in relation to any persons means

(a) a relative or partner of that person; or
(b) a company one or more of whose directors is in common with one or more of the directors of that person;

in relation to another person means

(a) any person who has control, directly or indirectly over the other; or
(b) any person who is controlled, directly or indirectly, by another; or
(c) any person who is controlled by, or has control over, a person at (a) or (b) above;

“control” in relation to another person means the power of a person to secure

(a) by means of the holding of shares or interests or the possession of voting power in or in relation to that or any other person; or
(b) by virtue of powers conferred by any constitution, memorandum or articles of association, partnership, agreement or arrangement (whether legally enforceable or not) affecting that or any other person; or
(c) by virtue of being or holding office as a director in that or any other person;

that the affairs of the first-mentioned person are conducted in accordance with the wishes of that other person;

“director” means any person occupying the position of director by whatever name called and includes without limitation a de facto or shadow director;

“relative” means the spouse, parent, child, brother or sister of the relevant person, and, in deducing such a relationship, an adopted child shall be deemed to be a child both of the natural parents and the adopting parent and a step child to be a child of both the natural parent and of any step parent;

means the different categories of Relevant Employees as listed in clause 2.3 of this Part;

in relation to any persons means
(a) a relative or partner of that person; or
(b) a company one or more of whose directors is in common with one or more of the directors of that person;

means a date to be notified by the Government to all SOA Contractors by not less than seven (7) days’ prior written notice and which date can be any date within the period from 1 February 2023 to 1 May 2023 (both dates inclusive);

has the meaning given to the term in clause 5.1(d) of Part VI;

means information contained in the Materials and all materials and data furnished by or on behalf of the Government which is received by the Contractor or comes to the Contractor’s knowledge in connection with this Contract including but not limited to the terms and conditions of this Contract;

means the contract between the Contractor and the Government comprising the Terms of Tender, Offer to be Bound, Standing Offer Deed, Conditions of Contract, Specifications, Contract Schedules including those as submitted by the Contractor as part of its Tender and other documents which are incorporated by reference herein;

in each case (a) subject to such further changes as the Government may stipulate in exercise of its powers under the Terms of Tender or the Terms of Tender (Supplement), and/or otherwise subject to such further changes as the Government and the Contractor may agree; and (b) in the version as attached to the Standing Offer Deed for identification purposes.

Each of the above documents shall be referred to throughout the Tender Documents and the Contract by their respective titles as appearing in quotation marks above.

References to “the Contract” or “this Contract” shall mean the same Contract as defined above;

means the upper limit of the Individual Rate per staff category that the Contractor may charge for the Service as proposed in Contract Schedule 1 of Part III, subject to such adjustments as stipulated in clauses 3.2 and 3.3 of Part IV from time to time;

means a person who has been awarded with the Contract and whose name is identified as the Contractor in the Standing Offer Deed in Part V;

means calendar day;

means the Contractor;

means:

(a) any outbreak of war, hostilities (whether war be declared or not), invasion, acts of foreign enemies, rebellion, revolution affecting Hong Kong, overthrow (whether by external or internal means) of the Government; or

(b) any event which is not caused or contributed to by, and is beyond the control of, the Contractor, its related persons (as defined in clauses 34.6 and 34.7 below) or any employee or agent or ex-employee or ex-agent of the Contractor and none of them can prevent the consequences of such event from happening;

and which, in any case of (a) or (b) above, materially prevents the performance of the duties and obligations of any Party hereunder; for the avoidance of doubt, any change of law and regulation of whichever jurisdiction or any epidemic event affecting Hong Kong or the rest of the world or any anti-epidemic measure introduced in the light of any epidemic event shall not be treated as a Force Majeure Event (unless the Government agrees in writing);

means the Government of the Hong Kong Special Administrative Region of the People's Republic of China;

means all property, equipment, data, documents, information, text, drawings, pictures, diagrams, images, sound or music, and any other materials of whatsoever nature (tangible or intangible) stored, presented or embodied in any medium, and which are provided or to be provided by the Government to the Contractor under or for the purposes of or in relation to the Contract or otherwise the Contractor has access;

means the Government Chief Information Officer or any other officer duly authorized to act for and on behalf of the Government for the purposes of the Contract;

The Government may change the Government Representative and/or his post title from time to time as it thinks fit without prior notice to the Contractor;

means the Guangdong Province of the People's Republic of China;

means the Hong Kong Special Administrative Region of the People's Republic of China, including the Hong Kong Port Area as defined in section 2 of the Shenzhen Bay Port Hong Kong Port Area Ordinance (Cap. 591);

means the lawful currency of Hong Kong;

means local time which is GMT+8;

means in relation to a Relevant Employee, the daily rate of providing that Relevant Employee to the Government for providing Service (RE) throughout the conditioned hours of work per day at an average of 8.8 hours gross per day (i.e. including meal break) (whereby the total hourly figure performed for the week has been adopted to determine the daily average) and throughout the applicable Period of Service (RE), as quoted by the Contractor in response to a Service Request (Competitive Bidding) for such Relevant Employee;

means patents, copyrights, design rights, trademarks, service marks, trade names, domain names, database rights, rights in know-how, new inventions, designs or processes and other intellectual property rights whether now known or created in future (whatever nature and wherever arising) and in each case whether registered or unregistered and including applications for the grant of any such rights;

means this invitation to tender for the provision of the Service to the Government on the terms and conditions set out in the Tender Documents;

means all and any constitutional provisions, treaties conventions, ordinances, subsidiary legislation, orders, rules and regulations having the force of law and rules of civil and common law and equity;

means any and all works and materials of whatsoever nature (including their drafts and uncompleted versions) developed, written, prepared, produced, created, collected, compiled or provided by or on behalf of or for the Contractor (including with limitation all Relevant Employees), in the provision of the Services and/or Service (RE) or for the purposes of the Contract including without limitation, any computer programming code (including any source code and object code), reports, summaries, models, questionnaires, analyses, papers, advice, recommendations, documents, records, plans, designs, drawings, pictures, diagrams, images, sound, music, formula, tables, charts, databases, computer source codes, compilation of data or information, data or information collected, compiled, produced or created by the Contractor, its employees, agents or sub-contractors including all Relevant Employees, which are recorded or stored by whatever means in whatever form or media, and all the drafts, uncompleted versions and working papers of any of the above items;

means calendar month;

