Master Services Terms (MST).pdf

Master Services Terms

Between

Pennsylvania Department of Transportation and

Service Provider

RFP Name: Mainframe Services

RFP 3525R03

Mainframe Services RFP 3525R03

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Table of Contents

1 INTRODUCTION

1.1 Provision, Performance, and Management by the Service Provider

1.2 Service Provider's Experience and Qualifications

1.3 Definitions

2 CONTRACT DOCUMENTS AND ORDER OF PRECEDENCE

3 SERVICES

3.1 Overview

3.2 Transition Services

3.3 Termination Assistance Services

3.4 Use of Third Parties

3.5 Acceptance

3.6 Projects

3.7 Artificial Intelligence (AI Requirements)

4 REQUIRED CONSENTS

4.1 Service Provider Responsibility

4.2 Financial Responsibility

4.3 Contingent Arrangements

4.4 Termination

5 FACILITIES, MATERIALS, EQUIPMENT AND CONTRACTS

5.1 Service Facilities

5.2 Use of Service Provider Facilities

5.3 COPA Rules/Employee Safety

5.4 Materials, Equipment, and Third Party Contracts

5.5 Responsibility for Licenses, Leases, and Related Contracts

6 PERFORMANCE MANAGEMENT

6.1 General

6.2 Service Level Credits

6.3 Deliverable Credits

7 SERVICE PROVIDER PERSONNEL

7.1 Key Personnel

7.2 Service Provider Account Director

7.3 Relationship of the Parties

7.4 Responsibility for Service Provider Personnel

7.5 Replacement, Qualifications, and Retention of Service Provider Personnel

7.6 Conduct of Service Provider Personnel. Service Provider shall ensure that:

7.7 Substance Abuse or Criminal Activity

7.8 Union Agreements

7.9 Knowledge Transfer

7.10 Enhanced Minimum Wage

7.11 Worker Protection and Investment

8 SERVICE PROVIDER RESPONSIBILITIES

8.1 Reports, Data Correction, Re-Performance

8.2 Governance: Meetings

8.3 Quality Assurance and Internal Controls

8.4 Processes, Procedures, Architecture, Standards and Planning

8.5 Change Control

8.6 Software Currency

8.7 Audit Rights

8.8 Subcontractors

8.9 Technology Evolution

8.10 Retained Systems and Processes

8.11 Monitoring Tools

8.12 Contractor Responsibility Program

Master Services Agreement Page ii of v

8.13 Contractor Integrity

8.14 Americans with Disabilities Act

9 PennDOT Responsibilities

9.1 Responsibilities

9.2 Savings Clause

9.3 Governance Escalation Event

9.4 PennDOT Benchmarking Reviews

10 FEES

10.1 General

10.2 Pass-Through Expenses

10.3 Procurement

10.4 Taxes

10.5 New Services

10.6 Extraordinary Events

10.7 Unanticipated Change

10.8 Proration

10.9 Refundable Items

11 INVOICING AND PAYMENT

11.1 Purchase Orders and Invoicing

11.2 Payment Due

11.3 Offset

11.4 Disputed Charges

11.5 Automated Clearing House (ACH) PAYMENTS

12 PennDOT Data And Other Confidential Information

12.1 Confidentiality

12.2 PennDOT Data

12.3 PennDOT Personal Data

12.4 PennDOT Regulated Data

12.5 File Access

12.6 PennDOT Data – Correction and Restoration

12.7 Survival

12.8 Requirements for Information in Legal Proceedings

12.9 Right-to-Know Law

12.10 Data Breach or Loss

13 MATERIALS

13.1 PennDOT Owned and Licensed Materials

13.2 Developed Materials

13.3 Service Provider Owned and Licensed Materials

13.4 Work Product; Other Materials

13.5 General Rights

13.6 Ongoing PennDOT Rights

14 REPRESENTATIONS, WARRANTIES, AND COVENANTS

14.1 Work Standards

14.2 Maintenance

14.3 Efficiency and Cost Effectiveness

14.4 Intellectual Property

14.5 General

14.6 Certifications

14.7 Inducements; Commonwealth Code of Ethics

14.8 Security Vulnerabilities

14.9 Disabling Code

14.10 Compliance with Laws

14.11 Nondiscrimination/Sexual Harassment

14.12 Information Furnished to PennDOT

14.13 Previous and Outside Contracts

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14.14 Completeness of Due Diligence Activities

