit with ESIC, a fully executable copy of the software including all related documentation and databases, and shall thereafter update the same with version control, within 30 days of Transition Acceptance Date. Administrative rights will be with ESIC.

14.4 License to Software. 14.4.1 All licenses are to be procured with ‘ESIC as Principal Customer’

and ESIC should have continuous rights over them. Payment will be made by the ESIC on basis of Invoice raised by License Provider.

14.4.2 Any license exercisable pursuant to this Clause to any portion of

the System, including all related documentation, in existence (the "Licensed Software") shall be perpetual, irrevocable, worldwide, nonexclusive, and nontransferable and there shall be no additional charge to ESIC for such license. Technical Support Charges where applicable will be considered by ESIC

14.4.3 Service Provider shall not use ESIC Proprietary Software and

Software procured for the purpose of ESIC or already deployed in the system for any purpose other than for use of ESIC.

14.5 Data. 14.5.1 All data pertaining to ESIC processed by or stored in the Systems

shall be kept confidential by the Service Provider and by Service Provider Personnel and Contractors and Sub-Contractors and shall not be disclosed to anyone except employees, agents, and Contractors of Service Provider who have a "need to know" the same in order to further or facilitate the performance of the Services and



who are legally bound to respect the confidentiality thereof.

14.5.2 All such data shall be and remain the property of ESIC and Service Provider shall, at all times, provide ESIC with reasonable access to any such data.

14.5.3 Promptly after the termination or expiration of this Agreement, Service Provider shall return to ESIC all of ESIC's information, data, and files in Service Provider's then- standard format and media.

14.5.4 Service Provider shall exercise all reasonable care for backing up and the protection of such data and shall maintain reasonable data integrity safeguards against the deletion or alteration of such data. In the event that any such data is lost or destroyed because of any act or omission of Service Provider or any noncompliance with the obligations of Service Provider under this Agreement, then Service Provider shall, at its own expense, reconstruct such data as soon as feasible.

14.5.5 If any regulatory body requires or ESIC requests a longer retention schedule for such storage media or the data contained on such storage media, Service Provider shall comply with such additional requirements or requests.

14.6 Confidential Information.

14.6.1 The Service Provider agrees and undertakes to maintain at all times all ESIC disclosed data and Confidential Information pertaining to the ESIC (collectively the “ESIC Confidential Information”) confidential and secret at all times. Without prejudice to the foregoing the Service Provider shall comply with the following:

a. Except as otherwise provided in this Agreement, Service Provider agrees that it shall ( i ) protect the confidential and proprietary nature of the ESIC

Confidential Information from disclosure to persons who are not employees, agents, or contractors of Service Provider;

( i i ) treat the ESIC Information confidential & secret and shall take all such protective measures as may be necessary to protect it against any unauthorized disclosure;

( i i i ) use great care in the selection and assignment of personnel to work with the ESIC Confidential Information and ensure access thereto only to such Service Provider Personnel as necessary on “need to know” basis, and shall instruct, all Service Provider Personnel so assigned, to take all reasonable precautions, necessary to prevent unauthorized disclosure;

( i v ) not at any time during or after the Term disclose the ESIC’s



Confidential Information, whether directly or indirectly, to any third party (except as otherwise permitted by this Agreement or required by law or regulation and then only after providing ESIC with such notice of, and opportunity to object to, such requirement as may be reasonable under the circumstances), or use the ESIC Confidential Information for any purpose other than the proper and lawful performance of Systems and Services and discharge of its other obligations, and exercise of its rights under this Agreement.

(v) Either Party may also disclose Confidential Information to any entity with the other Party's prior written consent.

( v i ) All such persons with whom ESIC confidential information is shared with for the discharge of functions under this agreement shall be required to sign a Non-Disclosure Agreement (NDA). Service provider shall keep record of all such NDAs and submit to ESIC on request by ESIC.

b. Service Provider shall have no obligation of confidentiality with regard to any ESIC Confidential Information insofar as the same:

(i) was known to it prior to disclosure; (ii) is or becomes publicly available other than as a result of a

breach of this Agreement; or (iii) is disclosed to it by a third party not subject to an obligation

of confidentiality with respect thereto; or (iv) is required to be disclosed by law, regulation or Court

Order, provided that the ESIC gives prompt written notice to the Discloser of such legal and regulatory requirement to disclose so as to allow the Discloser reasonable opportunity to contest such disclosure.

14.6.2 ESIC acknowledges that ESIC may have during the Term of this Agreement access to Confidential Information pertaining to the Service Provider (the “SP Confidential Information”) and agrees and undertakes to keep secret and confidential all Service Provider Confidential Information during the Term of this Agreement and to disclose the same to ESIC’s personnel or need to know basis.