means a nominee to be proposed by a SOA Contractor in response to a Service Request (Competitive Bidding);

means a document known as such and in the form set out in Contract Schedule 11 of Part III for completion and submission by the Tenderer as part of its Tender under clause 32.2 of this Part;

has the meaning given to the term in clause 10.2(c) of Part IV;

means the written notice from the Government to the successful SOA Contractor specifying the name of Relevant Employee, the Period of Service (RE) of the Relevant Employee, the Service (RE) to be performed, the Individual Rate and other information as may be necessary from time to time;

has the meaning given to the term in clause 5.7 of Part IV;

means 5 August 2022;

means the relation which subsists between persons carrying on a business in common with a view of profit, whether or not the Partnership Ordinance (Cap. 38) applies to the partnership;

has the meaning given to the term in clause 10.2 of Part IV;

means the period during which the Relevant Employee performs the Service (RE) under the Contract as from time to time extended or varied in accordance with clause 5.7 of Part IV;

includes any individual, corporation, firm and unincorporated body;

comprises the Government, statutory bodies in Hong Kong and aided schools as defined under the Education Ordinance (Cap. 279);

means an employee of the Contractor to be deployed to perform the Service (RE) in accordance with a Notice of Service or a Notice of Service (Extension);

means all duties, obligations and services to be performed and provided by the Contractor as specified in the Contract;

has the meaning given to the term in clause 4.3 of Part VI;

has the meaning given to the term in clause 4.3 of Part VI;

has the meaning given to the term in clause 4.3 of Part VI;

means the services to be performed by the Relevant Employee as provided by the Contractor to the Government under this Contract in compliance with all requirements of the Contract including without limitation the Specifications in Part VI;

means the Shenzhen Special Economic Zone of the People's Republic of China;

means the agreements made between the contractors and the Government for the supply of information technology professional services under tender references of GCIO 5/10-R, GCIO 5/11-R, GCIO 5/12-R or GCIO90525965;

means the document in the form set out in Part V of the Tender Documents;

means the person nominated by the Contractor to be responsible for supervising the Relevant Employees for the purpose of this Contract;

means an offer to provide the Service as submitted by a Tenderer in response to the Invitation to Tender;

means the latest date (Hong Kong Time) by which Tenders must be lodged including the Original Tender Closing Date, and as such date may be extended in accordance with clause 5.14 of this Part;

has the meaning given to it in clause 3 of this Part;

means the date of the Offer to be Bound in Part II;

has the meaning given to it in clause 7.2 of this Part;

means the person referred to in the “Offer to be Bound” in Part II;

means the period of forty-eight (48) months starting from the Commencement Date of this Contract unless extended under clause 1.2 of Part IV;

means a time of day as a reference to Hong Kong Time; and

means Monday to Friday, other than a public holiday, or a day on which Tropical Cyclone Warning Signal No. 8 or above is hoisted, or Black Rainstorm Warning Signal or “extreme conditions after super typhoons” announced by the Government is/are in force, for any time during the normal business hours. For the avoidance of doubt, this definition does not necessarily apply to define the normal office hours or conditioned hours of work of a Relevant Employee.

Unless otherwise expressly stated to the contrary, the following rules of interpretation shall apply:

references to statutes or statutory provisions means references to those statutes or statutory provisions as replaced, amended, modified or reenacted from time to time, and includes all subordinate legislation made under those statutes;

words importing the singular includes the plural and vice versa; words importing a gender includes all other genders; references to any person includes any individual, firm, body corporate or unincorporate (wherever established or incorporated);

headings are inserted for ease of reference only and do not affect the construction of the Tender Documents or the Contract;

references to a document:

(i) include all schedules, appendices, annexures and other materials attached to such document; and

(ii) mean the same as from time to time amended or supplemented;

references to “Tenderer” or “Contractor” include its permitted assigns, successors-in-title, or any persons deriving title under them;

references to “Government” include its assigns, successors-in-title and persons deriving title under them, regardless of whether or not any of these persons are mentioned separately in the relevant provisions;

references to a clause, sub-clause, section in or a Schedule, Appendix or any other attachment to a document are to a clause, sub-clause, section or a schedule, appendix or attachment to that document;

references to “law” and “regulation” include any constitutional provisions, treaties, conventions, ordinances, subsidiary legislation, orders, rules and regulations having the force of law and rules of civil and common law and equity, regardless of the jurisdiction;

any word or expression to which a specific meaning has been attached in any part of the Tender Documents bear such meaning whenever it appears in the same and other parts of the Tender Documents;

a time of a day means a reference to Hong Kong time;

references to “normal business hours” mean 0900 to 1800 hours;

references to a day mean a calendar day;

references to a month mean a calendar month;

any negative obligation imposed on any party means if it were also an obligation not to permit or suffer the act or thing in question, and any positive obligation imposed on any party means if it were also an obligation to procure that the act or thing in question be done;

any act, default, neglect or omission of any employee, licensee, agent or sub-contractor of the Contractor is deemed to be the act, default, neglect or omission of the Contractor;

words importing the whole are treated as including a reference to any part of the whole;

the expressions “include” and “including” shall be construed without limitation to the words following;

words and expressions extend to their grammatical variations and cognate expressions where those words and expressions are de-fined in the Tender Documents or by reference to any other definition;

references to “writing” include typewriting, printing, photography, facsimile and the printed out version of a communication by electronic mail and other modes of representing and reproducing words in a legible form; and

where a general obligation in the Tender Documents or the Contract is followed by more specific obligations, the general obligation is not construed restrictively by reference to the specific obligations or deemed to be fully performed by reason only that the specific obligations have been performed.

Nothing in the Contract shall be taken to restrict, derogate from or otherwise interfere with any power or duty, or the exercise or performance of any power or duty conferred or imposed by or under any law upon the Government or any person in the service of the Government.

All rights and powers of the Government under the Contract may be exercised by the Government Representative. If any provision of the Contract provides for a determination of any matter by the Government or the Government Representative, the determination made by the Government or the Government Representative (as the case may be) shall, in the absence of manifest error, be final and conclusive.

All and any provisions set out in the Tender Documents may be further amended or deleted in the supplements to these documents to be issued as part of the same set of the Tender Documents for an Invitation to Tender, regardless of whether or not this is stated to be the case in the individual provisions.

Unless otherwise provided for in the Tender Documents, all quotations and payments shall be made in Hong Kong dollars.