14.15 Interoperability

14.16 Right to Audit

15 INSURANCE AND RISK OF LOSS

16 INDEMNITIES

16.1 Indemnity by Service Provider

16.2 Infringement

16.3 Indemnification Procedures

16.4 Subrogation

17 LIABILITY

17.1 General Intent

17.2 Force Majeure

17.3 Duty to Mitigate

17.4 Limitation of Liability

18 DISPUTE RESOLUTION

18.1 Contract Controversies

18.2 Applicable Law and Forum

18.3 Continued Performance

19 TERMINATION

19.1 Termination for Cause

19.2 Termination for Convenience

19.3 Termination Upon Service Provider Change of Control

19.4 Termination for Insolvency

19.5 PennDOT Rights Upon Service Provider's Bankruptcy

19.6 Termination for Material Adverse Change in Service Provider's Financial Condition

19.7 Step-In Rights

19.8 Absolute Right

19.9 Lack of Sufficient Funds or Statutory Authority

19.10 General Termination Rights

19.11 Effect of Termination

20 GENERAL

20.1 Initial Term

20.2 Renewals and Extension

20.3 Delegation of Authority

20.4 No Waiver of Sovereign Immunity

20.5 RFP Errors or Omissions

20.6 Abandonment or Default

20.7 Place of Performance

20.8 Binding Nature and Assignment

20.9 Entire Contract; Amendment

20.10 Electronic Signatures

20.11 Notices

20.12 Counterparts

20.13 Relationship of Parties

20.14 Severability

20.15 Consents and Approval

20.16 Waiver of Default; Cumulative Remedies

20.17 Survival

20.18 Publicity

20.19 Service Marks

20.20 Export

20.21 No Third Party Beneficiaries / Officials Not to Benefit

20.22 Covenant Against Pledging

20.23 Solicitation and Hiring of Employees

20.24 Further Assurances

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20.25 Liens

20.26 Covenant of Good Faith

20.27 Acknowledgment

20.28 References

20.29 Guaranty

20.30 Contract Changes

20.31 Accessibility

20.32 Additional Federal Provisions

20.33 Environmental Protection

20.34 Assignment of Rights Under the Antitrust Laws

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TABLE OF ATTACHMENTS AND EXHIBITS:

Attachments:

Attachment A: Form of Nondisclosure Attachment B: Insurance and Risk of Loss Attachment C: Software Products and Services Attachment D: Form of Parent Guaranty Attachment E: Form of Work Order Attachment F: Form of Final Contract

Exhibit 1.0 Operating Model

a. Exhibit 1.1 Definitions

b. Exhibit 1.2 Governance

c. Exhibit 1.3 Service Management Manual (SMM)

Exhibit 2.0 Service Model

a. Exhibit 2.1 Mainframe Services Statement of Work

b. Exhibit 2.2 Mainframe Services Solution Document

c. Exhibit 2.3 Key Personnel

Exhibit 3.0 Performance Model

a. Exhibit 3.1 Service Level and Deliverables Matrix

b. Exhibit 3.2 Service Level Definitions

c. Exhibit 3.3 Reports

Exhibit 4.0 Business Model

a. Exhibit 4.1 Pricing Structure

b. Exhibit 4.2 Financial Responsibility Matrix

c. Exhibit 4.3 Form of Invoice and Data Feed

MASTER SERVICES TERMS

1 INTRODUCTION

1.1 Provision, Performance, and Management by the Service Provider.

Service Provider shall deploy, provide, perform, and manage the Services for PennDOT in accordance with this contract.

1.2 Service Provider's Experience and Qualifications.

Service Provider represents and warrants that it is an established provider of the Services (as described in Section 3.1 Overview.) as awarded under this contract and has the skills, qualifications, expertise, financial resources, and experience necessary to provide the Services (including the plans, reports, and other deliverables) described in this contract.

1.3 Definitions.

All capitalized terms used in this contract will have the meanings ascribed to them in Exhibit 1.1 Definitions. Words having well-known technical or trade meanings but not otherwise defined in Exhibit 1.1 Definitions, (for example, “ITIL”, or “TOGAF”) will be accorded that meaning unless expressly defined or the context indicates otherwise. Terms or phrases that are not capitalized are to be given their usual meaning.

2 CONTRACT DOCUMENTS AND ORDER OF PRECEDENCE

See Attachment F (Form of Final Contract).

3 SERVICES

3.1 Overview.

(a) Services. Commencing on the Commencement Date (or on the Effective Date as may be agreed by the parties in writing), the Service Provider shall provide the Services to PennDOT, and, upon PennDOT's request, to Authorized Users. The Services will consist of any of the following, as they may evolve during the Term or be supplemented, enhanced, modified, or replaced, in each case in accordance with and within the scope of this contract within the time period(s) specified in this contract, and at the prices quoted in this contract. The Service Provider shall be compensated only for Services performed to the satisfaction of the Commonwealth.

Following the Effective Date of the Contract, Service Provider shall proceed diligently with all Services and shall perform such Services with qualified personnel, in accordance with the completion criteria set forth in the Contract.

In determining whether the Service Provider has performed with due diligence under the contract, it is agreed and understood that the Commonwealth may, inter alia, measure the amount and quality of the Service Provider’s effort against the representations made in the Service Provider’s Proposal. The Service Provider’s Services shall be monitored by the Commonwealth and the Commonwealth’s designated representatives. If the Commonwealth reasonably determines that the Service Provider has not performed with due diligence, the Commonwealth and the Service Provider will attempt to reach agreement with respect to the matter. Failure of the Commonwealth or the Service Provider to arrive at such mutual determinations shall be a dispute concerning a question of fact within the meaning of the dispute resolution section of this contract.

The services, functions, and responsibilities described in this contract and its Exhibits and Attachments include the following:

(1) the Transition Services, as further described in Section 3.2 Transition Services. and the approved Transition Plan as described in Exhibit 3.1 Service Level and Deliverable Matrix;

(2) the services, functions, and responsibilities described in Exhibit 1.0 Operating Model, Exhibit 2.0 Service Model; Exhibit 3.0 Performance Model, and Exhibit 4.0 Business Model;

(3) any New Services, upon PennDOT's authorization of such New Services in accordance with the terms of this contract; and

(4) Termination Assistance Services, as further described in Section 3.3 Termination Assistance Services.