14.7 Equitable Remedies. 14.8 Parties acknowledges that any violation of the provisions of this Article may cause irreparable injury to Parties and that, in addition to any other remedies available to Parties, the Parties may be entitled to injunctive relief, specific performance, and other equitable remedies, to which the ESIC and Service Provider hereby consent. Such remedies shall not be deemed to be the exclusive remedies for a breach by a Party, but shall be in



addition to all other remedies available at law or equity to the damaged Party. 14.9 Confidential Information shall be and remains the property of the Discloser and nothing shall be construed to grant either Party any right or license with respect to the other Party's Confidential Information otherwise than as is expressly set out in this Agreement.

Subject as otherwise expressly provided in this Agreement all Confidential Information in tangible or electronic form under the control of the Service Provider shall be destroyed, erased or returned to the Discloser promptly upon the earlier of:

a. The written request of the Discloser, or

b. Termination or expiry of this Agreement. Notwithstanding the forgoing, both Parties may retain a reasonable number of copies of the other Party's Confidential Information solely for confirmation of compliance with the confidentiality obligations of this Agreement.

14.10 Neither Party is restricted by the provisions from using (including using to provide products or perform services on behalf of third parties) any ideas, concepts, knowhow and techniques that are related to the other party activities and which are retained in unaided memories of the other party employees. This shall not permit the disclosure or use by either Party of any financial (including business plans), statistical, product, personnel or customer data of the other Party. Each Party agrees not to disclose the source of the Residuals. 14.11 The provisions of this Article 15 shall survive the expiration or earlier Termination of this Agreement.

Article 15

15 INTELLECTUAL PROEPRTY RIGHTS 15.1 Infringement. 15.1.1 Service Provider agrees to indemnify, defend, and hold harmless ESIC, its representatives and ESICs from and against any and all suits, demands, liabilities, claims, actions, expenses, losses, and damages of any kind or nature whatsoever, including costs of litigation and attorney's fees, arising from any third-party claim that the System or Services provided by Service Provider violate or infringe any third party's Intellectual Property Rights.



15.1.2 If the System or Services become or are reasonably likely to become the subject of such a claim, ESIC shall permit Service Provider, at Service Provider's expense, to procure for ESIC the right to continue using the System and obtaining the Services, or to replace or modify them so that they are not infringing so long as such replacement or modification yields equivalent results and is compatible with ESIC's COE and existing operating system and hardware platform. 15.1.3 This infringement indemnity does not cover infringement claims based on or arising from (a) modification of the System by ESIC unless such modification was done with Service Provider's written approval, if infringement would have been avoided without such modification; (b) combination, operation, or use of the System or Services with programs, data, equipment, or other items or products not supplied or specified by Service Provider, if infringement would have been avoided without such combination, operation, or use; and (c) ESIC-required designs and specifications, but only to the extent that the infringement results from a departure from Service Provider's own design specifications.

15.1.4 ESIC shall promptly notify Service Provider in writing of each such claim after ESIC learns of it. Service Provider shall be allowed to control the defense and settlement of such claim; provided, that ESIC can be represented by counsel of its choice at its own expense; and provided further, that without ESIC's prior written consent, Service Provider shall not enter into, and ESIC shall not be bound by, any such settlement that would involve a remedy other than money damages payable by Service Provider. ESIC shall, at Service Provider's expense, cooperate with all reasonable requests make by Service Provider in defending or settling a claim.

15.2 Except to the extent otherwise expressly provided in this Agreement, the ESIC shall retain exclusive Intellectual Property Rights to the forms and the compilations of the ESIC and nothing herein shall or will be construed or deemed to grant to the Service Provider any right, title, license, sub-license, proprietary right or other claim against or interest (whether express, implied or otherwise) in or to the same. 15.3 Without prejudice to the foregoing and except to the extent otherwise expressly agreed by the Parties in this Agreement, nothing contained in this Agreement shall or will be construed or deemed to grant to the Service Provider any right, title, license or other interest (whether express, implied or otherwise) in or to any Intellectual Property Rights of ESIC or its Affiliates.

15.4 Subject to any sole or exclusive rights granted by ESIC to a third party prior to the Effective Date, ESIC grants to the Service Provider and its



Contractors solely for the performance of Services to ESIC or its Monitoring Agencies, nonexclusive, paid-up, royalty free right and license during the Term of this Agreement but not the right to sub-license, to use the ESIC Data including the right to copy, perform, display, execute, reproduce, modify, enhance and improve the ESIC Data to the extent reasonably necessary or useful for the provision of Services hereunder.

