<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 19, 2000
REGISTRATION NO. 333-31754
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
EXULT, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 8742 33-0831076
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION NUMBER) IDENTIFICATION NO.)
</TABLE>
4 PARK PLAZA, SUITE 350
IRVINE, CALIFORNIA 92614
(949) 250-8002
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
BRIAN W. COPPLE
VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
EXULT, INC.
4 PARK PLAZA, SUITE 350
IRVINE, CALIFORNIA 92614
(949) 250-8002
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
AGENT FOR SERVICE)
------------------------
COPIES TO:
BRUCE R. HALLETT, ESQ.
ELLEN S. BANCROFT, ESQ.
ELIZABETH T. HALL, ESQ.
CHRISTINE P. LE, ESQ.
BROBECK, PHLEGER & HARRISON LLP
38 TECHNOLOGY DRIVE
IRVINE, CALIFORNIA 92618
(949) 790-6300
EDWARD SONNENSCHEIN, JR., ESQ.
MARK E. BRUBAKER, ESQ.
LATHAM & WATKINS
633 W. FIFTH STREET, SUITE 4000
LOS ANGELES, CA 90071
(213) 891-8100
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ________
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable in connection with the sale and
distribution of the securities being registered. All amounts are estimated
except the SEC and NASD registration fees. All of the expenses below will be
paid by us.
<TABLE>
<CAPTION>
ITEM
----
<S> <C>
SEC Registration fee........................................ $ 52,800
NASD filing fee............................................. *
Nasdaq National Market listing fee.......................... *
Blue sky fees and expenses.................................. *
Printing and engraving expenses............................. *
Legal fees and expenses..................................... *
Accounting fees and expenses................................ *
Transfer Agent and Registrar fees........................... *
Miscellaneous............................................... *
--------
Total..................................................... $
========
</TABLE>
- ---------------
* To be filed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law, we can indemnify
our directors and officers against liabilities they may incur in such
capacities, including liabilities under the Securities Act of 1933, as amended
(the "Securities Act"). Our bylaws (Exhibit 3.4 to this registration statement)
require us to indemnify our directors and officers to the fullest extent
permitted by law and require us to advance litigation expenses upon our receipt
of an undertaking by the director or officer to repay such advances if it is
ultimately determined that the director or officer is not entitled to
indemnification. Our bylaws further provide that rights conferred under such
bylaws do not exclude any other right such persons may have or acquire under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Our certificate of incorporation (Exhibit 3.2 to this registration
statement) provides that, pursuant to Delaware law, our directors shall not be
liable for monetary damages for breach of the directors' fiduciary duty of care
to us and our stockholders. This provision in the certificate of incorporation
does not eliminate the duty of care, and in appropriate circumstances equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to us or our
stockholders, for acts or omissions not in good faith or involving intentional
misconduct or knowing violations of law, for actions leading to improper
personal benefit to the director, and for payment of dividends or approval of
stock repurchases or redemption's that are unlawful under Delaware law. The
provision also does not affect a director's responsibilities under any other
law, such as the federal securities laws or state or federal environmental laws.
In addition, our certificate of incorporation provides that we shall
indemnify our directors and officers if such persons acted (1) in good faith,
(2) in a manner reasonably believed to be in or not opposed to our best
interests, and (3) with respect to any criminal action or proceeding, with
reasonable cause to believe such conduct was lawful. The certificate of
incorporation also provides that, pursuant to Delaware law, our directors shall
not be liable for monetary damages for breach of the directors' fiduciary duty
of care to us and our stockholders. This provision in the certificate of
incorporation does not eliminate the duty of care, and in appropriate
circumstances equitable remedies such as injunctive or other forms of non-
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<PAGE> 3
monetary relief will remain available under Delaware law. In addition, each
director will continue to be subject to liability for breach of the director's
duty of loyalty to us or our stockholders for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
actions leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Delaware law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws. The certificate of incorporation further
provides that we are authorized to indemnify our directors and officers to the
fullest extent permitted by law through the bylaws, agreement, vote of
stockholders or disinterested directors, or otherwise. We intend to obtain
directors' and officers' liability insurance in connection with this offering.
In addition, we have entered or, concurrently with this offering, will
enter, into agreements to indemnify our directors and certain of our officers in
addition to the indemnification provided for in the certificate of incorporation
and bylaws. These agreements will, among other things, indemnify our directors
and some of our officers for certain expenses (including attorneys fees),
judgments, fines and settlement amounts incurred by such person in any action or
proceeding, including any action by or in our right, on account of services by
that person as a director or officer of Exult or as a director or officer of any
of our subsidiaries, or as a director or officer of any other company or
enterprise that the person provides services to at our request.
The purchase agreement (Exhibit 1.1 to this registration statement)
provides for indemnification by the underwriters of us and our officers and
directors, and by us of the underwriters, for certain liabilities arising under
the Securities Act or otherwise.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
The following is a summary of all sales of our securities since our
formation in October 1998. None of these sales was registered under the
Securities Act of 1933, as amended.
(1) On November 11, 1998, we issued 9,000 shares of common stock to
GAP Coinvestment Partners, L.P. for $1.
(2) On November 25, 1998, we sold an aggregate of 25,000 shares of
Series A Preferred Stock to General Atlantic Partners 54, L.P. and GAP
Coinvestment Partners, L.P. for an aggregate purchase price of $1,000,000.
Each share of Series A Preferred Stock will be converted into 900 shares of
common stock upon the closing of this offering, giving effect to our stock
splits effective April 26, 1999 and February 9, 2000.
(3) On April 1, 1999, we sold 8,856,000 shares of common stock to
James C. Madden for $39,360.
(4) On April 27, 1999, we sold an aggregate of 1,696,369 shares of
Series B Preferred Stock to General Atlantic Partners 54, L.P., GAP
Coinvestment Partners II, L.P. and Brobeck, Phleger & Harrison LLP for an
aggregate purchase price of $9,194,319. Each share of Series B Preferred
Stock will convert into five shares of common stock upon the closing of
this offering, giving effect to our stock split effective February 9, 2000.
(5) On June 6, 1999, we sold 306,750 shares of common stock to Ramsey
Beirne Investment Pool II, Inc. for $100,000.
(6) On June 6, 1999, we issued a warrant to McKinsey & Company, Inc.
to purchase 691,880 shares of common stock at an exercise price of $1.084
per share and a warrant to purchase 182,390 shares of common stock at an
exercise price of $2.056 per share.
(7) On September 22, 1999, we issued a warrant to SpencerStuart to
purchase 47,770 shares of common stock at an exercise price of $1.57 per
share. We also issued another warrant to BridgeGate, LLC to purchase 46,155
shares of common stock at an exercise price of $0.65 per share.
II-2
<PAGE> 4
(8) On October 22, 1999, we sold an aggregate of 1,478,600 shares of
Series C Preferred Stock to GAP Coinvestment Partners II, L.P., General
Atlantic Partners 54, L.P., Brobeck, Phleger & Harrison LLP and Bruce R.
Hallet for an aggregate purchase price of $15,200,000. Each share of Series
C Preferred Stock will be converted into five shares of common stock upon
the closing of this offering, giving effect to our stock split effective
February 9, 2000.
(9) On November 12, 1999, we sold an aggregate of 58,364 shares of
Series C Preferred Stock to William Pade and New Millennium Capital
Partners, LLC for an aggregate purchase price of $599,982. Each share of
Series C Preferred Stock will be converted into five shares of common stock
upon the closing of this offering.
(10) On December 7, 1999, we issued a warrant to BP International
Limited to purchase 3,339,220 shares of common stock at an exercise price
of $1.57 per share.
(11) On December 7, 1999, we issued a warrant to BP International
Limited to purchase 667,844 shares of Series C Preferred Stock at an
exercise price of $10.28 per share. Each share of Series C Preferred Stock
will be converted into five shares of common stock upon the closing of this
offering.
(12) On December 23, 1999, we sold an aggregate of 2,932,879 shares of
Series C Preferred Stock to General Atlantic Partners 60, L.P., GAP
Coinvestment Partners II, L.P. and JRO Consulting, Inc. for an aggregate
purchase price of $30,149,995. Each share of Series C Preferred Stock will
be converted into five shares of common stock upon the closing of this
offering.
(13) On February 7, 2000, we sold 385,805 shares of Series C Preferred
Stock to BP International Limited for $3,966,075. Each share of Series C
Preferred Stock will be converted into five shares of common stock upon the
closing of this offering.
(14) On February 10, 2000, we sold an aggregate of 6,885,480 shares of
Series D Preferred Stock to 12 accredited investors for an aggregate
purchase price of approximately $60,000,000. Each share of Series D
Preferred Stock will be converted into one share of common stock upon the
closing of this offering.
(15) Since August 1999, we issued an aggregate of 262,500 shares of
common stock to J. Michael Spence, JRO Consulting, Inc. and Douglas
Shurtleff for an aggregate purchase price of $196,564.70 upon the exercise
of stock options.
(16) Since May 1999, we have granted stock options to purchase an
aggregate of 8,390,407 shares of common stock under individual stock option
agreements and the 1999 Stock Option/Stock Issuance Plan to eligible
officers, directors, consultants and employees as described in the
prospectus.
(17) Since November 1999, we have granted stock options to purchase an
aggregate of 2,349,620 shares of common stock under individual stock option
agreements and the 1999 Special Executive Option Plan to eligible officers
and other highly compensated employees as described in the prospectus.
The offer and sale of securities in the above transactions did not involve
any public offering and were exempt from registration under the Securities Act
by virtue of Section 4(2) or Rule 701 thereof, or Regulation D. Appropriate
legends are affixed to the stock certificates issued in such transactions.
Similar legends were imposed in connection with any subsequent sales of any such
securities.
II-3
<PAGE> 5
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The following Exhibits are attached hereto and incorporated herein by
reference.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
1.1* Form of Underwriting Agreement.
2.1** Asset Purchase Agreement by and among Exult, Inc., Gunn
Partners Inc., the shareholders of Gunn Partners, Inc. and
Michael Gibson dated as of November 22, 1999.
3.1* Fourth Amended and Restated Certificate of Incorporation of
Exult, Inc.
3.2* Amended and Restated Bylaws of Exult, Inc.
4.1* See Exhibits 3.1 and 3.2 for provisions of the Exult, Inc.'s
Certificate of Incorporation and Bylaws defining the rights
of holders of Exult, Inc.'s common stock.
4.2* Specimen common stock certificate.
5.1* Opinion of Brobeck, Phleger and Harrison LLP.
10.1.1** Registrant's 1999 Stock Option/Stock Issuance Plan.
10.1.2** Form of Notice of Grant of Stock Option.
10.1.3** Form of Stock Option Agreement.
10.1.4** Form of Addendum to Stock Option Agreement.
10.1.5** Form of Stock Purchase Agreement.
10.1.6** Form of Addendum to Stock Purchase Agreement.
10.1.7** Form of Stock Issuance Agreement.
10.1.8** Form of Addendum to Stock Issuance Agreement.
10.2.1** Registrant's 1999 Special Executive Stock Option/Stock
Issuance Plan.
10.2.2** Form of Notice of Grant of Stock Option.
10.2.3** Form of Stock Option Agreement.
10.2.4** Form of Addendum to Stock Option Agreement.
10.2.5** Form of Stock Purchase Agreement.
10.2.6** Form of Addendum to Stock Purchase Agreement.
10.2.7** Form of Stock Issuance Agreement.
10.2.8** Form of Addendum to Stock Issuance Agreement.
10.3** Form of Directors' and Officers' Indemnification Agreement.
10.4** Founder Stock Purchase Agreement by and among BPO-US, Inc.,
James Madden and General Atlantic Partners, LLC dated April
1, 1999.
10.5.1** Amended and Restated Registration Rights Agreement among
Exult, Inc. and the Stockholders identified therein dated
December 23, 1999.
10.5.2** Amendment No. 1 to Amended and Restated Registration Rights
Agreement among Exult and the Stockholders identified
therein dated February 10, 2000.
10.6* Office Space Lease between The Irvine Company and BPO-US,
Inc. dated as of June 28, 1999.
10.7.1* Lease Agreement Venture Technology Center VI Building, The
Woodlands, Montgomery County, Texas between The Woodlands
Corporation and Tenneco Business Services Inc. dated August
15, 1995.
</TABLE>
II-4
<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
10.7.2* Assignment and Assumption of Lease between Pactiv Business
Services Inc. (formerly known as Tenneco Business Services
Inc.) and Exult, Inc. dated as of January 1, 2000.
10.8*** Framework Agreement dated December 7, 1999 by and between
the Company and BP Amoco p.l.c.
10.9*** US Country Agreement dated December 7, 1999 by and between
the Company and BP America Inc.
10.10*** UK Country Agreement dated December 7, 1999 by and between
Exult Limited and BP International Limited.
21.1** Subsidiaries of Exult, Inc.
23.1* Consent of Brobeck, Phleger & Harrison LLP (Included in
Exhibit 5.1 hereto).
23.2** Consent of Arthur Andersen LLP.
23.3** Consent of Vitale, Caturano and Company, P.C.
24.1** Power of Attorney (Included on signature pages hereto).
27.1** Financial Data Schedule.
</TABLE>
- ---------------
* To be filed by amendment.
** Previously filed.
*** Confidential treatment is being sought with respect to certain portions of
this agreement. Such portions have been omitted from this filing and have
been filed separately with the Securities and Exchange Commission.
(b) FINANCIAL STATEMENT SCHEDULES
Schedules have been omitted because the information required to be set
forth therein is not applicable or is shown in the financial statements or notes
thereto.
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes to provide to the Underwriters at the
closing specified in the Purchase Agreement certificates in such denominations
and registered in such names as required by the Underwriters to permit prompt
delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of Exult
pursuant to the foregoing provisions, or otherwise, Exult has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by Exult of expenses incurred or paid by a
director, officer or controlling person of Exult in the successful defense of
any action, suit, or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, Exult
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus as filed as
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by Exult pursuant to Rule 424(b)(1)
or (4)
II-5
<PAGE> 7
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and this offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
II-6
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Exult, Inc. has duly caused this Amendment to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Irvine, State of California, on the 19th day of April, 2000.
EXULT, INC.
By: /s/ DOUGLAS SHURTLEFF
------------------------------------
Executive Vice President, Treasurer
and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement on Form S-1 has been signed by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
* Chief Executive Officer, April 19, 2000
- ----------------------------------------------------- President and Chairman of the
James C. Madden, V Board (principal executive
officer)
/s/ DOUGLAS L. SHURTLEFF Executive Vice President, April 19, 2000
- ----------------------------------------------------- Treasurer and Chief Financial
Douglas L. Shurtleff Officer (principal financial
officer)
* Director April 19, 2000
- -----------------------------------------------------
J. Michael Cline
* Director April 19, 2000
- -----------------------------------------------------
Steven A. Denning
* Director April 19, 2000
- -----------------------------------------------------
A. Michael Spence
* Director April 19, 2000
- -----------------------------------------------------
John R. Oltman
* Director April 19, 2000
- -----------------------------------------------------
Michael A. Miles
* Director April 19, 2000
- -----------------------------------------------------
Mark Dzialga
</TABLE>
*By: /s/ DOUGLAS L. SHURTLEFF
------------------------------
Douglas L. Shurtleff
(Attorney-in-fact)
II-7
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
1.1* Form of Underwriting Agreement.
2.1** Asset Purchase Agreement by and among Exult, Inc., Gunn
Partners Inc., the shareholders of Gunn Partners, Inc. and
Michael Gibson dated as of November 22, 1999.
3.1* Fourth Amended and Restated Certificate of Incorporation of
Exult, Inc.
3.2* Amended and Restated Bylaws of Exult, Inc.
4.1* See Exhibits 3.1 and 3.2 for provisions of the Exult, Inc.'s
Certificate of Incorporation and Bylaws defining the rights
of holders of Exult, Inc.'s common stock.
4.2* Specimen common stock certificate.
5.1* Opinion of Brobeck, Phleger and Harrison LLP.
10.1.1** Registrant's 1999 Stock Option/Stock Issuance Plan.
10.1.2** Form of Notice of Grant of Stock Option.
10.1.3** Form of Stock Option Agreement.
10.1.4** Form of Addendum to Stock Option Agreement.
10.1.5** Form of Stock Purchase Agreement.
10.1.6** Form of Addendum to Stock Purchase Agreement.
10.1.7** Form of Stock Issuance Agreement.
10.1.8** Form of Addendum to Stock Issuance Agreement.
10.2.1** Registrant's 1999 Special Executive Stock Option/Stock
Issuance Plan.
10.2.2** Form of Notice of Grant of Stock Option.
10.2.3** Form of Stock Option Agreement.
10.2.4** Form of Addendum to Stock Option Agreement.
10.2.5** Form of Stock Purchase Agreement.
10.2.6** Form of Addendum to Stock Purchase Agreement.
10.2.7** Form of Stock Issuance Agreement.
10.2.8** Form of Addendum to Stock Issuance Agreement.
10.3** Form of Directors' and Officers' Indemnification Agreement.
10.4** Founder Stock Purchase Agreement by and among BPO-US, Inc.,
James Madden and General Atlantic Partners, LLC dated April
1, 1999.
10.5.1** Amended and Restated Registration Rights Agreement among
Exult, Inc. and the Stockholders identified therein dated
December 23, 1999.
10.5.2** Amendment No. 1 to Amended and Restated Registration Rights
Agreement among Exult and the Stockholders identified
therein dated February 10, 2000.
10.6* Office Space Lease between The Irvine Company and BPO-US,
Inc. dated as of June 28, 1999.
10.7.1* Lease Agreement Venture Technology Center VI Building, The
Woodlands, Montgomery County, Texas between The Woodlands
Corporation and Tenneco Business Services Inc. dated August
15, 1995.
</TABLE>
<PAGE> 10
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
10.7.2* Assignment and Assumption of Lease between Pactiv Business
Services Inc. (formerly known as Tenneco Business Services
Inc.) and Exult, Inc. dated as of January 1, 2000.
10.8*** Framework Agreement dated December 7, 1999 by and between
the Company and BP Amoco p.l.c.
10.9*** US Country Agreement dated December 7, 1999 by and between
the Company and BP America Inc.
10.10*** UK Country Agreement dated December 7, 1999 by and between
Exult Limited and BP International Limited.
21.1** Subsidiaries of Exult, Inc.
23.1* Consent of Brobeck, Phleger & Harrison LLP (Included in
Exhibit 5.1 hereto).
23.2** Consent of Arthur Andersen LLP.
23.3** Consent of Vitale, Caturano and Company, P.C.
24.1** Power of Attorney (Included on signature pages hereto).
27.1** Financial Data Schedule.
</TABLE>
- ---------------
* To be filed by amendment.
** Previously filed.
*** Confidential treatment is being sought with respect to certain portions of
this agreement. Such portions have been omitted from this filing and have
been filed separately with the Securities and Exchange Commission.
<PAGE> 1
EXHIBIT 10.8
DATED 7 DECEMBER, 1999
BP AMOCO P.L.C.
and
EXULT, INC.
FRAMEWORK AGREEMENT
LINKLATERS
One Silk Street
London EC2Y 8HQ
Tel: (44-171) 456 2000
Ref: JPC/CXC
<PAGE> 2
PARTIES
THIS AGREEMENT is made on 7th December, 1999
BETWEEN:
(1) BP AMOCO P.L.C., a company incorporated under the laws of England and
Wales, whose principal office is at Britannic House, 1 Finsbury Circus,
London EC2M 7BA ("BPA"); and
(2) EXULT, INC., a company incorporated under the laws of the State of
Delaware whose principal office is at 4 Park Plaza, Suite 350, Irvine,
California 92614 ("EXULT").
WHEREAS:
(A) BPA and its Affiliates throughout the world currently provide to
themselves either directly or through third parties certain human
resources management services. BPA has decided to outsource the provision
of the Services to Exult. Exult has agreed to provide, or procure that
certain of its Affiliates provide, the Services to BPA and its Affiliates.
(B) The parties have agreed, as appropriate, to enter into, or procure that
certain of their Affiliates enter into Country Agreements in respect of
the United States of America and the United Kingdom on the date of this
Agreement. The parties intend that the Services will, in time, extend
across the world and accordingly have agreed a procedure to allow for the
extension of the provision of the Services to the other Countries by
entering into Country Agreements.
(C) The purpose of this Agreement is to set out the obligations of the parties
hereto and to provide the framework for establishing future Country
Agreements for the provision and receipt of the Services to Participating
Affiliates by Exult Participating Affiliates in the Countries.
(D) Exult intends to improve the quality and efficiency of human resources
services provided to BPA in order to achieve cost savings in the provision
of the Services through the transformation of the Services to Leveraged
Operations as follows:
(i) Automation of relevant transactional processes and employee access
through the implementation of web-enabled human resources support;
(ii) Consolidation and integration of human resources transactional
processing support into Client Service Centres containing call
centre technology, fully deployed knowledge base, case management,
work flow data warehousing, best in class processes and optimised
customer service;
(iii) Implementation of best practice human resources processes and
procedures; and
(iv) Rationalisation and integration of third party service providers.
Exult and BPA will work together during the term of the Agreement to
identify and implement new web-enabled human resources support services
additional to those set out above as
-1-
<PAGE> 3
incremental Projects.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 The definitions applying to this Agreement are set out in Schedule Z
(Definitions).
1.2 A reference to any statute, enactment, order, regulation or other
similar instrument shall be construed as a reference to the statute,
enactment, order, regulation or instrument as amended by any
subsequent statute, enactment, order, regulation or instrument or as
contained in any subsequent re-enactment thereof.
1.3 Headings are included in this Agreement for ease of reference only
and shall not affect the interpretation or construction of this
Agreement.
1.4 References to Clauses and Schedules are, unless otherwise provided,
references to clauses and schedules in or to this Agreement.
1.5 References to the words "include(s)" or "including" shall be
construed without limitation to the generality of the preceding
words.
1.6 In this Agreement references to "procuring" the BPA Affiliates or
Exult Affiliates to do a certain matter shall mean BPA, in the case
of BPA Affiliates, and Exult in the case of Exult Affiliates,
exercising all voting rights applicable to the relevant Affiliate
which it is capable, directly or indirectly of exercising and
ensuring that the Affiliate has all necessary funds and "voting
rights" shall mean such rights exercisable at meetings of
shareholders and the right to convene any such meetings.
2 STRUCTURE OF FRAMEWORK ARRANGEMENT AND COUNTRY TAKE ON
2.1 This Agreement sets out the mechanism and procedures through which
Exult and BPA Affiliates shall conduct Due Diligence Exercises and,
through which Country Agreements for the provision of the Services
shall be entered into. In each Country which is to receive the
Services, the Services shall be provided to BPA and/or the relevant
BPA Affiliates pursuant to a Country Agreement which will be entered
into following the procedure set out in this Clause 2.
2.2 Country Agreements in respect of the United States of America and
the United Kingdom will be executed on the Commencement Date. The
General Transition Plan [***]* and it is the intention of the
parties that [***]* will be the Countries for which the first Due
Diligence Exercises will be conducted after the Commencement Date.
It is BPA's intention to confirm [***]* and to give notice to Exult
in respect of these Countries, in accordance with Clause 2.3, within
21 days of the Commencement Date.
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2.3 When BPA wishes to receive Services in respect of a Country it shall
give Exult not less than [***]* notice of a proposed Country
Commencement Date whereupon:
2.3.1 Exult shall prepare and submit to BPA a proposed timetable
and resource plan for the Due Diligence Exercise in respect
of that Country not later than [***]* to enable BPA and the
relevant BPA Affiliate to identify the internal resources
required and otherwise prepare for the Due Diligence
Exercise and the parties shall discuss and agree such
timetable and plan; and
2.3.2 the parties shall commence the Due Diligence Exercise not
later than [***]* and shall use reasonable endeavours to
complete such Due Diligence Exercise within [***]* in
accordance with Clause 4 and the other provisions of this
Agreement, including the General Transition Plan.
2.4 Notwithstanding Clause 2.3, Exult will not be required to undertake
more than [***]* Due Diligence Exercises at any one time unless
otherwise agreed by the parties.
2.5 Subject to Clause 2.8 and 2.10, following the completion of the
applicable Due Diligence Exercise, if it can be demonstrated that
Exult will be able to provide the Services at service levels [***]*
and provide the Guaranteed Minimum Savings and the Exult Return in
respect of that Country:
2.5.1 Exult shall or shall procure that one of the Exult
Affiliates shall, and BPA shall [***]* to enter into a
Country Agreement in relation to that Country, [***]* and
2.5.2 if notwithstanding Clause 2.5.1, such BPA Affiliate does not
enter into a Country Agreement in relation to that Country,
BPA shall not, and shall procure that its Affiliates shall
not, for a period of [***]* enter into an agreement with any
third party for the provision of all or any of the Services
in that Country without the consent of Exult, except that
the relevant BPA Affiliates shall have the right to extend
the term of third party contracts relating to the provision
of services similar to the Services which were in existence
at the date of completion of the relevant Due Diligence
Exercise and to recontract services under those third party
contracts to other third parties.
2.6 Where it can be demonstrated that Exult will be able to provide the
Services at service levels [***]* and provide the Guaranteed Minimum
Savings in accordance with Clause 2.5, but the Exult Return cannot
be demonstrated, Exult may, in its absolute discretion, notify BPA
that it elects to proceed based on a reduced Exult Return and in
such circumstances the provisions of Clauses 2.5.1 and 2.5.2 shall
apply.
2.7 Following the completion of the Due Diligence Exercise for each
Country, if it cannot be demonstrated that Exult will be able to
provide the Services at service levels [***]* and provide the
Guaranteed Minimum Savings and the Exult Return in respect of that
Country, then the parties shall negotiate in good faith to seek to
identify mutually
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acceptable terms on which to enter into a Country Agreement for the
relevant Country, provided that:
2.7.1 if BPA is willing to accept a reduction in the Guaranteed
Minimum Savings in respect of the relevant Country, such
that Exult will earn the Exult Return, then Exult shall or
shall procure that one of the Exult Affiliates shall and BPA
shall use reasonable endeavours to persuade the relevant BPA
Affiliate to enter into a Country Agreement in relation to
the relevant Country;
2.7.2 if it can be demonstrated in respect of a Group of Countries
either that Exult can achieve [***]* in respect of such a
Group of Countries, including the relevant Country, or that
the Exult Return can be achieved in respect of each of (i)
the relevant Country and (ii) the other Countries in the
Group of Countries, then, subject to Clause 2.7.3, Exult
shall, or shall procure that one of the Exult Affiliates
shall enter into a Country Agreement in relation to the
relevant Country and each of the other Countries in the
Group of Countries for which there is no Country Agreement
in place, and BPA shall [***]* to enter into a Country
Agreement in relation to the relevant Country and each of
the other Countries in the Group of Countries for which
there is no Country Agreement in place;
2.7.3 the parties agree that the obligations to enter into, and to
procure or persuade Affiliates to enter into, Country
Agreements for each Country under Clause 2.7.2 are
conditional upon Country Agreements being entered into for
each of the other Countries in the relevant Group of
Countries for which there is no Country Agreement in place;
2.7.4 in the absence of the parties entering a Country Agreement
within [***]*, BPA and its Affiliates shall be free to
engage a third party in respect of the provision of the
Services in that Country or to provide such Services from
within BPA or from a BPA Affiliate, provided that [***]*;
and
2.7.5 in the event that Exult disputes whether a proposal made by
a third party complies with the requirements of Clause
2.7.4, BPA may give notice to Exult to refer the matter to
be determined by an Expert appointed pursuant to Clause
24.2. The costs of such Expert shall be borne by BPA.
2.8 If at any time the [***]*
2.8.1 Exult shall prepare and submit to the Global Governance
Panel within [***]* a report identifying the likely causes
for the lack of success and proposals for remedy;
2.8.2 the Global Governance Panel shall consider the Exult report
together with any
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comments thereon from BPA and seek to [***]*; including, if
appropriate, a different basis for [***]*;
2.8.3 in the event that the Global Governance Panel shall consider
the Exult report together with any comments thereon from BPA
and seek to [***]*, including, if appropriate, a different
basis for [***]*; and
2.8.4 in the event that the Global Governance Panel fails to reach
such agreement within [***]*, BPA shall [***]*
2.9 Subject to Clause 2.8, in the event that BPA provides Exult with
notice under Clause 2.3 in respect of any Country after [***]*, then
at the end of the Due Diligence Exercise for that Country the
parties shall negotiate in good faith and cooperate to seek to agree
mutually acceptable terms on which to enter a Country Agreement for
that Country, provided that:
2.9.1 Exult shall be under no obligation to provide the Guaranteed
Minimum Savings in respect of that Country;
2.9.2 if BPA is willing to accept a reduction in the Guaranteed
Minimum Savings in respect of that Country, such that Exult
will earn the Exult Return, then Exult shall or shall
procure that one of the Exult Affiliates shall and BPA shall
[***]* to enter into a Country Agreement in relation to that
Country;
2.9.3 in the absence of the parties entering into a Country
Agreement within [***]* BPA and its Affiliates shall be free
to engage a third party in respect of the provision of the
Services in that Country or to provide such Services from
within BPA or from a BPA Affiliate, provided that [***]* and
2.9.4 in the event that Exult disputes whether a proposal made by
a third party complies with the requirements of Clause
2.9.3, BPA may give notice to Exult to refer the matter to
be determined by an Expert appointed pursuant to Clause
24.2. The costs of such Expert shall be borne by BPA.
2.10 For the purposes of Clauses 2.5, 2.6, 2.7, 2.8 and 2.9, the Exult
Return and ROC shall include the Additional Amount set out in Clause
11.2.5(iii) of the Pro Forma Country Agreement:
2.11 Each Country Agreement shall be in the form of the Pro Forma Country
Agreement except as varied by or as necessary to accommodate the
relevant applicable laws of each Country, or as necessary to be
consistent with the Due Diligence Report.
3 TERM
3.1 This Agreement shall take effect on the Commencement Date and,
subject to the
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provisions of Clauses 11 (Termination) and 12 (Consequences of
Termination), shall expire on the Expiry Date.
3.2 Each Country Agreement shall take effect on the Country Commencement
Date for that agreement and, subject to the earlier termination of
this Agreement or that Country Agreement in accordance with its
terms, expire on the Expiry Date.
4 DUE DILIGENCE
4.1 Following receipt by Exult of a notice from BPA in accordance with
Clause 2.3 the parties shall carry out the Due Diligence Exercise in
respect of the relevant Country or Group of Countries in accordance
with the due diligence process set out in Part 1 of Schedule G
(Transition Plan). The parties agree to procure the co-operation of
their respective Affiliates in respect of the Due Diligence
Exercise.
4.2 Exult shall prepare and deliver to the relevant Regional Governance
Panel a draft Due Diligence Report on completion of the Due
Diligence Exercise for agreement by the Regional Governance Panel.
4.3 The purpose of the Due Diligence Exercise is to inter alia identify
and record in the Due Diligence Report the Client HR Costs in a
Country and to validate the description of the Services and the
Service Levels as set out in the Pro Forma Country Agreement. On
completion of the Due Diligence Exercise for a Country, the
services, BPA Responsibilities, Service Levels and KPIs set out in
the Pro Forma Country Agreement will be amended to reflect the
actual practice and requirements of the BPA Affiliates in that
Country and included in the schedules to the relevant Country
Agreement. The parties acknowledge that a Validation Exercise will
be carried out following the Country Commencement Date in respect of
each Country Agreement in accordance with the terms of the relevant
Country Agreement.
4.4 Although each existing Country Agreement shall be reviewed in light
of the findings of subsequent Due Diligence Reports carried out in
relation to other Country Agreements, revisions will only be made to
existing Country Agreements, if and to the extent that the Regional
Governance Panel agrees that such revisions are appropriate.