A Tenderer must nominate a team of professional staff conforming to the following requirements to manage and implement the Services to the Government as specified in the Contract including the Specifications in Part VI:

nominate a Contract Manager who is empowered with full authority to make all necessary decisions regarding the performance of the Service under this Contract on behalf of the Tenderer. The nominated Contract Manager must be employed by the Tenderer on a full-time basis on the date of Tender submission and the nominee must, in the past ten (10) years immediately preceding the Original Tender Closing Date, have at least four (4) aggregate years of work experience in managing the supply services of information technology contract staff to clients;

nominate a person to be the Key Operations Contact Person for the Tenderer to liaise with the Government Representative and users of bureaux / departments in handling the day-to-day operational matters arising from and in the course of delivering the Service under this Contract. The nominated Key Operations Contact Person must be employed by the Tenderer on a full-time basis on the date of Tender submission and the nominee must, in the past five (5) years immediately preceding the Original Tender Closing Date, have at least three (3) aggregate years of work experience in handling the day-to-day operational matters relating to the supply services of information technology contract staff to clients; and

nominate a person to be the Technical Support Officer for the Tenderer and serving as a liaison with the IT Support Team of the Office of the Government Chief Information Officer (OGCIO) regarding the installation and usage of the Contract Staff Administration System (CSAS) – CSA Contractor Module provided by the Government. The nominated Technical Support Officer must be employed by the Tenderer on a full-time basis on the date of Tender submission and the nominee must, in the past five (5) years immediately preceding the Original Tender Closing Date, have at least two (2) aggregate years of work experience in providing technical support for the operations of a dedicated information technology system to be used for the supply services of information technology contract staff to clients.

The Tenderer must ensure that the Tender is prepared without any agreement, arrangement, communication, understanding, promise or undertaking with any other person (except as provided in paragraph 3 of the Non-collusive Tendering Certificate referred to in clause 32.2 below), regarding, amongst other things, price, tender submission procedure or any terms of the Tender. Bid-rigging is inherently anticompetitive and is considered serious anti-competitive conduct under the Competition Ordinance (Cap. 619). Tenderers who engage in bid-rigging conduct may be liable for the imposition of pecuniary penalties and other sanctions under the Competition Ordinance.

The Tenderer shall complete and submit to the Government a Non-collusive Tendering Certificate (in the form set out in Contract Schedule 11 of Part III) as part of its Tender.

In the event that a Tenderer is in breach of any of the representations, warranties and/or undertakings in clause 32.1 above or in Non-collusive Tendering Certificate submitted by it under clause 32.2 above, the Government hall be entitled to, without compensation to any person or liability on the part of the Government:

reject the Tenderer’s Tender;

if the Government has accepted the Tender, withdraw its acceptance of the Tenderer’s Tender; and

if the Government has entered into the Contract with the Tenderer, terminate the Contract under clause 25 of Part IV.

Prior to the commencement of the Service, the team of professional staff meeting the essential requirements as set out in clause 6.2 of Part I of the Tender Documents shall assist the Contractor in making all necessary preparation for monitoring the performance of the Service on behalf of the Contractor. The team of professional staff shall comprise the following three roles, with three different persons filling them:

a Contract Manager, who is empowered with full authority to make all necessary decisions regarding the performance of the Service under this Contract on behalf of the Tenderer;

a Key Operations Contact Person for the Tenderer to liaise with the Government Representative and users of bureaux / departments in handling the day-to-day operational matters arising from and in the course of delivering the Service under this Contract; and

a Technical Support Officer for the Tenderer and serving as a liaison with the IT Support Team of the Office of the Government Chief Information Officer (OGCIO) regarding the installation and usage of the Contract Staff Administration System (CSAS) – CSA Contractor Module provided by the Government.

The team of professional staff shall be readily available throughout the Term to liaise with and take instructions from the Government Representative.

The team of professional staff shall attend all meetings convened by the Government Representative to discuss with the Government Representative and monitor the progress and performance of the Service.

The contracting parties shall arrange for their representatives to meet at regular intervals during the Term to monitor the progress in respect of the performance of the Service.

The Government Representative shall at any time be entitled to inspect the Service performed and check the Contractor’s compliance with the terms and conditions of the Contract.

Subject to the Government’s obligations of confidence, the Contractor shall on demand provide to the Government Representative all reasonable co-operation and assistance in relation to the inspection and/or checking conducted in accordance with clause 6.6 above, including, but not limited to:

provision of all information requested by the Government, including employment contracts, wage payment records of the Relevant Employees;

reasonable access to any premises controlled and used by the Contractor for the performance of this Contract and to any equipment used (whether exclusively or non-exclusively) in the performance of this Contract; and

access to the Relevant Employees, staff, agents, consultants and sub-contractors, if approved by the Government Representative, of the Contractor involved in the performance of this Contract.

Where the Government Representative is satisfied that the Contractor has failed to perform the Service, or failed to comply with any warranty, undertaking, requirement or obligation of the Contract, it shall be entitled to instruct the Contractor in writing to remedy/rectify the failure within such period as specified by the Government Representative in its instruction to the Contractor. Upon being notified in writing of any of the Service being unsatisfactory, or any breach or non-compliance with the warranty, undertaking, requirement or obligation of the Contract, the Contractor shall be required to take immediate and necessary action to rectify such unsatisfactory Service, or the breach or non-compliance.

The Contractor shall bear its own costs and expenses incurred in compliance with its obligations specified in clauses 6.1 to 6.4, 6.7 and 6.8 above. If a Contractor fails to rectify any unsatisfactory Service, or any breach or non-compliance in accordance with clause 6.8 above, the Government Representative shall be entitled, without prejudice to any other rights and remedies or actions to be taken under the Contract (including but not limited to terminate the Contract pursuant to clause 25 of this Part), record in writing a Notice of Default, which shall be issued to the Contractor. The Notice(s) of Default issued by the Government Representative under the Contract may be taken into account when the Contractor’s future tender offers for other tenders / quotations exercises are evaluated.

Neither the Government nor any of its employees or agents shall be under any liability whatsoever for or in respect of:

any loss of or damage to any of the Contractor’s property or that of its employees or agents however caused (whether by any Negligence of the Government or any of its employees or agents or otherwise).

any injury to or death of any of the Contractor’s employees, sub-contractors or agents, save and except any such injury or death caused by the Negligence of the Government or any of its employees or agents (in the course of employment).