15.5 Service Provider shall not use the ESIC Data to provide services to or for the benefit of any third party or itself, including without limitation as a service bureau.

15.6 Service Provider shall indemnify, defend and hold harmless ESIC and its nominees and their respective officers, employees, successors and assigns, from and against any and all losses arising from claims by third parties that any Deliverable (or the access, use or other rights thereto) created by Service Provider pursuant to this Agreement, or any equipment, software, information, methods of operation or other intellectual property (or the access, use or other rights thereto) provided by Service Provider or its Contractors to the Service Provider pursuant to this Agreement, (i) infringes any third Party’s Intellectual Property Rights, or (ii) constitutes misappropriation or unlawful disclosure or use of such party’s trade secret under the Applicable Laws, "Infringement Claims") provided, ESIC or its Monitoring Agencies shall have no liability or obligation to Service Provider or any other person under this Clause 16.6 to the extent the Infringement Claim is based upon any use of the equipment, software, information, methods of operation or other intellectual property (or the access, use or other rights thereto) for the benefit of any third party (including any use by Service Provider or its nominees outside the scope of the Services) other than for ESIC or its nominees.

15.7 All right, title and interest in and to, and ownership or proprietary information of ESIC or its Monitoring Agencies which is provided to Service Provider, and all modifications, enhancements a n d o t h e r d e r i v a t i v e w o r k s o f such ESIC proprietary information ("ESIC Proprietary Information"), as a result of provision of Services by the Service Provider hereunder, shall remain solely with ESIC.

15.8 Service Provider shall be entitled to use such ESIC Proprietary Information only during the Term of this Agreement and only for the purposes of providing the Services or to the extent necessary for Service Provider's normal operations and for repair, operation and maintenance related to the Services. ESIC shall retain ownership of all Intellectual Property Rights relating to ESIC Proprietary Information.



15.9 All right, title and interest in and to, and ownership in, Proprietary Information of Service Provider which is provided to ESIC or its Monitoring Agencies, and all modifications, enhancements and other derivative works of such Service Provider Proprietary Information ("Service Provider Proprietary Information"), shall remain solely with Service Provider.

15.10 ESIC or its Monitoring Agencies shall be entitled to use such Service Provider Proprietary Information for or in connection with the System and/or the Services or to the extent necessary for ESIC's normal operational, repair and maintenance purposes related to the Systems and/or Services.

15.11 To the extent that the Service Provider Proprietary Information is incorporated within the Deliverables, Service Provider and its employees engaged hereby grant to ESIC a worldwide, perpetual, irrevocable, non-exclusive, transferable, fully paid-up right and license to use, copy, modify (or have modified), transport to ESIC or its Monitoring Agencies facilities, and prepare from them, use and copy derivative works for the benefit of and internal use of ESIC or its Monitoring Agencies such Service Provider Proprietary Information. ESIC's rights pursuant to the preceding sentence include the right to disclose such Service Provider Proprietary Information to third party contractors solely for use on ESIC's behalf provided that all such third party contractors execute, deliver and comply with any customary confidentiality and nondisclosure agreements reasonably required by ESIC or its Monitoring Agencies.

Article 16 16 WORK SPACE 16.1 Service Provider Work Space. ESIC shall provide, or cause to be provided, on or about the ESIC’s Sites to Service Provider office space ("SP Work Space") free of charge on ”as is where is basis” together with utilities (including air conditioning, and sufficient power necessary to facilitate the Service Provider to perform the Services), building security, and other services necessary for use by Service Provider in connection with the provision of Services (the foregoing being collectively referred to in this Agreement as the "Service Provider Work Space Equipment and Services"). ESIC shall provide, or cause to be provided, reasonable access to Service Provider to and from the S e r v i c e P r o v i d e r Work Space and the S e r v i c e P r o v i d e r Work Space Equipment and Services during work hours on all working days. ESIC represents and warrants that the S e r v i c e P r o v i d e r Work Space complies with and shall be maintained in compliance with all applicable local, state, and central laws.



16.2 The Service Provider agrees to ensure that its employees, agents and contractors do not use the location, work space, services and items referred to in clause 16.1 above:

a. For the transmission of any material which is defamatory, offensive or abusive or of an obscene or menacing character; or

b. In a manner which constitutes a violation or infringement of the rights of any person, firm or company (including but not limited to rights of copyright or confidentiality) of in any manner whatsoever which may be in contravention of any law of the land.