4.5 Where at any time during a Due Diligence Exercise the Regional
Governance Panel fails to agree on any element of the Due Diligence
Report such Dispute shall be referred to the informal Dispute
Resolution Procedure in accordance with Clause 25.1. If the parties
cannot resolve any issues relating to Charges, Client HR Costs or
Taxes, either party may give notice to the other to refer the matter
to be determined by an Expert appointed pursuant to Clause 25.2. The
costs of such Expert shall be borne equally by the parties.
4.6 In respect of countries other than the United States of America and
the United Kingdom BPA will pay Exult for conducting the Due
Diligence Exercise under this Agreement as follows:
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[***]*
Before commencing a Due Diligence Exercise under this Agreement,
Exult shall provide BPA with an estimate of its costs for carrying
out the Due Diligence Exercise (having regard to the agreed scope of
work and timetable therefore). Exult will periodically notify BPA of
the level of its charges and expenses incurred in relation to a Due
Diligence Exercise and consult with BPA if it appears likely to
Exult that its estimate of costs will be exceeded. Exult will
invoice BPA on a monthly basis in respect of all fees, costs and
expenses specified in Clauses 4.6.2 to 4.6.4 which relate to the Due
Diligence Exercise [***]*
4.7 Notwithstanding the above, due diligence exercises in respect of the
United States of America and the United Kingdom have been carried
out pursuant to the LOI.
5 SERVICES
5.1 STANDARDISATION OF SERVICES AND SERVICE LEVELS
The Services and any Projects will be provided to BPA and the
Participating Affiliates by Exult and/or the Exult Participating
Affiliates under each Country Agreement. It is the intention of BPA
and Exult to standardise the Services and the Service Levels that
are to be provided by Exult and/or the Exult Participating
Affiliates under the Country Agreements based on the Services
description and the Service Level principles set out in this
Agreement at Schedules A and B and the indicative services and
service levels included as schedules in the Pro Forma Country
Agreement are the result of a due diligence exercise carried out by
BPA and Exult for the United Kingdom and the United States of
America.
5.2 THIRD PARTY CONTRACTS
The provisions relating to the transfer and/or administration of
Third Party Contracts shall be as set out in the relevant Country
Agreement.
5.3 SIGNIFICANT CHANGE
5.3.1 For the purposes of this Clause 5.3, "Significant Change"
means [***]*
5.3.2 In the event of a Significant Change the parties agree that
they shall and shall procure that their Affiliates shall
apply the provisions of this Clause 5.3.
5.3.3 If there is a Significant Change which results in a
requirement for additional human resource management
services (the "Significant Change Services"), BPA shall not
be obliged to incorporate such Significant Change Services
into any Country as a result of any Due Diligence Exercise.
However, the provisions of Clause 7 (Exclusivity) will apply
to such Significant Change Services.
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5.3.4 If BPA wishes to incorporate Significant Change Services
into one or more Countries, it will give Exult reasonable
notice following which the parties shall undertake a due
diligence review (the "SCS Due Diligence Review") to assess
the impact of the Significant Change on the scope and level
of the Services under all relevant Country Agreements in
force and also on the scope and level of existing human
resource management services in any Country not subject to a
Country Agreement. Such SCS Due Diligence Review will be
conducted based on the assumption that Significant Change
Services will be provided using the same Service Delivery
Model in operation or planned for in the relevant Country.
BPA shall pay Exult's reasonable costs of undertaking the
SCS Due Diligence Review, including, but not limited, to
Exult's personnel costs on a time and material basis in
accordance with a pre-agreed budget.
5.3.5 Following the SCS Due Diligence Review, if in respect of any
Country subject to a Country Agreement, it can be
demonstrated that Exult will be able to provide the
Significant Change Services at service levels materially
similar to the service levels existing at that time under
the Country Agreement for such Country whilst maintaining a
financial position for the relevant BPA and Exult Affiliates
which is in all material respects the same as or better than
the financial position under the relevant Country Agreement
both in terms of the BPA Affiliates savings ("Existing
Guaranteed Minimum Savings") and the Exult Affiliates'
return on cost ("Existing Exult Return") (the Existing
Guaranteed Minimum Savings and the Existing Exult Return,
collectively the "Existing Financial Position"):
(i) [***]*
(ii) [***]*
5.3.6 Following the SCS Due Diligence Review, if BPA, in respect
of a Country not then subject to a Country Agreement, wishes
to receive Services in that Country, it may either give
notice to Exult under Clause 2.3 (Structure of Framework
Arrangement and Country Take On) and include the Significant
Change Services in such notice (in which case the provisions
of Clauses 2.4 to 2.9 inclusive also shall apply) or exclude
such Services (in which case they will be dealt with under
Clause 5.3.3).
5.3.7 Following the SCS Due Diligence Review, if in respect of a
Country which is subject to a Country Agreement, it cannot
be demonstrated that Exult will be able to provide the
Significant Change Services at service levels materially
similar to the service levels existing at that time under
the Country Agreement, and maintain the Existing Financial
Position then the parties shall negotiate in good faith to
seek to identify mutually acceptable terms on which to
incorporate the Significant Change Services into the
Services under the Country Agreement pursuant to the Change
Control Management process, provided that:
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(i) [***]*
(ii) [***]*
(iii) [***]*; and
(iv) in the event that Exult disputes whether a proposal
made by a third party complies with the requirements
of (iii) above, BPA may give notice to Exult to refer
the matter to be determined by an Expert appointed
pursuant to Clause 25.2 (Dispute Resolution). The
costs of such Expert shall be borne by BPA.
5.3.8 Where a Significant Change involves a potential decrease in
the requirement for human resource management services by
BPA and its Affiliates under any Country Agreements, the
parties shall and shall procure that their relevant
Affiliates shall negotiate in good faith to seek to agree
any resulting changes to the Services, Services Levels and
Charges provisions of the relevant Country Agreements. In
the event that the parties cannot agree on such changes
then:
(i) [***]*
(ii) [***]*
5.3.9 For the avoidance of doubt, BPA and its Affiliates shall
only be entitled pursuant to Clause 5.3.8 to decrease
Charges otherwise payable to Exult or its Affiliates under a
Country Agreement where the Significant Change results in
the relevant businesses to which the Services relate ceasing
to be within the control of BPA and/or its Affiliates.
5.4 BPA CONTROLS
5.4.1 For the avoidance of doubt, BPA and/or its Affiliates shall
be responsible for establishing and maintaining BPA
Controls, including, but not limited to, management overview
and determination of BPA Controls relating to human resource
management policies and practices for BPA and BPA
Affiliates. Exult shall have no responsibility for the
establishment and maintenance of BPA Controls, but shall and
shall procure that the Exult Participating Affiliates shall
comply with BPA Controls in accordance with the terms of
this Agreement .
5.4.2 As at the Commencement Date, the BPA Controls listed in Part
1 of Schedule O (BPA Policies and Controls) have been
provided to Exult in writing and the parties have agreed
that Exult shall fulfil its obligations under this Agreement
in accordance with such agreed BPA Controls.
5.4.3 During the [***]* following the Commencement Date, the
parties shall work
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together in good faith and in conjunction with their
respective Affiliates, as appropriate, to review and
evaluate the BPA Controls listed in Part 2 of Schedule O
(BPA Policies and Controls). Such review will involve an
assessment of the applicability of such BPA Controls to the
performance of Exult's obligations under this Agreement and
the impact, if any, in terms of cost, timing or otherwise of
Exult's compliance with such BPA Controls.
5.4.4 It is the intention of the parties that through the review
process referenced in Clause 5.4.3 the BPA Controls listed
in Part 2 of Schedule O (BPA Policies and Controls) will be
agreed between the parties and, subject to any appropriate
and agreed qualifications or amendments, will be included
within Part 1 of Schedule O (BPA Policies and Controls) and
Exult shall comply with such additional agreed BPA Controls
when performing its obligations under this Agreement.
5.4.5 In the event that the parties are unable to reach agreement
as to the inclusion of any BPA Controls pursuant to Clauses
5.4.3, then at the end of the [***]* those BPA Controls
shall be deemed to have been included in Part 1 of Schedule
O and the Change Control Management process shall be applied
to implement the change.
5.4.6 In addition to the provisions in Clauses 5.4.4 and 5.4.5 for
inclusion of BPA Controls into this Agreement, the parties
shall procure the Global Governance Panel to review the BPA
Controls periodically during the term of this Agreement and
to use reasonable endeavours to agree and include:
(i) any improvements and updates to BPA Controls; and
(ii) any additional BPA Controls established or determined
by BPA in relation to human resource management or to
its business generally.
5.4.7 In the event that the parties are unable to reach agreement
as to the inclusion of any BPA Controls pursuant to Clause
5.4.6 [***]* those BPA Controls shall be deemed to have been
included in Part 1 and the Change Control Management process
shall be applied to implement the change.
5.4.8 Within [***]* following the applicable Country Commencement
Date and as set out in the Country Transition Plan, Exult
shall or shall procure that the relevant Exult Participating
Affiliate shall develop a Quality Control Document. The
Quality Control Document shall thereafter be reviewed
periodically by the Regional Governance Panel with a view to
agreeing and incorporating any improvements and updates
thereto, in accordance with the terms of the relevant
Country Agreement.
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5.4.9 Any alleged or suspected violation of the BPA Controls by
any Exult Personnel in the performance of this Agreement
shall be promptly reported by the party with knowledge of
the alleged or suspected violation to the other party. Exult
shall permit BPA to conduct an investigation into the matter
and shall co-operate with any such investigation and shall
take whatever Exult deems to be the appropriate corrective
action with respect to any such violation by the Exult
Personnel.
5.4.10 To the maximum extent possible, it is the intention of the
parties to standardise the controls applicable to this
Agreement and each Country Agreement. However, it is
acknowledged that the controls applicable in different
Countries may vary to accommodate local differences for
example in the law, technology and custom and practice. The
specific controls applicable to each Country Agreement will
be reviewed and included in accordance with the process set
out in the Clause of the relevant Country Agreement
equivalent to Clause 3.2 of the Pro Forma Country Agreement.
5.5 Except as otherwise provided in this Agreement, Exult shall be
responsible for ensuring it has all personnel and assets required to
fulfil its obligations under this Agreement.
6 OBLIGATIONS TO PROCURE AFFILIATES' PERFORMANCE
6.1 Exult shall procure that each Exult Participating Affiliate shall
comply with its obligations under the relevant Country Agreement(s).
6.2 BPA shall procure that each Participating Affiliate shall comply
with its obligations under the relevant Country Agreement(s).
7 EXCLUSIVITY
7.1 It is the intention of the parties, subject to the terms of this
Clause 7, that when during [***]*, BPA or a BPA Affiliate wishes to
appoint a third party to provide human resource management services
in a Country, Exult or an Exult Affiliate shall have an exclusive
first right to offer to provide such Services.
7.2 Without creating any obligation upon BPA under Clause 2 (Structure
of Framework Arrangement and Country Take On) to give notice of a
proposed Country Commencement Date in respect of a Country or to
enter into any Country Agreement, BPA undertakes, as soon as
practicable after the Commencement Date to:
7.2.1 communicate to all BPA Affiliates and BPA business unit
managers its intention that Exult will be the exclusive
provider of the Services to BPA and BPA Affiliates on a
global basis;
7.2.2 request BPA Affiliates and BPA business unit managers to
monitor and bring to the attention of the Global Governance
Panel any activities of any BPA Affiliate which is
inconsistent with such intention; and
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7.2.3 request BPA Affiliates and BPA business unit managers to
avoid where possible entering into new contracts or
extending existing contracts for all or any of the human
resource management services in any Country with any third
party within [***]*
7.3 Notwithstanding Clause 7.2.3, and subject to Clause 7.5, where
[***]* a BPA Affiliate has a requirement for human resource
management services in a Country which would otherwise necessitate
the BPA Affiliate extending existing contracts or entering into new
contracts BPA undertakes to:
(i) procure that prior to any BPA Affiliate extending such
existing contracts or entering into any new contracts with
third parties Exult or an Exult Affiliate is given an
exclusive first right to offer to provide human resources
management services in a Country where such contracts
involve any additional element of integration of the core
human resources processes in that Country, including, but
not limited to, payroll and human resources information
systems, or where such services involve the introduction of
any new technology enabled services relating to human
resources management; and
(ii) use its reasonable endeavours to ensure, that any contracts
relating to human resource management which are not awarded
to Exult or an Exult Affiliate pursuant to Clause 7.3.1(i)
contain a right for the contracting BPA Affiliate to assign
its interest in the contract without cost and without the
need for obtaining the consent of the third party.
7.4 Subject to Clause 7.5, the parties acknowledge that Exult and the
Exult Affiliates will have an exclusive right to offer to provide
Services and Underlying Technology to BPA and its Affiliates in
accordance with Clause 2 and will be the exclusive suppliers of the
Services and Underlying Technology to the Participating Affiliates
in those Countries in respect of which there is a Country Agreement
in force.
7.5 BPA and the BPA Affiliates have the right to obtain human resources
services (including the Services) directly from within BPA, from a
BPA Affiliate or from a third party in respect of:
7.5.1 [***]*
7.5.2 services received by BPA or the Participating Affiliate
under Third Party Contracts which are not Transferred to
Exult or an Exult Participating Affiliate pursuant to the
provisions of the relevant Country Agreement corresponding
to Clause 7 (Third Party HR Contracts) of the Pro Forma
Country Agreement;
7.5.3 services received by BPA or any Participating Affiliate
under Sensitive Third Party Contracts pursuant to the
provisions of the relevant Country Agreement corresponding
to Clause 7 (Third Party HR Contracts) of the Pro Forma
Country
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Agreement;
7.5.4 [***]*
7.5.5 [***]* and
7.5.6 any Affected Process in relation to which a BPA Affiliate
has terminated a Country Agreement pursuant to provisions
corresponding to Clause 15 of the Pro Forma Country
Agreement (Suspension of a Process).
8 TRANSFER ARRANGEMENTS
8.1 TRANSFER OF BPA EMPLOYEES
The transfer of employees from BPA or a BPA Affiliate to Exult or
the relevant Exult Affiliate in a Country, if any, shall be governed
by the provisions set out in the relevant Country Agreement.
8.2 BPA ASSETS
BPA shall, in accordance with the provisions of the Country
Agreements, use its reasonable endeavours to transfer, license,
lease or otherwise make available, or to procure that the
Participating Affiliates transfer, license, lease or otherwise make
available to the extent they each have the power to do so should any
of the Exult Participating Affiliates so reasonably request, BPA
Assets to that Exult Participating Affiliate for use in the
provision of the Services.
8.3 THIRD PARTY CONSENTS
The obtaining of third party consents required to provide to the
Exult Participating Affiliate the benefit of the arrangements under
which BPA or BPA Affiliates hold or use any of the BPA Assets, shall
be governed by the provisions set out in the relevant Country
Agreement.
9 PAYMENTS
9.1 [***]*
9.2 [***]*
9.3 [***]*
9.4 The principles relating to the charging methodology to be applied
when establishing the
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Charges applicable to each Country Agreement are set out in Schedule
C.
9.5 The Charges applicable in respect of each Country Agreement will be
set out in that Country Agreement, including Schedule C (Charges and
Invoicing) to the Country Agreement.
10 ASSIGNMENT AND SUBCONTRACTING
10.1 Exult shall not be entitled to and shall not assign, novate or
otherwise transfer this Agreement, in whole or in part, without
BPA's prior written consent.
10.2 BPA shall not be entitled to assign, novate or transfer this
Agreement or any part of it without Exult's prior written consent
save that BPA may assign, novate or otherwise transfer this
Agreement in whole or in part to a BPA Affiliate, provided that if
at any time following such transfer, assignment or novation the
relevant entity ceases to be a BPA Affiliate, BPA shall procure that
such entity shall re-transfer, re-assign or re-novate this
Agreement, or the relevant part of it, to BPA or another BPA
Affiliate at that time and provided that BPA will, prior to the
effective date of any such assignment, transfer or novation, provide
Exult with a BPA guarantee in respect of BPA's procurement
obligations under this Agreement in a form to be agreed between the
parties.
10.3 Either party shall be free to sub-contract the performance of any of
its obligations in relation to Due Diligence Exercises under this
Agreement without the other's consent save that either party may
object to any such sub-contractor on valid grounds and in the event
of failure to agree the matter shall be referred to the informal
Dispute Resolution Procedure in accordance with Clause 25.1 (Dispute
Resolution). If the parties cannot resolve this issue, the matter
shall be referred to an Arbitrator appointed pursuant to Clause 25.3
(Dispute Resolution). Any such sub-contract shall not relieve either
party of its obligations under this Agreement and either party shall
be liable for any acts or omissions of any of its sub-contractors as
if it were its own acts or omissions.
11 TERMINATION
11.1 TERMINATION ON WINDING UP OR DEFAULT
Either BPA or Exult may at any time by notice in writing terminate
this Agreement as from, subject to Clause 11.6, the date of giving
such notice to terminate if:
11.1.1 in the case of BPA, Exult or in the case of Exult, BPA
passes a resolution or the court makes an order that it be
wound up otherwise than for the purposes of a reconstruction
or amalgamation, or a receiver, manager or administrator on
behalf of a creditor is appointed in respect of the other
party's business, or circumstances arise which would entitle
a creditor to request that a court appoint a receiver,
manager or administrator or which would entitle the court
otherwise than for the purpose of a bona fide reconstruction
or amalgamation to make a winding-up order, or the other
party is unable to pay its debts within the meaning of
Section 123 of the UK Insolvency Act 1986 or its relevant
foreign jurisdiction equivalent;
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11.1.2 in the case of BPA, Exult or in the case of Exult, BPA is in
Default and the party in Default fails to remedy or
compensate for the Default [***]*; or
11.1.3 in the case of BPA in the event that Exult ceases to:
(i) maintain the Letter of Credit in accordance with
Clause 23 (Letter of Credit); or
(ii) maintain the relevant insurance cover in accordance
with Clause 22 (Insurance);
and has failed to re-obtain and maintain in place such
Letter of Credit or insurance cover [***]*
11.2 TERMINATION FOR CONVENIENCE
BPA may, subject to Clause 12.5 (Termination Payment), terminate
this Agreement by giving Exult written notice of its intention to
terminate [***]* where no Winding Up Plan is implemented or on such
later date as is determined in accordance with Clause 11.6.
11.3 TERMINATION FOR CHANGE OF CONTROL
BPA may at any time by notice in writing terminate this Agreement as
from, subject to Clause 11.6, the date of giving such notice if
there is a Change of Control of Exult, provided that such notice is
given [***]*
11.4 TERMINATION OF COUNTRY AGREEMENT IN KEY COUNTRY
11.4.1 In the event that the relevant BPA Affiliate terminates a
Country Agreement in respect of a Key Country pursuant to
provisions corresponding to Clause 14.1 of the Pro Forma
County Agreement (Termination on Winding Up or Default), BPA
may [***]* by notice in writing terminate this Agreement and
all other Country Agreements in place at that time as from,
subject to Clause 11.6, the date of giving such notice,
provided that the termination of the Country Agreements
other than the one relating to the relevant Key Country
shall be deemed to have been terminated in accordance with
the provisions corresponding to Clause 14.6 of the Pro Forma
County Agreement (Termination for Change of Control).
11.4.2 In the event that (i) the relevant Exult Affiliate
terminates a Country Agreement in respect of a Key Country
pursuant to provisions corresponding to Clause 14.1 of the
Pro Forma Country Agreement (Termination on Winding Up or
Default); or (ii) the relevant BPA Affiliate terminates a
Country Agreement in
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respect of a Key Country pursuant to provisions
corresponding to Clause 14.2 (Termination for Convenience)
of the Pro Forma Country Agreement Exult may [***]* by
notice in writing terminate this Agreement and all other
Country Agreements in place at that time as from, subject to
Clause 11.6, the date of giving such notice, provided that
the termination of the Country Agreements other than the one
relating to the relevant Key Country shall be deemed to have
been terminated in accordance with the provisions
corresponding to Clause 14.6 of the Pro Forma Country
Agreement (Termination for Change of Control).
11.5 COUNTRY AGREEMENTS
Each Country Agreement shall terminate automatically upon the
termination or expiry of this Agreement unless terminated earlier in
accordance with its terms.
11.6 EXTENSION FOR WINDING UP
Any date for the termination of the Agreement provided in this
Clause 11 shall be subject to any extension agreed or determined by
the parties pursuant to the General Winding Up Plan or the Winding
Up Plan of each Country.
12 CONSEQUENCES OF TERMINATION
12.1 WINDING UP PLAN
On the earlier of the [***]* of the Commencement Date and the date
of notice of termination of this Agreement, at the request of BPA:
12.1.1 the parties will promptly meet and develop and agree the
General Winding Up Plan to provide an orderly transitioning
of the Services provided under the Country Agreements to the
Successor Operator; and
12.1.2 Exult shall co-operate fully with BPA and the Participating
Affiliates to implement the General Winding Up Plan to
minimise the cost and disruption of termination to BPA and
the Participating Affiliates and to facilitate the orderly
transitioning of the Services from Exult to the Successor
Operator in accordance with the provisions of the Country
Agreements.
12.2 The General Winding Up Plan is to cover the period up to [***]*
12.3 If the parties fail to agree the General Winding Up Plan [***]*, the
matter shall be referred to the informal Dispute Resolution
Procedure pursuant to Clause 25.1. If the parties are unable to
resolve the issue, the matter shall be referred to an Expert
pursuant to Clause 25.2. The costs of such Expert shall be borne
equally by the parties.
12.4 For the avoidance of doubt, the parties shall continue to perform
their obligations in
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accordance with this Agreement during the period of the General
Winding Up Plan, except as expressly provided in the General Winding
Up Plan.
12.5 TERMINATION PAYMENTS
Any payment arising as a result of the termination of this
Agreement shall be determined and paid in accordance with the
provisions of the relevant Country Agreement.
13 INTELLECTUAL PROPERTY RIGHTS
13.1 BPA INTELLECTUAL PROPERTY
All Intellectual Property rights subsisting in or relation to BPA
Assets, BPA Information and BPA Systems, the Due Diligence Report
(collectively, the "BPA Intellectual Property") shall (as between
the parties) belong to and be vested in BPA or the relevant BPA
Affiliates or their respective licensors as appropriate.
13.2 EXULT INTELLECTUAL PROPERTY
All Intellectual Property rights subsisting in or relation to Exult
Systems and the Framework Work Product (collectively, the "Exult
Intellectual Property") shall (as between the parties) belong to and
be vested in Exult, Exult Affiliates or their respective licensors
as appropriate.
13.3 LICENCE OF BPA INTELLECTUAL PROPERTY
BPA hereby grants to Exult (or in the case of BPA Intellectual
Property licensed to BPA, to the extent that such grant is not
within its power, shall use reasonable endeavours to procure the
grant to Exult of) a worldwide, non-exclusive, unlimited user,
royalty free licence to use the BPA Intellectual Property with a
right to sub-licence to Subcontractors, in each case, solely for the
purposes of carrying out its obligation to BPA and the BPA
Affiliates under this Agreement.
13.4 LICENCE OF EXULT INTELLECTUAL PROPERTY
Exult hereby grants to BPA and the BPA Affiliates (or in the case of
Exult Intellectual Property licensed to Exult to the extent that
such grant is not within its power, shall use reasonable endeavours
to procure the grant to the Client of) a worldwide, non-exclusive,
unlimited user licence, together with a right to sub-license to
third parties, to use the Exult Intellectual Property or any
physical material created as a result of the use of the same in
connection with the supply of the Services to the extent necessary
to enable BPA and the BPA Affiliate to receive the benefit of the
Services.
13.5 LICENCES OF BPA INTELLECTUAL PROPERTY ON TERMINATION
On expiration or termination of this Agreement for any reason, the
licences granted pursuant to Clause 13.3 shall automatically
terminate.
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13.6 LICENCE OF EXULT INTELLECTUAL PROPERTY ON TERMINATION
On expiration or termination of this Agreement for any reason, all
licences and all other rights to any Exult Intellectual Property
granted by Exult pursuant to this Agreement shall automatically
terminate, except to the extent necessary to allow the transfer of
Services under any Country Agreement in which case the licence shall
be granted in the form set out in the provision of the relevant
Country Agreement equivalent to Clause 19.8 of the Pro Forma Country
Agreement.
13.7 As soon as reasonably practicable following the expiration or
termination of this Agreement, Exult shall return to BPA all BPA
Intellectual Property and BPA Information subject to Exult having
the right to retain a copy of such BPA Intellectual Property and BPA
Information for compliance with applicable laws, professional
standards or quality assurance purposes.
14 CONFIDENTIALITY
14.1 All Confidential Information communicated in connection with the
negotiation, preparation and performance of this Agreement was and
shall be received in confidence, used only for the purposes, and
within the duration, of this Agreement, and shall be protected in
the same manner as the party receiving such Confidential Information
protects its own Confidential Information, but in any event in not
less than a reasonable manner, except for Confidential Information
which:
14.1.1 is or becomes generally available to the public other than
as a result of a breach of this Clause 14;
14.1.2 is acquired from a third party who owes no obligation of
confidence to the disclosing party in respect of the
Confidential Information;
14.1.3 is independently developed by the receiving party without
the use of the disclosing party's Confidential Information;
14.1.4 the receiving party is required by law to disclose;
14.1.5 is already known by the receiving party at the time of its
receipt (as evidenced by its written records); or
14.1.6 is agreed by BPA and Exult from time to time to be excluded.
Provided always that:
14.1.7 the onus shall be on the party disclosing the information
pursuant to Clauses 14.1.1 to 14.1.6 to prove through the
use of documentary evidence that the information fell within
one of Clauses 14.1.1 to 14.1.6 otherwise than through
unauthorised disclosure by that party; and
14.1.8 if either party (the "DISCLOSING PARTY") is required to make
a disclosure in
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accordance with Clause 14.1.4, it will or shall procure that
the relevant Affiliate will, if it is not prohibited by law
from doing so, provide the other party with prompt notice of
any such requirement or request to disclose any such
Confidential Information so that the non disclosing party
may seek an appropriate order. The disclosing party shall or
shall procure that the relevant Affiliate shall provide the
non disclosing party with all necessary assistance in any
action taken by the non disclosing party to obtain an
appropriate order including an order providing that the
information does not have to be disclosed, an appropriate
protection order or other reliable assurance that
confidential treatment will be accorded the information that
the disclosing party or the relevant Affiliate is required
to disclose.
14.2 Any party disclosing any Confidential Information to any agent or
subcontractor shall obtain or have obtained from the agent or
subcontractor a signed confidentially undertaking which the party
disclosing reasonably believes offers adequate protection in
relation to the matters contained in Clause 14.1. The parties agree
that no Confidential Information will be disclosed after the expiry
or termination of this Agreement unless such Confidential
Information comes within one of the exceptions in Clauses 14.1.1 to
14.1.6.
14.3 Upon the expiration or termination of this Agreement, all
Confidential Information made available by one party to the other
pursuant to this Agreement, including any copies thereof, shall be
either returned to the disclosing party or destroyed pursuant to the
request of such disclosing party. BPA, Exult and their respective
Affiliates may retain, however, subject to the terms of this Clause
14 and Clause 13 (Intellectual Property Rights), copies of the
Confidential Information required for, in the case of both parties,
compliance with applicable laws, professional standards or quality
assurance purposes, and in the case of BPA and the BPA Affiliates,
their continuing operations or internal business purposes.
14.4 The obligations of each party in relation to Confidential
Information contained in this Clause 14 shall survive the
termination or expiry of this Agreement, indefinitely.
14.5 Each party shall and shall procure that its Affiliates shall procure
that its and their respective employees, subcontractors, agents and
Affiliates comply with this Clause 14 and shall at the request of
the other party provide appropriate assurance of such compliance.
15 DATA PROTECTION AND DATA SECURITY
Each party shall and shall procure that its Affiliates comply in all
respects with the data processing obligations contained in Schedule Q, and
with all relevant local laws relating to the holding, processing and
protection of data.
16 CONTRACT AND SERVICE MANAGEMENT
16.1 BPA and Exult shall manage the relationship between the parties, the
Agreement and the Country Agreements, including the provision of the
Services in accordance with
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Schedule P (Global Governance Arrangements).
16.2 MONITORING AND REPORTING
BPA and Exult agree that the following monitoring and reporting
exercises shall be carried out in accordance with the relevant
Country Agreements:
16.2.1 Benchmarking;
16.2.2 Service Performance;
16.2.3 Key Incident Reporting;
16.2.4 Customer Satisfaction Surveys; and
16.2.5 Management Satisfaction Surveys.
17 AUDIT RIGHTS
Each Participating Affiliate shall have the right to conduct audits in
accordance with the terms of the Country Agreements and each party shall
procure its Affiliates shall comply with their obligations in respect of
audit and shall co-operate and provide all assistance reasonably required
to enable the Affiliates to carry out such obligations, including, for the
avoidance of doubt, providing access to its own procedures, documentation,
Systems and other books and records for the purposes of such audit.
18 CONTRACT MINIMUMS
18.1 Each Country Agreement will contain provisions relating to the
relevant Participating Affiliate's obligation to pay Contract
Minimums. The Regional Governance Panel may, in accordance with the
provisions of the relevant Country Agreement, agree that Country
Agreements should be grouped together with other Country Agreements
for the purposes of aggregating Contract Minimums across a relevant
CSC Group. This Clause 18 sets out the mechanism for such
aggregation.
18.2 Upon receipt of a notice by a party pursuant to Clause 23.7 of the
Pro Forma Country Agreement (Contract Minimums), the Regional
Governance Panel shall assess and agree whether or not the CSC
Average Charge (including the Country to which the notice relates)
equals or exceeds [***]*.
18.3 In the event that:
18.3.1 the CSC Average Charge equals or exceeds [***]*; and
18.3.2 the Average Charge of one or more Participating Affiliates
within the CSC
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Group is less than [***]*;
Exult will credit to a Participating Affiliate within the CSC Group
nominated by BPA, a sum equal to the lesser of [***]*
18.4 Any Dispute relating to this Clause 18 shall be referred to and
Expert appointed pursuant to Clause 25.2. The costs of such Expert
shall be borne equally by the parties.
19 WARRANTIES
19.1 Exult hereby represents and warrants to BPA that:
19.1.1 INCORPORATION AND EXISTENCE It is duly constituted,
organised and validly existing under its laws of
incorporation.
19.1.2 POWER AND AUTHORITY It has the legal right and full power
and authority to execute and deliver, and to exercise its
rights and perform its obligations under, this Agreement and
all the documents which are to be executed by it as
envisaged by this Agreement.
19.1.3 CORPORATE ACTION All corporate action required by it to
authorise the execution and delivery of, and to exercise its
rights and perform its obligations under this Agreement and
all other documents which are to be executed by it as
envisaged by this Agreement has been or will be taken.
19.1.4 ASSURANCE Nothing contained in this Agreement will:
(i) result in a breach of any provision of its
constitutional documents; or
(ii) result in a breach of any agreement, licence or other
instrument, order, judgment or decree of any Court,
governmental agency or regulatory body to which it is
bound.
19.2 EMU AND YEAR 2000 COMPLIANCE
19.2.1 Subject to Clause 19.2.2, Exult and its Affiliates make no
warranties in respect of Year 2000 Compliance or EMU
Compliance in respect of Services or Projects or other
activities carried out under this Agreement or any Country
Agreement and BPA and/or its Affiliates shall be solely
responsible for its and their Year 2000 Compliance or EMU
Compliance.
19.2.2 Exult warrants that Future Systems and Exult Proprietary
Systems are Year 2000 Compliant and EMU Compliant, but only
to the extent necessary to meet the business requirements of
BPA and Participating Affiliates and where Exult or the
relevant Exult Participating Affiliate has been given
reasonable notice of such business requirements and that it
has used and shall continue to use reasonable endeavours to
ensure that other Exult Systems are Year 2000 Compliant and
EMU Compliant, including wherever practicable obtaining
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appropriate warranties from the third party providers and
providing BPA and/or the relevant BPA Affiliate with the
benefit of such warranties.
