Eskom Confidentialsubject to Contractsupplier

Eskom ConfidentialSUBJECT TO CONTRACTSupplier

RFP

ESKOM ITO

SCHEDULEA (DEFINITIONS)

July 2017

This document contains confidential and proprietary information of Eskom and is “Eskom Confidential Information” for the purposes of the non-disclosure agreement entered into between Eskom and Supplier in relation to the ITO Project. It is furnished for evaluation purposes only. Except with the express prior written permission of Eskom, this document and the information contained herein may not be published, disclosed, or used for any other purpose.

RFP: ScheduleA (Definitions) 1

Eskom ConfidentialSUBJECT TO CONTRACTSupplier

INSTRUCTIONS FOR RESPONDING TO THIS DOCUMENT

General Guidelines

These RFP documents contain the key legal terms and conditions that Supplier will be required to comply with in relation to the ITO Project.

Supplier must respond to the requirements contained in these documents according to the instructions provided below. Supplier’s response must be in the prescribed format. Supplier should provide clear, concise, and reasonable responses. Supplier should not postpone responses. “Supplier would be happy to discuss this at a later time” is an example of a postponed response.

Supplier should not view the possibility of requesting changes as an opportunity to rewrite the RFP. Eskom expects Supplier to comply with the requirements as written, and compliance with these RFP documents will be a critical component in the evaluation of Supplier’s response to the RFP.

Response Instructions

This document should be completed by Supplier and form part of Supplier’s response to the RFP. In completing this document, Supplier should carry out the following:

·  For each row where the “Comply (Y/N)” cell is not shaded, the Supplier should enter “Y” if it complies with the requirement without qualification or “N” if it does not.

·  Where Supplier enters:

·  “Y” in the “Comply (Y/N)” column, then the column headed “Supplier Response” should be left blank.

·  “N” in the “Comply (Y/N)” column, then Supplier should copy and paste the exact wording from the “Eskom Requirement” column into the “Supplier Response” column and make any deletions or insertions to the original wording using Microsoft Word’s track changes function. In addition, after completing its proposed changes, Supplier may provide a concise explanation of the changes in the “Supplier Response” column.

(A)  If Supplier does not respond to a row or reserves its position, then Eskom will treat the response as non-compliant.

RFP: ScheduleA (Definitions) 1

Eskom ConfidentialSUBJECT TO CONTRACTSupplier

SCHEDULEA (DEFINITIONS)