Article 17

17 FORCE MAJEURE, TERMINATION AND RELATED MATTERS 17.1 Force Majeure. 17.1.1 A Party shall be excused from any delay or failure in performance of its obligations under this Agreement for any period if and to the extent (i) such delay or failure is caused by reasons beyond its reasonable control including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations imposed after the fact, fire, communications line failures, power failures, earthquakes, severe weather, or floods or other natural disasters or any other cause beyond its control (each “Force Majeure Event”), and (ii) such delay or failure could not have been prevented by reasonable precautions by that party. Delays or failures that are excused as provided in this clause shall result in automatic extensions of dates for performance for a period of time equal to the duration of the events excusing such delay or failure. However, neither Party’s financial condition nor inability to pay shall be a basis for excusing performance of any of that party's obligations under this Agreement. No such excused delay or failure shall constitute a default hereof, or, except to the extent a related performance obligations is incomplete or unperformed, be a basis for disputing or withholding amounts payable hereunder, provided that the Party whose performance is delayed or suspended shall use all efforts that are reasonable under the circumstances to resume performance of its obligations hereunder as soon as feasible. 17.1.2 In the event that Service Provider is excused from the performance of any of its obligations hereunder pursuant to this Clause and, as a result thereof, ESIC's normal business operations are materially interrupted, then (a) notwithstanding anything in this Agreement to the contrary, ESIC shall be entitled to immediately obtain substitute Services from a third party, on an interim basis until Service Provider is able to resume performance of such obligations, and shall also be entitled to use, or permit such third party to use, the Licensed Software and other infrastructure established by Service



Provider pursuant to Article 15 hereof in order to provide such substitute services, and (b) if such nonperformance continues for a continuous period of 30 days, then at any time thereafter ESIC may, by giving Service Provider prior written notice of not less than 90 Days, thereof, terminate this Agreement as of a date specified in such notice of termination. 17.1.3 The Party seeking to rely on Force Majeure Event shall promptly, upon becoming aware of the same, notify the other Party of the occurrence of a Force Majeure event as a condition precedent to the availability of this defense and shall subsequently give particulars to a reasonable level of detail in writing to the other Party of the facts or circumstances giving rise to Force Majeure within three days of the occurrence and shall further demonstrate that it has and is taking all reasonable measures to mitigate the events of Force Majeure. 17.1.4 In the event that an event of Force Majeure substantially prevents, hinders or delays the Service Provider's performance of Services necessary for the operation of ESIC's critical business functions for a period in excess of 7 days, ESIC or its Monitoring Agencies may declare that an emergency exists. In the event that the Parties are not able to reasonably resolve the situation within 7 days, ESIC or its Monitoring Agencies may terminate the affected Services under the SLA and/or obtain substitute performance from an alternate supplier.

17.1.5 Notwithstanding the failure on the part of the Service Provider under this Agreement to implement any disaster contingency planning and back-up and other data safeguards in accordance with the terms of this Agreement against natural disaster, fire, sabotage or other similar occurrence shall not be an event of Force Majeure.

17.2 Termination 17.2.1 upon Change of Control of Service Provider and Termination

Simplifier: This Agreement may be terminated, at the option of ESIC, by 90 days’ notice to the Service Provider, in the event of a change in control of Service Provider if, and only if, ESIC reasonably determines that such change in control results in a material change in the management, technology, or operations of Service Provider, and such material change in management, technology, or operations of Service Provider results in a material adverse impact to ESIC with respect to services levels, technology, or cost. For purposes of this Clause, change in control shall mean the acquisition by a person not now in control (within the meaning of this definition) of more than 33% percent of either the voting power or value of the outstanding capital of Service Provider or the right to elect at least fifty percent (50%) of the directors of Service Provider but shall not include any transaction involving a public offering of Service Provider's securities.]



17.2.2 Termination for Cause: If either party is in material breach of this

Agreement, other than clause 17.2.1 and • fails to substantially cure such default within 14 days, after

receiving written notice, specifying the default or, • there exist defaults that cannot reasonably be cured, within 30

days, even on promptly commencing curing such default, with all due diligence,

then the party not in default may terminate this Agreement by giving 180 days written notice thereof to the other Party. For the purposes of this Clause “material breach in relation to Service Provider shall mean any of the following defaults (each a “Service Provider Default”): a. the Performance Security has been encased and appropriated in

accordance with Clause and the Service Provider fails to replenish or provide fresh Performance Security within a Cure Period of 30 (thirty) days;

b. subsequent to the replenishment or furnishing of fresh Performance Security in accordance with Article II, the Service Provider fails to cure, within a Cure Period of 30 (thirty) days, the Service Provider Default for which whole or part of the Performance Security was appropriated.