Without prejudice to any other provision of the Contract, the Contractor shall indemnify the Government and its employees or agents (each an “Indemnified Party”) from and against

all and any liabilities and indebtedness (including liabilities to pay damages or compensation), losses, damage, costs, charges and expenses incurred or suffered by an Indemnified Party of whatsoever nature (including all legal and expert costs, charges and expenses on a full indemnity basis); and

all and any demands, claims, actions, arbitrations, proceedings, threatened, brought or instituted by any person against an Indemnified Party or by an Indemnified Party against any person (regardless of whether or not they have been settled or compromised) (collectively, “Claims” and each a “Claim”) and everything stated in Sub-clause (a) above incurred or suffered by an Indemnified Party in all and any such Claims,

which arise directly or indirectly as a result of or in connection with, or which relate in any way to, all or any of the following:

(i) the breach of any provisions of the Contract by the Contractor;

(ii) the negligence, recklessness, tortious acts or wilful act or omission of the Contractor, its employees, agents or sub-contractors;

(iii) any Warranty which is incorrect, inaccurate, incomplete or misleading;

(iv) any claim or allegation that the use or possession of the Materials or Third Party Materials infringes the Intellectual Property Rights or any other rights of any person; or

(v) the non-compliance by the Contractor, its employees, agents or sub-contractor(s) with any applicable law, or regulation, order or requirement of any government agency or authority;

(vi) any act or omission of the Contractor, or its employees, agents or sub-contractors, in the performance of the Contract notwithstanding that the Contractor is authorised or obliged to do or commit any such act or omission under this Contract;

(vii) any loss, damage, injury or death referred to in Clause 12.1 above save and except injury or death caused by the Negligence of the Government or any of its employees (in the course of employment); or

(viii) any injury or death of any third party, or any loss or damage to property sustained by any third party, in consequence of any act, omission, default, or negligence of the Contractor or any of its employees, agents and sub-contractors.

Each of the above is separate and shall be construed independently and shall not prejudice or be limited by reference to or inference from the other of them or other provisions of this Contract.

By the Deadline as specified in the notification of conditional acceptance of tender to be issued under clause 20.2 of Part I, the successful Tenderer is required to submit a performance bond (alternatively referred to as the bank guarantee or banker’s guarantee) in accordance with clause 24 of Part I and in the form appearing in Annex to this Part.

The performance bond to be submitted by the successful Tenderer pursuant to clause 14.1 above shall be issued by a bank details of which shall have been submitted in writing to the Government for the Government’s approval before issue. If the Contractor wishes to replace the bank with another bank, it shall give full written details of the proposed replacement to the Government who shall within fourteen (14) days of receipt of the same notify the Contractor in writing of any objection to such proposed replacement whereupon the Contractor may either revert to the original bank or propose a further replacement in the same manner as set out above. The effective date of the replacement performance bond (if approved) must remain as no later than the Commencement Date.

The performance bond shall only be released in accordance with the terms stated therein.

The Government shall be the exclusive owner of the Materials. All the Intellectual Property Rights in the Materials shall vest in the Government at the time they are created. Subject to clause 19.3 below, the Contractor warrants that such Materials are original works developed by or on behalf of the Contractor including without limitation all Relevant Employees.

The Contractor shall not use or allow to be used directly or indirectly the Materials except for the performance of its obligations under the Contract or except with the prior written approval of the Government. “Use” includes any acts restricted by copyright (including reproduction) set out in sections 22 to 29 of the Copyright Ordinance (Cap. 528).

If any materials of which the Intellectual Property Rights are owned by third parties and incorporated into the Materials or supplied or used by the Contractor in the performance of the Contract (“Third Party Materials”), the Contractor shall identify the Third Party Materials to the Government and keep the Government informed in writing of such Third Party Materials. The Contractor hereby grants or in case it is not empowered to do so, shall at its own costs and expenses procure that there will be granted, in favour of the Government, its authorised users, assigns and successors-in-title a royalty-free, non-exclusive, irrevocable, perpetual, worldwide and sub-licensable licence, for all purposes contemplated by the Contract, to use (including doing any of the acts restricted by copyright set out in sections 22 to 29 of the Copyright Ordinance (Chapter 528 of the Laws of Hong Kong)) the Third Party Materials.

The Contractor warrants that:

prior to the use and incorporation of such Third Party Materials into the Materials or in providing the Services, the Contractor shall have obtained the grant of all necessary clearances for itself and for the Government, its authorised users, assigns and successors-in-title to use the Third Party Materials in the manner and for any of the purposes contemplated by the Contract. The costs of the above clearances and licences shall be borne by the Contractor;

the provision of the Materials, Services and Third Party Materials by the Contractor and the use or possession by the Government, its authorised users, assigns and successors-in-title of the Materials including the Third Party Materials for any of the purposes contemplated by the Contract does not and will not infringe any Intellectual Property Rights or any other rights of any person; and

the exercise of any of the rights granted under the Contract by the Government, its authorised users assigns and successors-in-title will not infringe any Intellectual Property Rights or any other rights of any person.

The Contractor hereby irrevocably waives and undertakes to procure, at its own costs and expenses, its officers, employees, agents, sub-contractors and all authors concerned to irrevocably waive all moral rights (whether past, present or future) in respect of the Materials and Third Party Materials. Such waiver shall operate to which they may now or at any time in the future be entitled under the Copyright Ordinance (Cap. 528) and under any similar law in force from time to time anywhere in the world. Such waiver shall operate in favour of the Government, its authorised users and licensees and shall take effect upon delivery of the relevant Materials.

The Contractor shall at its own costs execute or procure the execution of any further assignments, deeds, licence, documents and instruments and do or procure the doing of any further things as may be required by the Government to give full effect to this clause 19, and shall provide all such assignments, deeds, licences, documents and instruments to the Government within fourteen (14) days from the date of the Government’s written request or such longer period as may be agreed by the Government in writing.

The Contractor shall indemnify the Government and keep the Government fully and effectively indemnified against any loss or damage which the Government may sustain or incur as a result of any allegation of or claim for infringement of the Intellectual Property Rights of any party arising from or in any way related to the provision of the Service by the Contractor.

The provisions of this clause 19 shall survive the expiry or termination of the Contract and shall continue in full force and effect notwithstanding such expiry or termination.