19.2.3 Exult shall not be in breach of the warranties in Clause
19.2.2 to the extent that any failure of the Future Systems
and Exult Proprietary Systems to be Year 2000 Compliant or
EMU Compliant is caused by data, interfaces with third party
systems and software, including BPA Systems, in each case
which are not Year 2000 Compliant or EMU Compliant.
19.3 BPA hereby represents and warrants to Exult that:
19.3.1 INCORPORATION AND EXISTENCE It is duly incorporated,
organised and validly existing under its law of
incorporation.
19.3.2 POWER AND AUTHORITY It has the legal right and full power
and authority to execute and deliver, and to exercise its
rights and perform its obligations under this Agreement and
all the documents which are to be executed by it as
envisaged by this Agreement.
19.3.3 CORPORATE ACTION All corporate action required by it to
authorise the execution and delivery of, and to exercise its
rights and perform its obligations under this Agreement and
all other documents which are to be executed by it as
envisaged by this Agreement has been or will be taken.
19.3.4 ASSURANCE Nothing contained in this Agreement will:
(i) result in a breach of any provision of its
constitutional documents; or
(ii) result in a breach of any agreement, licence or other
instrument, order, judgment or decree of any Court,
governmental agency or regulatory body to which it is
bound.
19.4 Each of BPA and Exult undertakes to perform its obligations under
this Agreement in compliance with all applicable laws, enactments,
orders and regulations.
19.5 Except as expressly stated in this Agreement, all warranties and
conditions, whether express or implied by statue, common law or
otherwise are hereby excluded to the extent permitted by law.
20 LIMITATION OF LIABILITY
20.1 Neither party shall limit or exclude its liability to the other in
respect of (i) death or personal injury caused by its negligence or
the negligence of its employees acting in the course of their
employment; (ii) any fraudulent misrepresentations including any
pre-contractual misrepresentation made by a party on which the other
party can be shown to have relied when entering into this Agreement;
and (iii) any other liability which by law cannot be excluded.
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20.2 Except with respect to the parties obligations to procure (to which
Clause 20.3 applies) neither BPA nor Exult shall have any liability
to the other by virtue of being parties to this Agreement in respect
of any claims, liabilities or other matters relating to a Country
Agreement and the terms of the relevant Country Agreement shall
apply exclusively to any such liability.
20.3 Subject to the provisions of Clause 21.6 (Rights of Action), the
liability of each party to the other arising from any breach of a
procurement obligation under this Agreement in relation to Country
Obligations shall be limited to the maximum liability of its
respective Affiliate for failure to comply with such Country
Obligations as determined in accordance with the terms of the
relevant Country Agreement.
20.4 Subject to Clauses 20.1, 20.3 and 20.5 each party's aggregate
liability to the other in respect of all claims arising out of this
Agreement shall be limited to the greater of the sums paid and
payable by BPA to Exult under this Agreement at the date on which
the event that gives rise to the liability occurs or [***]*.
20.5 Subject to Clause 20.7, neither party shall be liable to the other
party for any consequential or indirect loss or damage suffered by
the other party in connection with this Agreement.
20.6 Neither party shall be liable to the other for any loss of profits,
loss of revenues, loss of goodwill or loss of or failure to make any
anticipated savings.
20.7 In respect of BPA, BPA's re-establishment costs, and in respect of
Exult, the categories of cost identified in Schedule C in relation
to termination, such costs are not considered consequential or
indirect losses.
20.8 The limitations set out in this Clause 20 shall not apply with
respect to:
(i) Indemnities (including those indemnities set forth in
Schedule J);
(ii) BPA's obligation to pay, including with respect to Early
Termination Charges;
(iii) [***]*
(iv) Liabilities arising from the breach of the confidentiality
provisions under this Agreement;
(v) Payment under designated insurance policies; and
(vi) Payment of Charges and Service Credits.
20.9 Subject to Clause 28.13 (Equitable Remedies), the parties recognise
that damages are the only remedy available under this Agreement and,
to the extent permissible by law,
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Exchange Commission.
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the limits in this Clause 20 are the absolute limit of each party's
liability arising under or in connection with this Agreement. All
other liability is expressly excluded.
20.10 LIMITATION ON BPA FRAMEWORK AFFILIATES' CLAIMS
20.10.1 The following represents the limit of all claims or actions
that may be made in relation to the provision of Framework
Services by Exult pursuant to this Agreement relative to BPA
Framework Affiliates:
(i) subject to the terms of this Clause 20.10, BPA shall
have the right to bring actions against Exult in
respect of such BPA Framework Affiliate for Losses
suffered by the BPA Framework Affiliate in respect
of the Due Diligence Services or this Agreement;
(ii) BPA shall wherever reasonably practicable
consolidate actions against Exult for Losses
suffered by BPA Framework Affiliates in respect of
each alleged default; and
(iii) the BPA Framework Affiliates' Losses shall be deemed
the direct Losses of BPA but all such Losses shall
be subject to the exclusions and limitations set out
in this Agreement.
20.10.2 BPA shall procure that the BPA Framework Affiliate will not
make any claim or be a party to any claim or other action
against Exult or an Exult Affiliate or their employees,
offices or directors arising from or in connection with the
provision of Due Diligence Services pursuant to this
Agreement.
20.10.3 BPA is fully responsible for the performance of all its
obligations under this Agreement with respect to the Due
Diligence Services provided to such Participating
Affiliates.
20.10.4 Nothing in Clause 20.10.2 or Clause 20.10.3 relieves BPA of
its obligations or expands Exult's obligations under this
Agreement.
21 INDEMNITIES
21.1 INDEMNITIES BY EXULT
Subject to Clause 21.5, Exult shall indemnify and keep indemnified
BPA, the Participating Affiliates and its and their respective
officers, directors, employees, agents, successors and assigns
(each, an "Indemnified BPA Party") from and against any and all
Losses arising in connection with this Agreement from any of the
following:
21.1.1 a claim by a BPA Third Party arising from the death or
illness of or personal injury to any BPA Third Party or from
any damage to any real or tangible personal property of any
BPA Third Party arising directly from and to the extent of
the negligent act or omission of Exult, an Exult
Participating Affiliate or its and their respective
employees, officers, agents or subcontractors;
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21.1.2 a claim by a BPA Third Party arising from the death or
illness of or personal injury to any employee of Exult or of
an Exult Participating Affiliate or to any employee of their
respective agents, or subcontractors or arising from any
damage to any real or tangible personal property of any
employee of Exult, or of an Exult Participating Affiliate,
or of any employee of their respective agents, or
subcontractors in each case notwithstanding that such claim
arose from the negligence of an Indemnified BPA Party;
21.1.3 a claim by a third party, other than a BPA Affiliate, to a
Third Party Contract where such claim arises in connection
with a breach of Exult's or Exult Participating Affiliate's
obligations under or relating to such Third Party Contract
assumed by Exult or the relevant Exult Participating
Affiliate pursuant to obtaining consents in respect of such
Third Party Contract to enable Exult or the relevant Exult
Participating Affiliate to provide the Services; and
21.1.4 a claim by a BPA Third Party arising from and directly
connected with the breach of any law, rule, regulation or
order, where such breach arises directly from the negligent
act or omission of Exult, an Exult Participating Affiliate
or its and their respective employees, officers, agents or
subcontractors.
21.2 INDEMNITIES BY BPA
Subject to Clause 21.5, BPA shall indemnify and keep indemnified
Exult, the Exult Participating Affiliates and its and their
respective officers, directors, employees, agents, successors and
assigns (each, an "Indemnified Exult Party") from and against any
and all Losses arising in connection with this Agreement from any of
the following:
21.2.1 a claim by an Exult Third Party arising from the death or
illness of or personal injury to any Exult Third Party or
from any damage to any real or tangible personal property of
any Exult Third Party arising directly from and to the
extent of the negligent act or omission of BPA, a BPA
Participating Affiliate or its and their respective
employees, officers, agents, or subcontractors;
21.2.2 a claim by an Exult Third Party arising from the death or
illness of or personal injury to any employee of BPA, or of
a Participating Affiliate or to any employee of their
respective agents or subcontractors or arising from any
damage to any real or tangible personal property of any
employee of BPA, or of a Participating Affiliate or of any
employee of their respective agents or subcontractors, in
each case, notwithstanding that such claim arose from the
negligence of an Indemnified Exult Party;
21.2.3 a claim by a third party, other than an Exult Affiliate, to
an Exult Third Party Contract where such claim arises in
connection with a breach of BPA's or BPA Participating
Affiliate's obligations under or relating to such Exult
Third Party Contract assumed by BPA or the relevant BPA
Participating Affiliate pursuant to obtaining consents in
respect of such Exult Third Party Contract obtained on the
termination or expiry of the relevant Country Agreement;
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21.2.4 a claim by an Exult Third Party arising from and directly
connected with the breach of any law, rule, regulation or
order, where such breach arises directly from the negligent
act or omission of BPA, a BPA Participating Affiliate or its
and their respective employees;
21.2.5 a claim by an Exult Third Party where such Exult Third
Party:
(i) is an employee or former employee of BPA or of a BPA
Affiliate to the extent such claim relates to the
period such employee or former employee was employed
by BPA or a BPA Affiliate (except to the extent that
such claim is covered by the indemnity provisions
set forth in Schedule J of the Country Agreement);
(ii) is a beneficiary under any BPA or BPA Affiliate
employee related benefits plans, programmes or
schemes to the extent that such claim relates to
such plans, programmes or schemes; or
(iii) has a fiduciary role or responsibility in relation
to any such BPA or BPA Affiliate's employee related
benefit plans, programmes or schemes to the extent
such claim relates to such role or responsibility,
in each case, except to the extent that such claim results
from the negligence of Exult, an Exult Participating
Affiliate, or its or their respective employees, officer,
agents or subcontractors.
21.3 INDEMNIFICATION BY EXULT WITH RESPECT TO INTELLECTUAL PROPERTY
21.3.1 Subject to Clause 21.5, Exult shall indemnify and keep
indemnified BPA and the relevant Participating Affiliates,
and their respective officers, directors, employees and
agents from and against any and all Losses of such
Participating Affiliates arising out of or in connection
with any claim by a third party that a Participating
Affiliate's or BPA's use or possession of any of the Exult
Proprietary Systems is unauthorised or infringes the
Intellectual Property rights of any third party.
21.3.2 In the event of any such claim being made, BPA shall procure
that the relevant Participating Affiliate notifies the Exult
representative on the Regional Steering Committee as soon as
practicable upon becoming aware of the same and, subject to
being indemnified, at the request of Exult or the relevant
Exult Participating Affiliate, grants Exult or that Exult
Participating Affiliate sole conduct of the claim and
provides to Exult or that Exult Participating Affiliate all
reasonable assistance in the conduct of the claim provided
that in conducting the claim Exult or that Exult
Participating Affiliate shall minimise the disruption to the
business of the BPA and the relevant Participating
Affiliates, including the use of the Exult Intellectual
Property, as the case may be.
21.3.3 No liability shall exist under this Clause 21.3 to the
extent that any such claim arises solely from:
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(i) the use by BPA or the relevant Participating
Affiliate of the relevant Exult Intellectual
Property for purposes not connected with the
Services or services equivalent to the Services in
the Country in which those Services are being
provided or as otherwise authorised;
(ii) any modification of the relevant Exult Intellectual
Property by or on behalf of BPA or the Participating
Affiliates to which Exult or the relevant Exult
Participating Affiliate or the third party, as the
case may be, has not given its consent; or
(iii) use of the relevant Exult Systems, Future Systems or
Work Product in connection with materials or data
supplied by BPA or any of the Participating
Affiliates.
21.3.4 In the event that BPA's or a Participating Affiliate's use
or possession of any part of the Exult Intellectual Property
is held to be unauthorised or to infringe any third party
Intellectual Property rights, then Exult shall, or shall
procure that the relevant Exult Participating Affiliate
shall, at its own expense and at BPA's or the relevant
Participating Affiliate's option:
(i) obtain for BPA or the relevant the Participating
Affiliate a licence or such other right to continue
to use the Exult Intellectual Property or part
thereof; or
(ii) replace or modify such part so as to avoid or
rectify the unauthorised use or infringement without
significant interruption or degradation in
performance,
provided that BPA shall, or shall procure that the relevant
Participating Affiliate shall, provide the relevant Exult
Participating Affiliate with all reasonable assistance (at
the cost of Exult) to enable Exult or the relevant Exult
Participating Affiliate to so do.
21.4 INDEMNIFICATION BY BPA IN RELATION TO INTELLECTUAL PROPERTY
21.4.1 Subject to Clause 21.5, BPA shall indemnify and keep
indemnified Exult and the relevant Exult Participating
Affiliate and their respective employees, officers, agents
or subcontractors from and against any and all Losses
arising out of or in connection with any claim by a third
party that Exult or Exult Participating Affiliate's use of
any of the BPA Systems which has been authorised by BPA or
the relevant Participating Affiliate is unauthorised or
infringes the Intellectual Property rights of any third
party.
21.4.2 In the event of any such claim being made, Exult shall, or
shall procure that the relevant Exult Participating
Affiliate shall, notify the BPA Regional representative on
the Regional Governance Panel as soon as practicable upon
becoming aware of the claim and, subject to being
indemnified at the request of BPA or the relevant
Participating Affiliate, grant BPA or that Participating
Affiliate sole
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conduct of the claim and provide to that Participating
Affiliate all reasonable assistance in the conduct of the
claim.
21.4.3 No liability shall exist under Clause 21.4 to the extent
that any such claim arises from:
(i) the use by the relevant Exult Participating
Affiliate of the relevant BPA System for purposes
not connected with the provision of the Services in
the Country in which the Services are provided; or
(ii) any modification of the BPA System by or on behalf
of the relevant Exult Participating Affiliate to
which the relevant BPA Participating Affiliate, as
the case may be, has not given its consent.
21.4.4 In the event that Exult Participating Affiliate's use of any
part of the BPA Systems is held to be unauthorised or to
infringe any Intellectual Property rights relating thereto,
then BPA shall procure that the relevant Participating
Affiliate, at its own expense:
(i) obtains for the relevant Exult Participating
Affiliate a licence or such other right to continue
to use that System; or
(ii) replaces or modifies such part so as to avoid or
rectify the unauthorised use or infringement,
provided that Exult shall, or shall procure that the
relevant Exult Participating Affiliate shall, provide the
relevant Participating Affiliate with all reasonable
assistance to enable that Participating Affiliate to so do.
21.5 DEFENCE OF CLAIMS
21.5.1 Each party will defend and (in respect of the Country
Agreements) procure its relevant Participating Affiliate to
defend any claim brought or threatened against the other
party to the extent that such claim is or may be subject to
the indemnity contained in Clauses 21.1, 21.2, 21.3 and 21.4
(the party providing such defence, the "Indemnifying Party"
and the party entitled to such defence, the "Indemnified
Party"). The Indemnifying Party will bear the expense of
such defence and pay any damages and legal fees finally
awarded by a court of competent jurisdiction which are
attributable to such claim.
21.5.2 The Indemnified Party shall notify the Indemnifying Party of
any claim under Clauses 21.1, 21.2, 21.3 and 21.4 within 30
days (or such shorter period as may be required to respond
to a third party claim) after receipt of notice. The
Indemnifying Party required to indemnify the Indemnified
Party under this Agreement shall have no obligation for any
claim under this Clause 21.5 to the extent that the defence
of such claim is prejudiced by such failure if:
(i) the Indemnified Party fails to notify the
Indemnifying Party of such claim
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as provided above;
(ii) the Indemnified Party fails to tender control of the
defence of such claim to the Indemnifying Party; or
(iii) the Indemnified Party fails to provide the
Indemnifying Party with all reasonable cooperation
in the defence of such claim (the cost thereof to be
borne by the Indemnifying Party).
21.5.3 The Indemnifying Party shall have no obligation for any
claim under this Agreement if the Indemnified Party makes
any admission or settlement regarding such claim without the
prior written consent of the Indemnifying Party, which
consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing sentence, the Indemnifying
Party may settle any claim involving only the payment of
money by the Indemnifying Party.
21.5.4 The Indemnified Party shall have the right (but not the
obligation) to participate in such defence or settlement
(and in the case of any proposed settlement of a claim which
does not involve only the payment of money, the Indemnifying
Party shall obtain the prior written consent of the
Indemnified Party to such settlement, such consent not to be
unreasonably withheld or delayed), in which event the
Indemnified Party shall pay its attorneys' fees associated
with such participation.
21.5.5 In conducting the defence of the claim, the Indemnifying
Party shall liaise with the Indemnified Party and keep the
Indemnified Party informed as to the progress of the action
and shall take into account the requirements and requests of
the Indemnified Party and in particular shall not make any
public statement relating to the action without the
Indemnified Party's prior written consent and shall not do
anything which could potentially adversely prejudice the
reputation or goodwill of the Indemnified Party or its
Affiliates.
21.6 RIGHTS OF ACTION
21.6.1 In the event that either party has an obligation in this
Agreement to procure that any of its Affiliates fulfil any
Country Obligation and the relevant Affiliate fails to
comply with such Country Obligation, the other party to this
Agreement shall, before taking any action under this
Agreement, procure that its relevant Affiliates take all
reasonable steps to enforce the relevant Country Obligation
pursuant to the relevant Country Agreement, and, only if it
is not possible by taking such reasonable steps to enforce
the Country Obligation pursuant to the relevant Country
Agreement or seek redress in respect of such failure from
the relevant Affiliate, shall it be entitled to take action
under this Agreement in respect of the failure to procure.
21.6.2 In the event that an Affiliate of either of the parties to
this Agreement raises an action, or reaches a settlement, in
respect of any breach of a Country Obligation then the
outcome of such action or such settlement (as the case may
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be) shall be in full and final settlement of the relevant
matter and neither Exult or BPA shall be entitled to raise
any action against the other under this Agreement in respect
of failure to procure that its Affiliate undertakes the
Country Obligation.
21.7 SURVIVAL OF RIGHTS
All indemnities, and exclusions and limitations of liability
contained in this Agreement shall remain binding on the parties
hereto, notwithstanding the expiry or termination of this Agreement
or any Country Agreement.
22 INSURANCE
22.1 Within [***]* of the Commencement Date, Exult shall obtain and
maintain for the duration of this Agreement:
22.1.1 comprehensive general legal liability insurance for an
initial aggregate value of [***]*
22.1.2 professional indemnity insurance for an initial aggregate
value of [***]*;
22.1.3 any and all other insurance policies required by the
relevant law of each Country to which a Country Agreement
relates; and
22.1.4 any and all other insurance policies reasonably required to
cover the specific commercial requirements of each Country
subject to a Country Agreement.
22.2 The necessary insurance policies shall be issued by an insurance
company legally established and recognised in the relevant Countries
and which is approved by BPA such approval not to be unreasonably
withheld or delayed.
22.3 Exult shall procure that the necessary insurance policies:
22.3.1 contain a waiver of all rights of subrogation against BPA
and/or the Participating Affiliates, and that such waiver
shall be endorsed upon the policies; and
22.3.2 contain an indemnity to principal provision which will allow
BPA and/or the Participating Affiliates to recover its loss
directly under the insurance policy without reference to the
policy holder.
22.4 Exult and/or the Exult Affiliate shall be responsible for payment of
all premiums in relation to the insurance policies referred to in
Clauses 22.1.1 to 22.1.3, provided that the payments may be
recovered as a Pass Through Cost under the relevant Country
Agreements.
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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22.5 The parties agree that the initial aggregate values of the policies
set out in Clauses 22.1.1 and 22.1.2 are appropriate to cover the
Country Agreements entered into at the Commencement Date, but agree
that the cover should be increased pro rata as further Country
Agreements are entered into.
22.6 Exult shall not increase the cover or amount of insurance from that
set out above without the prior written consent of BPA if such
increase will result in an increase in the Pass Through Costs.
22.7 Exult shall provide BPA with suitable evidence of all insurance
policies and shall provide BPA with 30 days notice of cancellation,
material alteration and/or non-payment of premiums.
23 LETTER OF CREDIT
23.1 In each of the first four Years of this Agreement, Exult shall
obtain and maintain a Letter of Credit issued by a bank, insurance
company or similar financial institution approved by BPA from time
to time (the "Issuer"). In relation to the initial Year Exult shall
obtain and maintain the Letter of Credit within 30 days of the
Commencement Date and in respect of subsequent Years shall within 30
days of the commencement of that Year, provide BPA with suitable
evidence that arrangements have been made for the Letter of Credit
for the following Year to be put in place.
23.2 The Letter of Credit shall be substantially in the form set out in
Schedule K (Letter of Credit), provided that the amount covered in
each Year shall be as follows:
23.2.1 Year 1: [***]*
23.2.2 Year 2: [***]*
23.2.3 Year 3: [***]*, and
23.2.4 Year 4: [***]*.
23.3 Exult shall cause a Letter of Credit to be issued for each of the
Years specified in Clause 23.2. With respect to such Letters of
Credit:
23.3.1 The expiration date of each such Letter of Credit shall be
on the first to occur of the following:
(i) [***]*
(ii) [***]*
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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[***]*
23.3.2 In connection with the Letter of Credit issued for Year 4,
as required by Clause 23.2.4, BPA and Exult agree that, if
BPA is not entitled to give notice of termination of this
Agreement under Clauses 11.1.1 or 11.1.3(ii) or to give
notice of Default under Clause 11.1.2 before a date that is
395 days after the issuance of that Letter of Credit, then
BPA and Exult shall send to the issuing bank a written
notice terminating that Letter of Credit.
23.3.3 In the event that any Letter of Credit remains in effect for
a period longer than one year, then BPA shall pay all fees
and costs charged by the issuing bank in connection with
having the Letter of Credit remain in place and in effect
for longer than one year.
23.3.4 A claim made by BPA against Exult shall be entitled to the
protections of the then-existing Letter of Credit regardless
of when that claim may have arisen. (By way of example, if a
claim against Exult actually arose in Year 2, but BPA was
not aware of that claim or was unable to bring that claim
because of any applicable notice periods until Year 3, then
BPA would be entitled to have the benefits of the Letter of
Credit existing for Year 3 for such claim.)
23.4 BPA shall be entitled to make a demand under the Letter of Credit in
accordance with its terms; provided, however, that the following
conditions are met:
23.4.1 BPA provides Exult with 10 days notice that BPA will make a
demand under the Letter of Credit;
23.4.2 BPA provides Exult with a copy of the decision on the
Arbitrator in favour of BPA that it was entitled to
terminate this Agreement and/or the Country Agreement(s) (as
the case may be) and in respect of BPA (or its Affiliates as
the case may be) claim under this Agreement or the Country
Agreement(s) for the amount specified in the Award; and
23.4.3 BPA provides Exult with the written decision of an Expert
that Exult has passed a resolution or that the court has
made an order that Exult be wound up otherwise than for the
purposes of a reconstruction or amalgamation, or that a
receiver, manager or administrator on behalf of a creditor
has been appointed in respect of Exult's business or that
circumstances have arisen which would entitle a creditor to
request that a court appoint a receiver, manager or
administrator or which would entitle the court otherwise
than for the purpose of a bona fide reconstruction or
amalgamation to make a winding up order or that Exult is
unable to pay its debts within the meaning of Section 123 of
the UK Insolvency Act 1986 or its relevant foreign
jurisdiction equivalent.
23.5 Once Exult's Net Equity Value exceeds [***]*, (1) Exult and BPA
shall each issue a notice
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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within 5 days to the Issuer terminating any outstanding Letter of
Credit issued in favour of BPA under this Clause 23, and (2) Exult's
obligations to obtain or maintain any Letters of Credit pursuant to
this Clause 23 shall cease.
24 RECOVERY OF DAMAGE AWARDS
24.1 In the event that the parties cannot agree as to whether there is a
default or as to the amount to be paid to either party by the other
in connection with any default under this Agreement, the matter
shall be resolved pursuant to the Dispute Resolution Procedure in
accordance with Clause 25.
24.2 In the event that it is agreed, or determined pursuant to Clause
24.1, that Exult is liable to pay an Award to BPA the mechanism for
recovering such Award shall be as follows:
24.2.1 Subject to Clause 24.2.5 Exult shall first seek to recover
the Award under any relevant insurance policy and pay the
Award recovered to BPA;
24.2.2 if the Award is not paid to BPA pursuant to Clause 24.2.1
within 30 days of it being agreed or determined that an
Award is payable, BPA shall be entitled to seek to recover
the Award directly under the indemnity to principal
provision contained in any relevant insurance policy
maintained by Exult in accordance with Clause 22
(Insurance);
24.2.3 if the Award is not paid pursuant to Clause 24.2.1 or Clause
24.2.2, BPA shall provide Exult with 30 days notice within
which Exult shall pay the Award to BPA;
24.2.4 subject to the provisions of Clause 23 (Letter of Credit),
if the Award is not paid pursuant to Clauses 24.2.1, 24.2.2
or 24.2.3 within the 30 day notice period in Clause 24.2.3
then BPA shall have the right but not the obligation to make
a demand under the Letter of Credit;
24.2.5 Exult shall not be entitled to seek to recover under any
insurance policy maintained pursuant to Clause 22
(Insurance) in order to satisfy any indemnity claim or
obligation or to recover any Award made in connection with
indemnity provisions other than claims, obligations or
Awards in connection with Clauses 21.2.1 and 21.2.2.
24.2.6 In respect of an Award or other indemnity claim or
obligation that BPA is liable to pay to Exult, BPA shall not
be entitled to seek to recover under any insurance policy
maintained pursuant to Clause 22 (Insurance) in order to
satisfy any indemnity claim or obligation or recover any
Award made in connection with indemnity provisions other
than claims, obligations or Awards made in connection with
Clauses 21.2.1 and 21.2.2.
25 DISPUTE RESOLUTION
25.1 INFORMAL DISPUTE RESOLUTION
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Prior to the initiation of Dispute Resolution Procedure pursuant to
Clauses 25.2 and 25.3, the parties shall and shall procure that
their respective Affiliates shall attempt to resolve any Dispute
informally, as follows:
25.1.1 Upon the request of either Country Representative in the
case of a Dispute which has not been resolved, or cannot be
resolved by the Country Representatives, that Dispute shall
be referred to the relevant Regional Governance Panel;
25.1.2 In the case of a Dispute arising under a Country Agreement
which has not been, or cannot be, resolved within [***]* of
the matter being referred to the relevant Regional
Governance Panel, and, in any event, in the case of a
Dispute arising under this Agreement, that Dispute will be
referred to the Global Governance Panel. The Global
Governance Panel shall use its best efforts to resolve such
Dispute
25.1.3 If the Global Governance Panel is unable to resolve the
Dispute within 15 days after it is submitted to the Global
Governance Panel (or such later time as may be agreed by the
parties to this Agreement), then the Dispute shall be
referred to the Exult Chief Executive Officer and the BPA
Vice President Group HR.
25.1.4 If the BPA Vice President Group HR and the Exult Chief
Executive Officer have not been able to resolve the Dispute
within [***]* of the matter being referred to them (or such
later date as they may agree), subject to Clauses 24.1.6,
24.1.7, 24.1.8 and 24.1.9 the Dispute shall be referred to
Expert Decision or Arbitration (as the case may be) in
accordance with the provisions of this Agreement.
25.1.5 During the course of any discussions in accordance with this
Clause 25, all reasonable requests made by one party to the
other for information will be honoured in order that the
parties may be fully advised of each other's position. Any
Confidential Information disclosed will be treated by the
recipient in accordance with Clause 14.
25.1.6 Unless the Agreement specifies otherwise, all Disputes shall
be referred to the Informal Dispute Resolution Procedure and
thereafter to Arbitration pursuant to Clause 25.3.
25.2 EXPERT DECISION
25.2.1 Where a Dispute is designated in the Agreement or any
Country Agreement as appropriate for Expert Decision, it
shall be referred for determination to an expert (the
"Expert") who shall act as an expert and not as an
arbitrator nominated either jointly by the parties, or
failing agreement between them within the time stated in
this Agreement or, where no time is stated, within 10
working days, on the application of BPA or Exult by the
President for the time being of:
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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(i) the Institute of Electrical Engineers for any issue
involving software, hardware, or systems;
(ii) the Institute of Chartered Accountants for England
and Wales for any issue involving finance,
accounting and tax; and
(iii) the Institute of Personnel and Development
Management for any issue involving human resources
polices and practices that cannot be referred to an
appropriate Expert under Clause 25.2.1(i) and (ii)
above.
25.2.2 The parties agree:
(i) to supply the Expert with the assistance, documents
and information he/she requires for the purpose of
his/her determination;
(ii) that in all cases the terms of appointment of the
Expert shall include a requirement on the Expert to
give his/her determination with 21 days or such
other period as may be agreed, to hold professional
indemnity insurance for both then and for 3 years
following the date of his/her determination and to
establish his/her own reasonable procedures to
enable him to give his determination; and
(iii) that in determining any disagreement on any element
of the Due Diligence Report pursuant to Clause 4.5
the Expert shall take into account of what was being
referred or provided to the relevant Participating
Affiliate prior to the relevant Effective Date.
25.2.3 The Expert's Decision is final and binding on the parties in
the absence of negligence, manifest error or bad faith. The
Expert acts as an expert and not an arbitrator; Expert's
Decision is not a quasi-judicial procedure. Save as provided
elsewhere in this Agreement, each party shall bear its own
costs and the costs of the Expert shall be borne equally
between the parties.
25.3 ARBITRATION
25.3.1 Where a Dispute is designated in the Agreement or any
Country Agreement as appropriate for Arbitration, it shall
be referred to arbitration at the written request of any
party under the Rules of the International Chamber of
Commerce, which rules are deemed to be incorporated by
reference into this Clause 25.3.
25.3.2 The parties agree and shall procure that, subject to the
relevant applicable laws governing a Country Agreement,
their respective Affiliates agree that:
(i) the number of arbitrators shall be three;
(ii) the place of the arbitration shall be London;
(iii) the language to be used in the arbitration
proceedings shall be English; and
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(iv) the ruling of the arbitrators on the Dispute shall
be final and binding.
26 FORCE MAJEURE
26.1 Subject to Clause 26.2, neither party shall be liable to the other
for any Losses of any kind whatsoever, including but not limited to
any damages, whether directly or indirectly caused to or incurred by
the other party to the extent such Losses arise by reason of any
failure or delay in the performance of its obligations hereunder
which is due to Force Majeure.
26.2 The party claiming to be prevented or delayed in the performance of
any of its obligations under this Agreement by reason of Force
Majeure shall use reasonable endeavours to continue to perform its
obligations under this Agreement without being obliged to incur any
significant additional cost to bring the Force Majeure to a close or
to find a solution by which the Agreement may be performed despite
the continuance of the Force Majeure event.
26.3 If either party shall become aware of circumstances of Force Majeure
which give rise to or which are likely to give rise to any such
failure or delay on its part, it shall forthwith notify the other by
the most expeditious method then available and shall inform the
other of the period which it is estimated that such failure or delay
may continue. If Force Majeure continues for seven days or longer
the Global Governance Panel shall be notified by the party affected
by such Force Majeure and requested to decide upon a course of
action.
26.4 It is agreed that any failure by a party to perform or any delay by
a party in performing its obligations under this Agreement which
results from any failure or delay in the performance of its
obligations by any person, firm or company with which such party
shall have entered into any contract, supply arrangement or
sub-contract or otherwise shall be regarded as a failure or delay
due to Force Majeure only in the event that such person, firm or
company shall itself be prevented from or delayed in complying with
its obligations under such contract, supply arrangement or
sub-contract or otherwise as a result of circumstances which would
be Force Majeure for the purposes of this Agreement.