c. the Service Provider does not achieve the latest outstanding Project Milestone due in accordance with the tender provisions and continues to be in default for 30 (thirty) days;

d. the Service Provider abandons or manifests intention to abandon the execution, construction or operation of the Project/Systems without the prior written consent of the ESIC;

e. Transition Acceptance Date does not occur within the 30 days period from the scheduled transition completion date ;

f. the Service Provider is in breach of the Maintenance Requirements; g. a breach of any of the Project Agreements by the Service Provider

has caused a Material Adverse Effect; h. the Service Provider creates any Encumbrance in breach of this

Agreement; i. the Service Provider repudiates this Agreement or otherwise takes

any action or evidences or conveys an intention not to be bound by the Agreement;

j. a Change in Ownership has occurred in breach of the provisions of Clause 18.2.1;

k. there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Service Provider under any of the



Project Agreements, or of (ii) all or part of the assets or undertaking of the Service Provider, and such transfer causes a Material Adverse Effect;

l. an execution levied on any of the assets of the Service Provider has caused a Material Adverse Effect;

m. the Service Provider is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Service Provider or for the whole or material part of its assets that has a material bearing on the Project;

n. the Service Provider has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the ESIC, a Material Adverse Effect;

o. a resolution for winding up of the Service Provider is passed or any petition for winding up of the Service Provider is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Service Provider is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Service Provider are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Service Provider under this Agreement and the Project Agreements; and provided that:

i. the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;

ii. the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Service Provider as at the Appointed Date; and

iii. each of the Project Agreements remains in full force and effect;

or the Service Provider commits a material default in complying with any other provision of this Agreement.

In relation to ESIC Material Default shall mean a material default by ESIC in complying with its obligations under this Agreement and the breach continues for a period of 90 (ninety) days from the date of notice given in this behalf by the Service Provider to the ESIC. Service Provider may decide to terminate the agreement by giving 180 days written notice to ESIC.



A default by a Party as a result of default of the other Party or on account of Force Majeure Event shall not be deemed to be a default of such party for the purposes of this Clause.

17.2.3 Without Assigning Any Reason: Notwithstanding anything to the contrary contained in this Agreement, ESIC may terminate this Agreement without assigning any reason at any time by 90 days’ notice to the Service Provider.

17.3 Termination Assistance. Six months prior to the expiry of the Term of this Agreement or on issue of Notice of Termination of this Agreement under clause 18.2 for any reason the Service Provider shall comply with the following requirements:

(1) In order to assist ESIC in terminating applicable services from the Service Provider and takeover of the System and Project Assets by ESIC or its nominee and continuation of the those services by use of the System, the Service Provider shall provide to ESIC the following services:

i. Service Provider to ensure that releases and versions of all the

applications tools used to develop and maintain Panchdeep applications conform to the latest releases from their respective vendors (OEM). Further Service Provider is to ensure that releases and versions of all monitoring tools deployed in NOC and SOC conform to the latest releases from their respective vendors (OEM).Service Provider shall ensure that all underlying infrastructure components deployed should be under OEM support.

ii. Service Provider and ESIC shall prepare in collaboration with each

other a transition plan setting forth the respective tasks to be accomplished by each party in connection with the orderly transition and a schedule pursuant to which the tasks are to be completed.

iii. Upon the reasonable request of ESIC from time to time, Service

Provider shall provide ESIC with reasonably detailed inventory of systems in place and specifications f o r the additional equipment that ESIC shall need to perform the services and procedures previously performed by System Integrator hereunder.

iv. Upon the reasonable request of ESIC from time to time during the applicable notice period, Service Provider shall deliver to ESIC

a. a fully executable copy of the Licensed Software in existence,



b. a copy, in appropriate machine-readable format, of the applicable data of ESIC, and

c. A copy of relevant application program/module with source code.

v. Service Provider shall provide to ESIC such additional data,

information and technical assistance as it may be reasonable for ESIC to request and for Service Provider to provide under the circumstances in order to continue the use of the Licensed and other Software in the ESIC Data Center, so that the Licensed and other Software can be operated to meet the applicable Performance Objectives. This assistance may include, to the extent requested by ESIC, consulting with and assisting ESIC in planning for and implementing the installation of the Licensed Software in the Data Center and other locations, including the establishment of related hardware, software, and network configurations and the testing of the Licensed Software as so installed, and training the applicable ESIC data center and locations staff provided by ESIC with respect to the Licensed Software and the operation thereof. In such regard, ESIC shall take over the ESIC Data Center and other locations that are then being operated by Service Provider, and an adequate data center/other locations’ staff of technically competent personnel shall be arranged by ESIC.

vi. Service Provider shall:

(a) notify to the ESIC forthwith the location and particulars of all Project Assets;

(b) deliver forthwith the actual or constructive possession of the Project Assets including Systems free and clear of all Encumbrances;

(c) cure all Project Assets, including the equipment, of all defects and deficiencies so that the System is compliant with the Maintenance Requirements, provided that in the event of Termination during the period from Appointed Date till ‘Transition Acceptance Date’ , all Project Assets shall be handed over on 'as is where is' basis after bringing them to a safe condition;

(d) deliver all relevant records and reports pertaining to the Systems and its design, engineering, construction, operation and maintenance, including all Programmes and manuals pertaining thereto, and complete 'as built' Drawings as on the effective date of Termination;

(e) execute such deeds of conveyance, documents and other writings as the ESIC may reasonably require for conveying, divesting and assigning all the rights, title and interest of the Service Provider in the Project Assets Systems , including the right to receive outstanding insurance claims to the extent due



and payable to the ESIC, absolutely unto the ESIC or its nominee; and

(f) comply with all other requirements as may be prescribed or required under Applicable Laws for completing the divestment and assignment of all rights, title and interest of the Service Provider in the Systems free from all Encumbrances absolutely unto the ESIC or to its nominee.

17.4 Failure to Provide Termination Assistance.

In case of failure of the Service Provider to provide Termination Assistance to ESIC, on the last day of Contract Period or at the end of the Notice Period of 90 days ESIC shall:

1. be deemed to have taken possession and control of the Systems

forthwith; 2. take possession and control of all materials, stores, implements,

construction and equipment on or about the ESIC Sites; 3. be entitled to restrain the Service Provider and any person claiming

through or under the Service Provider from entering upon the ESIC Sites or any part of the Project;

4. succeed, upon election by the ESIC, without the necessity of any further action by the Service Provider, to the interests of the Service Provider under such of the Project Agreements as the ESIC may in its discretion deem appropriate, and shall upon such election be liable to the Contractors only for compensation accruing and becoming due and payable to them under the terms of their respective Project Agreements from and after the date the ESIC elects to succeed to the interests of the Service Provider. For the avoidance of doubt, it is hereby agreed and the Service Provider hereby acknowledges that all sums claimed by such Contractors as being due and owing for works and services performed or accruing on account of any act, omission or event prior to such date shall constitute debt between the Service Provider and such Contractors, and the ESIC shall not in any manner be liable for such sums. It is further agreed that in the event the ESIC elects to cure any outstanding defaults under such Project Agreements, the amount expended by the ESIC for this purpose shall be deducted from any Payments due to service provider or bank guarantee may be revoked.

17.5 Vesting Certificate The divestment of all rights, title and interest in the Systems shall be deemed to be complete on the date when all of the Divestment Requirements have been fulfilled, and the ESIC shall, without unreasonable delay, thereupon issue a certificate (the "Vesting Certificate") which will have the effect of constituting evidence of divestment by the Service



Provider of all of its rights, title and interest in the Systems, and their vesting in the ESIC pursuant hereto on conclusion of Project. It is expressly agreed that any defect or deficiency in the Divestment Requirements shall not in any manner be construed or interpreted as restricting the exercise of any rights by the ESIC or its nominee on or in respect of the Systems on the footing that all Divestment Requirements have been complied with by the Service Provider. 17.6 Initiation of Discussions. Provided that ESIC has reason to be concerned that this Agreement may terminate or Services may be discontinued, ESIC shall be free to initiate discussions and/or negotiations with other data-processing Service Provider(s) with regard to possible replacement of the Service Provider for the provision of the Services, and neither ESIC nor any other applicable Service Provider(s) shall incur any liability to Service Provider as a result of such discussions and/or negotiations.

Article 18

18 DISPUTE RESOLUTION 18.1 Performance Review.

In the event of any dispute, controversy, or claim between the parties hereto arising from or relating to the subject of this Agreement (a "Dispute"), upon the written request of either party, each of the parties shall appoint a designated officer to meet and negotiate in good faith to resolve such Dispute. Formal proceedings for the arbitration of such Dispute in accordance with Clause 18.2 hereof may not be commenced until the earlier of (a) the expiration of 14 days after the initial request for such negotiations, or (b) either of the designated officers concluding in good faith and notifying the other designated officer that amicable resolution through continued negotiation of the matter in issue does not appear likely. (c) The settlement arrived at by the designated officers of both parties is not acceptable to either of the parties.