The Contractor shall at all times during the execution of the Contract exercise due diligence in software asset management and as and when required by the Government, furnish to the Government satisfactory evidence that this clause has been complied with.

The Contractor warrants and undertakes that the use of any software by the Contractor for the purpose of or otherwise in connection with the performance of this Contract shall not infringe any Intellectual Property Rights of any party.

The Contractor shall notify the Government immediately in writing of any allegation, claims, actions and/or proceedings in respect of such infringement and any progress thereof from time to time.

If the Contractor’s use of the software for the purpose of or otherwise in connection with the performance of this Contract is held by a court to constitute an infringement of a third party’s Intellectual Property Rights, the Government may, without prejudice to any other rights or remedies that the Government may have, terminate this Contract forthwith by giving notice in writing to the Contractor and recover from the Contractor the amount of any loss or damage sustained or incurred by the Government as a consequence of such termination.

The provisions of this clause 20 shall survive the expiry, completion or termination of this Contract (howsoever occasioned) and shall continue in full force and effect notwithstanding such expiry or termination.

The Contractor shall not disclose and shall treat as confidential all Confidential Information.

The Contractor shall not at any time during or after the Term divulge or allow to be divulged to any person any such Confidential Information other than to the Relevant Employees, or any other employees, agents or sub-contractors who need to know the same for the purpose of carrying out the Contract and each having signed an undertaking in favour of the Contractor and the Government jointly and severally on non-disclosure regarding such Confidential Information in a form prescribed by the Government. The Contractor shall provide the original or certified true copies of all such undertakings to the Government before the formal engagement of the Relevant Employee as required by the Government. The Contractor further agrees that, if so required by the Government, it shall take all such steps as are lawful and necessary to enforce such undertakings or to co-operate with the Government in their enforcement.

The Contractor shall protect the Confidential Information using not less than the same standard of care the Government applies to their Confidential Information and shall at its own expense take such measures as are necessary, whether by adequate security systems, legal proceedings or otherwise, to ensure compliance with the confidentiality obligation.

The Government may request the Contractor in writing at any time that any Confidential Information disclosed pursuant to the terms of this clause 21 and any copies, analyses, compilations and extracts thereof whether in hard copies, electronic format or other media by returned, destroyed and/or deleted with a written statement to the effect that upon such return, destruction and/or deletion it has not retained in its possession or under its control, either directly or indirectly, any Confidential Information in whatever form. The Contractor shall comply with any such request from the Government within seven (7) days of receipt of such request.

The Contractor shall ensure that the Relevant Employees and any other persons engaged on any work in connection with the Contract are aware of and comply with the provisions of this clause and the Official Secrets Ordinance (Cap. 521).

Without prejudice to any other provision of the Contract, the Contractor shall indemnify and keep indemnified each of the Government, its assigns successors-in-title and authorised users from and against everything stated in clauses 12.2 and 12.3 above fully and effectively indemnified against any and all actions, damages, costs, claims, demands, expenses (including the fees and disbursements of lawyers, agents and expert witnesses) and any awards and costs which may be agreed to be paid in settlement of any proceedings and liabilities of any nature arising from or incurred by reason of:

a breach of confidence (whether under the Contract or general law) by the Contractor or any of its employees, agents or sub-contractors;

any actions or claims made in respect of information subject to the Personal Data (Privacy) Ordinance (Cap. 486), which action and/or claim would not have arisen but for the act, negligence or omission of the Contractor or any of its employees, agents or sub-contractors in connection with the performance of the Contract; and

any act done or omission in the performance of the Contract that contravenes the Unsolicited Electronic Messages Ordinance (Cap. 593).

The Contractor shall use the Confidential Information solely for the purposes of the Contract. The Contractor shall not, at any time whether during the Term or after the expiry or termination (howsoever occasioned) of the Contract, use, disclose, publish or reproduce, and shall procure and ensure each person who may be imparted with any Confidential Information in accordance with clauses 21.1 and 21.2 above shall not use, disclose, publish or reproduce, the Confidential Information for any other purposes without the Government’s prior written consent.

The Contractor shall not and shall not permit any of its Relevant Employees from publishing or disclosing any Confidential Information. The Contractor further agrees that it will not at any time whether by itself or through any subsidiary or agent use, sell, license, sub-license, create, develop or deal with any Confidential Information otherwise than in accordance with the Contract. If the Contractor becomes aware of any breach of confidence by any of its employees, any of its sub-contractors or agents it shall promptly notify the Government and give the Government all reasonable assistance in connection with any proceedings which the Government may institute against any such persons.

The Contractor shall comply with any disclosure restrictions and conditions of use of the Confidential Information as may be stipulated by the Government from time to time.

The Contractor must ensure that the Relevant Employee, or any other employees, agents or contractors of the Contractor shall conform and abide by the Government normal codes of staff and security practice, as laid down in various government regulations and departmental circulars, to protect Government data from unauthorized disclosure or loss.

The provisions of this clause 21 shall survive the expiry or termination of the Contract and shall continue in full force and effect notwithstanding such expiry or termination.

The Government shall have the right to terminate the entire Contract pursuant to clause 25.1 of this Part in the event that the Contractor or any of its officers, employees, agents and sub-contractors is convicted of an offence under the Prevention of Bribery Ordinance (Chapter 201 of the Laws of Hong Kong), the Theft Ordinance (Chapter 210 of the Laws of Hong Kong) or the Crimes Ordinance (Chapter 200 of the Laws of Hong Kong).