26.5 If an event of Force Majeure arises and continues for a period of 6
months which materially prevents or hinders Exult or its Affiliates
from undertaking or completing the Due Diligence Exercise, and
Exult, BPA and their respective Affiliates from entering into
Country Agreements, in one or more Countries (the "Affected
Countries"), then either party may at any time by notice terminate
the parties' obligations in relation to Clause 2 (Structure of
Framework Agreement on Country Take On) and Clause 7 (Exclusivity)
in respect of the "Affected Countries" and for the avoidance of
doubt, in such circumstances:
26.5.1 Neither party shall be obliged to fulfil its obligations in
relation to the procedures for Country take on in respect of
the Affected Countries as set out in Clause 2; and
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26.5.2 BPA and BPA Affiliates shall have the right to obtain human
resources services (including the Services) directly from
within BPA from a BPA Affiliate or from a third party in
respect of the Affected Countries.
26.6 If, following the entry into Country Agreements for each of the
Countries, all of the Country Agreements have been terminated by
reason of Force Majeure pursuant to the terms of those Country
Agreements, either party may terminate this Agreement on written
notice, such termination to take effect immediately after the date
of receipt of such notice. In the event of such termination the
provisions of Clause 12 (Consequences of Termination) shall apply.
27 BPA FRAMEWORK AFFILIATES
27.1 Exult acknowledges that BPA has concluded this Agreement for the
benefit of BPA and the BPA Framework Affiliates.
27.2 At the request of BPA, Exult shall at BPA's expense execute all
deeds or other documents required to enable Losses incurred or
sustained by any BPA Framework Affiliate to be recovered by BPA
pursuant to Clause 20.10.
28 GENERAL TERMS
28.1 PUBLICITY
28.1.1 Except with the prior written consent of the other party
each party shall not and shall procure that its Affiliates
shall not make any press or other public announcements
relating to this Agreement or any Country Agreement or
disclose any information relating to the commercial or other
terms of this Agreement or any Country Agreement.
28.1.2 It is the intention of the parties that immediately
following the Commencement Date, they will jointly develop
and agree a press release relating to their relationship
under this Agreement.
28.2 NOTICES
Wherever under this Agreement a party is required or permitted to
give notice to the other party, such notice shall be in writing and
shall be delivered personally, sent by fax, (as appropriate)
recognised express courier service or certified, registered, first
class mail. Any such notice shall be deemed given when actually
received when so delivered personally, by fax or express courier, or
if mailed, on the fifth day after its mailing, postage prepaid to
the recipient party addressed as follows:
In the case of BPA:
Global Representative
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Britannic House
1 Finsbury Circus
London
EC2M 7BA
Fax: 0171 496 4630
with a copy (which shall not constitute effective notice) to:
BPA Global Commercial Contract Manager
Britannic House
1 Finsbury Circus
London
EC2M 7BA
Fax: 0171 496 4630
In the case of Exult:
Exult, Inc.
4 Park Plaza
Suite 350
Irvine
California 92614
Fax: 949 250 8086
Attention: Global Representative
with a copy (which shall not constitute effective notice) to:
Legal Department
4 Park Plaza
Suit 350
Irvine
California 92614
Fax: 949 250 8086
Any party may change its address for notices upon giving 10 days'
prior notice of the change to the other parties in the manner
provided in this Clause 28.2.
28.3 LIMITATION ON RECRUITING
28.3.1 Subject as hereinafter provided in this Clause 28.3, each of
BPA or Exult shall not, during the term of this Agreement or
within six months of its termination or expiry employ and/or
solicit directly or indirectly any employees of the other
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party or an Affiliate of the other party who have been
involved in providing the Services or are otherwise
connected with this Agreement or any Country Agreement.
28.3.2 Clause 28.3.1 will not restrict BPA or Exult from employing
employees of any other party or employees of the other party
or an Affiliate of the other party:
(i) who apply unsolicited in response to a general
advertising or other general recruitment campaign;
or
(ii) which the other party or Affiliate of such other
party who employed the relevant employee has agreed
in writing may be so employed; or
(iii) as contemplated by Schedule J (Employee Transfer
Arrangements) of a Country Agreement.
28.4 WAIVER
28.4.1 Subject to Clause 28.12 (Legal Proceedings) no delay or
omission by either party to exercise any right or power
shall impair such right or power or be construed as a
waiver.
28.4.2 A waiver by either of the parties of any covenants to be
performed by the other party or of any breach shall not be
construed to be a waiver of any succeeding breach or of any
other covenant.
28.4.3 No waiver of any of the provisions of this Agreement shall
be effective unless it is expressly stated to be a waiver
and communicated to the other party in writing in accordance
with the provisions of Clause 28.2 (Notices).
28.5 AMENDMENTS
The terms and conditions of this Agreement shall not be varied or
amended except by a written instrument executed by or on behalf of
each of the parties in accordance with Schedule L (Change Control
Management).
28.6 SEVERABILITY
If any provision of this Agreement is held to be invalid,
unenforceable or void, such decision shall not have the effect of
invalidating or voiding the remainder of this Agreement, and the
parties agree that they shall, immediately commence in good faith
negotiations to seek to remedy such invalidity, unenforceability or
illegality.
28.7 COSTS
Except as expressly provided for otherwise, each party shall bear
its own costs and expenses incurred in connection with the
negotiation and preparation of this Agreement and the Country
Agreements.
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28.8 ENTIRE AGREEMENT
This Agreement shall constitute the entire agreement between the
parties with respect to the subject matter hereof and (to the extent
permissible by law) supersedes all prior representations, writings,
negotiations or understandings with respect thereto (including the
LOI) provided that neither party is attempting to exclude any
liability for fraudulent statements (including pre-contractual
misrepresentations on which the other party can be shown to have
relied).
28.9 CONFLICT AND INCONSISTENCIES
28.9.1 In the event and to the extent only of any conflict between
the Clauses and the Schedules, the Clauses shall prevail.
28.9.2 In the event of any inconsistencies between the English
language version of this Agreement or the Country Agreements
and any contract administration documents prepared in
connection therewith and any translation of such agreements
or documents, the English language version shall prevail.
28.10 SURVIVAL
The terms and conditions of this Agreement which are expressly or by
implication intended to survive its termination or expiry shall so
survive and continue to bind the parties.
28.11 COUNTERPARTS
This Agreement may be executed in two or more counterparts or by
fax, each of which shall be deemed to be an original, but all of
which together shall constitute one agreement binding on all
parties, notwithstanding that all parties are not signatories to the
original or the same counterpart or fax copy.
28.12 LEGAL PROCEEDINGS
Any legal proceedings in relation to this Agreement must be
commenced by the relevant party within 2 years of the termination or
expiry of this Agreement.
28.13 EQUITABLE REMEDIES
The parties agree that damages shall be the only remedy available in
respect of each parties' liability arising under this Agreement
provided that the parties shall be free to seek equitable remedies
(including injunctive relief) in respect of claims relating to
breaches of confidentiality and to the infringement of Intellectual
Property rights.
28.14 INDEPENDENT CONTRACTOR
In providing Services to BPA under this Agreement, Exult is acting
only as an independent contractor. Notwithstanding any provision of
this Agreement to the contrary,
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this Agreement establishes and shall only be construed as
establishing a contract between unrelated business entities for the
provision and purchase of certain services and does not and shall
not be deemed to create a partnership, joint venture, agency or any
other type of joint relationship.
28.15 GOVERNING LAW
28.15.1 This Agreement shall be governed and construed in accordance
with the laws of England and Wales.
28.15.2 The Country Agreements shall, subject only to any local law
requirement to the contrary, be governed by and be subject
to the laws of England and Wales.
28.16 RESPONSIBILITY FOR EMPLOYEES
Employees shall be employees of Exult or the relevant Exult
Participating Affiliates as appropriate and under no circumstances
other than as provided in Schedule J (Employee Transfer
Arrangements) are Employees to be considered employees of BPA or any
BPA Affiliate. Exult or the relevant Exult Participating Affiliate
shall have the sole responsibility for supervision and control of
the Employees and for payment of their entire compensation,
including salary, Withholding Taxes and social security taxes,
workers compensation, employee and disability benefits and the like
and shall be responsible for all employer obligations under all
applicable laws.
28.17 RESTRICTIVE TRADE PRACTICES
Notwithstanding any other provision of this Agreement, no provision
of this Agreement which is of such a nature as to make this
Agreement liable to registration under the Restrictive Trade
Practices Act 1976 shall take effect until the day after that on
which particulars thereof have been duly furnished to the Director
General of Fair Trading pursuant to the said Act. For the purposes
of this Clause 28.17, the expression "this Agreement" shall include
any agreement forming part of the same arrangement.
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IN WITNESS whereof this Agreement has been executed the day and year first
written above.
SIGNED by
---------------------------
for and on behalf of BP AMOCO PLC in
the presence of:
- ------------------------------------
SIGNED by for
-----------------------
and on behalf of EXULT, INC.
in the presence of:
- ------------------------------------
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LIST OF SCHEDULES TO FRAMEWORK AGREEMENT
A Scope of Services (includes BPA Responsibilities)
B Service Level Principles
C Charges & Invoicing
G General Transition Plan (includes Timetable for Country Rollout, Detail
of Due Diligence Exercise)
K Letter of Credit
L Change Control Management
N Pro Forma Country Agreement
O BPA Controls
P Global Governance Arrangements
Q Data Protection
Z Definitions
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SCHEDULE Z
DEFINITIONS
1 DEFINITIONS
"AFFECTED COUNTRIES" means as defined in Clause 26.5 (Force Majeure);
"AFFILIATE" means in relation to BPA a BPA Affiliate and in relation to
Exult an Exult Affiliate;
"AGREEMENT" means the Clauses of and Schedules to this Agreement or any
revised version agreed between the parties in accordance with its terms;
"ARBITRATOR" or "ARBITRATION" has the meaning set out in Clause 25.3
(Dispute Resolution);
"AVERAGE CHARGE" means in each Year the monthly Charges (excluding Charges
relating to Projects and Pass Through Costs) paid or payable by a
Participating Affiliate within a CSC Group to a Exult Participating
Affiliate under the relevant Country Agreement.
"AWARD" means a sum payable by either party to the other in respect of a
default of this Agreement, the amount being determined by agreement
between the parties or in accordance with the Dispute Resolution
Procedure.
"BPA AFFILIATE" means any company which is from time to time directly or
indirectly controlled by BPA and for this purpose:
(i) a company is directly controlled by another company beneficially
owning shares carrying the majority of votes at a general meeting
of shareholders (or its equivalent) of the first mentioned company;
(ii) a particular company is indirectly controlled by a company if a
series of companies can be specified, beginning with that company
and ending with the particular company, so related that each
company in the series is directly controlled by one or more of the
companies earlier in the series; and
(iii) a company does not include any joint venture whether incorporated
or unincorporated.
"BPA ASSETS" means the goods and other assets which are owned or used by
BPA or the Participating Affiliates solely to provide the services
equivalent to the Services immediately before the Effective Date including
but not limited to, computer hardware, communication equipment, BPA
Systems and Third Party Systems and facilities whether or not the subject
of Third Party Contracts and as identified in each Country Agreement in
each case which are required to be used by Exult or the Exult
Participating Affiliates to provide the Services;
"BPA CONTROLS" means those business practices (including computer security
provisions, procedures to protect Confidential Information and procedures
to ensure compliance with obligations to third parties in connection with
Exult Participating Affiliate's provision of the
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Services hereunder), controls, BPA policies, quality standards and human
resource, financial and accounting controls necessary to provide the
Services in accordance with Good Industry Practices, including:
(i) the BPA Business Standards and Policy Document;
(ii) the BPA Policy on the Business Conduct and Code of Business Ethics;
(iii) the BPA Disaster Recovery Plan; and
(iv) the BPA IT Policy; and
which have been provided or will be provided from time to time to Exult
Participating Affiliate in writing and are listed in Schedule O (BPA
Policies and Controls);
"BPA FRAMEWORK AFFILIATES" means the BPA Affiliates which will receive the
Due Diligence Services from Exult under this Agreement and BPA Framework
Affiliate means any one of them;
"BPA GLOBAL COMMERCIAL CONTRACT MANAGER" means the person appointed by BPA
in accordance with and having the responsibilities referred to in the
Global Governance Arrangements;
"BPA INFORMATION" means the information provided by BPA or any BPA
Affiliate which comes into the possession of Exult or any Exult Affiliate
pursuant to this Agreement, or created under or arising out of data of BPA
or BPA Affiliates pursuant to this Agreement;
"BPA INTELLECTUAL PROPERTY" means as defined in Clause 13.1 (Intellectual
Property Rights);
"BPA RESPONSIBILITIES" means those actions described in Schedule A which
need to be performed by the BPA Participating Affiliate in order for Exult
Participating Affiliate to be able to provide the Services;
"BPA REGIONAL REPRESENTATIVE" means the individual appointed by BPA
pursuant to this Agreement;
"BPA SYSTEMS" means Systems (or part thereof) in which the Intellectual
Property is owned by either BPA or BPA Affiliates and to be used in whole
or in part in the provision of the Services as identified in each Country
Agreement;
"BPA THIRD PARTY" means a third party other than BPA, a BPA Affiliate and
its and their respective agents, subcontractors, officers, directors and
employees;
"CHANGE CONTROL MANAGEMENT PROCESS" means the procedure by which changes
may be made to the Agreement as set out in Schedule L (Change Control
Management);
"CHANGE OF CONTROL" shall be deemed to have occurred in relation to any
company ("THE COMPANY")
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if any Relevant Entity, together with any Relevant Entity Affiliates:
(i) becomes interested (and, for the avoidance of doubt, was not
previously so interested), directly or indirectly, in more than 50
per cent of the shares of the Company or of the voting rights
attached thereto including through an initial public offering of
more than 50 per cent of the share capital of the Company; or
(ii) acquires the right to appoint or remove a majority of the board of
directors of the Company;
references to a Relevant Entity being "interested" in shares shall mean
interested in those shares for the purposes of Part VI of the Companies
Act 1985.
for the purposes of this definition only "RELEVANT ENTITY AFFILIATE"
means, in relation to any Relevant Entity, any other which is in Control
of, is Controlled by or is under common Control with such Relevant Entity,
"CONTROL" of a person shall mean:
(i) the right, whether direct or indirect, to vote 50 per cent or more
of the securities having the power to elect directors of such
person; or
(ii) the power, whether direct or indirect, to direct the management or
policies of such person.
"CHARGES" means the charges payable by the Client in respect of the
Services calculated in accordance with Schedule C (Charges and Invoicing);
"CLIENT HR COSTS" means the estimated costs incurred in providing services
equivalent to the Services in the 12 months prior to the Effective Date as
calculated in accordance with the methodology set out in Schedule C
(Charges and Invoicing);
"CLIENT SERVICE CENTRE" means a facility from which one or more Exult
Participating Affiliate(s) provides Services to BPA Participating
Affiliates who receive such Services pursuant to two or more Country
Agreements.
"COMMENCEMENT DATE" means the date of execution of this Agreement by both
of the parties to this Agreement;
"CONFIDENTIAL INFORMATION" means all information obtained from the other
party which by its nature should be treated as confidential information or
is marked as such which may come into its possession or into the
possession of its employees, agents or subcontractors as a result of or in
connection with this Agreement or any Country Agreement and any and all
information which may be derived from such information;
"CONTRACT MINIMUM(s)" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"COUNTRIES" means the countries in which BPA operates and "COUNTRY" means
any one of them;
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"COUNTRY AGREEMENT" means an agreement, substantially in the form of the
Pro Forma Country Agreement to be entered into pursuant to this Agreement
by a Participating Affiliate and Exult Participating Affiliate in relation
to the provision of Services to that Participating Affiliate and any other
BPA Affiliates and/or Affiliates specified therein;
"COUNTRY COMMENCEMENT DATE" means, in relation to each Country Agreement,
the date on which such agreement is executed;
"COUNTRY OBLIGATION" means an obligation of any of the parties to a
Country Agreement as set out in that Country Agreement;
"COUNTRY REPRESENTATIVES" means the representatives appointed by each of
BPA and Exult or the Participating Affiliates and the Exult Participating
Affiliates in accordance with and having the responsibilities referred to
in the Global Governance Plan and the Country Agreements and
"COUNTRY REPRESENTATIVE" means any one of them;
"CSC AVERAGE CHARGE" means the aggregate of the Average Charges payable by
all Participating Affiliates within a CSC Group.
"CSC GROUP" means those Participating Affiliates that 1) have entered into
Country Agreement under which such Participating Affiliates are receiving
Services from a common Client Service centre and 2) which the Regional
Governance Panel agrees should be grouped together for the purposes of
Clause 18 (Contract Minimums).
"CSC PROJECTED CHARGE" means the aggregate of the Projected Monthly
Charges payable by all Participating Affiliates within a CSC Group.
"DEFAULT" means any material breach, or series of related or unrelated
persistent breaches which when taken together constitute a material
breach, of a material obligation under this Agreement by either party;
"DISPUTE" means any dispute, controversy or claim arising under this
Agreement and/or any Country Agreement between the parties to the relevant
agreement;
"DISPUTE RESOLUTION PROCEDURE" means the procedure which the parties agree
should be used to resolve Disputes as set out in Clause 25 (Dispute
Resolution) of this Agreement;
"DUE DILIGENCE COSTS" has the meaning set forth in Schedule C (Charges and
Invoicing);
"DUE DILIGENCE EXERCISE" means the exercise carried out in relation to
each Country in accordance with Schedule G of the Framework Agreement
which includes the production of the Due Diligence Report;
"DUE DILIGENCE REPORT" means the report produced in relation to each
Country Agreement as a result of the Due Diligence Exercise;
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"EARLY TERMINATION CHARGES" has the meaning set forth in Schedule C
(Charges and Invoicing);
"EFFECTIVE DATE" means, in relation to each Country Agreement, 00.01 a.m.
local time on the date on which Exult Participating Affiliate is first
required to provide the Services or part thereof pursuant to the relevant
Country Agreement;
"EMPLOYEE" means any employee of Exult or an Exult Participating Affiliate
employed from time to time for the purposes of performing Exult's or an
Exult Participating Affiliate's obligations under this Agreement or a
Country Agreement;
"EMU COMPLIANCE" means that all financial and accounting software, screen
layouts and hardware, conform with the applicable conversion and rounding
requirements set out in the European Council Regulation 1103/97 and with
the use of the euro as a dual and single currency and EMU Compliant shall
be construed accordingly;
"EXISTING EXULT RETURN" has the meaning set out in Clause 5.3.5
(Significant Change);
"EXISTING FINANCIAL POSITION" has the meaning ascribed to it in Clause
5.3.5 (Significant Change);
"EXISTING GUARANTEED MINIMUM SAVINGS" has the meaning ascribed to it in
Clause 5.3.5 (Significant Change);
"EXPIRY DATE" means the date which is the seventh anniversary of the
Commencement Date;
"EXPERT" has the meaning ascribed to it in Clause 25.2.1 (Dispute
Resolution);
"EXPERT'S DECISION" means the decision of the Expert pursuant to the
Dispute Resolution Procedure described in Clause 25.2 (Dispute
Resolution);
"EXULT AFFILIATE" means any company, partnership or other entity which is
from time to time directly or indirectly controlled by Exult and for this
purpose:
(i) a company is directly controlled by another company beneficially
owning shares carrying the majority of votes at a general meeting
of shareholders (or its equivalent) of the first mentioned company;
and
(ii) a particular company is indirectly controlled by a company if a
series of companies can be specified, beginning with that company
and ending with the particular company, so related that each
company in the series is directly controlled by one or more of the
companies earlier in the series.
"EXULT IT DOMAIN" has the meaning ascribed to it in Schedule A
(Services)."EXULT GLOBAL COMMERCIAL CONTRACT LEADER" means the individual
appointed by Exult in accordance with and having the responsibilities
referred to in the Global Governance Arrangements;
"EXULT INTELLECTUAL PROPERTY" means as defined in Clause 13.2
(Intellectual Property Rights);
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"EXULT PARTICIPATING AFFILIATES" means the EXULT AFFILIATES or if
appropriate Exult which enter into Country Agreements and "EXULT
PARTICIPATING AFFILIATE" means any one of them;
"EXULT PERSONNEL" means officers, employees, agents and Subcontractors of
Exult and/or each Exult Participating Affiliate;
"EXULT PROPRIETARY SYSTEMS" means Exult's Systems in which the
Intellectual Property is owned by Exult or Exult Supplier;
"EXULT RETURN" means Exult's percentage return on cost calculated in
accordance with the methodology set out in Schedule C (Charges and
Invoicing);
"EXULT'S NET EQUITY VALUE" means the amount equal to Exult's assets less
its liabilities calculated in accordance with US GAAP as determined in
accordance with Exult's internally prepared financial statements prepared
in accordance with US GAAP;
"EXULT SYSTEMS" means Systems used in the provision of the Services in
which Exult or Exult Participating Affiliate owns the Intellectual
Property or has been granted a licence to use the Intellectual Property
excluding Future Systems and Client Systems;
"EXULT THIRD PARTY" means a third party other than Exult, an Exult
Affiliate and its and their respective agents, subcontractors, officers,
directors and employees;
"EXULT THIRD PARTY CONTRACT" means any contracts including licences, but
excluding contracts relating to employment, entered into by, assigned to
or novated to Exult or an Exult Affiliate the benefit of which relates to,
or which are used in whole or in part for, providing the Services;
"FAILED READINESS TEST" means a failure to complete all material elements
of a Readiness Test.
"FORCE MAJEURE" means any cause affecting the performance of the
obligations under this Agreement by a party arising from acts, events,
omissions, happenings or non-happenings beyond its reasonable control
including (but without limiting the generality thereof) governmental
regulations arising after the Commencement Date, civil and/or political
unrest, fire, flood, or any disaster or an industrial dispute (other than
those relating to Exult employees) provided that failure by BPA or a BPA
Affiliate to obtain European Works Council approval or the approval of any
works council in respect of any Country Agreement or being prevented by
any events beyond its reasonable control from paying any monies due and
payable under this Agreement shall not be force majeure;
"FRAMEWORK SERVICES" means the services provided by Exult under this
Agreement, including those in connection with the carrying out of the Due
Diligence Exercise in each Country;
"FUTURE SYSTEMS" means Systems created by Exult or Exult Affiliate, or
which Exult or Exult Participating Affiliate procured to be created, in
fulfilling Exult's or the Exult Participating Affiliate's obligations
under this Agreement or any Country Agreement as the case may be during
the term of this Agreement and provided to BPA and/or BPA Affiliates or
used in the provision of the Services;
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"FRAMEWORK WORK PRODUCT" means documents or reports whether or not in
electronic form produced for delivery to BPA and/or the Participating
Affiliates as part of the Framework Services and/or fulfilling the
obligations of Exult and/or any Exult Participating Affiliate under this
Agreement but excluding Future Systems and the Exult Systems;
"GENERAL TRANSITION PLAN" means the indicative plan for managing the
assumption by Exult and/or the Exult Affiliates of the provision of the
Services including the timetable for carrying out the Due Diligence
Exercises and entering into Country Agreements as set out in Schedule G
(Transition Plan) as may be amended from time to time pursuant to this
Agreement or by agreement between BPA and Exult;
"GENERAL WINDING UP PLAN" means the plan to co-ordinate the transitioning
[***]* of the Services provided under the Country Agreements and implement
the Winding-up Plan for each Country Agreement, to be established in
accordance with Clause 12 (Consequences of Termination);
"GLOBAL COMMERCIAL REPRESENTATIVE" means that person notified as such by
BPA to Exult from time to time;
"GLOBAL GOVERNANCE ARRANGEMENTS" means the policies and procedures for
managing the Agreement, Country Agreements and the provision of the
Services as set out in Schedule P (Global Governance Arrangements);
"GLOBAL GOVERNANCE PANEL" means the body made up of representatives from
BPA and Exult established in accordance with and having the
responsibilities referred to in the Global Governance Arrangements;
"GOOD INDUSTRY PRACTICE" means in relation to any undertaking and any
circumstances, the exercise of the degree of skill, care, prudence and
foresight which would be expected from a reasonably skilled and
experienced person engaged in the same type of undertaking under the same
or similar circumstances;
"GROUP OF COUNTRIES" means [***]* Countries that the parties agree should
be grouped together for evaluation to seek to maximise synergies, such
Countries being either subject to a Country Agreement or subject to
concurrent Due Diligence Exercises;
"GUARANTEED MINIMUM SAVINGS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"INDEMNIFIED PARTY" has the meaning attributed to it in Clause 21.5.1
(Dispute Resolution);
"INDEMNIFYING PARTY" has the meaning attributed to it in Clause 21.5.1
(Dispute Resolution);
"INDEPENDENT BUSINESS" means any business unit within a Country designated
by BPA
- ---------------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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executive committee from time to time to operate at arm's length because
(i) it is pending decision regarding a possible disposal of the business
unit; or (ii) the business unit operates under conditions materially
distinct from those applying to the Services as evidenced by non
participation in all or some of the other BPA main stream support services
in that Country.
"INDEMNIFIED BPA PARTY" has the meaning ascribed to it in Clause 21.1.
"INDEMNIFIED EXULT PARTY" has the meaning ascribed to it in Clause 21.2.
"INTELLECTUAL PROPERTY" means patents, trade marks, service marks,
copyrights, topography rights, database right, design rights, trade
secrets and rights of confidence and all rights or forms of protection of
a similar nature or having equivalent or similar effect to any of them
which may subsist anywhere in the world, whether or not any of them are
registered and including applications for registration of any of them;
"ISSUER" has the meaning ascribed to it in Clause 23.1 (Letter of Credit);
"KEY COUNTRIES" means the United Kingdom and the United States and Key
Country shall be construed accordingly;
"KPIs" means, in respect of each Country Agreement, the key performance
indicators an indicative list of which is set out in the Pro Forma Country
as may be modified following the Due Diligence Exercise for each Country
Agreement and "KPI" means any one of them;
"LETTER OF CREDIT" has the meaning ascribed to it in Clause 23.1 (Letter
of Credit);
"LEVERAGED OPERATIONS" means the result of Exult Supplier's transformation
of the Services to Exult Supplier's Service Delivery Model intended to
improve the quality of human resources services provided to the Client and
achieve the Guaranteed Minimum Savings.
"LOI" means the Letter of Intent entered into between the parties dated 28
May 1999;
"LOSSES" means all losses, liabilities, costs (including legal costs),
charges, expenses, actions, procedures, claims, demands and damages
(including the amount of damages awarded by a court of competent
jurisdiction);
"PARTICIPATING AFFILIATES" means the BPA Affiliates which will receive the
Services from the Exult Participating Affiliates and "PARTICIPATING
AFFILIATE" mean any one of them;
"PASS THROUGH COSTS" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"PRO FORMA COUNTRY AGREEMENT" means the agreement set out in Schedule N
(Pro Forma Country Agreement);
"PROJECT" means a discrete piece of work which is not a Service, is not
included in the Baseline, is limited in duration, has specific
deliverables, has identifiable start and end dates, is agreed through the
Change Control Management process, and is subject to an Additional
Services Charge as defined in Schedule C (Charges and Invoicing).
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"QUALITY CONTROL DOCUMENT" means the summary document to be prepared by
Exult in accordance with Clause 5.4.8 (BPA Controls) which sets out the
basis on which Exult will apply the Controls to the provision of the
Services;
"RELEVANT ENTITY" means a person who in the reasonable opinion of Client
either:
(i) is a competitor of the Client, Client or a Participating Affiliate
primarily engaged in the business of distribution and production of
oil and petrochemicals;
(ii) whose (i) financial substance and (ii) credit rating are weaker in
any material respect than those of Exult; or
(iii) may, through its control of Exult, have any adverse effect on the
reputation of Client or any member of the BP Group;
"REGIONAL GOVERNANCE PANEL" means the body made up of representatives from
BPA and Exult established in accordance with and having responsibilities
referred to in the Global Governance Arrangements;
"REGIONAL STEERING COMMITTEE" means the body made up of representatives
from BPA and Exult established in accordance with and having the
responsibilities referred to in the Global Governance Arrangements;
"ROC" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"SCS DUE DILIGENCE REVIEW" has the meaning attributed to it in Clause
5.3.4 (Significant Change);
"SENSITIVE SERVICES" means those services in the nature of the Services
which are considered by BPA or BPA Affiliates to be of a sensitive nature
in that they represent a significant risk to the reputation or ongoing
business of BPA or BPA Affiliates or if the nature of the services are
such that they could, in BPA's or BPA Affiliate's view, potentially expose
BPA or BPA Affiliate to particular legal liability including those
relating to administration benefit plans subject to the US Employee
Retirement Income Security Act 1974 as amended and are retained and
provided internally by BPA or any BPA Affiliates;
"SERVICE CREDIT" means an amount payable by Exult Participating Affiliate
to BPA Participating Affiliate under a Country Agreement in respect of a
KPI Failure;
"SERVICE DELIVERY MODEL" means the method by which the Services, or in the
case of BPA, the services equivalent to the Services, are delivered.
"SERVICE LEVEL" means the level to which the Services are to be provided
as set out in Schedule B (Service Levels) of the Pro Forma Country
Agreement;
"SERVICES" means the human resource management services described in
Schedule A (as modified pursuant to the Change Control Management process)
to be provided by an Exult Participating Affiliate to the Participating
Affiliates in accordance with the Country Agreements;
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"SIGNIFICANT CHANGE" has the meaning attributed to it in Clause 5.3
(Significant Change);
"SIGNIFICANT CHANGE SERVICES" has the meaning attributed to it in Clause
5.3 (Significant Change);
"SUBCONTRACTOR" means any subcontractor (including those listed in
Schedule M (Approved Exult Subcontractors) of the Pro Forma Country
Agreement of Exult or Exult Participating Affiliate engaged from time to
time in accordance with Clause 10 (Assignment and Subcontracting) for the
purposes of performing any part of Exult's or Exult Participating
Affiliate's obligations under this Agreement or a Country Agreement;
"SUCCESSOR OPERATOR" means the entity not being Exult Participating
Affiliate (which may include BPA or BPA Affiliates) succeeding any Exult
Participating Affiliate in the provision or operation of all or any of the
Services;
"SYSTEMS" means computer programs, databases, the tangible media on which
they are recorded, and their supporting documentation, including input and
output format, program listings, narrative descriptions, source code,
object code, algorithms, logic and development tools, operating
instructions and user manuals;
"TAXES" means all federal, state, local or foreign income tax, duty,
charge, and any penalty or interest thereon and any of the costs and
charges whatsoever assessed or imposed by any competent legal or fiscal
authority in relation thereto, including Withholding Tax but excluding
value added or other similar sales or use taxes.
"THIRD PARTY CONTRACTS" means any contracts including licences, but
excluding contracts relating to employment, entered into by BPA, or BPA
Affiliates the benefit of which relates to, or which are used in whole or
in part for providing services equivalent to the Services immediately
prior to the Effective Date as identified in each Country Agreement;
"THIRD PARTY SYSTEMS" means any Systems in which the Intellectual Property
is owned by a third party which BPA, or BPA Affiliates have been granted a
licence to use and which are required to be used by the Exult
Participating Affiliates to provide the Services as identified in each
Country Agreement;
"TRANSFER" and "TRANSFERRED" in respect to a Third Party Contract or
Sensitive Third Party Contract refers to the transfer of such contract by
assignment or novation as well as to, upon termination or expiry of such
Third Party Contract, the taking over by Exult Supplier of the services
provided thereunder as Services under the relevant Country Agreement;
"UNDERLYING TECHNOLOGY" means the Exult IT Domain dedicated to supporting
the provision of the Services.