(b) Included Services. If any services, functions, or responsibilities not specifically described in this contract are an inherent, necessary, or customary part of the Services or are required for proper performance or provision of the Services in accordance with this contract, such services, functions, or responsibilities are deemed to be included within the scope of the Services to be delivered for the Charges, as if such services, functions, or responsibilities were specifically described in this contract.

(c) Pre Commencement Services. PennDOT and Service Provider may agree that performance of certain Services by Service Provider after the Effective Date but prior to the Commencement Date is necessary to avoid adverse impact on activities, operations, facilities, processes, or systems of PennDOT. In that event, the parties shall mutually agree in writing to the scope of Services, roles and responsibilities of the parties, deliverables and deliverable acceptance criteria associated with the Services, charges, and the timeframe for performance of the Services. Services may not be performed prior to the Effective Date and the date the Service Provider has received a Purchase Order or other written notice to proceed signed by the Contracting Officer.

The Service Provider hereby waives any claim or cause of action for any Service performed or supply delivered prior to the date performance may commence

(d) Service Notices.

(1) Notification of Problems. Service Provider shall provide PennDOT written notice of any acts or omissions (whether by PennDOT, a PennDOT Contractor, Service Provider, or any third party), any failure to perform any obligations under this contract, and any other events that may affect Service Provider's performance of Service Provider's obligations under this contract. Service Provider shall provide written notice promptly after Service Provider first knew or should have known of such acts, omissions, or failures or other events. The written notice must describe in reasonable detail such acts, omissions, failures, or other events and the manner in which the foregoing may affect Service Provider 's performance.

(2) Notification of Defaults. PennDOT and Service Provider shall promptly inform the other party in writing of any breach of, misuse, or fraud in connection with any Third Party Contract, Equipment Lease, or Third Party Materials license used in connection with the Services of which it becomes aware and shall cooperate with the other party to prevent or mitigate any such breach, misuse, or fraud.

(3) Notice of Adverse Impact. If Service Provider becomes aware of any failure of Service Provider to comply with its obligations under this contract or any other situation (A) that has impacted or reasonably could impact the performance of the Services in accordance with the requirements of this contract, or compliance with COPA Rules, COPA Standards or applicable Laws, or (B) that has had or reasonably could have any other material adverse impact on the Services in question or the impacted operations of PennDOT, then, Service Provider shall immediately inform PennDOT in writing of the situation and the impact or expected impact and Service Provider and PennDOT shall meet to formulate an action plan to minimize or eliminate the impact of the situation.

(e) Corrective Action Plan (CAP). In the event that either (A) PennDOT reasonably determines that Service Provider has failed or is reasonably likely to fail to deliver the Services in accordance with contract requirements; or (B) Service Provider has determined that it has failed or is reasonably likely to fail to deliver the Services in accordance with contract requirements, then PennDOT or Service Provider, as applicable, shall promptly notify the other party of the failure or anticipated failure.

Within five Business Days following Service Provider’s receipt or delivery of a CAP notice Service Provider will (1) perform a Root Cause Analysis and identify the problems causing the failure, (2) report to PennDOT on the nature and scope of the problems identified, and (3) prepare a CAP to correct the problems as soon as practicable, including an estimated timeline therefore. Following delivery of a CAP and Acceptance of such CAP by PennDOT, Service Provider shall, within the timeline set forth in the CAP to correct the problems in accordance with the CAP, advise PennDOT of the progress of correction efforts at stages determined by PennDOT, and demonstrate to PennDOT that all reasonable action has been taken to prevent a recurrence of the failure.

(f) Additional Remedies. In the event that Service Provider fails to identify and resolve any problems within its control that may impede or delay the timely delivery of the Services, without prejudice to PennDOT’s other rights and remedies under this contract or at law or equity, Service Provider shall immediately provide, at its sole cost , all additional resources as are necessary to identify and resolve any problems that may impede or delay the delivery of the Services. PennDOT may equitably reduce the

Charges in an amount reasonably estimated by PennDOT to account for the Services that PennDOT is not receiving or did not receive.

3.2 Transition Services.

This section does not limit PennDOT’s other rights and remedies under this contract or at law or equity.

(a) Transition. The Service Provider shall perform the Transition Services, including provision of the deliverables described in the Transition Plan. Unless otherwise agreed, PennDOT will not incur any charges, fees, or expenses payable to Service Provider or any third party engaged by the Service Provider in connection with the Transition Services, other than those charges, fees and expenses specified in Exhibit 4.0 Business Model.

(b) Transition Plan. The preliminary Transition Plan is incorporated by reference into the Service Provider’s Response. The Service Provider shall complete, and submit to PennDOT for review, a final Transition Plan on or before the date set forth in Exhibit

3.1 Service Level and Deliverables Matrix. PennDOT shall review the submitted Transition Plan according to the procedures and criteria set forth in Exhibit 2.1 Mainframe Services Statement of Work and Exhibit 3.1 Service Level and Deliverables Matrix. If a Transition Plan submitted by the Service Provider is not acceptable to PennDOT, Service Provider shall address and resolve any questions or concerns PennDOT may have and promptly incorporate any modifications, additions, or deletions requested by PennDOT. The Service Provider shall revise and resubmit the Transition Plan until Accepted by PennDOT. Upon PennDOT's Acceptance, the Transition Plan is automatically a part of this contract and will supersede and replace all prior Transition Plans.