Ref No. / Eskom Requirement / Comply (Y/N) / Supplier Response /
1.  /

1.  Definitions

2.  / In this Agreement, the following terms have the following meanings:
3.  / “Acknowledgement Notice” / has the meaning set out in section 4.4 of Schedule E (Governance);
4.  / “Actual Usage” / means the quantity of PxQ Billable Units actually used in the relevant Month, as calculated in accordance with section3.2 of ScheduleD (Charges) and AppendixD1 (Billable Unit Descriptions and Counting Rules);
5.  / “Advanced Technology” / has the meaning set out in section 2.6.1 of Schedule B (Service Description);
6.  / “Affiliate” / means, with respect to any entity, any other entity Controlled, directly or indirectly, by the entity; any entity that Controls, directly or indirectly, the entity; or any entity, directly or indirectly, under common Control with the entity;
7.  / “AFSA” / has the meaning set out in section 4.10 of Schedule E (Governance);
8.  / “AFSA Rules” / has the meaning set out in section 4.14 of Schedule E (Governance);
9.  / “Agreement” / means this agreement, including the Terms & Conditions, Schedules, Appendices and Annexes and any other documents incorporated by reference into this Agreement, as may be amended from time to time in accordance with this Agreement;
10.  / “Annual Review” / has the meaning set out in paragraph1.3.1 of AppendixE1 (Committees and Key Management Meetings);
11.  / “Applicable Export Control or Economic Sanctions Programs” / include U.S.export control laws such as the Export Administration Regulations and the International Traffic in Arms Regulation, and U.S.economic sanctions programs that are maintained by the U.S.Government including sanctions currently imposed against Belarus, Burma (Myanmar), Cuba, Iran, Iraq, Ivory Coast, Liberia, Libya, North Korea, Sudan, Sierra Leone, Somalia, Syria and Zimbabwe, as well as Specially Designated Nationals and Blocked Persons programs;
12.  / “Applicable Law” / means the following, as amended from time to time, to the extent it applies to a Party (including, as applicable, the Affiliates and Subcontractors of a Party) or to the Services (including the performance, delivery, receipt or use of the Services, as applicable and wherever occurring) or to the Eskom Sites, whether in South Africa or in any other country in which the Services are being provided and/or received:
(a)  any Legislation ,
(b)  the common law,
(c)  any binding court order, judgement or ruling,
(d)  any applicable industry code, policy or standard enforceable by law, and
any applicable direction, policy or order that is given by any regulator, competent authority or organ of state or industry body;;
13.  / “Approvals” / (a)  has the meaning set out in section1.5.1 of ScheduleE (Governance);
14.  / “Arbitration Notice” / has the meaning set out in section 4.14 of Schedule E (Governance);
15.  / “Arbitration Response Notice” / has the meaning set out in section 4.15.2 of Schedule E (Governance);
16.  / “Assigned Personnel” / has the meaning set out in section1.2.1(c)(iii) of AppendixI1 (Transfer of Assigned Personnel);
17.  / “Associated Person” / means in relation to any entity, a person who (by reference to all the relevant circumstances) performs services for or on behalf of that entity in any capacity and including, without limitation, employees, agents, subsidiaries, representatives and subcontractors;
18.  / “At Risk Amount” / has the meaning set out in section3.3.9 of ScheduleC (Performance Standards);
19.  / “Auditors” / has the meaning set out in section2.8.1 of ScheduleE (Governance);
20.  / “Audits” / has the meaning set out in section2.8.1 of ScheduleE (Governance) and references to “Auditing” shall be construed accordingly;
21.  / “Benchmarker” / has the meaning set out in section 1.1.2 of Schedule N (Benchmarking);
22.  / “Benchmarking Report” / has the meaning set out in section 1.1.6 of Schedule N (Benchmarking);
23.  / “Benchmarked Services” / has the meaning set out in section1.1.1 of ScheduleN (Benchmarking);
24.  / “Billable Day” / has the meaning set out in section4.1.3(a)(ii) of ScheduleD (Charges);
25.  / “Billable Unit” / means for each PxQ Charge, the individual charging units as described in AppendixD1 (Billable Unit Descriptions and Counting Rules);
26.  / “Bribery Act” / means the UK Bribery Act 2010 (as amended from time to time);
27.  / “Business Day” / means any day other than a Saturday, Sunday and/or a public holiday as gazetted by the government of the Republic of South Africa from time to time;
28.  / “Business Rescue” / shall bear the meaning set out in section 128(1)(b) of the Companies Act;
29.  / “Change” / has the meaning set out in section2.1.1(b) of ScheduleF (Demand Management);
30.  / “Change Management Procedure” / has the meaning set out in section2.1.1(b) of ScheduleF (Demand Management);
31.  / “Change Note” or “CN” / has the meaning set out in paragraph1.1.1 of AppendixF5 (Change Management Procedure);
32.  / “Change Procedures” / has the meaning set out in section2.1.1 of ScheduleF (Demand Management);
33.  / “Change Request” / Schedule B Service definitions: at 3.2 (d)- term used but not defined;
34.  / “Chargeable Time” / has the meaning set out in section4.1.3(b) of ScheduleD (Charges);
35.  / “Charges” / has the meaning set out in section1.1.2 of ScheduleD (Charges);
36.  / “Claims” / means any claims, demands, proceedings or actions (including any brought by a Regulator), and including threats of any of the same;
37.  / “Commercially Reasonable Efforts” / means taking such steps and performing in such a manner as a well-managed company would undertake where such company was acting in a determined, prudent and reasonable manner to achieve the particular result for its own benefit;
38.  / “Companies Act” / means the South African Companies Act No 71 of 2008, as amended;
39.  / “Competitor Charges” / has the meaning set out in section 1.1.6.(a) of Schedule N (Benchmarking);
40.  / “Confidential Information” / means, in respect of a Party, information in any form (whether written, electronic, graphic, oral or otherwise) that falls within any of the following categories:
(a)  confidential or proprietary information provided by the Party (whether or not marked confidential (or a similar designation) or stated to be confidential at the time of disclosure);
(b)  it concerns the customers, finances, sales, marketing, products, suppliers, employees, business operations, forecasts or management of, or it would ordinarily be deemed by a reasonable person to be confidential or proprietary to:
(i)  in the case of Eskom Confidential Information: the Service Recipients and the other Eskom Affiliates; or
(ii)  in the case of Supplier Confidential Information: the Supplier, the Subcontractors and the other Supplier Affiliates;
(c)  information contained in, or relating to, the items licensed to the other Party pursuant to section5 (Intellectual Property Rights and Software) of the Terms and Conditions;
(d)  information identified in the Agreement as Confidential Information of a Party; or
(e)  in the case of Eskom Confidential Information, information contained in the following:
(i)  Eskom Data, Eskom Policies, and the Operations Manual; and
any of the materials provided by either Party to the other Party that contains information about Eskom or its customers (including Eskom know how and trade secrets);
41.  / “Connected Entity” / (i)  means a Eskom Connected Entity or a Supplier Connected Entity, as applicable;
42.  / “Consecutive Failure Multiplier” / has the meaning set out in section 3.3.6 of Schedule C (Performance Standards);
43.  / “Contract Year” / means each successive period of twelve (12)Months commencing on the Effective Date;
44.  / “Control” / means that a person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other person (whether through the ownership of voting shares, or otherwise), and “Controlled” and “Controlling” in the context of “Control” will be construed accordingly;
45.  / “Controls Audit” / has the meaning set out in section 2.10.2(b) of Schedule E (Governance);
46.  / “Controls Review” / has the meaning set out in section 2.10.2 of Schedule E (Governance);
47.  / “Copyright” / means:
(a)  all copyright, design rights (whether registered or unregistered) and database rights and any other intellectual property having a similar nature or equivalent effect anywhere in the world; and
applications for or registrations of any of the rights described in (a) above;
48.  / “Core Charges” / (a)  has the meaning set out in section1.1.3(a) of ScheduleD (Charges);
49.  / “Critical Deliverables” / means those Deliverables listed in Schedule M (Critical Deliverables) and those indicated as being critical by Eskom from time to time, in accordance with clause 1.2.1.6 of the Agreement;
50.  / “Critical Service Level Default” / has the meaning set out in section 3.4.1 of Schedule C (Performance Standards);
51.  / “Defective Level” / means, in respect of each Service Level, the level of the Performance Standard which is designated as the ‘Defective Level’ in the relevant Service Specification;
52.  / “Defects” / includes any virus, timer, clock, counter, time lock, time bomb, Trojan horse, worms, file infectors, boot sector infectors or other limiting design, instruction or routine and surveillance software or routines or data gathering or collecting software or devices that could, if triggered:
(1)  erase Data / data or programming,
(2)  cause an unplanned interruption of the Services and/or have an adverse impact on the Services, and/or
alters, destroys or inhibits the use of or causes the Equipment, hardware, Software / software or other resources to become inoperable or otherwise incapable of being used in the full manner for which such Equipment, hardware, Software / software or other resources were intended to be used unless by prior agreement between the Parties or in accordance with the terms of this Agreement
53.  / “Deliverable Credits” / has the meaning set out in section 6.1.1 of Schedule C (Performance Standards);
54.  / “Deliverables” / means Materials or Software produced by the Supplier in providing the Services;
55.  / “Dispute” / means any dispute, difference or question of interpretation arising out of or in connection with this Agreement (including any dispute regarding pre-contractual negotiations, the existence, validity or termination of this Agreement or the consequences thereof), whether contractual or non-contractual;
56.  / “Dispute Notice” / has the meaning set out in section 4.2 of Schedule E (Governance);
57.  / “Dispute Resolution Procedure” / means the dispute resolution procedure set out in section4.2 of ScheduleE (Governance);
58.  / “Disputing Party” / has the meaning set out in section 4.2 of Schedule E (Governance);
59.  / “Divested Affiliate” / has the meaning set out in clause3.2.1 of the Terms and Conditions;
60.  / “Divestment” / has the meaning set out in clause3.2.3 of the Terms and Conditions;
61.  / “Divestment Agreement” / has the meaning set out in clause3.3.1.1 of the Terms and Conditions;
62.  / “Due Diligence Information” / has the meaning set out in clause1.5.1 of the Terms and Conditions;
63.  / “Effective Date” / means [Drafting Note: Parties to agree];
64.  / “Equipment” / means any equipment or hardware, including computer and telecommunications equipment and hardware associated peripherals and all connecting equipment;
65.  / “Eskom” / has the meaning set out in the preamble to the Terms and Conditions;
66.  / “Eskom Authorised Personnel” / means designated representatives of a Service Recipient who are authorised by that Service Recipient under this Agreement to perform specific activities or give specific approvals, to the extent of such delegated authority;
67.  / “Eskom Connected Entities” / has the meaning set out in clause8.2.1 of the Terms and Conditions;
68.  / “Eskom Data” / means any of the following:
(a)  all data, information, text, drawings and other materials which are embodied in any medium including all electronic, optical, magnetic or tangible media and which are supplied to the Supplier or a Subcontractor by Eskom, any of the other Service Recipients or which the Supplier and any Subcontractors are required to generate, collect, process, store or transmit in connection with the Agreement; and
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