"VALIDATION EXERCISE" means the exercise to be carried out in accordance
with Part 2 of Schedule G (Transition Plan);
"WINDING UP PLAN" means the winding up plan to be developed in accordance
with the provisions of the Country Agreements;
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<PAGE> 55
"WITHHOLDING TAXES" means any Taxes required to be withheld or deducted by
the competent legal or fiscal authorities in the Country of the tax
residence of the Client or any sum payable by the Client to Exult Supplier
for the Charges under this Agreement.
"WORK PRODUCT" means documents or reports whether or not in electronic
form produced for delivery to BPA and/or the Participating Affiliates as
part of the Services and/or fulfilling the obligations of Exult and/or any
Exult Participating Affiliate under this Agreement or any Country
Agreement but excluding Future Systems and the Exult Systems; and
"YEAR" means each consecutive period of 12 months commencing on the date
of the Commencement Date.
"YEAR 2000 COMPLIANCE" means that all software, systems and hardware
comply with the British Standards Institute requirements set out in DISC
PD 2000-1 "A Definition of Year 2000 Conformity Requirements".
-54-
<PAGE> 56
CONTENTS
<TABLE>
<CAPTION>
CLAUSE HEADING PAGE
<S> <C> <C>
1 Definitions and Interpretation...............................................2
2 Structure of Framework Arrangement and Country Take On.......................2
3 Term.........................................................................5
4 Due Diligence................................................................6
5 Services.....................................................................7
6 Obligations to Procure Affiliates' Performance..............................11
7 Exclusivity.................................................................11
8 Transfer Arrangements.......................................................13
9 Payments....................................................................13
10 Assignment and Subcontracting...............................................14
11 Termination.................................................................14
12 Consequences of Termination.................................................16
13 Intellectual Property Rights................................................17
14 Confidentiality.............................................................18
15 Data Protection and Data Security...........................................19
16 Contract and Service Management.............................................19
17 Audit Rights................................................................20
18 Contract Minimums...........................................................20
19 Warranties..................................................................21
20 Limitation of Liability.....................................................22
21 Indemnities.................................................................24
22 Insurance...................................................................30
</TABLE>
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<TABLE>
<S> <C> <C>
Letter of Credit.........................................................................31
24 Recovery of Damage Awards...................................................33
25 Dispute Resolution..........................................................33
26 Force Majeure...............................................................36
27 BPA Framework Affiliates....................................................37
28 General Terms...............................................................37
</TABLE>
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FRAMEWORK AGREEMENT
SCHEDULE A
SCOPE OF SERVICES
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TABLE OF CONTENTS
Page
----
1 INTRODUCTION............................................................ 1
2 EXULT SERVICES.......................................................... 1
A Training............................................................. 2
B Organisation Development............................................. 2
C HR Strategy.......................................................... 2
D Labour Relations..................................................... 2
E Expatriate Relocation and Administration............................. 2
F HR Information Services ("HRIS") (Employee Records)................. 3
G Benefits............................................................. 3
H Compensation......................................................... 3
I Employee Relations................................................... 3
J Compliance........................................................... 3
K Vendor Administration................................................ 3
L Payroll.............................................................. 4
M Employee Development................................................. 4
N Resourcing/Recruiting................................................ 4
O Severance............................................................ 4
P Performance Management............................................... 4
Q Domestic Relocation Administration................................... 5
R HR Information Technology ("HRIT")................................... 5
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SCHEDULE A
SCOPE OF SERVICES
1 INTRODUCTION
This Section describes certain duties, obligations and responsibilities
of Exult and of BPA in performing the Services.
Except where specifically set out in the applicable Country Transition
Plan, from the Commencement Date, Exult shall provide each process
included in the Services [***]*
For the purposes of this Schedule, Exult shall mean Exult or the Exult
Participating Affiliate where appropriate; BPA shall mean BPA or the
BPA Participating Affiliate where appropriate.
2 EXULT SERVICES
Exult and BPA will perform the services as defined in this Schedule A.
For responsibilities where there is no quantification of the service to
be provided, Exult and BPA will provide the function [***]* The
responsibilities within each of the Processes shall be provided to
similar groups of BPA employees and other constituents, as provided by
BPA during the 12-month period prior to the applicable Process Take On
Date.
The detailed scope is to be agreed before the applicable Process Take
On Date. Exult shall assume responsibility for each of the Processes
set out in this Schedule on the applicable Process Take On Date. For
the table included in each of the sections below, the following legend
applies:
Table Legend
-----------------------
X Performs Responsibility
A Approves
The parties recognise that there are third party agreements yet to be
evaluated that may be identified as Sensitive Third Party Agreements. The
current representation of process activities and responsibilities in Schedule
C of this Agreement reflects the intention of the parties in the absence of
Sensitive Third Party Agreements. Specific adjustment to the responsibilities
of BPA and Exult in any Process area affected by Sensitive Third Party
Agreements and/or Sensitive Services will be made prior to the Process Take On
Date to address the legal and operational risks associated with the provision
of Services by Exult, BPA and the third parties associated with the above, for
the period of time these remain sensitive.
A TRAINING
Training as a process includes training needs assessment, course/materials
development, logistics co-ordination, conduct of training and training
leader selection,
- ---------------------
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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training effectiveness assessment and post training follow-up. Delivery of
training materials includes traditional classroom, self-study,
computer-aided training and third party training delivery mechanisms.
[***]*
B ORGANISATION DEVELOPMENT
Organisation development focuses on organisation design and ensuring
organisation effectiveness. These activities include business and new
venture organisation consulting, managing organisational improvement efforts
and overseeing organisation consulting supplied by third parties. Assessment
of existing and proposed organisation models and reorganisations will also
be major activities in the area
[***]*
C HR STRATEGY
HR strategy develops the long-term HR strategy for BPA and ensures the
linkages to organisational goals and business objectives. In addition, HR
strategy directs the development of the HR function and maintains ties to
outside entities thereby introducing new HR concepts into BPA
[***]*
D LABOUR RELATIONS
Labour relations promotes/maintains effective relationships between BPA and
its employees. Relationship management, for example, with any BPA works
councils, trade unions, collective bargaining units, employee forums and all
BPA employees includes negotiations, problem/issue management, and
interfacing with regulatory entities on behalf of BPA
[***]*
E EXPATRIATE RELOCATION AND ADMINISTRATION
Expatriate relocation and administration establishes expatriate policies,
manages the special needs of the expatriate population, and assesses the
many expatriate related problems/issues. Other responsibilities include tax
activities, spouse and dependent programs, relocation assistance, and salary
equalisation. Repatriation of employees is also in the scope of this
function.
[***]*
F HR INFORMATION SERVICES ("HRIS") (EMPLOYEE RECORDS)
HR information services (employee records) responsibilities include all
activities necessary to capture, track, modify and report employee related
electronic and physical data. HRIS data includes data on active employees,
inactive employees such as terminated, term vested, deceased, and
annuitants, and appropriate non-employee populations.
[***]*
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redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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G BENEFITS
Benefits includes benefits strategy development, benefits plan design and
administration, and communications of benefit programs to BPA employees. The
function determines the appropriate competitive level and mix of benefits
for BPA, including health and welfare plans, defined contribution plans, and
defined benefit plans.
[***]*
H COMPENSATION
Compensation is the development of compensation plans and strategies for
BPA. The function ensures and administers the various compensation programs
that range from basic pay, executive compensation, variable pay programs and
other business-needs based pay schemes. Additionally, the function
determines the appropriate competitive level and mix of base pay, short-term
incentives and long term incentives.
[***]*
I EMPLOYEE RELATIONS
Employee relations performs activities needed to keep a productive and
committed workforce in place. Assuring a healthy work environment includes
activities such as goal setting, diversity programs, employee complaint
resolution, employee coaching/counselling and communicating workplace issues
to interested groups of employees.
[***]*
J COMPLIANCE
Compliance is the management of BPA's legal requirements and internal
business policies across all HR processes.
[***]*
K VENDOR ADMINISTRATION
Vendor administration is the process by which third party providers of HR or
other related services to BPA are administered by Exult to ensure acceptable
quality and price. Vendor selection, performance monitoring, service
negotiation and vendor certification are all critical efforts. The
administration of third party costs and allocation of these costs to the
appropriate business entities are also included here.
[***]*
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redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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L PAYROLL
Payroll processes include the collection of time and attendance data,
management of employee earning and deductions, calculation of gross and net
pay, and processing employee payments. Additionally, the payroll function
will compute and file payroll related taxes, manage mandated deductions and
perform the accounting transactions necessary to accumulate labour expenses
at the detailed level including all general ledger interfaces.
[***]*
M EMPLOYEE DEVELOPMENT
Employee development identifies employee development needs and ensures that
these development needs are planned with the employee and the supervisor.
Development tool construction, managing the execution of development,
tracking employee development plans, and succession planning are all
included.
[***]*
N RESOURCING/RECRUITING
Resourcing/recruiting includes setting resourcing strategy, conducting
workforce planning and performing the hiring process, which includes
candidate pool solicitation, assessment, negotiation and orientation
activities. Vendor administration, logistics and assessment of resourcing
strategies are also included.
[***]*
O SEVERANCE
Severance responsibilities include development of successful
programs/policies to transition employees from BPA, policy definition,
program development, impact modelling and program administration, selection
of third party vendors for outplacement, and managing the cost of severance
programs.
[***]*
P PERFORMANCE MANAGEMENT
Performance management sets performance goal structures for BPA and develops
the tools needed to assess employee/group performance against these goals.
Management of the performance review process and reporting on the process
outcomes are also responsibilities.
[***]*
Q DOMESTIC RELOCATION ADMINISTRATION
Domestic relocation administration oversees the work involved in moving
employees from one geographical location to another. Policy development,
cost tracking, employee education and communication, third party
administration and issue resolution all reside in this area.
[***]*
R HR INFORMATION TECHNOLOGY ("HRIT")
"BPA IT Domain" shall mean the data processing infrastructure, servers, data
communications equipment, local area networks, desktop equipment and
support, common office environment, and wide area network facilities
operated and maintained by BPA and/or operated and maintained by third
parties under Third Party Contracts managed by BPA.
[***]*
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* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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FRAMEWORK AGREEMENT
SCHEDULE B
SERVICE LEVELS
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TABLE OF CONTENTS
PAGE
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1 INTRODUCTION............................................................. 1
2 PRINCIPLES GOVERNING SERVICE LEVELS...................................... 1
3 PROCESS.................................................................. 1
4 SERVICE CREDITS.......................................................... 3
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SCHEDULE B
SERVICE LEVELS
1 INTRODUCTION
This Schedule defines the principles and parameters governing the Service
Levels, which shall be measured. This Schedule also describes how these
Service Levels shall be established.
There are two types of Service Levels that shall be defined, measured and
reported for each Country Agreement:
1.1 Key Performance Indicators ("KPIs"):
(i) KPI Surveys - these measure the satisfaction of BPA employees and
management with the Services that are provided by Exult;
(ii) KPI Service Levels - Service Levels that must be met to avoid a
significant financial or service impact to BPA;
1.2 Reporting Service Levels ("RSLs") - these measure Exult's performance of
the Services using a range of quantitative and qualitative Service
Levels.
Each Country Transition Plan shall define the process by which the Services
shall be transitioned from the BPA Service Delivery Model to the Exult Service
Delivery Model. Change Control Management shall be used to assess and agree to
what changes shall be made to the Service Levels, including KPIs, to account
for the impact of the Transition to Leveraged Operations.
The process for initially establishing these Service Levels is described in
Section 3, Process.
2 PRINCIPLES GOVERNING SERVICE LEVELS
2.1 Service Levels shall be used to measure Exult's performance of the
Services set out in the Agreement, Schedule A, Scope of Services.
2.2 Service Levels shall be based on objective and clearly defined measurable
criteria.
2.3 A limited number of Service Levels shall be designated as KPIs.
2.4 Service Levels shall be identified on a global basis and measured on a
Country basis.
2.5 Service Levels are designed to measure satisfaction, quality and cost
issues that are clearly identifiable by the BPA Participating Affiliates
business users.
2.6 All Service Levels are subject to BPA and the BPA Participating Affiliates
performing their obligations and responsibilities under this Agreement and
the Country Agreement(s).
3 PROCESS
Following the Commencement Date of each Country Agreement and before the
Process Take On Date, the parties shall determine and agree the Service Levels
that shall be included in Schedule B, Service Levels, of the Country
Agreement. In addition, the appropriate measurement tools and reporting
process for each Service Level shall be identified.
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The timeframe to determine the Service Levels, the measurement tools and the
reporting process shall be documented in the applicable Country Transition
Plan.
3.1 KPI Surveys
3.1.1 An agreed upon Service Level metric shall be determined and
implemented in accordance with the Country Transition Plan.
3.1.2 Surveys shall then be conducted and measured against the KPI Survey
metric and reported in accordance with the Service Performance
Report obligation under the Country Agreement.
3.2 KPI Service Levels
3.2.1 With respect to the KPI Service Levels for Payroll and HRIT, as
identified in each applicable Country Agreement, the parties shall
agree on the applicable KPI Service Level metric prior to the
Process Take On Date. Exult shall report on its performance of the
Services in accordance with such KPI Service Level thereafter.
3.2.2 With respect to the remaining KPI Service Levels, the parties shall
agree on the applicable provisional KPI Service Level metric prior
to the Process Take On Date. Exult shall measure and report its
performance of the Services in accordance with such provisional KPI
Service Levels for an agreed period of time, [***]*, in order to
determine the appropriate KPI Service Level metric. After such
period, the parties shall agree on the applicable KPI Service Level
metric and Exult shall report on its performance of the services in
accordance with such Service Level thereafter.
3.2.3 To the extent that a KPI Service Level is not achieved due to any
non-performance of or any other defect in any systems, hardware or
other technical infrastructure, other than those systems, hardware
or other technical infrastructure supplied or controlled by Exult
under this Agreement, Exult Supplier shall have no liability for
such failure to achieve the KPI Service Levels.
3.3 Reporting Service Levels
3.3.1 Once the measurement tools and the reporting process have been
determined, the RSLs shall be measured and reported on an ongoing
basis.
3.4 Annual Service Levels Review
3.4.1 Within 3 months of all Processes being transformed to Leveraged
Operations, the Regional Governance Panel shall review Service Level
metrics and shall determine and agree, through the Change Control
Management process, revised Service Level metrics to reflect the
benefits of Leveraged Operations.
3.4.2 These Service Levels shall be reviewed and revised, through the
Change Control Management process on an annual basis thereafter.
4 SERVICE CREDITS
4.1 KPI Surveys and KPI Service Levels shall be subject to Service Credits as
set out in Schedule C.
4.2 Provisional KPI Service Levels and RSLs shall not be subject to Service
Credits.
4.3 A failure by the Exult Participating Affiliate to meet a KPI set forth in
the applicable Country Agreement shall entitle the BPA Participating
Affiliate to at its option: (i) recover a service credit as set forth in
Schedule C and/or (ii) seek any other remedy set forth in the applicable
Country Agreement.
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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FRAMEWORK AGREEMENT
SCHEDULE C
CHARGES AND INVOICING
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TABLE OF CONTENTS
Page
----
1 INTRODUCTION.............................................................. 1
2 DEFINITIONS............................................................... 1
3 OVERVIEW.................................................................. 4
4 CHARGING METHODOLOGY PRIOR TO THE GUARANTEED MINIMUM SAVINGS DATE......... 8
5 CHARGING METHODOLOGY FOLLOWING THE GUARANTEED MINIMUM SAVINGS............. 9
6 TRANSITION/TRANSFORMATION COSTS........................................... 15
7 CLIENT SERVICE CENTRE COSTS (CSC)......................................... 15
8 AGGREGATION OF TRANSITION/TRANSFORMATION AND CLIENT SERVICE CENTRE COSTS.. 16
9 CORPORATE OVERHEAD/CENTRE OF EXCELLENCE/DUE DILIGENCE TREATMENT........... 16
10 IT INVESTMENTS............................................................ 16
11 GAIN SHARING.............................................................. 16
12 CLASSIFICATION OF EXPENSE ITEMS SUBJECT TO MARGIN VERSUS PASS-THROUGH..... 19
13 THIRD PARTY REVENUE....................................................... 19
14 INVOICING................................................................. 19
15 TRANSFER OF ASSETS........................................................ 20
16 CONTRACT MINIMUMS......................................................... 20
17 INFLATION................................................................. 22
18 EARLY TERMINATION PAYMENT................................................. 22
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SCHEDULE C
CHARGES AND INVOICING
1 INTRODUCTION
This Schedule describes the methodology for determining the charges to be
paid by BPA to Exult for the performance by Exult of its obligations under
this Agreement as well as the associated processes for invoicing BPA for such
charges.
2 DEFINITIONS
Any capitalised terms that are not defined in this Schedule shall have the
meanings assigned to them in the Agreement. The following terms shall have
the meanings set out below:
"ACTIVE SERVICED EMPLOYEE" shall mean any Serviced Employee who is currently
employed during the period when the Services are measured.
"ADDITIONAL RESOURCE CHARGES" or "ARCs" shall mean the incremental charges
payable by BPA, in addition to the Base Charge for resource usage that
exceeds the Resource Volumes.
"ANNUAL WORK UNITS" represents the annual total IT Work Units performed by
Work Type.
"BPA" shall mean BPA or the Client where appropriate
"BASE CHARGE" shall mean Exult's annual charge divided by 12 and invoiced
monthly for the period commencing [***]* from the Baseline Validation and
recalculated [***]*
"BASELINE" shall mean the adjusted Initial Baseline as determined by Baseline
Validation.
"BASELINE GUARANTEE" means the minimum Initial Baseline and Baseline related
to each Process taken on by Exult prior to the Guaranteed Minimum Savings
Date as set out in Section 4.1. The Baseline Guarantee is [***]*
"BASELINE VALIDATION" shall mean validation of the Initial Baseline to be
completed by [***]*
"BENEFITS" shall mean those benefits set out in Schedule A.
"CENTRE OF EXCELLENCE COSTS OR COE COSTS" shall mean the actual costs related
to the organisation within Exult identified as such which include the Exult
subject matter experts and support staff. Functions staff will perform shall
include:
(i) Supporting complex inquiries and problem resolutions on calls to the
Client Service Centre; or
(ii) Assisting with the management of third party vendors in defining
service levels and monitoring performance; or
(iii) Assisting in the implementation of policy modifications and changes
that come from BPA ; or
(iv) Defining the continuous improvement and best practice trends per
Process that are requirements of the Country Agreement.
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redacted portion has been omitted and filed separately with the Securities and
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"CHANGE REQUEST CHARGES" shall mean the charges relating to the
implementation of Changes authorised by BPA in accordance with Schedule L.
"CLIENT HR COSTS" shall mean the Total Labour Related Costs required by BPA
to provide the Embedded Services and HR services [***]*
"CONTRACT MINIMUMS" shall mean the minimum monthly payments by BPA to Exult
as referenced in Clause 23 of the Country Agreement and in accordance with
this Schedule C.
"CONTRACT MINIMUM YEAR" means each period of 12 months following the
Guaranteed Minimum Savings Date.
"CORPORATE OVERHEAD" shall mean Exult's general and administration costs.
"DECREASES" means the items set out in Section 3.4.2.
"DUE DILIGENCE COSTS" shall mean the costs incurred by Exult in accordance
with Clause 4.6 of the Framework Agreement in carrying out the Due Diligence
Exercise in the applicable Country.
"EMBEDDED SERVICES" shall mean those HR functions to be retained or retained
as the case may be by BPA.
"EXULT" shall mean Exult, the Exult Participating Affiliate or the Exult
Supplier where appropriate
"EXULT ACTUAL COST" shall mean the sum of [***]*
"GUARANTEED MINIMUM SAVINGS" shall mean the reduction to the Category A costs
included in the Baseline calculated in accordance with Section 5.1.1 and
Table C-5.1.1.
"GUARANTEED MINIMUM SAVINGS DATE" shall mean [***]*
"HR IT SERVICES" shall mean the costs for information technology services (as
defined in Schedule A)
"INCREASES" means the items listed in Section 3.4.2.
"INITIAL BASELINE" shall mean the [***]*
"INITIAL BASE CHARGES" shall mean the monthly charges calculated in
accordance with Section 4.1 for [***]*
"INITIAL RESOURCE VOLUMES" shall mean, with respect to the applicable
Country, the initial estimated amount of resources utilised by BPA (such as
the number of training classes or domestic relocations) and/or the number of
Active Serviced Employees supported by BPA in the 12 month period prior to
the Country Commencement Date.
"KPI CREDIT" means the percentage subtracted from the applicable Exult gain
share portion.
"% OF KPI POOL" means the percentage used of the maximum Service Credits per
year.
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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"KPI PER EVENT CREDIT " means the percentage deducted for each missed Service
Level from the % of KPI Pool for a specific KPI.
"PASS THROUGH COSTS" shall mean those costs identified in the Country
Agreement [***]*, including the cost of [***]*, BPA charge-ins including
those relating to [***]*
"REDUCED RESOURCE CHARGES" or "RRCs" shall mean the incremental credits
payable to BPA for resource usage that is lower than the Resource Volumes.
"RESOURCE UNITS" shall mean the units of measurement for the amount of
Resource Volumes used within each Process.
"RESOURCE VOLUMES" shall mean, with respect to the applicable Country, the
estimated amount of resources utilised by BPA (such as the number of training
courses, the number of attendees at training courses or domestic relocations)
and/or the number of Active Serviced Employees required by BPA, annually from
the Guaranteed Minimum Savings through the term of the Country Agreement.
"RETURN ON COSTS" or "ROC" shall mean Exult's portion of gain share from
providing Services in a Country divided by the Exult Actual Cost for
Categories "A" and "B".
"SERVICED EMPLOYEE" shall mean any BPA employee, former employee, or
contractor that is supported by the Services.
"TERM VESTED ANNUITANTS" means an individual, whom upon ceasing of employment
with BPA was less than age 55 and had five (5) or more years of benefit
accrual service under BPA's pension plan.
"TOTAL LABOUR RELATED COSTS" shall mean the costs incurred by BPA in relation
to HR employees or individual contractors including salaries and wages,
payroll benefits and BPA employee taxes, contractors fees, pension, travel
expenses, training, meetings and entertainment, office space and utilities,
office expenses supplies and dues, desktop and communication services,
relocation and expatriate expenses. Pension costs are only included to the
extent that BPA is at the relevant Process Take On Date making contributions
to the employees' pension plans.
"TRANSFER/TRANSFORMATION COSTS" shall mean the costs set out in Section 6.
"WINDING UP ASSISTANCE COSTS" shall mean the following costs associated with
the transfer of the Services upon termination of the Country Agreement to BPA
or a third party:
(i) [***]*
(ii) [***]*
3 OVERVIEW
3.1 PRINCIPLES
The main principles underlying the charging mechanism are as follows:
3.1.1 Subject to Sections 5.1.3 (ARCs/RRCs), 17 (Inflation) and agreed
Changes, Exult's charges shall not:
(i) [***]*
(ii) [***]*
(iii) [***]*
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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3.1.2 Exult's charges shall be based upon BPA's [***]* as appropriate,
as described in Sections 4.1 and 5 of this Schedule C.
3.1.3 The Exult Actual Cost in any year following the Guaranteed Minimum
Savings Date [***]*, subject to the following adjustments:
(i) ARCs/RRCs (see Section 5.1.3)
(ii) Inflation (see Section 17)
(iii) Charges for agreed Changes (see Section 5.1.9 and
Schedule L)
(iv) Project Charges (see Section 5.1.9)
3.1.4 The Exult Actual Cost shall [***]*
3.1.5 [***]*
3.1.6 During the [***]* the parties will work together to ensure that
all in-scope BPA employee costs are identified so that the Initial
Base Charges calculated in accordance with Sections 4 and 5,
[***]*
3.1.7 From the Guaranteed Minimum Savings Date, and subject to agreed
Changes, Force Majeure events, BPA performing its responsibilities
under the applicable Country Agreement and the specific Process
being taken on prior to the Guaranteed Minimum Savings Date.Exult
shall provide Guaranteed Minimum Savings on the [***]* costs with
respect to those Processes which have been taken onby the
Guaranteed Minimum Savings Date and for subsequent Processes when
taken on.
3.1.8 It is Exult's intention to try to reduce the cost of Third Party
Contracts transferred to Exult [***]*
3.2 CATEGORIES OF COST
The charging mechanisms will be based on cost categories related to
the Services. [***]* BPA shall receive Guaranteed Minimum Savings,
shown in Table C-5.1.1, from Exult [***]* costs to be determined as part
of Baseline Validation.
3.3 COUNTRY DUE DILIGENCE EXERCISE
The Initial Baseline will be determined during the Country Due Diligence
Exercise prior to signature of the relevant Country Agreement. [***]*
For Countries apart from the U.S. and U.K., Country Due Diligence
Exercises shall determine whether the Guaranteed Minimum Savings and
Exult's Return can be achieved. [***]* The impact of any Withholding
Taxes shall also be included in Exult's Return as set out in Clause 2.10
of the Framework Agreement.
- ------------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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3.4 ESTABLISHING BASELINE COSTS
3.4.1 Client HR Costs
During the [***]*, BPA shall establish its total Client HR Costs
including HR IT Services. For Countries other than the U.S. and
U.K, the Client HR Costs shall be established by BPA during each
Due Diligence Exercise. The Client HR Costs will be used to
determine the actual [***]* cost savings realised by BPA as the
result of the Process being taken on by Exult. [***]*, BPA will
establish the numbers of HR staff and designate each staff member
with the following categories:
o In-Scope employees.
o Embedded Services HR staff.
o Staff associated with the merger and harmonisation of BP and
Amoco.
o Staff whose status is still to be determined.
o Other staff associated with identified projects
In order to establish the Total Labour Related Costs no HR
personnel can be removed by BPA from the Client HR Cost without
first being designated within one of the above five categories.
Any dispute relating to the classification of HR personnel shall
be determined by an Expert in accordance with Clause 24.2 of the
Framework Agreement (Dispute Resolution Procedure).
[***]*
For Countries other than the US and UK, the Client HR Cost shall
be established during the Country Due Diligence Exercise and each
member of staff designated within the above four categories.
3.4.2 Adjustments to Client HR Costs
Once the Client HR Costs are established, BPA shall put in place
financial controls and tracking mechanisms to allow BPA to track
costs and for Exult to verify such costs on a monthly basis. The
Client HR Costs shall be adjusted to take into account "Increases"
or "Decreases" as set out below:
A Increases
Increases in costs shall include the following activities:
o An increase in compensation or other Total Labour Related
Costs.
o Temporary staff required to replace staff included as Client
HR Costs.
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o Replacement (either temporary or full-time) staff to fill
vacant positions for HR personnel initially included as Client
HR Costs who leave BPA (or take a non-HR job within BPA) and
who do not transfer to Exult prior to the applicable Process
Take On Date.
o Additional HR resources to handle expansions and/or changes to
BPA's business requirements and or activities.
o Anticipated adjustments agreed by parties.
B Decreases
Decreases in costs shall include decreases not caused by
Exult taking on the Services:
o Savings in providing Embedded Services resulting from
non-Exult activities such as using one HR advisor across more
than one business unit where two or more advisors were used
previously.
o Savings as a result of a reduction in services provided by
Embedded Services staff such as the elimination of
Organisational Developmental services at a particular business
unit.
o Continuous improvement in the way Embedded Services are
provided such as the restructuring of functions to consolidate
staff.
o Divestitures.
o Replacement of Embedded Services staff with less expensive
staff.
o Savings related to the harmonisation and merger of BP and
Amoco. Such savings include, but are not limited to, the
transition to a single US payroll system.
In the event of a dispute arising out of the classification of a
Decrease in cost as not having been caused by Exult taking on
the Services, the matter shall be referred to an Expert pursuant
to Clause 24.2 of the Framework Agreement (Dispute Resolution
Procedure). Unless the parties agree otherwise, all cost
Decreases not classified as Decreases not caused by Exult taking
on the Services shall form part of the [***]* cost savings
realised by BPA as the result of Exult taking on the Process.
The remaining Client HR Costs [***]* shall be considered to be
the cost of providing Embedded Services.
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3.4.3 Baseline Validation
Baseline Validation will commence once the final Process Take On
Date has occurred and prior to [***]* to establish the actual
Baseline to be used for the remaining term of the Country
Agreement. Baseline Validation will establish the Baseline and
resultant Base Charge to be applied following the Guaranteed
Minimum Savings Date.
The Baseline Validation shall cover those items included in the
Due Diligence Exercise as well as other costs or items the are
identified subsequent to the Due Diligence Exercise. Baseline
Validation shall also include validation of the remaining Client
HR Costs including the merger and harmonisation costs associated
with BP and Amoco. Exult shall have the option to carry out an
audit at its own cost on the Client HR Costs established during
Baseline Validation. Any disagreements about the findings of
this audit may be referred to an Expert pursuant to Clause 24.2
of the Framework Agreement (Dispute Resolution Procedure).
3.4.4 [***]* Cost Validation
(i) Principles relating to costs
[***]*
(a) Exult will use technology to assist it in providing
the Guaranteed Minimum Savings
(b) Exult intends to automate relevant transactional
processes and allow BPA employee access through the
implementation of internet-enabled HR support by using
Client Service Centres (including the integration of
HR transactional processing support), knowledge and
case management, workflow and data warehousing
technology;
(c) Exult's use of technology will continue to evolve as
opportunities to use technology effectively are
identified during the term of the Country Agreement;
(d) Exult shall not unreasonably be prevented from using
technological innovations;
(e) as a result of Section (a) to (e) above, [***]*
3.4.5 [***]* Charges
[***]*
3.4.6 [***]* Validation
The [***]* costs for BPA (which are based upon the budget
provided by BPA) and Exult's budgeted [***]* costs shall
be validated as part of the Baseline Validation. To the
extent that the merger and harmonisation of BP and Amoco
has not been completed by the completion date for the
Baseline Validation an estimate for the anticipated impact
of any remaining merger and harmonisation activity will be
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agreed and included in the Baseline Validation and such
estimate will be subject to further validation on the
completion of the merger and harmonisation activity. Both
parties shall make reasonable efforts to validate these
actual and budgeted costs. This shall include, where
possible, the parties comparing individual cost items on a
like-for-like basis. BPA's [***]* costs will need to be
adjusted to match the changes in technology used by Exult
to deliver the Services in order to achieve this
like-for-like comparison.
If the parties disagree with this comparison of [***]*
costs, the matter shall be referred to an Expert pursuant
to Clause 24.2 of the Framework Agreement (Dispute
Resolution Procedure).
3.4.7 Resource Volumes
Prior to the Process Take On Date the Resource Volumes for
the relevant process shall also be established.
3.4.8 [***]* Costs
[***]* Costs shall also be validated as part of the
Baseline Validation. The [***]* Costs shall go through a
review process to establish an agreed cost projection from
the third month following the Country Commencement Date
until the end of month fourteen. [***]* Costs shall be
tracked by Exult and reconciled with BPA [***]* month
following the Country Commencement Date.
4 CHARGING METHODOLOGY PRIOR TO THE GUARANTEED MINIMUM SAVINGS DATE
Prior to the Guaranteed Minimum Savings Date and following the first Process
Take On Date, charges from Exult shall be based on the Initial Base Charges.
4.1 CALCULATION OF THE INITIAL BASE CHARGES
Prior to the signature of each Country Agreement, Exult shall provide the
Baseline Guarantee for each Process. BPA shall pay to Exult following each
Process Take On Date the Initial Base Charges which shall be an amount
equal to [***]*
During Baseline Validation, the parties will reconcile the amounts
invoiced in relation to each Process and the actual [***]* cost savings
realised by BPA relating to that Process being taken on by Exult. If such
actual costs are found to be:
(i) greater than the amounts invoiced by Exult, Exult shall submit an
invoice for the difference (actual [***]* cost savings less the
invoiced amount) .