(c) Performance. The Service Provider shall perform the Transition Services in accordance with the timetable set forth in the Transition Plan. Service Provider shall assist PennDOT in connection with PennDOT’s evaluation or testing of the deliverables set forth in the Transition Plan. Except as otherwise expressly stipulated in the Transition Plan (which will appropriately acknowledge that some element of disruption may be inevitable as in any such transition, but will in all events be minimized), Service Provider shall perform the Transition Services in a manner that will not (A) disrupt or have an unnecessary adverse impact on the activities or operations of PennDOT, (B) degrade the Services then being received by PennDOT or

(C) disrupt or interfere with the ability of PennDOT to obtain the full benefit of the Services. Without limiting its obligations or responsibilities, prior to undertaking any transition activity, Service Provider shall discuss with PennDOT all known PennDOT-specific material risks and shall not proceed with such activity until PennDOT is reasonably satisfied with the plans with regard to those risks (provided that, neither Service Provider's disclosure of any such risks to PennDOT, nor PennDOT's acquiescence in Service Provider’s plans, will operate or be construed as limiting Service Provider’s or Subcontractor’s responsibility under this contract). Service Provider shall, at PennDOT's request, participate in transition meetings with other PennDOT Service Components.

(d) Notification of Problems. Service Provider shall provide PennDOT written notice of any acts or omissions (whether by PennDOT, PennDOT Contractor, Service Provider or any third party), any failure to perform any of each such party's obligations under this contract or a related contract, and any other events that may affect Service Provider’s performance of the Transition Services. Service Provider shall provide this written notice within 5 Business Days after Service Provider first knew or should have known of such acts, omissions, or failures or other events. Such written notice must describe in reasonable detail those acts, omissions, failures or other events and the manner in which the foregoing may affect Service Provider’s performance.

(e) Remedies for Transition Failures. In the event that Service Provider fails to identify and resolve any problems that may impede or delay the timely completion of each task in the Transition Plan, without prejudice to PennDOT's other rights and remedies under the contract or at law or equity, (A) Service Provider shall provide, at its sole cost all additional resources as are necessary to identify and resolve any problems that may impede or delay the timely completion of each task in the Transition Plan, and (B) PennDOT may equitably reduce the Charges set forth in Exhibit 4.0 Business Model in an amount reasonably estimated by PennDOT to account for the Services that PennDOT is not receiving or did not receive. In the event that Service Provider is required to perform any Transition activities following the Commencement Date, Service Provider shall complete those activities at its own cost and in a manner so as to not materially disrupt or cause any material adverse impact on PennDOT's operations or activities.

3.3 Termination Assistance Services.

(a) General. Upon PennDOT's request, Service Provider shall provide Termination

Assistance Services directly to PennDOT, its successors or assignees and any of their designee(s).

(1) Period of Provision. Service Provider shall provide Termination Assistance Services commencing on the date a determination is made by PennDOT that there shall be an Assistance Event, which date may be up to 24 months prior to effective date of that Assistance Event or on an earlier date as PennDOT may request, and continuing for up to three months after the effective date of the Assistance Event, as designated by PennDOT, subject to further extensions as permitted in Section 3.4 Use of Third Parties.

(2) Notice of an Assistance Event. PennDOT shall provide Service Provider with written notice of an Assistance Event. This notice will include a description of the Services that are to be terminated or discontinued and the anticipated effective date of the Assistance Event. PennDOT may modify or update any of the information provided in the initial notice of an Assistance Event from time to time by a supplemental notice from PennDOT to Service Provider.

(3) Extension of Termination Assistance Services. PennDOT may elect to end the period for performance of Termination Assistance Services (in whole or in part), in its sole discretion, and restart the period for performance of Termination Assistance Services provided that the total of all performance periods shall not result in Termination Assistance Services being performed for more than a total of 27 months without Service Provider’s consent.

(4) Firm Commitment. Service Provider shall provide Termination Assistance Services regardless of the reason for the Assistance Event (including a termination for cause by Service Provider). Service Provider shall maintain capability on at least 30 days notice at all times during the Term to deploy all necessary resources to perform any Termination Assistance Services.

(5) Performance. Service Provider shall provide all Termination Assistance Services subject to and in accordance with the terms of this contract. Service Provider shall perform Termination Assistance Services with at least the same degree of accuracy, quality, completeness, timeliness, responsiveness, and resource efficiency as it is or was required to provide the same or similar Services in accordance with this contract. The quality and level of performance of Termination Assistance Services provided by Service Provider will continue to meet or exceed the Service Levels and will not be degraded or deficient in any respect. Service Level Credits will be assessed for any failure to meet Service Levels during any period in which Termination Assistance Services are provided. If any period for performing any Termination Assistance Services extends beyond the expiration or the effective date of any termination of this contract, the provisions of this contract will remain in full effect for the duration of such period.

(b) Scope. As part of the Termination Assistance Services, Service Provider shall timely transfer the control and responsibility for Services previously performed by or for Service Provider to PennDOT or their designee(s), and upon PennDOT request, shall execute any documents reasonably necessary to effect those transfers. Service Provider shall also provide any information and assistance requested by PennDOT required for:

(A) the Systems and processes associated with the Services to operate and be maintained and enhanced efficiently; (B) the Services to continue without interruption or adverse effect; and (C) the orderly transfer of the Services (or replacement or supplemental services) to PennDOT or their designee(s).