Default of the Contractor

The following shall be deemed a fundamental breach entitling the Government to terminate this Contract immediately and the rights and liabilities of the parties shall thereafter be determined in accordance with clause 26 of this Part:

failure on the part of the Contractor to make available one or more Relevant Employee(s) to perform the Service (RE) with effect from the date as specified in a Notice of Service (RE) issued or on the date as specified in the Notice of Service (Extension) issued (as the case may be);

the doing or permitting of any act on the part of the Contractor by which Government’s proprietary rights in the Materials may be prejudiced or put in jeopardy;

the Contractor having been issued an aggregate of three (3) or more Notices of Default during the Term due to its failure to rectify any unsatisfactory Service, or any breach or non-compliance with the warranty, undertaking, requirement or obligation under the Contract in accordance with clause 6.9 of this Part;

the Contractor being in breach of any provision of the Contract which in the opinion of the Government is not capable of remedy;

any Warranty is incorrect, inaccurate, incomplete or misleading;

the Contractor having made a material misrepresentation (including submission of false statement or inaccurate information) during the tendering process of the Contract;

the Contractor, any officer (including director), employee, agent or sub-contractor of the Contractor having committed an offence under the Prevention of Bribery Ordinance (Chapter 201 of the Laws of Hong Kong) or any law of a similar nature in relation to the Contract or any other contract made by the Contractor with the Government;

the Contractor abandoning the Contract in whole or in part;

the Contractor assigning or transferring or purporting to assign or transfer all or any part of the Contract or all or any of its rights or obligations thereunder without the prior written consent of the Government; or

any event or circumstance occurring which enables the Government to terminate the Contract under any one of the following provision of the Part IV of Contract:

(i) clause 14 and Annex to Part IV (Performance Bond);

(ii) clause 24.5 (Prevention of Bribery);

(iii) clause 32.3 (Force Majeure);

(iv) clause 33.1 (Illegal Workers);

(v) clause 36.4 (Admission of Contractor Personnel to Government Premises); or

(vi) clause 32.3(c) of Part I of Terms of Tender (Warranty against Collusion).

The Government may immediately terminate the Contract upon the occurrence of any of the following events:

a proposal is made for a voluntary arrangement or any other composition, scheme or arrangement with, or assignment for the benefit of, the Contractor’s creditors;

if the Contractor is an incorporated body, a shareholders’ or members' resolution has been passed that it be wound up or dissolved (other than voluntarily for the purpose of bona fide reconstruction or solvent amalgamation the terms of which have been approved by the Government in advance);

a petition is presented for the winding up or dissolution or bankruptcy of the Contractor, which is not dismissed within fourteen (14) days after the petition is presented;

the Contractor is or becomes insolvent, or any order is made for the Contractor’s bankruptcy or winding up or dissolution;

an administrator, administrative receiver, receiver or similar officer is appointed over the whole or any part of the Contractor’s business or assets;

the Contractor suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or

the Government reasonably believes that any of the events mentioned above is about to occur.

Automatic Right of Termination by the Government

The Government may at any time or times prior to the expiry of the Term at its option terminate without cause the Contract by giving the Contractor thirty (30) days’ written notice of such termination.

Each of the grounds entitling the Government to terminate the Contract as specified above shall be construed independently and shall not be limited or restricted by reference to or inference from any other ground or any other provision of this Contract.

Upon expiry or early termination of the Contract (howsoever occasioned) ("Termination"):

the Contract shall be of no further force and effect, but without prejudice to:

(i) the Government’s rights and claims under the Contract or otherwise at law against the Contractor arising from antecedent breaches of the Contract by the Contractor (including any breach(es) which entitle the Government to terminate the Contract);

(ii) the rights and claims which have accrued to a Party prior to the Termination; and

(iii) the continued existence and validity of those provisions which are expressed to or which in their context by implication survive the Termination (however occasioned) (including but not limited to clauses 6.6, 6.7, 6.8, 6.9, 19, 20, 21 of this Part and clause 1 of Part I containing the interpretation);

the Government shall not be responsible for any claim, legal proceeding, liability, loss (including any direct or indirect loss, any loss of revenue, profit, business, contract or anticipated saving), damages (including any direct, special, indirect or consequential damages of whatsoever nature) or any cost or expense, suffered or incurred by the Contractor arising out of or in relation to the Termination;

without prejudice to the other rights and claims of the Government including the right to seek indemnity under clause 12.2 of this Part in the event of the Termination under clause 25.1 or 25.2 of this Part, the Contractor shall be liable for all losses, damage, costs and expenses incurred by the Government arising from the Termination under clause 25.1 or 25.2 of this Part only (and excluding under clause 25.1(j)(iii) of this Part) including without limitation (i) any amount in excess of the amount payable by the Government to the Contractor under the Contract incurred by the Government in engaging another contractor to complete the uncompleted Services and all costs and expenses incurred in making the arrangements for the same including conducting tender for the uncompleted Services; and (ii) any additional expenditure incurred by the Government in connection with a default by the Contractor referred to in clause 25.1 or 25.2 of this Part. If the Contract is so terminated, until the Government has established the final cost of making other arrangements contemplated under this clause, no further payments shall be payable by the Government to the Contractor for the Services provided by the Contractor prior to Termination and in accordance with the Contract for which payment has yet to be made by the Government;

the Contractor shall immediately return to the Government all documents containing confidential information, personal data and such other information, property and materials in the possession or under the control of the Contractor or any of its sub-contractors and agents, which was obtained or produced in the course of providing the Service;

the Contractor shall assist and co-operate with the Government to ensure an orderly transition of the provision of the Service to such person specified by the Government Representative and/or the completion of any work-in-progress;

within twenty-eight (28) days of the date of termination, the Contractor shall compile and submit to the Government a report of all relevant information, facts, data, findings and conclusions in respect of the Service which have been provided up to the effective date of termination; and

the Contractor shall promptly provide all information concerning the provision of the Service which may reasonably be requested by the Government for the purposes of adequately understanding the manner in which the service have been provided or the purpose of allowing the Government or a replacement contractor to conduct due diligence.

Save as otherwise expressly provided for in the Contract, no compensation whatsoever (including compensation for any loss or expense arising from any consequential loss or damage, or loss of opportunity, suffered or incurred by the Contractor) shall be payable by the Government to the Contractor as a result of any suspension or early termination of the Contract by the Government.

Provided the Government is satisfied with the Contractor’s claim of a Force Majeure Event which has materially prevented and/or will continue to materially prevent it from performing its obligations under the Contract or such part thereof, the Contract or such part thereof strictly to the extent of such prevention shall be suspended during the subsistence of such Force Majeure Event commencing from a date to be agreed between the Parties (“Suspension due to Force Majeure”). Where the Government is not so satisfied about any alleged claim of a Force Majeure Event, there shall be no Suspension due to Force Majeure. The Contractor may not allege or claim any event as a Force Majeure Event. Any failure by the Contractor to perform any obligation under the Contract shall be treated as default and entitles the Government to terminate the Contract under clause 25 of this Part.

The Contractor undertakes not to employ illegal workers in the execution of this Contract or any other Government contracts. Should the Contractor be found to have employed illegal workers in breach of this undertaking, the Government Representative may, on behalf of the Government, by notice, terminate this Contract pursuant to clause 25.1(j) of this Part.