(ii) less than the amounts invoiced by Exult, but greater than the
Baseline Guarantee, Exult shall issue BPA a credit on the following
month's invoice for the difference (invoiced amount less the actual
[***]* cost savings).
(iii) less than the amount invoiced by Exult and the Baseline Guarantee,
Exult shall issue BPA a credit on the following month's invoice for
an amount equal to the difference between the invoice amount and the
Baseline Guarantee.
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TABLE C-4.1
BASELINE GUARANTEE FOR THE US AND UK
IN USD
[***]*
Where the parties agree, the Baseline Guarantee for each Process may be
changed to reflect actual cost so long as the aggregate of all Processes
within the Baseline Guarantee for the U.S. and U.K. is equal to the [***]*
If a Process is taken on prior to the completion of the Client HR Costs, the
Initial Base Charges shall be equal to the Baseline Guarantee and reconciled
at the end of the year for applicable costs exceeding the Baseline Guarantee.
If a Process Take On Date is extended for more than 30 days, the parties
shall establish a panel with equal number of members from each party to meet
over a period of 30 days in order to decide the cause for such delay. [***]*
Where the parties cannot agree which party caused a particular Process Take
On Date to be delayed, a payment or credit can still be agreed by the panel
although either or both parties may reserve the right to review the cause for
any such delays during Baseline Validation and to refer any such disputes to
the Informal Dispute Resolution Procedure pursuant to Clause 24.1 of the
Framework Agreement, and if the parties are still unable to resolve such
dispute, the matter shall be referred to an Arbitrator pursuant to Clause
24.3 of the Framework Agreement.
5 CHARGING METHODOLOGY FOLLOWING THE GUARANTEED MINIMUM SAVINGS
From the Guaranteed Minimum Savings Date until the termination or expiry of
the Country Agreement, BPA shall pay to Exult the greater of the Baseline
Guarantee and the Baseline (both of which shall be subject to Guaranteed
Minimum Savings). The Baseline Guarantee and Baseline charges shall be
subject to Contract Minimums in each Country.
[***]*
BPA's actual usage/counts of the Resource Volumes shall be measured and
reported by Exult [***]* Exult shall calculate and apply the ARC/RRC
adjustments, Service Credits and gain sharing adjustments.
5.1 GUARANTEED MINIMUM SAVINGS CALCULATION
5.1.1 The Guaranteed Minimum Savings shall apply to the [***]* charges
in the Baseline in accordance with Table C-5.1.1. The Guaranteed
Minimum Savings for [***]* will be calculated [***]* during
Baseline Validation.
GUARANTEED MINIMUM SAVINGS
TABLE C-5.1.1
[***]*
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[***]*
For the Guaranteed Minimum Savings to apply in respect of a Country, and
provided that Exult has not delayed BPA, BPA must give notice [***]* to
Exult that it wishes to receive the Services in that Country.
[***]*
5.1.2 Adjustments to Base Charge
(i) The Base Charge shall be adjusted during the last month of
each Contract Minimum Year to determine:
[***]*
(ii) During the last month of each Contract Minimum Year the Base
Charge shall be adjusted prior to the gain share claculation
as follows:
(a) any increase or decrease in the Resource Volumes and the
IT Work Unit Volumes that has occurred during the
Contract Minimum Year; and
(b) to reflect an increase or decrease in the cost of
providing any new services or modifying the Services
agreed in accordance with the Change Control Management
process.
(iii) The Base Charge for the following Contract Minimum Year
shall be calculated by adjusting the Base Charge as follows:
[***]*
5.1.3 ARCs/RRCs
ARCs will be used when the actual Resource Volumes in the current
year exceed the upper threshold for Resource Volumes for the
previous year. ARCs will be calculated by [***]*
RRCs will be used when the actual Resource Unit in the current
year is less than the lower threshold for Resource Volumes for the
previous year. RRCs will be calculated by [***]*
The ARC and RRC thresholds shall be established as part of the
Baseline Validation.
ARCs and RRCs will be reconciled and invoiced on an annual basis.
ARCs and RRCs unit rates will be subject to inflation adjustments
in accordance with Section 16.
The ARC unit rates shall be agreed between the parties no later
than the commencement of the Guaranteed Minimum Savings Date and
will be [***]* The RRC unit rates will be agreed between the
parties no later than the commencement of the Guaranteed Minimum
Savings Date and will be [***]* For example, [***]*
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5.1.4 Resource Units
The Resource Units identified below are intended to provide the
proper measurement of usage for the Services and allow for a
reasonable means to gather data. The Resource Units may be changed
based on agreement between the parties at any time during the term
of the Country Agreement.
[***]*
5.1.5 Charges Based on the Average Number of Active Serviced Employees
or Term Vested Annuitants and number of Active Serviced Employees
Charges based on the average number of Active Serviced Employees
include the following functions:
[***]*
Charges based on the average number of Active Serviced Employees
and Term Vested Annuitants shall include Benefits.
The relevant employee database will be used to track Active
Serviced Employees and Term Vested Annuitants as the master
repository for Active Serviced Employee and Term Vested Annuitants
information. When an Active Serviced Employee or Term Vested
Annuitants is added or removed, the relevant employee database
will be updated with this information. Charges based on the
average number of Active Serviced Employees and Term Vested
Annuitants will be derived from the weighted average number of
Active Serviced Employees supported in BPA . Weighted average will
be calculated by taking the number of Active Serviced Employees
and Term Vested Annuitants (where applicable) for both the first
and last day of the month and dividing by two (2).
In addition to the Resource Volumes for Active Serviced Employee,
HR Information Services will have limitations on the number of
reports (as these requests will come through HR Information
Services in support of multiple Processes). This will be dependent
upon the level of staffing. Reports shall be included in the IT
Work Units structure (as defined in Section 5.2.4 below)
determined during Baseline Validation.
In order to ensure that Exult can implement desired Process
improvements and gain sharing while still providing flexibility in
meeting BPA's needs, Payroll will be subject to two additional
measurements beyond the Active Serviced Employee measurement.
Manual cheques will be subject to a surcharge of [***]* per cheque
and off-cycle Payroll runs shall be subject to an agreed
surcharge.
5.1.6 Service Charge Adjustments Based on the Average Number of Active
Serviced Employees and Term Vested Annuitants
If the weighted average actual number of Active Serviced Employees
or Term Vested Annuitants varies above the Resource Volumes by
[***]* then an
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adjustment to the Base Charge shall be calculated. ARCs and RRCs
shall be based on the entire variance from the Resource Baseline
Volumes. Should the actual Active Serviced Employees and Term
Vested Annuitants (where applicable) vary from the Resource Volume
by [***]*, the parties will agree upon an equitable adjustment to
the Base Charge.
5.1.7 Charges Based on Direct Usage
Charges based on the direct usage of each Process include the
following functions:
[***]*
5.1.8 Adjustments to the Charges Based on Direct Usage
Should the direct usage count vary from the Resource Volumes by
[***]*, then an adjustment to the Base Charge shall be calculated.
ARCs and RRCs adjustments shall be based on the entire variance
from the Resource Volumes. If the parties agree [***]* is not the
appropriate threshold to trigger an ARC or RRC adjustment, the
threshold may change subject to agreement by both parties. Should
the actual usage vary from the Resource Volume by [***]*, the
parties will agree upon an equitable adjustment to the Base
Charge. For those Processes based on number of standard reports,
these Processes will be grouped together for ARC and RRC
adjustments as they will not be identified by Process when a
request for a report is placed by BPA.
5.1.9 Project Charges
For each Project identified in Schedule H, the charges for such
Project will be agreed by the parties and set out in the
applicable Project Statement. Unless otherwise agreed, Project
Charges shall be based on a [***]* For services added that are not
part of this Country Agreement and that continue for the duration
of the Country Agreement, these services shall be handled through
Change Control Management.
5.1.10 Out-Of-Pocket Expenses
BPA will reimburse Exult for out-of-pocket expenses as part of
requests outside of Services. These out-of-pocket are:
(i) Project related travel expenses approved by BPA.
(ii) Any other expenses approved by BPA.
5.2 [***]*
In addition to the charges shown in Section 5.2, other [***]* items
which Exult and BPA determine may be classified as [***]* during the
term of the Country Agreement through the Change Control Management
procedure.
5.2.1 [***]*
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5.2.2 [***]*
5.2.3 [***]*
5.2.4 Information Technology Work Units (IT Work Units)
Exult shall, in accordance with the IT Work Unit methodology
perform modifications, enhancements, changes, and installations to
comply with regulatory or trade union requirements and changes as
disclosed to Exult by BPA. Exult shall support regulatory reviews,
audits, compliance assessments, and related data gathering in a
responsive time frame as required by regulators. BPA acceptance
testing and final approval shall be required prior to
implementation of such regulatory compliance.
Exult shall, in accordance with the IT Work Unit methodology,
perform installation of upgrades and new releases issued by the
vendors of third party applications software. Unless BPA directs
otherwise, Exult shall install and upgrade such software so as to
remain within one generation of the then-current maintenance
release. Exult shall notify BPA in writing within a reasonable
time prior to undertaking any such upgrade or installation.
Exceptions to this approach shall be mutually agreed and shall be
based on an assessment of risk and value associated with
implementing the new release. Exult shall not upgrade third party
applications software if Exult notifies BPA that such an upgrade
shall have no value or an adverse impact on BPA and, after
receiving such notification, BPA decides not to proceed with such
upgrade.
Exult shall, in accordance with the IT Work Unit methodology,
perform small enhancements to the computer applications. Exult
shall perform small enhancement as requested and prioritized by
BPA. Exult shall perform small enhancements to the computer
applications portfolio.
5.2.5 IT Work Unit Volumes
Exult and BPA shall consider the [***]* as the period to develop
the IT Work Unit algorithm and underlying assumptions. During this
period the natural rate/size unit and the size requested metrics
shall be collected. The parties intend that the basis shall
reflect the quantity of regulatory changes, trade union contract
changes, upgrades and small enhancement work required to be
performed by Exult [***]* To the extent that any review of the IT
Work Unit calculation algorithm generally determines that this
intention is not being effectuated, the algorithm (or other
aspects of the approach, as applicable) shall be adjusted as
necessary. The reviews in subsequent years shall use each
preceding year as the baseline.
The format for representing the volume of IT Work Units is
represented in the following table. This catalogue is subject to
mutually agreed upon adjustments resulting from the IT Work Unit
review process described above.
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CATALOGUE OF BPA WORK TYPES
<TABLE>
<CAPTION>
NATURAL SIZE NUMBER WORK UNIT/ ANNUAL
WORK TYPE UNIT REQUESTED SIZE UNIT WORK UNITS
------------------ ------------ --------- ---------- ----------
<S> <C> <C> <C> <C>
Regulatory
Changes (Small)
Regulatory Changes
(Medium)
Regulatory Changes (Large)
Union Contract Changes
Small Enhancements
Upgrades
YEAR 1 TOTAL
</TABLE>
5.2.6 Definition of IT Work Unit Terms:
"WORK TYPE" is a means to provide for a categorisation of the
types of work that can be requested and is included in the IT Work
Unit approach (eg, regulatory changes, small enhancements,
upgrades).
"NATURAL SIZE UNIT" is a means to define the size unit that best
fits the work type that is discernible and measurable and can be
audited. An IT organisation performs many different work types and
each has its own "natural" sizing measure (eg, lines of code,
function points, flat rate, Primitive Value).
"PRIMITIVE VALUE" or "PV" represents the throughput necessary to
complete the types of work in the BPA catalogue.
"NUMBER REQUESTED" represents the total number for the Work Type
Natural Size Unit for the year. In a Work Type where the Natural
Size Unit is Primitive Value the Number Requested represents the
number of the Work Types completed in a year.
"WORK UNIT/SIZE UNIT" represents the IT Work Units computed for
the Work Type.
"ANNUAL WORK UNITS" represents the total IT Work Units performed
by Work Type.
"IT WORK UNITS" represents the base standard for measuring the
work performed by Exult HRIT staff in making specific HRIT
application systems changes calculated in accordance with the IT
Work Unit algorithm developed pursuant to Section 5.2.5.
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5.3 [***]*
[***]* Costs will be subject to an annual review between BPA and Exult.
The specific contracts will be identified and projections for the
subsequent 12 months will be made for each contract. Both parties shall
agree to the projected costs. [***]*
6 TRANSITION/TRANSFORMATION COSTS
Costs relating to the transfer of the Services from BPA to Exult incurred by
Exult after the relevant Country Commencement Date and prior to the relevant
Process Take On Date [***]*
7 CLIENT SERVICE CENTRE COSTS (CSC)
Client Service Centre costs are included in the [***]* charges as set out
below.
On an annual basis following the Guaranteed Minimum Savings Date through the
term of the applicable Country Agreement, the charges will be based on [***]*
The Client Service Centre costs will include all staffing expenses, facility
related expenses, management expenses related directly to the Client Service
Centre, hardware and software expenses, lease expenses, finance charges,
amortisation and depreciation, supplies and third party services related to
the Service Centres. IT related costs that support multiple customers shall be
included as well in the aforementioned categories. Client Service Centre costs
will be allocated to the appropriate [***] Processes.
TABLE C-7.1
CLIENT SERVICE CENTRE COSTS MAXIMUM ALLOCATION
IN USD
[***]*
8 AGGREGATION OF TRANSITION/TRANSFORMATION AND CLIENT SERVICE CENTRE COSTS
By agreement at the time not to be unreasonably withheld, with respect to the
maximum allowed costs for Transition/Transformation in Section 6 and Client
Service Centres in Section 7, Exult shall be allowed to [***]*
9 CORPORATE OVERHEAD/CENTRE OF EXCELLENCE/DUE DILIGENCE TREATMENT
Corporate Overhead costs will be recovered from available gain share before
gain share is distributed. Following the Guaranteed Minimum Savings Date,
Corporate Overhead for the U.S. and U.K. will be allocated at the lesser of:
[***]*
For the U.S. and U.K. Due Diligence, [***]*
Exult Centre of Excellence (COE) costs [***]*
The Corporate Overhead/COE/Due Diligence costs allocation methodologies on
actuals may be changed subject to agreement between the parties.
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10 IT INVESTMENTS
IT Investments shall fall into two types. The first type shall consist of
those IT investments authorised by BPA. [***]* The second type shall consist
of those IT investments that are intended to be for the benefit of multiple
Exult clients. [***]*
If the second type of investment will result in the Exult Actual Cost for
[***]* exceeding the [***]* cost in the Baseline, Exult shall obtain approval
from BPA, such approval not to be unreasonably withheld, prior to making such
investment.
[***]*
11 GAIN SHARING
BPA and Exult shall participate in a gain sharing exercise for [***]* and
[***]* items. Gain sharing can only apply to [***]* once Guaranteed Minimum
Savings have been realised. The Base Charge and Exult's actual costs for
[***]* and [***]* shall be used in quantifying the total amount of gain
sharing to be allocated between BPA and Exult. Each charge Category will be
handled differently under this gain sharing arrangement. [***]*
11.1 GAIN SHARING METHOD BY CATEGORIES
To determine the applicable gain share, Exult's Actual Costs for [***]*
and [***]* items will be subtracted from the applicable Base Charge for
the preceding 12 months. Exult's, costs for Corporate Overhead,
Charge-Ins from BPA, COE and Amortisation of Due Diligence will be
subtracted from the amount available for gain share. The remaining
amount will be subject to gain share distribution. Gain sharing for
[***]* and [***]* will start from [***] and at the end of every 12-month
period thereafter to determine the applicable gain share.
[***]* Following the Guaranteed Minimum Savings Date, [***]* gain share
will be subject to gain share distribution.
The method for gain sharing calculation shall be as follows:
(i) If the Exult Actual Cost for [***]* and [***]* is less than the
Base Charge for [***]* items, then those savings (Base Charge minus
Exult Actual Costs for [***]* and [***]*) will be subject to
adjustments and subsequently the Gain Sharing Distribution Matrix
shown below in Tables C-11.2.1 and C-11.2.2. The levels of
distribution that determine the proportion of gain share are shown
as part of the Distribution Matrices.
(ii) If the actual [***]* costs are less than the budgeted [***]* costs
(Budgeted [***]* cost - Actual [***]* cost) then those savings
shall be subject to the Gain Sharing Distribution Matrix shown
below in Tables C-11.2.1 and C-11.2.2
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11.2 GAIN SHARING DISRIBUTION MATRIX
The Gain Sharing Distribution Matrix will be used to determine the
proportion of savings to be split between BPA and Exult resulting from
the calculation of the amount available for gain sharing. [***]* The
gain share will begin with the first level of distribution and proceed
to the next level until the amount available for gain share has been
fully distributed.
GAIN SHARING DISTRIBUTION MATRIX-NO SERVICE CREDITS TO BPA
TABLE C-11.2.1
[***]*
11.3 GAIN SHARING EXAMPLE
Table C-11.3 below is an example of the gain sharing calculation amount
and distribution.
[***]*
11.4 SERVICE CREDITS CALCULATION
KPIs are Service Levels that, when missed, are subject to Service
Credits. Service Credits for KPIs will be weighted in accordance with
Schedule B of this Agreement and will adjust the gain sharing
distribution between BPA and Exult. The Service Credits shall be
calculated on a Client Service Centre basis as part of gain sharing and
credited to the respective Countries (as advised by BPA) on an annual
basis.
The formula for calculating the Service Credits for Exult's failure to
achieve any one of the seven KPIs is set out below. The total amount
determined from the service credit calculations for all KPIs shall be
subtracted from Exult's gain share portion prior to Service Credits. The
net result shall equal Exult's gain share portion after Service Credits.
[***]*
The calculation of Service Credits will be by KPI Process. Any
unutilised credits in the KPI Pool at the end of any year following the
Guaranteed Minimum Savings Date cannot be carried forward to the
succeeding year. [***]*
SERVICE CREDITS CALCULATION METHOD EXAMPLE
TABLE C-11.4
[***]*
- ------------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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12 CLASSIFICATION OF EXPENSE ITEMS SUBJECT TO MARGIN VERSUS PASS-THROUGH
12.1 EXULT ACTUAL COST
The following costs shall be subject to margin as part of gain sharing:
[***]*
12.2 OTHER COSTS
The following costs shall not be included in the Exult Actual Cost:
[***]*
13 THIRD PARTY REVENUE
Where the parties agree that third parties are permitted to market services
to BPA employees using Exult's Web-enabled HR services portal, [***]*
14 INVOICING
14.1 Invoices for Base Charge and the Initial Base Charges as applicable will
be submitted monthly in advance on the first day of each month. All
other charges including [***]* will be invoiced in arrears on the first
day of the subsequent month. Invoices will provide details of each Base
Charge and such supporting information as BPA may reasonably require and
will be in the Country's local currency. For those Processes delivered
in a Client Service Centre not sited in the Country being invoiced,
Exult will convert the cost of those items not invoiced in the local
currency using a fixed exchange rate established on each anniversary of
the Country Commencement Date. At the end of each year of the Agreement,
the invoice amounts will be recalculated using the actual month end
exchange rates for the period and a credit or invoice, as appropriate,
will be issued to BPA. In addition, at the end of the year, all
adjustments including ARCs and RRCs, gain sharing and Service Credits
will be made and invoiced or credited in the subsequent month. BPA shall
inform Exult how gain sharing and Service Credits are to be distributed
between Countries.
14.2 The ARC and RRC adjustments, inflation adjustments, and BPA's portion of
gain share from the previous year will be used going forward to
calculate Base Charge for the following year subject to end of year
reconciliation in accordance with Section 5.1.2
14.3 Payments are due within [***]* of receipt of any invoice by BPA.
Interest for late payments will be charged at the rate of [***]*
14.4 If as a result of any audit carried out in accordance with the terms of
a Country Agreement it is discovered that BPA has been overcharged,
Exult shall pay an amount equal to
[***]*
- ------------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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15 TRANSFER OF ASSETS
As agreed between BPA and Exult, BPA's existing assets and management of
these assets may transfer to Exult as part of the Services that Exult will
provide to BPA. [***]*
16 CONTRACT MINIMUMS
16.1 Contract Minimums for each Contract Minimum Year shall be established in
accordance with Clause 18 of the Framework Agreement.
16.2 The Contract Minimum for the initial Contract Minimum Year shall be a
sum equivalent to [***]*
16.3 Within [***]*, BPA may give Exult [***]* written notice of a proposed
reduction in the Contract Minimum to take account of specified
reductions in BPA's requirements for Services. These reductions shall
reflect material changes in BPA's business operations or structure
including those caused by Significant Changes.
16.4 This Section 16 applies to situations which result in an actual
reduction in BPA's requirement for Services and, for the avoidance of
doubt, BPA may not assume responsibility internally for services
equivalent to the Services or appoint a third party to provide services
equivalent to the Services pursuant to the terms of this Section 16.
16.5 [***]* prior to the end of each Contract Minimum Year, the Regional
Governance Panel shall meet to assess the impact, including the impact
on the Charges for the then current Contract Minimum Year, of the
reductions in BPA's requirements for Services arising from the events
identified in a notice served in accordance with Section 16.3 above. As
appropriate, and subject always to Section 16.6 below, the Regional
Governance Panel shall agree a decrease in the Contract Minimum for the
succeeding Contract Minimum Year which is proportionate with the actual
reduction in Charges arising from the events.
16.6 [***]*
- ------------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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TABLE C-16.1
CONTRACT MINIMUMS EXAMPLE
[***]*
- ------------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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17 INFLATION
All Base Charges shall be adjusted annually in arrears by a recognised index
in each Country for [***]*
For the UK, inflation will be measured by the index of Average Earnings shall
be used for all non-IT staff and the New Earnings Survey (software and
consultancy) for IT staff.
For the USA, inflation will be measured by the Bureau of Labor and Statistics
(not seasonally adjusted) employment Cost Index (ECJ) for total compensation,
private industry workers, service producing industries increases from the
previous year.
The adjustment for inflation for [***]* and [***]* charges and associated
ARCs and RRCs unit rates shall be subject to the percentage of Total Labour
Related Costs going to Exult as shown in Table C-5.1.1.
[***]*
Exult's Actual Cost for [***]* and [***]* for allowing increases with respect
to cost increases greater than inflation, shall be set and measured at 90
days following the final Process Take On Date.
18 EARLY TERMINATION PAYMENT
18.1 Termination for convenience shall be calculated as:
o [***]*
o Winding Up Assistance Costs; and
o Remaining amortisation of Exult's Due Diligence Costs; and
o the remaining book value for the Assets as follows:
[***]*
[***]*
o Redeployment costs of staff and equipment (to remove from BPA's
sites) that have not been transferred to BPA; and
o Remaining obligations for Third Party Contracts including but not
limited to outstanding loans and financing costs related to such
contracts as follows:
[***]*
18.2 Termination for Change of Control shall be calculated as:
o Winding Up Assistance Costs; and
o Remaining amortisation of Exult's Due Diligence Costs; and
- ------------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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o The remaining book value for the Assets as follows:
[***]*
o Redeployment costs of staff and equipment (to remove from BPA's
sites) that have not been transferred to BPA; and
o Remaining obligations for Third Party Contracts including but not
limited to outstanding loans and financing costs related to such
contracts as follows:
[***]*
18.3 Termination for Cause by BPA shall be calculated as follows:
o Winding Up Assistance Costs; and
[***]*
18.4 Termination for a Key Country (U.S. or U.K.) - the payments for the
remaining Countries shall be calculated as follows:
o Winding Up Assistance Costs; and
o Remaining amortisation of Exult's Due Diligence Costs; and
o The remaining book value for the Assets as follows:
[***]*
o Redeployment costs of staff and equipment (to remove from BPA's
sites) that have not been transferred to BPA; and
o Remaining obligations for Third Party Contracts including but not
limited to outstanding loans and financing costs related to such
contracts as follows:
[***]*
- ------------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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FRAMEWORK AGREEMENT
SCHEDULE G
TRANSITION PLAN
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TABLE OF CONTENTS
Page
----
1 INTRODUCTION............................................................. 1
2 DUE DILIGENCE EXERCISE OVERVIEW.......................................... 1
3 PRINCIPLES FOR DETERMINING GLOBAL DUE DILIGENCE EXERCISE AND
COUNTRY TRANSITION PLANNING ACTIVITIES................................... 1
4 ILLUSTRATIVE GLOBAL DUE DILIGENCE SCHEDULE............................... 2
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SCHEDULE G
TRANSITION PLAN
1 INTRODUCTION
This Schedule addresses the following issues:
1.1 Due Diligence Exercise Overview - The general concept behind the Due
Diligence Exercise.
1.2 Due Diligence Exercise Approach - The guideline is for a sixty day Due
Diligence Exercise to be performed for each applicable Country,
concluding with signing of the Country Agreement.
1.3 Principles for determining Global Due Diligence Exercise and Country
Transition Planning Activities Rational to determine the Country
sequencing and timing for inclusion into the Agreement.
1.4 Global Due Diligence Exercise schedule - Schedule showing timing of the
specific Country Due Diligence Exercise as agreed between both parties.
1.5 Completion of post implementation review and incorporation of lessons
learned.
2 DUE DILIGENCE EXERCISE OVERVIEW
The Due Diligence Exercise will be conducted in a consistent manner and is
comprised of the following key milestones: [***]*
3 PRINCIPLES FOR DETERMINING GLOBAL DUE DILIGENCE EXERCISE AND COUNTRY
TRANSITION PLANNING ACTIVITIES
3.1 Exult and Exult Participating Affiliates and BPA and BPA Participating
Affiliates shall agree to a countries readiness to commence Due Diligence
and shall make a recommendation to the Regional Governance Panel on how
to proceed.
3.2 The schedule for Country Due Diligence and transition shall be primarily
determined based on the size of the active and in-active employee base
and applicable non-employee population and the Country specific HR
organisation.
3.3 Exult and Exult Participating Affiliates and BPA and BPA Participating
Affiliates shall assess a country's readiness for delivery, with
particular attention given to a country's technology and application
infrastructure.
- --------------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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4 ILLUSTRATIVE GLOBAL DUE DILIGENCE SCHEDULE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
2000 2001 2002
PRIMARY ---------------------- ---------------------------------------- ---------------
SCHEDULING JUN- AUG- OCT- DEC- FEB- APR- JUN- AUG- OCT- DEC- FEB- APR-
PRINCIPLES COUNTRY JUL SEP NOV JAN MAR MAY JUL SEP NOV JAN MAR MAY
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
SCHEDULE COUNTRY A
BASED
UPON COUNTRY B
"TOTAL
EMPLOYEE" COUNTRY C
COUNT
COUNTRY D
COUNTRY E
COUNTRY F
COUNTRY G
COUNTRY H
COUNTRY I
-------------------------------------------------------------------------------------------------------------
SCHEDULE COUNTRY J
AGREED
BETWEEN COUNTRY K
PARTIES
COUNTRY L
COUNTRY M
COUNTRY N
COUNTRY O
COUNTRY P
COUNTRY Q
COUNTRY R
COUNTRY S
COUNTRY T
COUNTRY U
COUNTRY V
COUNTRY W
COUNTRY X
COUNTRY Y
COUNTRY Z
COUNTRY AA
COUNTRY AB
COUNTRY AC
COUNTRY AD
COUNTRY AE
COUNTRY AF
COUNTRY AG
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
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FA Sch. G 2 Exult
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<PAGE> 96
SCHEDULE K
FORM OF THE LETTER OF CREDIT
To:
Attention:
cc:
Date:
Dear Sirs:
Irrevocable Standby Letter of Credit No.
Date:
Amount:
We are informed that you have entered into a framework agreement dated 1999 (as
amended from time to time ( ) with Exult, Inc. ( )/(the "FRAMEWORK
AGREEMENT") under which the Account Party will provide or procure its
affiliates to provide certain human resources management services to the
Beneficiary and certain of its affiliates.
We are informed that there are terms in the Framework Agreement requiring that
the Beneficiary receives a duly executed irrevocable Standby Letter of Credit
with a limit of the Maximum Liability (as defined below) to secure the
performance and compliance by the Account Party of its obligations under the
Framework Agreement.
1 By order and for account of the Account Party, we ( ) (the "ISSUER"),
hereby open this Irrevocable Standby Letter of Credit in favour of the
Beneficiary for the amount of up to [ ] million US Dollars ($ )
in accordance with paragraph 4 below (the "MAXIMUM LIABILITY").
2 The Issuer unconditionally and irrevocably agrees with the Beneficiary that,
within 10 Business Days after receipt by the Issuer of a written Demand on
us in the form set out in Appendix 2, it will pay to the Beneficiary, in
accordance with and subject to the terms of this Irrevocable Standby Letter
of Credit and such Demand, the amount which is demanded for payment in the
Demand, provided that such amount, when aggregated with all other amounts
paid by the Issuer under this Irrevocable Standby Letter of Credit, does not
exceed the Maximum Liability.
3 Multiple drawings are permitted under this Irrevocable Standby Letter of
Credit, provided that the total of all amounts paid by the Issuer under this
Irrevocable Standby Letter of Credit shall not exceed the Maximum Liability.
4 All payments to be made by the Issuer under or as contemplated by this
Irrevocable Standby Letter of Credit shall be made free and clear of and
without deduction of any taxes, levies, duties, charges, fees, deductions or
withholding of any nature and shall be made without any set-off or
counterclaim.
5 This Irrevocable Standby Letter of Credit shall automatically terminate on
[DATE THAT IS TWO YEARS FROM DATE OF ISSUANCE].
- --------------------------------------------------------------------------------
1
<PAGE> 97
6 This Irrevocable Standby Letter of Credit sets forth in full the Issuer's
undertaking, and such undertaking shall not in any way be modified, amended,
amplified or limited by reference to any document, instrument or agreement
referred to herein, except to the Uniform Customs (as defied below) and any
such reference shall not be deemed to incorporate herein any document,
instrument or agreement.
7 This Irrevocable Standby Letter of Credit is subject to the Uniform Customs
and Practice for Documented Credits (1993 Revision), International Chamber
of Commerce, Publication No. 500 (the "UNIFORM CUSTOMS").
8 This Irrevocable Standby Letter of Credit including Exhibits and Schedules
hereto shall be deemed to be made under the laws of the State of New York
and, as to matters not addressed by the Uniform Customs, is governed by the
laws of New York State and, for the avoidance of doubt, the Issuer hereby
knowingly and willingly waives Section 5-112 of the New York Uniform
Commercial Code.
Yours faithfully
By:
Authorised Signatory
- --------------------------------------------------------------------------------
2
<PAGE> 98
APPENDIX 1
DEFINITIONS
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which banks are
open for commercial banking business in the City of Los Angeles, California,
USA.
"DEMAND" means a demand by the Beneficiary to the Issuer made under this
Irrevocable Standby Letter of Credit in the form set out in Appendix 2 of this
Irrevocable Standby Letter of Credit.
- --------------------------------------------------------------------------------
3
<PAGE> 99
APPENDIX 2
FORM OF DEMAND
[ ]
Date
To:
Attention:
cc:
Dear Sirs:
Irrevocable Standby Letter of Credit No.
Date:
Amount:
We refer to the above Irrevocable Standby Letter of Credit in connection with
the Framework Agreement entered into between us and Exult, Inc. on ,
as amended from time to time (the "FRAMEWORK AGREEMENT"). Terms defined in the
Irrevocable Standby Letter of Credit have the same meaning in this demand.
We certify that the Beneficiary is entitled to make Demand under this
Irrevocable Standby Letter of Credit in accordance with the terms of the
Framework Agreement.
Accordingly, we hereby demand payment of the sum of dollars $
pursuant to the Irrevocable Standby Letter of Credit No.