(c) General Support.

(1) Prior to the Assistance Event, Service Provider shall (A) assist PennDOT or their designee(s) in developing a written plan for the migration of the Services to PennDOT or their designee(s), which plan will include (as requested by PennDOT) capacity planning, process planning, facilities planning, human resources planning, technology planning, telecommunications planning, and other planning necessary to effect the transition, (B) perform programming and consulting services as requested to assist solely in implementing the transition plan, (C) train personnel designated by PennDOT or their designee(s) in the use of any processes or associated Equipment, Materials, Systems, or tools used in connection with the provision of the Services as needed for the personnel to assume responsibility for performance of the Services, (D) provide a catalog of all processes, Materials, PennDOT Data, Equipment, Third Party Contracts, automation scripts, and tools used to provide the Services, (E) provide machine readable and printed listings and associated documentation for source code for Software owned by PennDOT and source code to which PennDOT is entitled under this contract and assist in its re-configuration,

(F) provide technical documentation for Software used by Service Provider to provide the Services as needed for continuing performance of the Services, (G) analyze and report on the space required for PennDOT Data and the Software needed to provide the Services, (H) assist in the execution of data migration and testing process until the successful completion of the transition to PennDOT or their designee(s), (I) create and provide copies of PennDOT Data in the format and on the media reasonably requested by PennDOT or their designee(s), (J) provide a complete and up-to-date, electronic copy of the Service Management Manual (SMM) in the format and on the media reasonably requested by PennDOT or their designee(s) and (K) provide other technical and process assistance, documentation and information as requested by PennDOT or their designee(s).

(2) After the Assistance Event and during the Termination Assistance Period, Service Provider shall answer any questions that may arise concerning the Services previously performed by the Service Provider. PennDOT may request Service Provider to provide certain discontinued Services after the Assistance Event; however, such Termination Assistance Services may include a charge as described in Exhibit 4.0 Business Model.

(d) Certain Materials. Service Provider shall provide source code and artifacts (e.g., documentation, use cases, test scripts, design models, activity diagrams, and systems configuration) which Service Provider has in its possession, or Service Provider Agents have in their possession, for:

(1) any modification or enhancement made by Service Provider to PennDOT Software;

(2) any Software developed pursuant to this contract which PennDOT owns or with respect to which PennDOT is otherwise entitled to source code; and,

(3) Any source code or artifact as otherwise provided in an applicable Statement of Work, provided that Service Provider shall provide the source code and artifacts (A) upon any request from PennDOT during the Term and any Termination Assistance period, (B) upon termination or expiration of this contract or the applicable Statement of Work, and (C) upon the contract end date.

(e) Right to Acquire. PennDOT or their designee(s) shall have the right (but not the obligation) to purchase any Software as a Service type systems and on-premises software licenses that are owned by Service Provider and implicated by the relevant Assistance Event subject to the requirements set forth in this contract.

(f) Personnel

(1) List of Service Provider Personnel. Service Provider shall promptly provide to PennDOT a list, organized by location, of the Service Provider Personnel assigned to the performance of the Services that are implicated by each Assistance Event. This list shall, subject to applicable Laws, specify each Service Provider Personnel's name, job title, compensation package, leave status, years of service, and job responsibilities. Service Provider shall not terminate, reassign, or otherwise remove from the performance of the Services any dedicated Service Provider Personnel until after the end of the applicable Termination Assistance Services period.

(2) Right to Hire. PennDOT or their designee(s) shall be permitted, without interference from Service Provider (subject to Section 3.3 (f)(iii) Subcontractor Employees below), to meet with, solicit and hire, effective after the later of (A) the date of PennDOT's notice of an Assistance Event and (B) the completion of the Termination Assistance Services requiring the Service Provider Personnel, any Service Provider Personnel substantially dedicated to the performance of the Services during the12 month period prior to the date of PennDOT's notice of an Assistance Event who are implicated by that Assistance Event. Service Provider waives its rights, if any, under contracts with those Service Provider Personnel restricting the ability of those Service Provider Personnel to be recruited or hired by PennDOT or their designee(s) (including waiving any right to restrict those personnel via non-compete agreements or other contractual means). Service Provider shall provide PennDOT and their designee(s) with reasonable assistance in their efforts to meet with, solicit and hire the Service Provider Personnel, and shall give PennDOT and their designee(s) reasonable access to the Service Provider Personnel for interviews, evaluations, and recruitment. PennDOT shall endeavor and shall cause their designee(s) to endeavor, to conduct the above-described activities in a manner that is not unnecessarily disruptive of Service Provider’s performance of its obligations under this contract.

(3) Subcontractor Employees. With respect to Subcontractors, Service Provider shall (A) obtain for PennDOT and their designee(s) the rights specified in Section 3.3 (f)(ii) Right to Hire and (B) ensure that those rights are not subject to subsequent Subcontractor approval or the payment of any fees, charges or other amounts. If Service Provider is unable to obtain any rights with respect to a Subcontractor, it shall notify PennDOT in advance and Service Provider shall not subcontract any Services to such Subcontractor without PennDOT's prior approval (and absent approval, Service Provider’s use of any such Subcontractor shall obligate Service Provider to obtain or arrange, at no additional cost to PennDOT, the rights specified in Section 3.3 (f)(ii) Right to Hire, for PennDOT and their designee(s)).