In the event that the Contractor fails to comply with this clause 36 and it is determined that such failure is prejudicial to the interests of the Government, the Government Representative may thereupon terminate the Contract forthwith pursuant to clause 25.1(j) of this Part.

The Contractor is required to provide the supply services of information technology contract staff (“Relevant Employees”) to the Government. The Relevant Employees are employees of the Contractor and they will perform the Service (RE) at Government bureaux/departments under the instruction of Government Representative. Upon the issue of a Service Request (Competitive Bidding) in accordance with the procedure set out in clause 4 of this Part, the Contractor is required:

to propose eligible candidates fulfilling the essential qualification requirements as set out in clause 2.1.1 of this Part, as well as any other essential requirements and specific requirements as specified by the Government in a Service Request (Competitive Bidding), for selection by the Government as Relevant Employees; and

if the Government makes the selection, the Contractor, as the employer of the Relevant Employees, is required to supervise and manage the Relevant Employees to ensure that they perform the Service (RE) at the relevant Government bureaux/departments to the satisfaction of the Government. The professional team who performs such supervision and management shall include the Contract Manager, Key Operations Contact Person and Technical Support Officer as nominated in Contract Schedule 2A of Part III.

Before proposing eligible candidates to the Government, the Contractor is required to check and verify the qualifications, skills and experiences of the candidates to ensure that they fulfil all essential requirements and specific requirements as specified by the Government. Candidates who do not meet all essential requirements and specific requirements will not be considered.

The main job responsibilities for each of the different staff categories as mentioned in clauses 2.2.1 to 2.2.9 above are specified below:

Staff Category 6

A Senior Project Manager

is mainly deployed to perform any of the duties of staff category 5 as stated in clause 3.1.2 below in addition to any of the following:

to plan and perform information system strategy study;

to advise and liaise with users on project development initiation and on computer-related activities; and

to provide specialist advice in specific business areas, business process re-engineering, information technologies, etc.

Staff Category 5

A Project Manager

is mainly deployed to perform any of the following duties:

to plan and control all phases of computer projects including feasibility study, systems analysis and design, procurement and installation of computer systems, programming, implementation, system nursing and maintenance;

to provide technical consultancy services on operating system, data communication, database, application software and languages;

to manage the operation of computer centre and data preparation installations;

to evaluate and select appropriate computer products for the development and maintenance of computer systems; and

to monitor the performance of his subordinates.

Staff Category 4

A Senior Systems Analyst

is mainly deployed to perform any of the duties of staff category 3 as stated in clause 3.1.4 below plus any of the following:

to carry out quality control and quality assurance, and project management duties as designated by the project manager;

to monitor all phases of computer projects including feasibility study, systems analysis and design, procurement and installation of computer systems, programming, implementation, system nursing and maintenance;

to monitor analyze, design and specify program components of computer systems;

to monitor and report system testing and user acceptance;

to scrutinize project reports and specifications; and

to monitor the performance of his subordinates.

Staff Category 3

A Systems Analyst

is mainly deployed to perform any of the following duties:

to take part in all phases of computer projects including feasibility study, systems analysis and design, procurement and installation of computer systems, programming, implementation, system nursing and maintenance;

to analyze, design and specify program components of computer systems;

to prepare and conduct system testing and user acceptance;

to produce project reports and specifications;

to devise system and installation standards;

to devise and maintain operating procedures in line with these standards;

to monitor and report system usage and to recommend and control the allocation of computer resources;

to develop housekeeping jobs for security control, job accounting, system and data backup, and media management purposes; and

to monitor the performance of his subordinates.

Staff Category 2

An Analyst/Programmer

is mainly deployed to perform any of the following duties:

to write programs and enhance/maintain existing programs;

to conduct program testing, system testing and user acceptance;

to prepare and maintain program documentation;

to prepare job control procedures for trial runs and production runs;

to assist in the systems design of computer applications; and

to assist in preparing project reports and specifications.

Staff Categories 1 and 0

A Programmer and Junior Programmer

is mainly deployed to perform the following duties:

to install software on new or existing computer systems;

to provide end-user computing support services including product evaluation, trouble shooting and help-desk functions;

to set up and maintain computer networks and data communication environment;

to write programs and enhance/maintain existing programs;

to conduct program testing, system testing and user acceptance;

to prepare and maintain program documentation; and

to prepare job control procedures for trial runs and production runs.

Staff Category A

A Senior Information Technology Assistant

is mainly deployed to perform any of the duties of staff categories B1 or B2 as stated in clauses 3.1.8 and 3.1.9 below in addition to any of the following:

to control or operate computer systems or network;

to install hardware and software, helpdesk and network support, automation tools; and

to assist in system administration or information technology security.

Staff Category B1

An Information Technology Assistant (Shift Duty)

is mainly deployed to perform the following duties, work on shift system (including overnight shift) and may be required to work on Saturdays, Sundays and public holidays:

to operate computer and associated equipment/facilities according to prescribed standards and procedures, monitor their performance and perform routine operator maintenance;

to prepare jobs according to prescribed procedures and ensure their successful completion and check completeness and qualities of the computer output;

to provide first line help service to terminal network users and perform associated help desk activities using tools provided, if any and carry out on-site inspection and take recovery action according to prescribed procedures;

to assist in setting up workstation or networked equipment, scheduling and monitoring computer equipment installation/relocation and perform site preparation work;

to fulfil logging and administrative reporting requirements and assist in preparing statistics and reports;

to keep stock and monitor stock level of computer supplies and assist in their procurement and payment; and

to update and maintain inventory records of computer hardware, perform physical checks and maintain procedure manuals and documentation.

Staff Category B2

An Information Technology Assistant (Non-shift Duty)

is mainly deployed to perform the duties of staff category B1 as stated in clause 3.1.8 above during office hours normally. May be required to work outside normal office hours including Saturdays, Sundays and public holidays as and when required.

Job Responsibilities for Other Function/Specialty

In addition to the main job responsibilities set out in clauses 3.1.1 to 3.1.9 above, the Relevant Employees of staff categories 0 to 6 may be required to perform the following job responsibilities for each function/specialty:

Staff Category 6

An Information Technology Consultant

is mainly deployed to perform any of the duties of the same function/specialty of staff category 5 as stated in clause 3.2.2 below in a senior management role.