Payment should be made to the following account:
Name:
Bank:
Account No:
Yours faithfully,
insert applicable details or delete inapplicable part
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4
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FRAMEWORK AGREEMENT
SCHEDULE L
CHANGE CONTROL MANAGEMENT
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TABLE OF CONTENTS
Page
----
1. CHANGE REQUESTS........................................................... 1
2. CLASSIFICATION OF THE CHANGE REQUEST...................................... 1
3. EVALUATION OF THE PROPOSED CHANGE......................................... 2
4. IMPACT ANALYSIS........................................................... 3
5. APPROVAL.................................................................. 4
6. REPORTING................................................................. 5
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SCHEDULE L
CHANGE CONTROL MANAGEMENT
This Schedule sets out the procedure to be followed for any Proposed Change to
the Framework Agreement or any Country Agreement.
1. CHANGE REQUESTS
1.1 Either party may request a Proposed Change by submitting a Change
Request in accordance with the following process.
1.2 The Change Request shall be divided into two (2) sections. Section One
shall contain the general information regarding the Proposed Change and
shall be completed by the Country Representative of the submitting
party. Section Two shall contain the impact analysis for the Proposed
Change, which shall be completed by the Exult and Exult Participating
Affiliate Country Representative.
1.3 In each Country, Change Requests shall be presented by the Country
Representative of the submitting party to the other party's Country
Representative or designee who shall acknowledge receipt by signature of
the Change Request.
1.4 Any Proposed Change which has a potential impact on more than one
Country shall have a Change Request completed for each impacted Country.
2. CLASSIFICATION OF THE CHANGE REQUEST
The Exult and Exult Participating Affiliate Country Representative and the
Client Country Representative shall agree to the classification of the
Change Request as follows:
2.1 Where it is determined that the Proposed Change is an Operational
Change, the Proposed Change shall be evaluated as set out in section
3.1.
2.2 Where it is determined that the Proposed Change is a change to the
Client's Policies and Procedures, the proposed change shall be evaluated
as set out in section 3.2.
2.3 Where it is determined that the Proposed Change is a Project, the
Proposed Change shall be evaluated as set out in section 3.3
2.4 Where it is determined that the Proposed Change is a change to the terms
and conditions of the Country Agreement or a change related to the
Schedules of the Country Agreement which is not related to a specific
Project or to a change to Client's Policies and Procedures, the Proposed
Change shall be evaluated as set out in section 3.4.
2.5 Where it is determined that the Proposed Change should not proceed, the
Change Request shall be rejected and returned to the submitting party.
If the Exult and Exult Participating Affiliate's Country Representative and
the Client's Country Representative cannot agree to the classification of
the Change Request, then the Change Request shall be referred to the
Regional Governance Panel for classification.
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3. EVALUATION OF THE PROPOSED CHANGE
The Proposed Change shall be evaluated, by classification, as described
below:
3.1 Operational Changes
3.1.1 Operational Changes shall be implemented in accordance with the
operational change control procedures and approved subject to
section 5 of this Schedule.
3.2 Changes to Client's Policies and Procedures
3.2.1 Exult and Exult Participating Affiliate shall perform the impact
analysis as described in Section 4.
3.2.2 The Exult and Exult Participating Affiliate Country Representative
shall submit the Proposed Change, including the Impact Analysis,
to the Client Country Representative.
3.2.3 Based on the results of the impact analysis, the Client Country
Representative shall, within a reasonable timeframe:
(i) approve the Proposed Change and proceed to its
implementation subject to section 5 of this Schedule; or
(ii) request Exult and Exult Participating Affiliate in writing
to re-submit the Proposed Change stating which items of
information it is dissatisfied with, in which case Exult and
Exult Participating Affiliate shall re-submit the Proposed
Change within a reasonable timeframe; or
(iii) reject the Change Request in which case the Agreement shall
continue un-amended.
3.3 Projects
3.3.1 Exult and Exult Participating Affiliate shall perform the impact
analysis as described in Section 4.
3.3.2 Exult and Exult Participating Affiliate shall prepare a Project
Statement as set out in Schedule H.
3.3.3 The Exult and Exult Participating Affiliate Country Representative
shall submit the Proposed Change, including the Project Statement,
to the Client Country Representative
3.3.4 Based on the results of the impact analysis, the Client Country
Representative shall, within a reasonable timeframe:
(i) approve the Proposed Change and the Project Statement and
proceed to its implementation subject to section 5 of this
Schedule; or
(ii) request in writing that Exult and Exult Participating
Affiliate re-submit the Proposed Change and Project
Statement stating which items of information it is
dissatisfied with, and Exult and Exult Participating
Affiliate shall re-submit the Proposed Change and Project
Statement within a reasonable timeframe; or
(iii) reject the Change Request in which case Exult and Exult
Participating Affiliate will not implement the Project.
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3.4 Changes to the Agreement (as described in Section 2.4)
3.4.1 Exult and Exult Participating Affiliate shall perform the impact
analysis as described in Section 4.
3.4.2 The Exult and Exult Participating Affiliate Country Representative
shall submit the Proposed Change, including the impact analysis,
to the Client Country Representative for approval subject to
section 5 of this Schedule.
4. IMPACT ANALYSIS
Upon determination of the classification of the Proposed Change, Exult and
Exult Participating Affiliate shall provide, at its expense, [***]* or as
otherwise agreed, an estimate of the time and cost that Exult and Exult
Participating Affiliate proposes to charge to the Client to complete the
impact analysis. The Client shall provide Exult and Exult Participating
Affiliate, within 10 business days or as otherwise agreed, a decision as to
whether to proceed with the impact analysis as estimated.
4.1 If the Client Country Representative determines that the Proposed Change
should not proceed, the Change Request shall be rejected and returned to
the submitting party.
4.2 If the Client Country Representative decides to proceed, Exult and Exult
Participating Affiliate shall, as soon as reasonably practicable and
acting in good faith, conduct an impact analysis to assess and evaluate
the impact of the Proposed Change having regard to all relevant factors
including the following:
4.2.1 [***]*
4.2.2 [***]*
4.2.3 [***]*
4.2.4 [***]*
4.2.5 [***]*
4.2.6 [***]*
4.2.7 [***]*
4.3 In the case of Proposed Changes relating to Projects, Exult and Exult
Participating Affiliate, in addition to the impact analysis shall,
acting in good faith, provide the Client with the following information:
4.3.1 whether Exult and Exult Participating Affiliate considers the
Project to be technically feasible, and, if so, the estimated
number, grade, qualification and experience of personnel required
to provide the Project;
4.3.2 the estimated number of days that would be required to be spent by
each such person in order to provide the Project;
- ---------------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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4.3.3 the estimated cost and timetable for implementation of the Project
including the date of its completion;
4.3.4 the anticipated impact, if any, on other aspects of the Services
and operation of the Systems by the Client;
4.3.5 the terms and conditions on which Exult and Exult Participating
Affiliate is willing to provide the Project, which shall so far as
reasonably appropriate shall be consistent with the terms and
conditions on which the Services are provided under this
Agreement; and
4.3.6 any other information the Client may reasonably require in
relation to the Project.
[***]*
5. APPROVAL
Subject to the delegated financial authority limits provided by the relevant
Client Global Commercial Contract Leader and Client Regional Commercial
Contract Leader, the following approval levels shall apply.
5.1 Change Requests that are classified as Operational Changes shall be
approved by the Client's Country Representative and Exult and Exult
Participating Affiliate's Country Representative or their designees
except where Operational Changes do not impact Client activities or
costs, in which case the Exult Country Representative or its designee
may approve the change.
5.2 Change Requests that are classified as changes to the Client's Policies
and Procedures shall be approved by the Client Country Representative.
5.3 Change Requests that are classified as Projects shall be approved by the
Client's Country Representative.
5.4 Change Requests that are classified as changes to the terms and
conditions of the Country Agreement or as changes related to the
Schedules of the Country Agreement which are not related to a specific
Project or to a change to the Client's Policies and Procedures, shall be
approved by the Regional Governance Panel. In the event that such
changes have global implications, the Change Request shall be approved
by the Global Governance Panel.
Neither party shall be obliged to comply with any Proposed Changes unless and
until approval has been given in accordance with this Change Control
Management process and, pending approval, no Change shall be made to the
Services or to the Framework and Country Agreements.
6. REPORTING
A consolidated report of all Change Requests shall be presented by the Exult
and Exult Participating Affiliate Country Representative to the Regional
Governance Panel on a monthly basis. The Regional Governance Panel shall
report Change Requests on a quarterly basis to the Global Governance Panel.
- ---------------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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<PAGE> 106
SCHEDULE N
Dated
BP AMOCO P.L.C. [AFFILIATE]
and
EXULT [AFFILIATE]
COUNTRY AGREEMENT (PRO FORMA)
[LOGO]
One Silk Street
London EC2Y 8HQ
Tel: (44-171) 456 2000
Ref: JPC/CXC
<PAGE> 107
PARTIES
THIS AGREEMENT is made on [ ]
BETWEEN:
(1) [BP AMOCO AFFILIATE], a company incorporated under the [laws of [-]],
whose principal office is at [[-]] ("CLIENT"); and
(2) [EXULT AFFILIATE], a company incorporated under the laws of [-] whose
principal office is at [-] ("EXULT SUPPLIER").
WHEREAS:
(A) By an agreement (the "Framework Agreement") dated 7 December, 1999 between
BPA Amoco p.l.c. ("BPA") a company incorporated under the laws of England,
and Exult, Inc. ("Exult"), a company incorporated under the laws of the
State of Delaware, a framework was agreed to enable Exult and its
Affiliates to provide certain human resource management services to BPA
and certain of its Affiliates.
(B) The purpose of this Agreement is to set out the terms on which Exult
Supplier is to supply the Services to the Client in [NAME OF RELEVANT
COUNTRY].
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 The definitions applying to this Agreement are set out in Schedule
Z (Definitions).
1.2 A reference to any statute, enactment, order, regulation or other
similar instrument shall be construed as a reference to the
statute, enactment, order, regulation or instrument as amended by
any subsequent statute, enactment, order, regulation or instrument
or as contained in any subsequent re-enactment thereof.
1.3 Headings are included in this Agreement for ease of reference only
and shall not affect the interpretation or construction of this
Agreement.
1.4 References to Clauses and Schedules are, unless otherwise provided,
references to clauses and schedules in or to this Agreement.
1.5 References to the words "include(s)" or "including" shall be
construed without limitation to the generality of the preceding
words.
2 TERM
This Agreement shall take effect on the Commencement Date and, unless the
Client provides notice under Clause 14.4 (Termination on Notice after the
Initial Period) that it wishes to
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terminate the Agreement on notice after the Initial Period, the Agreement
shall continue thereafter subject to the other provisions of Clause 14
(Termination).
3 SERVICES
3.1 The Services
3.1.1 Exult Supplier shall provide the Services to the Client and
the Participating Affiliates in accordance with the
Transition Plan, the Service Levels, the Controls, Good
Industry Practice and otherwise in accordance with the
terms and conditions of this Agreement.
3.1.2 Exult Supplier shall supply sufficient and appropriately
qualified and skilled Employees and Subcontractors to
provide the Services to the Client.
3.1.3 Exult Supplier shall be responsible for the management and
technical supervision of the performance of the Services by
Employees and Subcontractors under this Agreement.
3.1.4 Except as otherwise provided in this Agreement, Exult
Supplier shall be responsible for ensuring it has all the
assets required to provide the Services.
3.1.5 In performing the Services Exult Supplier shall use
reasonable endeavours to perform its duties in such manner
and at such times so that no act, omission or default of
the Exult Supplier shall, to its knowledge, constitute,
cause or contribute to any breach by BPA, the Client or any
of the Participating Affiliates of any contract, including,
but not limited to, the Third Party Contracts binding upon
BPA, the Client or the Participating Affiliates relating to
the Client Premises, the Client Assets or, the provision of
the Services.
3.2 CONTROLS
3.2.1 For the avoidance of doubt, the Client shall be responsible
for establishing and maintaining BPA Controls, including,
but not limited to, management overview and determination
of BPA Controls relating to human resource management
policies and practices. Exult Supplier shall have no
responsibility for the establishment and maintenance of BPA
Controls, but shall comply with BPA Controls in accordance
with the terms of this Agreement.
3.2.2 As at the Commencement Date, the BPA Controls listed in
Part 1 of Schedule O, BPA Controls, have been provided to
Exult Supplier in writing and the parties have agreed that
Exult Supplier shall comply with such agreed BPA Controls
when fulfilling its obligations under this Agreement.
3.2.3 During the 6 month period following the Commencement Date,
the parties shall work together in good faith to review and
evaluate the BPA Controls listed in Part 2 of Schedule O.
Such review will involve an assessment of the
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applicability of such BPA Controls to the performance of
Exult Supplier's obligations under this Agreement and the
impact, if any, of Exult's compliance with such BPA
Controls in terms of the scope of Services, Service Levels,
Charges or any other aspect of this Agreement.
3.2.4 It is the intention of the parties that through the review
process referenced in Clause 3.2.3, the BPA Controls listed
in Part 2 of Schedule O will be agreed between the parties
and included within Part 1 of Schedule O and Exult
Supplier's performance of its obligations under this
Agreement shall be subject to compliance with such
additional agreed BPA Controls.
3.2.5 In the event that the parties are unable to reach agreement
within [***]* of the review as to the inclusion of any BPA
Controls pursuant to Clause 3.2.4 then at the end of such
[***]* period, those BPA Controls shall be deemed to have
been included in Part 1 and the Change Control Management
process shall be applied to implement such BPA Controls.
3.2.6 In addition to the provisions in Clauses 3.2.4 and 3.2.5
for inclusion of BPA Controls into this Agreement, the
parties shall procure the Regional Governance Panel to
review the BPA Controls periodically during the term of
this Agreement and to use reasonable endeavours to agree
and include:
(i) any improvements and updates to BPA Controls; and
(ii) any additional BPA Controls established or
determined by the Client in relation to human
resource management or to its business generally.
3.2.7 In the event that the parties are unable to reach agreement
as to the inclusion of any BPA Controls pursuant to Clause
3.2.6 within [***]* of the review, those BPA Controls shall
be deemed to have been included in Part 1 and the Change
Control Management process shall be applied to implement
such BPA Controls.
3.2.8 Within [***]* following the Commencement Date and
consistent with the Process Take On Dates as set out in the
Country Transition Plan, Exult Supplier will develop a
Quality Control Document. The Quality Control Document
shall thereafter be reviewed periodically by the Regional
Governance Panel with a view to agreeing and incorporating
any improvements and updates thereto.
3.2.9 Any alleged or suspected violation of the BPA Controls by
any Employees in the performance of this Agreement shall be
promptly reported by the party with knowledge of the
alleged or suspected violation to the other party. Exult
Supplier shall permit the Client to conduct an
investigation into the matter and shall co-operate with any
investigation into such matter conducted by the Client
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and shall take whatever Exult Supplier deems to be the
appropriate corrective action with respect to any such
violation by the Exult Personnel.
3.3 NON-PERFORMANCE AGAINST KPI'S
3.3.1 Exult Supplier's performance of the Services shall be
measured against Service Levels, including the KPIs.
3.3.2 If at any time after the applicable date determined in
accordance with Schedule B (Service Levels), there is a KPI
Failure, Exult Supplier shall credit the Client with the
applicable Service Credit in accordance with the procedure
set out in Schedule C (Charges and Invoicing) and the
Client may at its option seek any other remedy set forth in
this Agreement, provided that:
(i) the amount of such Service Credit shall be taken
into account when assessing any Award made to the
Client pursuant to any other remedy in relation to
the default resulting in the KPI Failure; and
(ii) the Client shall provide Exult Supplier with notice
that it intends to pursue such alternative remedy
within [***]* of recovery of the relevant Service
Credit from Exult Supplier in accordance with
Schedule C (Charges and Invoicing).
3.4 PROJECTS
The Client may from time to time request Exult Supplier by written
notice to undertake a Project in accordance with the Change Control
Management process and the procedures set out in Schedule H
(Projects). Projects included within the scope of this Agreement at
the Commencement Date, if any, are set out in Schedule H. Unless
otherwise agreed, Projects will be charged at the Standard Rates.
3.5 DISASTER RECOVERY
3.5.1 In respect of each Process, Exult Supplier shall, from the
relevant Process Take On Date use and comply with the
existing BPA Disaster Recovery Plan (except to the extent
that Client has not provided Exult Supplier with a copy of
the existing BPA Disaster Recovery Plan) and shall within
[***]* of the Commencement Date develop and implement an
Exult Supplier Disaster Recovery Plan appropriate to the
provision of the Services. BPA makes no representation that
the BPA Disaster Recovery Plan is adequate for these
purposes and, therefore, Exult Supplier shall have no
liability for its failure to reinstate any of the Services
to the extent that it has complied with such plan. The
Exult Supplier Disaster Recovery Plan shall cover critical
personnel, operations, Systems and processing at facilities
used in the provision of the
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Services. Exult Supplier shall maintain the Exult Supplier
Disaster Recovery Plan and shall conduct annual tests to
ensure its effectiveness. Exult Supplier shall consult with
the Client in the preparation and development of the Exult
Supplier Disaster Recovery Plan and the Regional Governance
Panel shall use its reasonable endeavours to agree any
improvements to it. In the event that such agreement is not
reached within [***]* of the proposal being made the
improvement will be deemed to be adopted and will be
implemented in accordance with the Change Control
Management process.
3.5.2 As part of the consultation process described in Clause
3.5.1, Exult Supplier shall provide the Client with copies
of the Exult Supplier Disaster Recovery Plan, including any
updates to such plan which are developed by Exult Supplier.
3.6 COMPATIBILITY OF IT SYSTEMS
It is the intention of the parties that the Systems and IT
infrastructure, including the Exult IT Domain, Exult Systems and
Future Systems, to be developed to support the provision of the
Services shall be compatible with BPA's IT infrastructure and
systems architecture existing at the Commencement Date (the
"Existing IT Domain"). The parties will co-operate in good faith to
ensure that this can be achieved so that the Leveraged Operations
can be implemented with the minimum of disruption to the Existing
IT Domain, provided that if either party considers that a change to
the Existing IT Domain is necessary in order to allow the provision
of the Services to the Service Levels and achieve Leveraged
Operations then such change shall be implemented by way of the
Change Control Management process.
3.7 VALIDATION EXERCISE
3.7.1 Following the Commencement Date, Exult Supplier and the
Client will work in co-operation to complete the Validation
Exercise in accordance with Schedule G.
3.7.2 The costs of the Validation Exercise shall be dealt with in
accordance with Schedule C.
3.8 PROCESS DESCRIPTIONS
3.8.1 Exult Supplier shall maintain in an electronic format
(where possible) updated system documentation and
procedures providing a clear description of the Service
Delivery Model once the Services are delivered (the
"Process Descriptions").
3.8.2 Exult Supplier shall provide the Client with access to such
Process Descriptions
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as reasonably requested by the Client.
4 EXCLUSIVITY
The parties acknowledge that Exult Supplier will have an exclusive right
to offer to provide Services and Underlying Technology to the Client in
[COUNTRY] save that the Client has the right to obtain human resources
services (including the Services) directly from itself, from BPA, from a
BPA Affiliate or from a third party in respect of:
4.1 [***]*
4.2 services received by the Client under Third Party Contracts which
are not Transferred to Exult Supplier pursuant to Clause 7 (Third
Party HR Contracts);
4.3 services received by the Client under Sensitive Third Party
Contracts pursuant to Clause 7 (Third Party HR Contracts);
4.4 [***]*
4.5 [***]* and
4.6 any Affected Process in relation to which the Client has terminated
this Agreement pursuant to Clause 15.5.1 (Suspension of a Process).
5 CLIENT OBLIGATIONS INCLUDING BPA RESPONSIBILITIES
5.1 The Client shall perform its obligations under this Agreement,
including, but not limited to, the BPA Responsibilities, in
accordance with this Agreement.
5.2 The Client shall arrange for the giving of timely approvals,
management input, information and management review of issues as
and when they are requested by Exult Supplier. The Client will
provide Exult Supplier and its Employees and Subcontractors full
and timely access to all staff relevant to the provision of the
Services to the extent reasonably needed by Exult Supplier to make
decisions in relation to, or to perform the Services. In the event
that such access is not provided, Exult's Country Representative
will advise the Client's Country Representative.
5.3 The Client shall be responsible for establishing and maintaining
its management policies and strategies, including, but not limited
to, policies relating to the Client's human resources function.
Exult Supplier shall have no responsibility for the establishment
or maintenance of such policies.
5.4 Exult Supplier shall not be liable for any delay or failure on its
part to provide all or any of the Services or failure to perform
its other obligations under this Agreement to the extent
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that this results from:
5.4.1 a failure by the Client to meet any of the Client's
obligations under this Agreement, including, but not
limited to, BPA Responsibilities;
5.4.2 errors, omissions or inadequacies in data, information or
instructions provided by the Client which Exult Supplier
relies on to provide the Services, but only to the extent
that Exult Supplier ought not to have been aware of any
such errors, omissions or inadequacies;
5.4.3 the negligent acts or negligent omissions of the Client in
connection with this Agreement; or
5.4.4 the Client preventing Exult Supplier from implementing the
agreed Exult Service Delivery Model by failing to fulfil
its obligations in respect of such implementation as set
out in this Agreement or as otherwise agreed between the
parties.
5.5 Exult Supplier shall notify the Client on becoming aware of the
occurrence of any of the circumstances in Clause 5.4.1 to Clause
5.4.4 that may cause a delay or failure and shall use reasonable
endeavours to continue to provide the Services. To the extent that
either party believes consequential changes to Services, Charges,
Service Levels or any other obligations arising under the Agreement
are necessary as a result of the Client's failure to meet its
obligations, the matter shall be referred to the Regional
Governance Panel which shall determine the changes, if any, that
should be implemented in accordance with the Change Control
Management process. If the Regional Governance Panel is unable to
resolve this issue the matter shall be referred to an Arbitrator
appointed pursuant to Clause 29.3 (Dispute Resolution).
6 TRANSFER ARRANGEMENTS
6.1 CLIENT PREMISES
6.1.1 The Client shall use its reasonable endeavours to make
available, or to procure that there is made available,
should Exult Supplier so reasonably request, Client
Premises to enable Exult Supplier to perform the Services.
6.1.2 Exult Supplier shall occupy the Client Premises made
available to Exult Supplier in accordance with terms and
conditions of this Agreement and other terms which are
appropriate for those Client Premises as agreed between the
parties.
6.1.3 Any charges charged by the Client to Exult Supplier for the
use of Client Premises shall be charged back to the Client
as Pass Through Costs. Any reasonable costs incurred by
Exult Supplier in vacating Client Premises and in
establishing alternative premises shall be charged to the
Client as Pass Through Costs.
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6.2 CLIENT ASSETS
6.2.1 Without prejudice to Clause 19 (Intellectual Property), the
Client shall use its reasonable endeavours to transfer,
license, lease or otherwise make available, to the extent
it has the power to do so, the Client Assets (as agreed
between the parties pursuant to the Due Diligence Exercise
and/or Validation Exercise) to enable Exult Supplier to
perform the Services.
6.2.2 Exult Supplier shall use Client Assets in accordance with
terms and conditions which are appropriate for those Client
Assets as agreed by the parties.
6.2.3 Any Charges charged by the Client to Exult Supplier for the
use of Client Assets shall be charged back to the Client as
Pass Through Costs.
6.3 EXULT SYSTEMS
6.3.1 Licences in respect of Exult Systems shall be dealt with in
accordance with Clause 19.
6.3.2 Subject to Clause 6.3.3 and Clause 19.6 (Licences of Exult
Supplier Intellectual Property on Termination), the
licences granted under Clause 6.3.1 shall be royalty free.
6.3.3 Where the Exult Systems or Future Systems include software
or other material licensed from a third party for which
such third party generally charges a royalty to licensees,
Exult Supplier reserves the right to charge the Client such
royalty in respect of such software or materials. Any such
royalty will be equivalent to the royalty sum Exult
Supplier pays to the third party in respect of the licence.
Any such royalty charged to the Client shall be charged as
a Pass Through Cost.
6.3.4 Subject to Clause 6.3.5, Exult Supplier and the Client
agree to be bound by the terms of the Escrow Agreement in
respect of source code materials relating to the Exult
Systems and Future Systems other than standard commercially
available Third Party Systems, and Exult Supplier agrees to
update where possible the relevant source code materials
held in escrow, in accordance with the Escrow Agreement.
6.3.5 In respect of those Systems to which Clause 6.3.4 applies
and which are licensed to Exult Supplier from a third
party, Exult Supplier shall before using such Systems in
the provision of the Services take reasonable steps to:
(i) obtain the source code materials relating to such
Systems and place such materials in escrow in
accordance with Clause 6.3.4;
(ii) if this is not reasonably practicable, procure that
the source code materials be made available to the
Client, including in an escrow
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account on substantially the same terms to those
contained in Clause 6.3.4;
If (i) and (ii) are not reasonably practicable, the parties
shall discuss and agree on alternative arrangements to
obtain appropriate rights of access to the source code
materials.
6.3.6 The parties agree that the Escrow Agreement referred to in
Clause 6.3.4 shall be entered into with NCC Escrow
International Limited ("NCC") and that the Escrow Agreement
should be based on the standard model Single Licensee (UK),
amended to reflect the parties requirements pursuant to
fulfilling the respective obligations under this and the
other Country Agreements. The parties intend the form of
the agreement should be substantially similar to that
contained in Schedule U and that if it is not possible to
obtain such agreement with NCC, the parties shall agree on
a suitable alternative escrow agent.
6.3.7 Any costs associated with Exult Supplier's compliance with
Clauses 6.3.4, 6.3.5 and 6.3.6 shall be charged to the
Client as a Pass Through Cost.
6.4 MISCELLANEOUS PROVISIONS RELATING TO THIRD PARTY CONTRACTS
6.4.1 The Client shall procure, so far as is reasonably
practicable and subject to the provisions of Clause 8
(Front End Consents), that Exult Supplier shall be entitled
to the benefit, subject to the burden, of the Client's or
BPA's interest in Third Party Contracts other than Third
Party HR Contracts which shall be dealt with in accordance
with Clause 7.
6.4.2 All charges and expenses arising from the Third Party
Contracts transferred (including Third Party HR Contracts
Transferred) to Exult Supplier (to the extent that the same
relate to the Services) shall, subject to Clause 8 (Front
End Consents), be equitably apportioned between the Client
and Exult Supplier as at the date of the Transfer.
7 THIRD PARTY HR CONTRACTS
7.1 THIRD PARTY HR CONTRACTS
Those contracts identified during the Due Diligence Exercise as
potential Third Party HR Contracts are set out in Schedule D. The
parties acknowledge that more potential Third Party HR Contracts
may be identified during the term of the Agreement in which case
such Third Party HR Contracts shall be added to Schedule D and be
subject to the provisions of this Clause 7. It is the intention of
the parties that, subject to the other provisions of this Clause,
where practicable the responsibility for the provision of the
services provided under Third Party HR Contracts should be
Transferred to Exult Supplier either by termination of such Third
Party HR Contracts or by an assignment or novation of such Third
Party HR Contracts to Exult Supplier, and in any event upon the
expiry of such Third Party HR Contracts. However, the parties
recognise that this may
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not be practicable in all circumstances and have agreed that the
following procedure shall apply to Third Party HR Contracts.
7.2 THIRD PARTY CONTRACTS IN SCOPE
7.2.1 As soon as practicable after any potential Third Party HR
Contracts are identified, the Regional Governance Panel:
(i) shall consider and agree whether each such contract
falls within the scope of Services and is therefore
a Third Party HR Contract; and
(ii) [***]*
7.2.2 Any disagreement between the parties in relation to Clause
7.2.1(i) shall be if possible resolved in accordance with
the provisions of Clause 7.8.
7.2.3 [***]*
7.2.4 Any Third Party HR Contract categorised by the Client as a
Sensitive Third Party Contract shall be retained within
Schedule D and dealt with in accordance with the following
provisions of this Clause 7.
7.3 TRANSFER OF THIRD PARTY HR CONTRACTS
7.3.1 On the expiry of any Third Party HR Contract other than a
Sensitive Third Party Contract (which shall be dealt with
under Clause 7.6), Exult shall take on responsibility for
the provision of the Services equivalent to the services
previously provided under such Third Party HR Contract, and
the provisions of Clause 7.3.4, Clause 7.3.5 and Clause 7.7
will apply thereto.
7.3.2 [***]*
7.3.3 In the event of failure to agree pursuant to Clause 7.3.2,
the matter shall be referred to and if possible resolved in
accordance with the provisions of Clause 7.8.
7.3.4 If the parties agree pursuant to Clause 7.3.2 or if it is
resolved pursuant to Clause 7.3.3 that the Third Party HR
Contract should be Transferred to Exult Supplier or if the
services previously provided by such Third Party HR
Contract are Transferred to Exult Supplier pursuant to
Clause 7.3.1 then:
(i) the parties shall agree on which category of cost
(being either Category A, B or C) the Third Party HR
Contract should be allocated to in
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accordance with Schedule C and shall agree a
suitable Contract Transfer Plan; and
(ii) shall ensure that the Third Party HR Contract is
Transferred to Exult Supplier in accordance with
such Contract Transfer Plan in the most practical
and efficient manner and with the minimum of
disruption to the Client, the Participating
Affiliates and to the provision of the Services.
7.3.5 Where the parties fail to agree whether a Third Party HR
Contract should be Transferred to Exult Supplier under
Clause 7.3.2 to Clause 7.3.5 inclusive, and Services
equivalent to the services previously provided by such
Third Party HR Contract are not Transferred to Exult
Supplier pursuant to Clause 7.3.1, such Third Party HR
Contract shall be retained by the Client until its expiry
or earlier termination and on the occurrence of either
event the provisions of Clause 7.3.1 shall apply.
7.4 ADMINISTRATION OF THIRD PARTY HR CONTRACTS
Where the parties agree pursuant to Clause 7.3.2 or Clause 7.3.3
that a Third Party HR Contract should be administered by Exult
Supplier the parties shall agree a suitable Contract Transfer Plan
and shall ensure that Exult Supplier takes over administration of
the Third Party HR Contract in accordance with Clause 7.3.1 and
such Contract Transfer Plan, in the most practicable and efficient
manner and with the minimum of disruption to the Client, BPA, the
Participating Affiliates and to the provision of the Services. The
Contract Transfer Plan shall include the scope of Exult Suppliers'
responsibilities relating to its administration role together with
the Client's role and responsibilities.
7.5 MONITORING AND REVIEW OF THIRD PARTY HR CONTRACTS
In the event that a Third Party HR Contract is not Transferred to
Exult Supplier or administered by Exult Supplier, the parties,
through the Regional Governance Panel, shall continue to monitor
the Third Party HR Contract and work towards integrating Exult
Supplier into the relationship with the third party with a view to
Transferring the Third Party HR Contract or its administration to
Exult Supplier when the parties agree it is appropriate to do so.
7.6 SENSITIVE THIRD PARTY CONTRACTS
7.6.1 [***]*
7.6.2 In the case of Sensitive Third Party Contracts Transferred
by assignment or novation to Exult Supplier pursuant to
Clause 7.3.1 to Clause 7.3.5 inclusive, Exult Supplier
shall:
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(i) not terminate any such Sensitive Third Party
Contract without the prior written consent of the
Client; and
(ii) not enter into a new contract with a third party in
relation to Services provided under any such
Sensitive Third Party Contract without the prior
written consent of the Client.
7.7 USE OF CHANGE CONTROL
Any changes to this Agreement, including the relevant Schedules
which are required as a result of the Transfer, termination or
expiry of any Third Party Contract or required as a result of Exult
Supplier assuming or ceasing administration responsibilities in
relation to any Third Party Contract, shall be dealt with in
accordance with the Change Control Management process.
7.8 FAILURE TO REACH AGREEMENT
If the parties fail to reach agreement pursuant to Clause 7.2 to
Clause 7.5 inclusive, the matter shall be referred to the Regional
Governance Panel in accordance with Clause 29.1.2 (Dispute
Resolution) and thereafter, if possible, resolved in accordance
with the provisions of Clause 29.1.3, provided that the matter
shall not be referred to an Expert or an Arbitrator in the event
the BPA Vice President Group HR and Exult Chief Executive Officer
have not been able to resolve the matter.