(g) Materials. PennDOT shall have the rights and licenses set forth in Sections 13.6 (b)

Service Provider Owned Materials. and 13.6 (c) Third Party Materials in respect of Service Provider owned Materials and Third Party Materials.

(h) Equipment

(1) List of Equipment. Service Provider shall promptly provide to PennDOT a list, organized by location, of the Equipment that is implicated by each Assistance Event. This list will specify information reasonably requested by PennDOT, including all fields tracked by Service Provider in any asset management system used by Service Provider for tracking and managing Equipment, the Equipment's function, manufacturer, model number, age, and other pertinent information.

(2) Right to Acquire. PennDOT and their designee(s) shall have the right (but not the obligation) to purchase or (subject to Section 5 FACILITIES, MATERIALS, EQUIPMENT AND CONTRACTS) assume the lease for any Equipment that is owned or leased by Service Provider and that is implicated by the relevant Assistance Event. Subject to Section 5 FACILITIES, MATERIALS, EQUIPMENT AND CONTRACTS, this Equipment will be transferred in good working condition, reasonable wear and tear excepted, as of the later of the effective date of the relevant Assistance Event and the completion of the Termination Assistance Services requiring such Equipment. Service Provider shall maintain this Equipment through the date of transfer so as to be eligible for the applicable manufacturer's maintenance program. In the case of Service Provider-owned Equipment (including Equipment owned by Service Provider Affiliates and Subcontractors and further including any such Equipment leased to Service Provider), Service Provider (or such Affiliate or Subcontractor) shall grant to PennDOT and their designee(s) a warranty of title and a warranty that the Equipment is free and clear of all liens, security interests, and other encumbrances. Service Provider (or Affiliate or Subcontractor) shall convey the Equipment to PennDOT and their designee(s) at fair market value (as shall be determined by an agreed-upon appraisal); provided, however, in the case of any item of Equipment for which the acquisition cost has been the basis of Charges to PennDOT (provided in Exhibit 4.0 Business Model), the conveyance will be at an amount not exceeding the amount of any then unrecovered acquisition cost computed in accordance with the method used to charge PennDOT. At PennDOT's request, the parties shall negotiate in good faith, subject to applicable law and Commonwealth policy, and agree upon the form and structure of the purchase. In the case of leased Equipment, Service Provider shall (A) represent and warrant that the lease is not in default, (B) represent and warrant that all payments thereunder have been made through the date of transfer and (C) notify PennDOT or their designee(s) of any lessor defaults of which it is aware at the time.

(i) PennDOT Facilities, Equipment, and Materials. Service Provider shall vacate PennDOT Facilities and return to PennDOT, if not previously returned, any resources that are implicated by the relevant Assistance Event and that are owned, leased or licensed by PennDOT, or any PennDOT Contractor, including PennDOT owned or leased Equipment, PennDOT Owned Materials and PennDOT licensed Materials, in condition at least as good as the condition of such facilities and resources when they were made available to Service Provider, ordinary wear and tear excepted. These facilities and resources must be vacated or returned as of the later of the effective date of the relevant Assistance Event and the completion of the Termination Assistance Services requiring the facilities or resources.

(j) Third Party Contracts. Service Provider shall promptly, but no less than 30 days from PennDOT's issuance of notice of an Assistance Event, provide to PennDOT a list of the Third Party Contracts that are implicated by the relevant Assistance Event. Except for the Third Party Contracts specified on Exhibit 4.1 Pricing Structure, subject to Section 5 FACILITIES, MATERIALS, EQUIPMENT AND CONTRACTS, Service Provider shall, at PennDOT's request, cause the counter-parties to such Third Party Contracts to permit PennDOT and their designee(s) to assume prospectively any Third Party Contracts or to enter into new contracts with PennDOT and their designee(s) on substantially the same terms (accounting for the application of Commonwealth law and policy), including price. Service Provider shall transfer or assign those Third Party Contracts that PennDOT elects to assume prospectively to PennDOT and their designee(s) as of the later of the effective date of the relevant Assistance Event and the completion of the Termination Assistance Services requiring Third Party Contracts. These transfers or assignments must be on terms acceptable to all applicable parties, provided that (A) there will be no fee, charge or other amount imposed on PennDOT or their designee(s) by Service Provider or the counter-parties to such Third Party Contracts for the transfer or assignment and (B) Service Provider shall: (1) promptly cure and, in accordance with Section 16.1 (c) Licenses, Leases and Contracts, indemnify PennDOT against any default under such Third Party Contracts relating to the period prior to the transfer or assignment; (2) represent and warrant that all payments through the date of transfer or assignment are current; and (3) notify PennDOT and their designee(s) of any counter-party's default with respect to such Third Party Contracts of which it is aware at the time of such transfer or assignment.

(k) Other Subcontracts and Third Party Contracts. With respect to Third Party Contracts implicated by the relevant Assistance Event that are not otherwise transferred or assigned to PennDOT or their designee(s) pursuant to Section 3.4 (b) Service Provider Cooperation., Service Provider shall make available to PennDOT or their designee(s), pursuant to reasonable terms , any Third Party services then being utilized by Service Provider in the performance of the Services. Service Provider shall retain the right to utilize any such Third Party services in connection with the performance of services for other Service Provider customers. PennDOT shall retain the right to contract directly with any third party previously utilized by Service Provider to perform any Services.