An Information Technology Specialist

is mainly deployed to perform any of the duties of the same function/specialty of staff category 5 as stated in clause 3.2.2 below in a senior management role.

An Information Technology Security Specialist

is mainly deployed to perform any of the duties of the same function/specialty of staff category 5 as stated in clause 3.2.2 below in a senior management role.

Staff Category 5

An Information Technology Consultant

is mainly deployed to perform the following duties:

to provide specialist advice and consultation in specific business areas, information technology strategic planning, business process reengineering, specific information technologies, etc.;

to prepare business and information technology strategy plans and reengineering plans to satisfy corporate and business objectives, identify critical success factors and conduct organizational and structure analysis;

to provide consultancy services in adoption and application of specific information technologies in the Government; and

to assist the Government in selecting tools and/or developing procedures for planning, controlling and tracking program activities and assessing goals and objectives.

An Information Technology Specialist

is mainly deployed to perform any of the following duties:

to provide specialist advice and consultation in information technology areas such as data analysis and modeling, network, methodologies, quality, disaster recovery planning, etc.;

to design and implement quality procedures and processes for an organization including workflow and document management;

to undertake quality audit work; and

to provide data analysis and data modeling techniques.

An Information Technology Security Specialist

is mainly deployed to perform any of the following duties:

to provide specialist advice and consultation in information technology security; and

to provide consultancy services in formulating security strategy and designing security framework and architecture with regard to corporate and business requirements, environment and constraints.

A Web Manager

is mainly deployed to perform any of the following duties:

to plan and manage multiple project teams and technologies;

to establish procedures and automated performance measurement capability to monitor the technical accomplishment and progress of projects;

to maintain cross-platform and cross-browser compatibility of web sites;

to develop project management plans and quality control parameters for each work assignment; and

to schedule and assign duties to subordinates.

Staff Category 4

A Database Administrator/Designer

is mainly deployed to perform any of the duties of the same function/specialty of staff category 3 as stated in clause 3.2.4 below in a supervisory role.

A Security Consultant

is mainly deployed to perform any of the duties of the same function/specialty of staff category 3 as stated in clause 3.2.4 below in a supervisory role.

A Senior Network System Designer/Engineer

is mainly deployed to perform any of the duties of the same function/specialty of staff category 3 as stated in clause 3.2.4 below in a supervisory role.

A Web Designer

is mainly deployed to perform any of the duties of the same function/specialty of staff category 3 as stated in clause 3.2.4 below in a supervisory role.

Staff Category 3

A Database Administrator/Designer

is mainly deployed to perform any of the following duties:

to design, implement, and support databases and database programs to meet user requirements;

to provide technical database support on data analysis and modeling, database definitions and design, monitoring and advice to the development team;

to evaluate and recommend available DBMS products after matching user requirements with system capabilities; and

to prepare and deliver presentations on DBMS concepts.

A Security Consultant

is mainly deployed to perform any of the following duties:

to perform security risk assessment, security audit, and penetration testing;

to identify and recommend security safeguards and solutions, and provide general and technical security consultation and advice to user;

to develop and review security policies, standards, guidelines and procedures;

to define the approach, methodology and tools used in various security services;

to prepare deliverables such as security requirement report, security risk assessment report, security policies, standards, guidelines and procedures etc., and deliver presentations;

to develop course materials and conduct training and education on information technology security awareness and information technology security skills;

to perform network and host intrusion monitoring and detection; and

to provide on-site investigation, containment, eradication and recovery for information security incident response support.

A Senior Network System Designer/Engineer

is mainly deployed to perform any of the following duties:

to analyze and interpret user requirements on networking and office systems to provide viable solutions and produce the respective proposals and specifications;

to liaise with other hardware and software vendors on product selection, development, evaluation and conformance leading to recommendations on cost effective network solutions;

to perform quality control and quality assurance in network implementation and to perform studies on the optimization of network availability;

to provide high level and detailed networking advice to system developer;

to implement and provide support for resolving network troubles, tracking network performance and managing growth;

to prepare and conduct system test and user acceptance test for the office systems;

to provide pre-installation and post-installation support to computer networks; and

to supervise and lead the work of network engineers working in the same team.

A Web Designer

is mainly deployed to perform any of the following duties:

to participate in the design of web sites using web development tools and software;

to provide creative direction and design web templates for personal performing the design and implementation tasks;

to create graphics, multimedia assets for the web sites;

to produce and maintain documentation; and

to prepare and deliver presentations on the design of web sites to colleagues and Government Representatives.

Staff Category 2

A Network System Engineer

is mainly deployed to perform any of the duties of the same function/specialty of staff categories 1 and 0 as stated in clause 3.2.6 below in a supervisory role.

A Security Engineer

is mainly deployed to perform any of the duties of the same function/specialty of staff categories 1 and 0 as stated in clause 3.2.6 below in a supervisory role.

A Web Master

is mainly deployed to perform any of the following duties:

to manage the content of web sites;

to integrate multimedia assets and applications into the web sites;

to organize, maintain and enhance the web sites;

to maintain cross-platform and cross-browser compatibility of the web sites;

to provide daily support services for the web sites; and

to capture and provide statistics on web site usage and workload.

Staff Categories 1 and 0

A Network System Engineer

is mainly deployed to perform the following duties:

to participate in the configuration and installation of popular office automation application, network operating systems, network equipment and networking software;

to diagnose and resolve problems encountered during network implementation;

to prepare guidelines and procedures for the daily operations of installed WAN/LAN;

to develop programs and ensure program testing meets user requirements for office systems;

to produce and maintain documentation of office systems; and

to develop course materials and conduct user training of the developed office systems.

A Security Engineer

is mainly deployed to perform the following duties:

to perform network and host intrusion monitoring and detection;

to assist in performing security risk assessment, security audit, and penetration testing; and

to assist in on-site investigation, containment, eradication and recovery for information security incident response support.

A Web Programmer

is mainly deployed to perform the following duties:

to participate in the development of programs using web development tools and software and ensure program testing meets user requirements;

to produce and maintain well documented programs that adhere to standards and satisfy user requirements;

to provide daily support services for the web sites; and

to produce and maintain documentation.

The responsibility listed above for each staff category is for illustrative purpose only and is not exhaustive. Relevant Employees are required to carry out other duties as directed by the Supervisor and the Government Representative. Relevant Employees shall work in office premises designated by the Government Representative.