18.2 Arbitration. a. If any dispute or difference shall arise out of or relating to or in

connection with any act, deed or thing done under or pursuant to this Agreement between the Parties, they shall make every effort to resolve the same amicably by direct or informal negotiations.

b. If, within thirty (30) days from the date of commencement of such direct or informal negotiations ESIC and the Service Provider are unable to resolve amicably such difference or dispute or the settlement arrived at by the designated officers of both parties is not acceptable to either of the parties:



i. notice of the existence of such dispute or difference may be served by either Party to the other party, for resolution by arbitration, within sixty (60) days from the date of commencement of direct or informal negotiations, failing which such dispute or difference shall be deemed to have been forfeited and given up and amicably resolved by the Parties without either Party being liable to the other in any manner under law and equity or otherwise.

ii. On receipt of such notice by a party from the other party, the dispute in respect of which notice has been issued shall be referred to a board of three arbitrators. One Arbitrator to be nominated by the Director General, ESIC and one Arbitrator to be nominated by the Service Provider and the third Arbitrator, who shall be the presiding arbitrator to be jointly selected by the two arbitrators appointed as aforesaid by the Parties.

iii. Any award made in any such arbitration shall be final and binding on the Parties.

iv. The venue of the arbitration shall be at ESIC Headquarters Office, New Delhi. The provisions of the Indian Arbitration and Conciliation Act, 1996, as amended from time to time and the rules, if any framed there under and any statutory modification thereof shall apply to such arbitration.

v. Upon every or any such reference, the cost of or incidental to the

reference and award(s) respectively shall be borne as determined by the Award which shall direct by whom and in what manners the same shall be borne and be paid.

vi. During the pendency arbitration the Parties shall continue to

perform their respective obligations under this Agreement.

Article 19 19 LIABILITY AND INDEMNITY

19.1 General. Service Provider agrees to perform the Services in conformity with “Technical Proposal” submitted with the Bid, in a professional, workmanlike, and commercially reasonable manner, and in accordance with Good Industry Practice.. Service Provider warrants that the Systems are capable of performing the Services in accordance with the provisions of this Agreement.

19.2 Response Measures. a. In the event that there occurs any Deficiency with respect to this

Agreement and ESIC reasonably and in good faith determines and notifies Service Provider that such Deficiency could adversely affect the operations, business, or revenues of ESIC in any material respect, then,



upon ESIC's request and at no additional cost to ESIC, the following shall occur:

i. Service Provider's senior technical and operating managers shall

meet promptly and as often as reasonably requested by ESIC with representatives designated by ESIC to determine in good faith the appropriate actions to be taken and resources to be committed by Service Provider to eliminate the Deficiency.

ii. Service Provider's senior technical and operating managers shall, in good faith, give due consideration to any specific recommendations provided by ESIC or its Monitoring Agency concerning the actions and resources appropriate to eliminate the Deficiency.

iii. Service Provider shall provide to ESIC and its Monitoring Agency complete and accurate written status reports and action plans concerning the Deficiency as often as the ESIC shall reasonably request.

b. In the event that Service Provider's performance of Services for ESIC

fails to meet any applicable Performance Objective or Benchmark Requirement or there occurs any other Deficiency with respect to this Agreement or SLA that adversely affects the operations, business, or revenues of ESIC in any material respect, then, upon ESIC's request and at no additional cost to ESIC, Service Provider shall redirect its resources in order to eliminate or alleviate such Deficiency to the fullest extent practical, giving due consideration and treating fairly its other obligations and priorities, including any other Deficiencies with respect to this Agreement. In the event that Service Provider fails to cooperate with ESIC with regard to such Deficiency, or in the event that the Deficiency is otherwise not eliminated or alleviated, to ESIC's reasonable satisfaction, within a reasonable period of time after Service Provider has been notified of the Deficiency, then ESIC shall have the right to resort to arbitration as provided in Clause 19.2.

c. In the event that Service Provider's performance of Services for ESIC

fails to meet any applicable Performance Objective or Benchmark Requirement and, as a result thereof, ESIC's normal business operations are materially interrupted, then, notwithstanding anything in this Agreement to the contrary, ESIC shall be entitled to immediately obtain substitute services from a third party on an interim basis until that failure has been cured, and shall also be entitled to use, or permit such third party to use, the Licensed Software hardware and other infrastructure of the Project in order to provide such substitute services at the risk and cost of the Service Provider.



Article 20

20 INDEMNIFICATION

20.1 Cross-Indemnity. Except as may be provided in this Agreement, Service Provider and ESIC each shall indemnify, defend, and hold harmless the other from any and all claims, actions, damages, liabilities, costs, and expenses, including, without limitation, reasonable attorney's fees and expenses, arising out of (a) the death or bodily injury of any agent, employee, or business invitee of the indemnitor, and (b) the damage, loss, or destruction of any tangible plant and equipment of the indemnitor, provided further that the S e r v i c e P r o v i d e r shall take all necessary insurance/security cover in respect of its own employees and project equipment as required/available under law and ESIC shall take similar measures in respect of its own employees and equipment.