(l) Rates and Charges. Except as provided in this Subsection and Section 3.4 (b) Service Provider Cooperation., Service Provider shall provide all Termination Assistance Services at no additional charge. The parties anticipate that Termination Assistance

Services requested by PennDOT will be provided by Service Provider using Service Provider Personnel already assigned to the performance of the Services and without adversely affecting Service Provider’s ability to meet its performance obligations. To the extent PennDOT requests that Service Provider perform only a portion (but not all) of the Services included in a particular Charge, the amount to be paid by PennDOT will be equitably adjusted downward in accordance with Exhibit 4.0 Business Model, to the extent applicable, or equitably adjusted downward in proportion to the portion of the Services that Service Provider will not be providing to the extent that Exhibit 4.0 Business Model does not provide for such reduction. If and to the extent Termination Assistance Services requested by PennDOT cannot be provided by Service Provider using Service Provider Personnel then-assigned to the performance of the Services without adversely affecting Service Provider’s ability to meet its performance obligations, PennDOT, in its sole discretion, may (A) forego or delay any work activities or temporarily or permanently adjust the work to be performed by Service Provider, the schedules associated or the Service Levels to permit the performance of such Termination Assistance Services using personnel or (B) authorize Service Provider to use additional Service Provider Personnel to perform Termination Assistance Services. To the extent PennDOT authorizes Service Provider to use additional Service Provider Personnel to perform Termination Assistance Services requested by PennDOT, PennDOT shall pay Service Provider the applicable rates and charges specified in Exhibit 4.0 Business Model for such FTEs or, if no such rates and fees are specified in Exhibit 4.0 Business Model, a negotiated fee for the additional Service Provider Personnel required to perform the Termination Assistance Services (determined on the basis of pricing no less favorable to PennDOT than the pricing and labor rates set forth herein for comparable Services), provided that Service Provider notifies PennDOT in advance of any charges, obtains PennDOT's approval prior to incurring charges, and uses commercially reasonable efforts to minimize such charges.

Notwithstanding the foregoing, PennDOT will not be obligated to pay Service Provider for any such additional Service Provider Personnel if at any time prior to PennDOT's issuance of the notice of Assistance Event, Service Provider failed to sufficiently staff the Services that are the subject of the Assistance Event (both with respect to number of personnel and personnel with the necessary skills and training).

(m) Proprietary Communications Network. If PennDOT authorizes Service Provider to use a proprietary communications network to provide the Services, then for a period of up to two years following the effective date of the relevant Assistance Event, Service Provider shall, if requested by PennDOT, continue to provide such proprietary communications network and other network Services to PennDOT or their designee(s) at the rates, and subject to the terms set forth in this contract.

(n) Risk Identification. The Service Provider shall notify PennDOT of risk factors relating to the Termination Assistance Services and, at PennDOT’s request, will design plans and contingencies to mitigate such risk. Neither Service Provider's disclosure of any such risks to PennDOT, nor PennDOT's acquiescence in Service Provider’s plans, will operate or be construed as limiting Service Provider’s or Subcontractor responsibility under this contract.

(o) Knowledge Transfer. As requested by PennDOT, the Service Provider shall provide for a transfer of knowledge regarding the Services and related topics so as to facilitate the provision of the Services by PennDOT or their designee(s), including the following:

(1) Providing reasonable training (in a manner mutually agreed to by the Parties) to personnel designated by PennDOT; training will include the performance of the Services that are to be transferred.

(2) Providing to PennDOT or their designee(s), information regarding the Services as reasonably necessary to implement the termination assistance plan developed by Service Provider pursuant to the Termination Assistance Services.

(3) Providing to PennDOT or their designee(s) information regarding the Services as reasonably necessary for PennDOT or their designee(s) to assume responsibility for continued performance of Services in an orderly manner so as to minimize disruption in the operations of PennDOT, including: (A) relevant documentation; and (B) key support contacts (names, business phone numbers, email addresses and business postal addresses) of Service Provider Personnel during the transition from the Service Provider to PennDOT or their designee(s).

(4) Providing information concerning Systems, Equipment, Software, types and skills of Service Provider Personnel and other resources used by Service Provider to provide Services under this contract, as reasonably necessary for PennDOT or their designee(s) to assume responsibility for the Services.

(5) Providing supply information, code, and configurations required to compile all transferrable Software and Applications, including: (A) Application source code, (B) Application build parameters, (C) application source code control library specifications, (D) application source code build process and steps, and (E) application executables.

(6) Explaining the processes and procedures (e.g., Incident Management, Change Management, etc.), in SMM, Reports, and other standards and procedures to the operations staff of PennDOT or their designee(s).

(7) Providing reasonable access, including in person and by remote collaboration tooling, to Service Provider Personnel during and following the period for performance of Termination Assistance Services.

(8) Explaining the extent and nature of the impact of legal and regulatory requirements compliance, if any, on the Services.

(9) Providing PennDOT or their designee(s) reasonable access to Systems, Equipment, Software, and other resources used by Service Provider to provide the Services and provide PennDOT or their designee(s) information concerning such items, all as reasonably necessary for transition of the Services to PennDOT or their designee(s).

(p) Transfer of Resources. The Service Provider shall provide all reasonable assistance required for the transfer to PennDOT or their designee(s) of the Systems, Equipment, Software, and other resources that are implicated by the relevant Assistance Event, including the following:

(1) Identifying any third-party services that are required by PennDOT or their designee(s) to perform the Services.

(2) Providing asset listings for Systems, Equipment, and Software owned or licensed by Service Provider, its Subcontractors, and PennDOT, including those which are required by PennDOT or their designee(s) to perform the Services.

(3) Working with PennDOT or their designee(s) to minimize or eliminate any potential transfer, re-licensing or termination charges, taxes and other costs or expenses that might be incurred by PennDOT or their designee(s) as a result of any transfers.

(4) Performing administrative functions required to enable the assignment of Systems, Equipment, Software, and Third-Party Contracts that are required by PennDOT or their designee(s) to perform the Services, including executing legal documents and performing other necessary functions.

(q) Operational Transfer. The Service Provider shall perform all activities requested by PennDOT pursuant to Termination Assistance Services, to enable a smooth transfer of operational responsibility for the Services to PennDOT or their designee(s), including the following:

(1) Identifying, recording, and providing release levels for PennDOT Software and Applications and updating such records of release levels prior to and during transition of the Services.

(2) If and to the extent requested by PennDOT, halting any enhancements to, development, or testing of any Applications.

(3) Providing any Systems configurations and data extracts in appropriate electronic formats (e.g., Excel, databases) as necessary for PennDOT or their designee(s) to assume responsibility for the Services.

(4) To the extent required by PennDOT and applicable to the Services implicated by the relevant Assistance Event, delivering support profiles, enhancement logs, problem tracking, resolution documentation, and status reports associated with the Services.

(5) Providing any trouble logs that PennDOT does not already have, reporting at least 12 months prior to the effective date of the relevant Assistance Event, and returning any other Authorized User information collected or maintained as part of the Services implicated by the relevant Assistance Event.

(6) Providing for the orderly hand-off of ongoing Requests, Work Orders or Projects, including a listing of current and planned Requests, Work Orders or Projects, as well as all Systems, Software, and Equipment ordered or in process. With respect to each Request, Work Order or Project, document the status, ensure the activity is stabilized for continuity during transfer, and provide reasonable training to achieve transfer of responsibility without loss of momentum.

(7) Ensure that all documentation used by Service Provider to provide the Services, including but not limited to technical, operations procedures, program management procedures, and report documentation, is stored in the SMM and provided in electronic media.

(8) Documenting and delivering databases and all application data specific to the Services as well as PennDOT Data.

(9) Transferring physical and logical security processes and tools (to the extent required under this contract), including cataloging and tendering all badges and keys for PennDOT Facilities, documenting ownership and access levels for all passwords, and instructing PennDOT or their designee(s) in the use and operation of security controls.

(10) Providing and coordinating assistance to PennDOT or their designee(s) in notifying relevant third parties of the procedures to be followed prior to, during, and after the transition.

(11) Returning to PennDOT or their designee(s) any remaining property of PennDOT in Service Provider’s possession or under Service Provider’s control, including any remaining Reports, PennDOT Data, PennDOT Owned Materials, Third-Party Materials, and PennDOT Confidential Information.

(12) Cooperating with PennDOT or their designee(s), test plans, back out procedures, and contingency plans as part of the transition of Services to PennDOT or their designee(s).

(13) In conjunction with PennDOT or their designee(s), conducting rehearsals of the transition prior to cutover, as requested by PennDOT.

(14) After the transition, providing additional assistance as reasonably requested by PennDOT to assure continuity of operations.

(15) Freezing all system changes unless otherwise requested by PennDOT, except maintenance necessary to continue performing the Services.

(16) Providing interim copies of PennDOT Data, as reasonably requested by PennDOT.

(17) Unloading all PennDOT Data and PennDOT Confidential Information from Service Provider Owned Materials and Third-Party Materials and returning all PennDOT Data and PennDOT Confidential Information in accordance with Article 12 PennDOT Data And Other Confidential Information.

(18) Transferring responsibility for off-site storage of tape, backups, and documents.

(19) Making available data files and other PennDOT Data and PennDOT Confidential Information stored on Systems and Equipment for which Service Provider is responsible, including backups.

(20) Securely erasing, wiping clean, or otherwise destroying any remaining copies of PennDOT Owned Materials, Third-Party Materials, PennDOT Data, and PennDOT Confidential Information.

(r) Procurement Assistance. At any time, PennDOT may consider or seek offers for performance of services similar to the Services. As and when requested by PennDOT, and without limiting any other rights PennDOT has to information about or related to the Services, the Service Provider shall provide to PennDOT all information and other cooperation regarding performance of the Services as PennDOT deems necessary to enable PennDOT to prepare a request for proposal relating to some or all of such services, and for a third party to conduct due diligence and prepare an informed, non-qualified offer for such services.

Without limiting the generality of this Section 3.3 (r) Procurement Assistance, the types of information and level of cooperation to be provided by the Service Provider shall be no less than those initially provided by PennDOT to the Service Provider prior to the Effective Date, and will include the following information which PennDOT may distribute to third-parties in a request for proposal(s), request for information, specification, or any other solicitation relating to the Services and as necessary to support any related due diligence activities:

(1) The number of Service Provider Personnel at each location used to provide Services classified by job…