Article 21 21 MISCELLANEOUS 21.1 Assignment All terms and provisions of this Agreement shall be binding on and shall insure to the benefit of ESIC, Service Provider and their respective successors and permitted assigns. Subject to the foregoing, in the event of any assignment of this Agreement or any rights hereunder by either Party, the assigning Party shall remain liable for the performance of its obligations hereunder. 21.2 Binding Nature and Assignment. This Agreement shall be binding on the parties and their respective successors and assigns. Neither party may assign this Agreement unless it first obtains the prior written consent of the other party, which consent may not be unreasonably withheld. 21.3 Hiring of Employees. During the term of this Agreement and for a period of twelve (12) months thereafter, neither party will, without the prior written consent of the other, offer employment to or employ any person employed then or within the preceding twelve (12) months by the other party or its contractors, if the person was involved in providing or receiving services under this Agreement. Breach of this term will be treated breach of the agreement and parties may act accordingly. 21.4 Financial Statements.



Upon ESIC's request, Service Provider shall provide at no charge one (1) copy of Service Provider's most recent audited financial statements along with a copy of the Auditor’s report to ESIC. 21.5 Consents. Each party agrees that when approvals or consents are required pursuant to this Agreement, the party entitled to provide such approval or consent shall not unreasonably withhold it and shall cooperate in helping the other party obtain it when reasonable. 21.6 Notice 21.6.1 Any notice or other document which may be given by either Party under this Agreement shall be given in writing in person or by pre-paid recorded delivery post or by e-mail. 21.6.2 In relation to a notice given under this Agreement, any such notice or other document shall be addressed to the other Party's principal or registered office address as set out below:

ESIC: Contact Person: Address: Tel: e-mail: With a copy to:

Service Provider: Contact Person: Address: Tel: e-mail:

With a copy to:

21.7 Relationship of Parties. Service Provider, in providing Services, is acting as an independent contractor and does not undertake by this Agreement or otherwise to perform any regulatory or contractual obligation of the ESIC. Service Provider has the sole obligation to supervise, manage, contract, direct, perform, or cause to be performed all work to be performed by Service Provider under this Agreement. 21.8 Freedom of Action.



Except as expressly stated otherwise in this Agreement, (a) neither party shall be prohibited or restricted from independently developing or acquiring any services, products, or materials, whether or not competitive with or similar in functionality to the work product, and (b) so long as the proposed action by such party does not infringe the intellectual property rights of the other party.

21.9 Waiver. A waiver by either of the parties of any of the covenants, conditions, or agreements to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach or of any other covenant, condition, or agreement contained in this Agreement. 21.10 Amendment to the Agreement. This Agreement may be amended only by an amendment in writing, agreed and signed by the parties.

21.11 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of India.

21.12 Execution of Agreement. This Agreement shall become effective when Service Provider executes this Agreement. By executing this Agreement, ESIC represents that this Agreement has been duly authorized and constitutes a valid, fully enforceable, and legally binding obligation of ESIC. ESIC shall maintain this Agreement as an official record of ESIC continuously from the time of its execution.

21.13 Expenses. Each party hereto shall assume and pay its own expenses incident to the negotiation and execution of this Agreement. Without limiting the generality of the foregoing, each party shall pay all legal, accounting, consultants' and advisers' fees incurred by it, including brokers' or investment banking fees relating to this Agreement and such transactions, and shall indemnify and hold the other free and harmless from any of such expenses and fees. No broker, finder, agent, or similar intermediary has acted on behalf of either party in connection with this Agreement or the transactions contemplated hereby.

21.14 No Third-Party Beneficiaries. This Agreement shall be for the benefit of the parties hereto and none of the provisions of this Agreement shall be for the benefit of or enforceable by any



third party. However, ESIC shall have the right to enforce the provisions of this Agreement for the benefit of the other ESIC Service Users. IN WITNESS WHEREOF, Service Provider and ESIC each have caused this Agreement to be signed and delivered by its duly authorized representative.

[SERVICE PROVIDER]: [ESIC]:

By: ...................... By: ..........................

.......................... .............................

Printed Name Printed Name:

Title: ................... Title: .......................

Date: ...........,....... Date: ..............,.......

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Request for Proposal Selection of Service Provider …...Employees’ States Insurance Corporation Confidential Page 1 of 63 Request for Proposal Selection of Service Provider for