8 FRONT END CONSENTS
8.1 Where the consent of any third party is required to provide to
Exult Supplier the benefit of the arrangements under which the
Client holds or uses any of the Client Assets, Third Party Systems
or Third Party Contracts or such a consent is otherwise required to
enable Exult Supplier to perform the Services in the manner
contemplated by this Agreement, the Client shall use reasonable
endeavours, to procure that such consent is granted or at the
Client's option procure suitable alternative rights or services are
provided to Exult Supplier to enable it to perform the Services.
Exult Supplier shall use reasonable endeavours to cooperate in
obtaining such consents or obtaining suitable alternative rights,
including where necessary entering into new agreements or agreeing
to comply with the terms of the relevant existing agreements. The
use of reasonable endeavours shall not include the payment of any
monies by any party, but where consent can only be obtained in
return for the payment of an additional sum, the parties shall
consider paying such sum if it appears the most cost effective way
of proceeding. Any such payment shall be charged as a Pass Through
Cost.
8.2 Subject to Clause 8.1, if Exult Supplier does not have the right to
use the Client Assets, Third Party Systems, or the benefit of the
Third Party Contracts or any suitable alternative, Exult Supplier
shall not be liable for any failure to provide that part of the
Services to the extent that such failure results from the lack of
such right or benefit, provided that Exult Supplier shall use
reasonable endeavours to minimise the extent of such failure.
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9 CHANGE CONTROL MANAGEMENT PROCESS
Any changes to this Agreement shall be dealt with in accordance with the
Change Control Management process set out in Schedule L.
10 CHARGES, INVOICING AND PAYMENT
10.1 The Client shall pay the Charges to Exult Supplier in accordance
with the provisions of this Agreement, including Schedule C. The
Client shall pay all Charges invoiced by Exult Supplier regardless
of, and without prejudice to, whether it disputes all or any of
such invoice.
10.2 Exult Supplier shall, on the Client's request, provide copies of
all relevant accounts and records on which the calculations are
based to demonstrate that the amounts invoiced have been properly
calculated in accordance with the methodology set out in Schedule C
and such other information as the Client may reasonably require to
enable the Client to assess the legitimacy of the Charges made
pursuant to the provisions of Schedule C.
10.3 The Client shall have the right to conduct an audit pursuant to
Clause 12 (Audit) to verify the amount paid to Exult Supplier under
Clause 10.1 and if the Audit reveals that any over payment has been
made, the provisions of Section 14 of Schedule C (Charges and
Invoicing) shall apply.
11 TAXES
11.1 RESPONSIBILITY FOR TAXES
11.1.1 Each party shall be solely responsible for all Taxes which
shall be properly and lawfully assessed or imposed on it by
any competent legal or fiscal authority in connection with
the carrying out of or receiving of the Services or
otherwise under this Agreement.
11.1.2 Exult Supplier shall retain all necessary and reasonable
Tax information and documents as shall enable Exult
Supplier to comply with its obligations under Clause 11.1.1
for such a period as may be required in the relevant
jurisdiction, and in any event not to be a period of less
than 6 years.
11.1.3 Exult Supplier shall be liable for all income Taxes which
shall be properly and lawfully assessed or imposed on Exult
Supplier by any competent authority in connection with the
carrying out of the Services under this Agreement. Exult
Supplier acknowledges that the Client is not and shall not
become liable to any taxes referred to in this Clause
11.1.3.
11.1.4 Each party shall indemnify and keep indemnified the other
against all liabilities incurred by the other as a
consequence of its breach of any of the obligations under
Clause 11.1.1 and (in the case of Exult Supplier) under
Clauses 11.1.2 and 11.1.3.
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11.2 GROSSING UP FOR SALES TAXES
11.2.1 Notwithstanding the provisions of Clause 11.1, all sums due
to Exult Supplier under this Agreement are exclusive of any
VAT, sales and use tax, and any other similar taxes which
apply or may from time to time be introduced, which shall
be charged thereon in accordance with the relevant
regulations in force at the time of making the taxable
supply, and shall be paid by [***].*
11.2.2 Where required by the relevant fiscal regulations, invoices
shall show the relevant currency and any conversion of the
VAT, sales and use tax, or other similar taxes, into any
currency required to be shown in accordance with the
relevant fiscal regulations of the Country, or Countries
concerned.
11.2.3 Exult Supplier shall (if required by the relevant fiscal
regulations of the Country concerned) in respect of this
Agreement be duly registered in the jurisdiction where the
Services are performed for the purposes of VAT or other
similar sales taxes where such registration is required.
11.2.4 Exult Supplier shall indemnify the Client in respect of any
penalties and/or interest charges imposed by a competent
tax authority on the Client arising out of error or
omission by Exult Supplier in relation to VAT or other
similar sales taxes, provided that the Client notifies
Exult Supplier within 30 calendar days of such penalties
and/or interest charges being brought to the Client's
attention by the competent tax authority.
11.2.5 WITHHOLDING TAXES
(i) If the Client is properly and lawfully required by
any competent legal or fiscal authority in the
Country to withhold or deduct Withholding Tax on any
amounts payable under this Agreement to Exult
Supplier it shall cooperate reasonably with Exult
Supplier, including by forwarding the relevant
withholding or deducting certificate or certificates
as soon as reasonably practicable to Exult Supplier
in respect of such withholding or deduction so that
Exult Supplier is able to seek to recover from the
relevant competent legal or fiscal authority the
amount so withheld or deducted.
(ii) Exult Supplier shall use reasonable endeavours to
mitigate the effect of any Withholding Tax imposed
on any payment under this Agreement by seeking to
reduce the rate of Withholding Tax by credit,
off-set, deduction, repayment or otherwise, or by
eliminating such Withholding Tax by making use of
any applicable double taxation treaties or similar
provisions.
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(iii) If the Client withholds or deducts Withholding Tax
in accordance with Clause 11.2.5(i) and Exult
Supplier is unable to mitigate the effect of any
Withholding Tax as set out in Clause 11.2.5(ii), the
Client and Exult Supplier shall agree an additional
amount ("Additional Amount") of cost to be included
in Exult Return and ROC. Such Additional Amount may
be any amount (including zero) agreed as reasonable
by Exult Supplier and the Client on a case by case
basis (taking account, inter alia, Exult Supplier's
overall Tax position in the Country or, if
different, in its Country of Tax residence) but
shall not exceed such additional amount as will
result in receipt by Exult Supplier of more than the
full sum payable under this Agreement.
(iv) If there is any dispute in relation to any matter
under this Clause 11.2.5, the matter shall be
referred to an Expert appointed pursuant to Clause
29.2 (Dispute Resolution). The costs of such Expert
shall be borne equally by the parties.
12 AUDIT
12.1 The Client shall have the right at all reasonable times (in
accordance with Clause 12.2) and on reasonable notice to audit
(which for the avoidance of doubt includes inspection) Exult
Systems, procedures, supporting documentation, financial and other
books and records to the extent that they relate to the provision
of the Services as shall be necessary in the reasonable opinion of
the Client, to verify:
12.1.1 that the methodology in Schedule C has been correctly
applied in determining the Charges to be allocated to the
Client;
12.1.2 that the actual level of performance of the Services is the
same as the level of performance reported to the Client;
12.1.3 that Exult Supplier has adequate Internal Controls in
place;
12.1.4 that the costs incurred and charged by Exult Supplier in
connection with the Winding Up Plan, the General Winding Up
Plan and the Validation Exercise are accurate;
12.1.5 that the amount claimed by Exult Supplier in respect of any
Early Termination Payment is in accordance with Clause 17.2
(Termination for Convenience Payment); and
12.1.6 Exult Supplier's compliance with any other obligation under
this Agreement.
12.2 The audits referred to in Clause 12.1 may be carried out by the
Client or its authorised
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representatives (the "AUDITOR"), including BPA, and may be
undertaken [***]* at such time as the Client, reasonably requests
or more frequently in exceptional circumstances as determined by
the Regional Governance Panel. The Client, shall use reasonable
endeavours to conduct any such audits in a manner which will
result in the minimum of inconvenience to Exult Supplier
including, but not limited to, conducting such audit in
conjunction with Exult Supplier's own internal and/or external
audits where practicable.
12.3 Where the Client exercises its rights under Clause 12.1, and where
the Auditor has access to any Exult Confidential Information or
third party confidential information, the Auditor shall enter into
a separate confidentiality agreement with respect to that
confidential information with Exult Supplier and/or, at Exult
Supplier's election, with the third party prior to such exercise by
the Client. No Auditor shall be selected without the prior written
consent of Exult Supplier as to the identity of the Auditor, such
consent not to be unreasonably withheld or delayed.
12.4 Exult Supplier shall provide the Auditor reasonable access to
Employees, Subcontractors, documents, records and systems relating
to the provision of the Services and shall provide the Auditor with
routine assistance in connection with the audits. The Auditor shall
have the right to copy and retain copies of any relevant records
solely for the purposes of conducting the audit and subject to the
applicable confidentiality obligations.
12.5 Any amounts agreed as a result of the audit to have been
incorrectly charged by Exult Supplier shall be adjusted in the next
regular payment by the Client in accordance with Schedule C
(Charges and Invoicing).
12.6 In the event that there is any Dispute relating to any report
produced pursuant to any audit carried out under the provisions of
Clause 12.1, the matter shall be referred to an Expert appointed
pursuant to Clause 29.2 (Dispute Resolution). [***].*
12.7 Exult Supplier shall use reasonable endeavours to seek to obtain
for the Client the right to audit on terms equivalent to those
contained in this Clause 12 the relevant documents, records and
Systems of Exult, Exult Affiliates and any Subcontractors.
12.8 Exult Supplier and the Client shall [***]* with respect to any
audits carried out pursuant to this Clause 12.
12.9 Exult Supplier shall make available all books of account and
records held on behalf of the Client and relating to the provision
of the Services by Exult Supplier to the internal and external
auditors of the Client for the purposes of performing any statutory
or regulatory audit in relation to the Client.
12.10 The audit rights contained in this Clause 12 shall survive the
termination or expiry of this
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Agreement for a period of [***]* from the date of such expiry or
termination.
13 KEY PERSONNEL
13.1 Exult Supplier shall ensure, to the extent that it is within its
reasonable control, that the Key Employees are actively involved in
supplying the Services for the minimum period specified in Schedule
I (Employees) in relation to each Key Employee and shall not
replace any Key Employees with another person during that period
unless the parties agree that the relevant Key Employees need no
longer be actively involved in the provision of the Services.
13.2 The Client shall, to the extent that it is within its reasonable
control, ensure that the BPA Key Employees are actively involved in
fulfilling the Client's obligations under this Agreement for the
minimum period's specified in Schedule I (Employees) in relation to
each BPA Key Employee. The Client shall not replace any BPA Key
Employees with another person during that period unless the parties
agree that the relevant BPA Key Employees no longer needs to be
actively involved in the performance of this Agreement.
14 TERMINATION
14.1 TERMINATION ON WINDING UP OR DEFAULT
Either the Client or Exult Supplier may at any time by notice in
writing terminate this Agreement as from, subject to Clause 14.7,
the date of giving such notice to terminate if:
14.1.1 in the case of the Client, Exult Supplier or in the case of
Exult Supplier, the Client passes a resolution or the court
makes an order that it be wound up otherwise than for the
purposes of a reconstruction or amalgamation, or a receiver
manager or administrator on behalf of a creditor is
appointed in respect of the other party's business, or
circumstances arise which would entitle a creditor to
request that a court appoint a receiver, manager or
administrator or which would entitle a court otherwise than
for the purpose of a bona fide reconstruction or
amalgamation to make a winding-up order, or the other party
is unable to pay its debts within the meaning of Section
123 of the UK Insolvency Act 1986 or its relevant foreign
jurisdiction;
14.1.2 in the case of the Client, Exult Supplier or in the case of
Exult Supplier, the Client, is in Default and the party in
Default fails to remedy or compensate for the Default
[***]* of a written notice from the other party specifying
the Default and requiring its remedy; or
14.1.3 in the case of the Client if there are:
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[***]*
14.2 TERMINATION FOR CONVENIENCE
The Client may, subject to Clause 17.2 (Termination for Convenience
Payment), terminate this Agreement by giving Exult Supplier [***]*
prior written notice, such notice not to take effect before [***]*
where no Winding Up Plan is implemented or on such later date as is
determined in accordance with Clause 14.7.
14.3 TERMINATION ON TERMINATION OF FRAMEWORK AGREEMENT
This Agreement shall, subject to Clause 14.7, terminate upon the
termination or expiry of the Framework Agreement.
14.4 TERMINATION ON NOTICE AFTER THE INITIAL PERIOD
The Client may terminate this Agreement by giving [***]* notice to
Exult Supplier such notice to take effect, subject to Clause 14.7,
on the expiry of the Initial Period.
14.5 TERMINATION FOR FORCE MAJEURE
If an event of Force Majeure arises which cannot be readily
resolved and continues for a period of 6 months which materially
prevents or hinders the performance of material obligations under
this Agreement in relation to one or more Processes then either
party may at any time by notice terminate this Agreement in
relation to the Process or Processes affected by the Force Majeure
event as from, subject to Clause 14.7, the date of giving such
notice. In the event of a partial termination of this Agreement in
accordance with this Clause 14.5, the provisions of this Agreement
relating to termination for Force Majeure and the consequences of
termination, including Winding Up Assistance shall apply (but only
to the extent of the Process or Processes affected by the Force
Majeure event).
14.6 TERMINATION FOR CHANGE OF CONTROL
The Client may at any time by notice terminate this Agreement as
from, subject to Clause 14.7, the date of giving such notice if
there is a Change of Control of Exult Supplier, provided that such
notice is given [***]* of Exult Supplier notifying the Client of
such Change of Control.
14.7 EXTENSION OF TERM FOR WINDING UP PLAN
Any date for the termination of this Agreement provided in this
Clause 14 shall be subject to any extension agreed or determined by
the parties pursuant to the Winding Up Plan.
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14.8 NOTIFICATION TO REGIONAL REPRESENTATIVES
The Client or Exult Supplier, as the case may be, will wherever
practicable inform the Regional Representatives in writing [***]*
prior to giving notice under Clause 14.1 or 14.2, provided that
failure to give such notice shall not affect the Client's or Exult
Supplier's right to terminate the Agreement.
14.9 PRESERVATION OF RIGHTS OF ACTION
Any termination or expiry of this Agreement shall, subject to
Clause 34.12 (Legal Proceedings), be without prejudice to and shall
not affect any right of action or remedy which shall have accrued
or shall thereafter accrue under the terms of this Agreement.
15 SUSPENSION OF A PROCESS
15.1 [***]*
15.2 [***]*
15.3 [***]*
15.4 As soon as it can be demonstrated to the reasonable satisfaction of
the Regional Governance Panel that the Default has been remedied
and a plan has been agreed between the parties for reinstatement of
the Affected Process, the Client will by notice terminate the
suspension and reinstate Exult Supplier's provision of the Affected
Process.
15.5 If, at the end of the suspension period, it has not been
demonstrated to the reasonable satisfaction of the Regional
Governance Panel that the Default has been remedied the Client
shall either:-
15.5.1 serve written notice on Exult Supplier to terminate this
Agreement in relation to the Affected Process with
immediate effect; or
15.5.2 reinstate Exult Supplier's provision of the Affected
Process in accordance with an agreed plan for reinstatement
and resume the payment of Charges relating to the Affected
Process.
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15.6 In the event that Exult Supplier's provision of the Affected
Process is reinstated in accordance with Clauses 15.4 and 15.5.2,
Exult Supplier shall only be responsible for meeting Service
Levels, including KPIs, applicable to the Affected Process once
Exult Supplier has resumed the provision of the Affected Process
for a period in excess of [***]*
15.7 In the event of a partial termination of this Agreement in
accordance with Clause 15.5.1, the provisions of this Agreement
relating to termination for Default and consequences of
termination, including Winding Up Assistance shall apply (but only
to the extent of the Affected Process), and [***]*
15.8 In the event of suspension pursuant to Clause 15.2, Exult Supplier
shall offer to grant or to procure the grant of a licence in the
terms set out in Clause 19.6 and shall give the Client, BPA and its
Affiliates and its contractors such access to and use of the Client
Assets, Exult Proprietary Systems and Future Systems and any other
resources then being used to provide the Affected Process as the
Client may reasonably require in order to provide for itself or
procure the Affected Process through a third party in accordance
with Clause 15.2; provided that in exercising its rights, the
Client shall seek to minimise the disruption to Exult Supplier's
other business. In this Clause 15.8, any contractor employed by the
Client during the suspension period shall be deemed to be a
Successor Operator for the purposes of the application of Clause
19.6. Any licence and/or access rights granted pursuant to this
Clause 15.8 shall apply solely for the suspension period.
15.9 The remedies of the Client under this Clause 15 may be exercised in
respect of any one or more Defaults of this Agreement by Exult
Supplier.
16 WINDING UP ASSISTANCE
16.1 [***]* prior to the Framework Expiry Date or on notice of
termination of this Agreement at the request of BPA:
16.1.1 the parties will promptly meet and develop and agree the
Winding Up Plan to provide an orderly transitioning of the
Services provided under the Agreement to the Successor
Operator(s), including, but not limited to, the orderly
transitioning of support and maintenance in respect of
Exult Systems and Future Systems; and
16.1.2 Exult Supplier shall co-operate fully with the Client, BPA
and the Participating Affiliates to implement the Winding
Up Plan, to minimise the cost and disruption of termination
to the Client, BPA and the Participating Affiliates and to
facilitate the orderly transitioning of the Services from
Exult Supplier to Successor Operator in accordance with the
provisions of this Agreement.
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16.2 The Winding Up Plan is to cover the period up to [***]* from the
earlier of (i) the Expiry Date; and (ii) the date of giving notice
of termination of this Agreement.
16.3 In the event that the parties fail to agree the Winding Up Plan
within [***]* of first meeting in accordance with Clause 16.1, the
matter shall be referred to the informal Dispute Resolution
Procedure pursuant to Clause 29.1, and, if necessary, to an Expert
in accordance with Clause 29.2. The costs of such Expert shall be
borne equally by the parties.
16.4 Exult Supplier shall provide all assistance reasonably required by
the BPA Regional Project Leader or the Client for, or in connection
with, the Winding Up Plan and/or to ensure an orderly migration of
the obligations of Exult Supplier (including the provision of the
Services) to a Successor Operator for the period of the Winding Up
Plan.
16.5 Exult Supplier shall develop a Service Delivery Description and
shall deliver it to the BPA Regional Representatives and the Client
as soon as reasonably practical after first meeting to develop and
agree the Winding Up Plan. It will include up-to-date process
flowcharts and any other documentation reasonably necessary to
provide the BPA Regional Representatives and the Client with a
clear understanding of how the Services are delivered and to enable
the Client or Successor Operator to take over the provision of the
Services and to maintain and develop the Service Delivery Model.
16.6 BPA and the Client shall have the right, through their employees
and/or Successor Operator, if applicable, to interface with Exult
Supplier, Employees and Subcontractors to gain such an
understanding of and familiarity with the systems documentation and
processes used in providing the Services to enable their employees
or a Successor Operator to provide services equivalent to the
Services.
16.7 In the event of a termination pursuant to Clause 14.3 (Termination
of the Framework Agreement), the Winding Up Plan will be subject to
and determined by the General Winding Up Plan.
16.8 The parties shall continue to perform their obligations in
accordance with this Agreement during the period of the Winding Up
Plan except as expressly provided in the Winding Up Plan, provided,
however, that the obligations set forth in the following Clauses
shall not apply during the period of the Winding Up Plan: Clauses
4, 7, 13 and 22.
17 FINANCIAL CONSEQUENCES OF TERMINATION
17.1 WINDING UP ASSISTANCE
17.1.1 The Client shall bear it's own costs and the reasonable
charges and expenses of Exult Supplier (which shall be
based on the Standard Rates) incurred in connection with
the Winding Up Assistance, including the preparation and
production of the Service Delivery Description, provided
that, for the avoidance of doubt, this will not prevent the
Client from seeking to recover damages in
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respect of any loss it suffers pursuant to any termination
of this Agreement (i) as a result of Exult Supplier's
Default, pursuant to Clause 14.1; or (ii) pursuant to
Clause 14.3 on the termination of the Framework Agreement
as a result of Exult's Default.
17.1.2 Exult Supplier shall invoice in respect of charges and
expenses due pursuant to Clause 17.1.1 on a monthly basis
and such invoices shall be paid within 30 days of receipt
of an invoice in respect of such costs.
17.2 TERMINATION FOR CONVENIENCE PAYMENT
17.2.1 In the event of the termination of this Agreement by the
Client pursuant to Clause 14.2 (Termination for
Convenience), the Client shall pay to Exult Supplier the
Early Termination Payment within [***]* of an invoice
together with copies of all relevant accounts and records
on which the calculations are based to demonstrate that the
amount has been properly calculated in accordance with the
methodology in Schedule C.
17.2.2 The Client shall have the right to conduct an audit
pursuant to Clause 12 (Audit) to verify the amount paid to
Exult Supplier under Clause 17.2.1 and if the audit reveals
that any over payment has been made, the provisions of
Section 14 of Schedule C shall apply.
17.2.3 Notwithstanding Clauses 17.2.1 and 17.2.2, if the Client
reasonably disputes the amount claimed by Exult Supplier
under Clause 17.2.1, then the dispute will be referred to
the informal Dispute Resolution Procedure in accordance
with Clause 29.1 and in the event the parties fail to agree
the Dispute shall be referred to an Expert for resolution,
such Expert to be appointed in accordance with Clause 29.2.
17.3 THIRD PARTY CONTRACTS
17.3.1 GENERAL
Notwithstanding the other provisions of this Clause 17.3,
on the termination of this Agreement for any reason, any
financial consequences arising or flowing from any Exult
Third Party Contracts or the termination of any such Exult
Third Party Contracts:
(i) the duration of which Exult Supplier has agreed to
extend beyond the Expiry Date; and
(ii) the terms and conditions of which have not been
approved in writing by the BPA Regional
Representative prior to the entering into or
extension
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of such Exult Third Party Contracts,
shall, subject to Clauses 17.3.5 and 17.3.6, be borne in
their entirety by Exult Supplier.
17.3.2 TERMINATION FOR EXULT SUPPLIER'S DEFAULT
On the termination of this Agreement by the Client pursuant
to Clause 14.1 (Termination on Winding Up or Default), any
financial consequences arising or flowing from any Exult
Third Party Contracts or the termination of any such Exult
Third Party Contracts shall, subject to Clause 17.3.4
(Mitigation), be borne in their entirety by Exult Supplier.
17.3.3 TERMINATION FOR ANY OTHER REASON
On the termination of this Agreement for any reason other
than by the Client pursuant to Clause 14.1 (Termination on
Winding Up or Default) any financial consequences arising
or flowing from any Exult Third Party Contracts or the
termination of any such Exult Third Party Contract shall,
subject to Clause 17.3.4 (Mitigation) and Clause 17.3.5, be
borne in their entirety by the Client.
17.3.4 MITIGATION
The parties each agree to take reasonable steps to mitigate
costs arising on termination of this Agreement, and agree
that where either party is able to make use of the Exult
Third Party Contracts, in whole or in part, for itself, its
Affiliates or another client, it shall use reasonable
endeavours to do so and the other party's obligation in
relation to any Exult Third Party Contracts shall extend
only to that element of cost of the Exult Third Party
Contracts which remains unused.
17.3.5 Exult Supplier further agrees that for a period of [***]*
the date of termination of this Agreement if, subsequent to
being reimbursed by the Client under this Clause 17, Exult
or an Exult Affiliate or their clients use the whole or
part of the Exult Third Party Contract for which Exult
Supplier has been previously reimbursed by the Client,
Exult Supplier shall refund to the Client such portion of
the reimbursement which represents the use by Exult, Exult
Affiliate or their clients of such Exult Third Party
Contract.
17.3.6 EMPLOYEES
The termination costs associated with Employees shall be
dealt with in accordance with Schedule J (Employee Transfer
Arrangements).
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17.4 ASSETS
On termination or expiration of this Agreement, the Client shall
have the option and in certain circumstances the obligation to
purchase Exult Assets at the written down book value as set out in
Clause 18.2 (Transfer Arrangements on Termination - Exult Assets).
18 TRANSFER ARRANGEMENTS ON TERMINATION
18.1 CLIENT PREMISES
Exult Supplier shall vacate any Client Premises on or before the
termination or expiry of this Agreement, provided that Client
Premises or rights to Client Premises transferred to Exult Supplier
pursuant to Clause 6.1 shall, on termination or expiry of this
Agreement, be dealt with in accordance with Clause 18.2.
18.2 EXULT ASSETS
18.2.1 On the termination of this Agreement for all other reasons
than by the Client pursuant to Clause 14.1 (Termination on
Winding Up or Default). Exult Supplier shall offer to sell
to the Client or its nominee and the Client shall or shall
cause its nominee to, subject to Clause 18.2.3, purchase
the Exult Assets at the written down book value as at
termination or expiry.
18.2.2 On the termination of this Agreement by the Client pursuant
to Clause 14.1 (Termination on Winding Up or Default),
Exult Supplier shall offer to sell to the Client or its
nominee the Exult Assets (at the written down book value as
at termination or expiry), but the Client shall not be
obliged to purchase such Exult Assets.
18.2.3 The parties agree to take reasonable steps to mitigate
costs arising from or in connection with the Exult Assets
on termination or expiry of this Agreement and the parties
agree that where a party is able to make use of an Exult
Asset for itself, its Affiliates or another client it shall
use reasonable endeavours to do so at the request of the
other party.
18.2.4 Exult Supplier further agrees, at the Client's cost, to
co-operate in the relocation of any Exult Assets to be
purchased by the Client pursuant to this Clause, provided
that for the avoidance of doubt this will not prevent the
Client from seeking to recover damages in respect of any
loss it suffers pursuant to any termination of this
Agreement as a result of Exult Supplier's Default.
18.2.5 On expiry of this Agreement Exult Supplier shall offer to
transfer ownership of any fully amortised Exult Assets to
the Client at no cost.
18.3 SYSTEMS
On the termination or expiry of this Agreement for any reason:
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18.3.1 LICENCES
All licences and all other rights to any Systems shall be
dealt with in accordance with Clause 19.
18.3.2 ESCROW
Exult Supplier shall, on Client's written request, provide
the Client with a copy of any source code materials held in
escrow pursuant to Clause 6.3.4.
18.3.3 RETURN OF CLIENT SYSTEMS AND MATERIALS
As soon as reasonably practicable following the termination
or expiry of this Agreement, Exult Supplier shall return to
the Client all Client Systems, Materials and Client
Information subject to the Exult Supplier having the right
to retain a copy of such Client Systems, Materials and
Client Information for compliance with applicable laws,
professional standards or quality assurance purposes.
18.4 THIRD PARTY CONTRACTS
On the termination or expiry of this Agreement, the parties shall,
subject to Clause 17.3 (Third Party Contracts) and at the Client's
option and request, use reasonable endeavours to transfer or assign
all, or in the case of Exult Third Party Contracts which are not
used solely to provide the Services to the Client, the relevant
parts of, Exult Third Party Contracts entered into by Exult
Supplier to provide the Services to the Client, BPA, a
Participating Affiliate or a Successor Operator, as the Client may
direct.
18.5 EMPLOYEES
The transfer of Employees on termination or expiry shall be dealt
with in accordance with Schedule J (Employee Transfer
Arrangements).
18.6 BACK END CONSENTS
Where the consent of any third party is required to enable Exult
Supplier to provide the Client or Successor Operator, with the
benefit of the arrangements under which Exult Supplier holds or
uses any Exult Assets, Third Party Systems or Third Party Contracts
or such a consent is otherwise required to enable the Client, or
Successor Operator to take over the provision of the Services from
Exult Supplier in the manner contemplated by this Agreement, Exult
Supplier shall use reasonable endeavours, to procure that such
consent is granted or at Exult Supplier's option, procure suitable
alternative rights or services are provided to the Client or
Successor Operator to enable it to perform the Services. The Client
shall use reasonable endeavours to co-operate in obtaining such
consents or obtaining suitable alternative rights, including where
necessary entering into new agreements or agreeing to comply with
the terms of the relevant existing agreements. The use of
reasonable endeavours shall not include the payment of any monies
by any party, but where consent can only be obtained in return for
the payment of an additional sum, the parties shall consider paying
such sum if it appears the most
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cost effective way of proceeding. Any such payment shall be
charged as a Pass Through Cost.
19 INTELLECTUAL PROPERTY RIGHTS
19.1 CLIENT INTELLECTUAL PROPERTY
All Intellectual Property Rights subsisting in or relation to
Client Assets, Client Information, Client Systems, Materials and
the BPA Service Delivery Model (collectively, the "Client
Intellectual Property") shall (as between the parties) belong to
and be vested in BPA or the relevant BPA Affiliate or their
respective licensors as appropriate.
19.2 EXULT SUPPLIER INTELLECTUAL PROPERTY
All Intellectual Property Rights subsisting in or relation to Exult
Systems, Future Systems, Work Product, and the Exult Service
Delivery Model (collectively, the "Exult Supplier Intellectual
Property") shall (as between the parties) belong to and be vested
in Exult Supplier, Exult Participating Affiliates or their
respective licensors as appropriate.
19.3 LICENCE OF CLIENT INTELLECTUAL PROPERTY
The Client hereby grants to Exult Supplier (or, in the case of
Client Intellectual Property licensed to the Client, to the extent
that such grant is not within its power, shall use reasonable
endeavours to procure the grant to Exult Supplier of) a worldwide,
non-exclusive, unlimited user, royalty free licence to use and the
right to sublicence to subcontractors, the Client Intellectual
Property solely for the purposes of providing the Services to the
Client under this Agreement.
19.4 LICENCE OF EXULT SUPPLIER INTELLECTUAL PROPERTY
Exult Supplier hereby grants to the Client (or, in the case of
Exult Supplier Intellectual Property licensed to Exult Supplier by
third parties to the extent that such grant is not within its
power, shall use reasonable endeavours, to procure the grant to the
Client of) a worldwide non-exclusive, unlimited user licence,
together with a right to sub-license to third parties, to use the
Exult Supplier Intellectual Property or any physical material
created as a result of the use of the same in connection with the
supply of the Services to the extent necessary to enable the Client
to receive the benefit of the Services.
19.5 LICENCES OF CLIENT INTELLECTUAL PROPERTY ON TERMINATION
On expiration or termination of this Agreement for any reason, the
licences granted pursuant to Clause 19.3 shall automatically
terminate.
19.6 LICENCES OF EXULT SUPPLIER INTELLECTUAL PROPERTY ON TERMINATION
On expiration or termination of this Agreement for any reason,
Exult Supplier shall offer to, and at the Client's option, grant to
the Client or Successor Operator (or, in the case of
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Exult Supplier Intellectual Property licensed to Exult Supplier
from a third party, use reasonable endeavours for the provision of
services substantially similar to the Services under similar
economic arrangements ) to procure the grant to the Client, BPA
and the BPA Affiliates or Successor Operator of) a worldwide,
perpetual, irrevocable, non-exclusive, unlimited user licence
(which shall be at the lesser of the standard market rates and the
lowest royalty Exult Supplier charges to other licensees for
similar licences for the provision of services substantially
similar to the Services provided under similar economic
arrangements to use, modify and enhance any Exult Supplier
Intellectual Property used for the provision of the Services in
the [***]* immediately before the termination or expiry of this
Agreement, with a right to grant sub-licences to Successor
Operators, subject to Exult Supplier's prior consent to the
identity of such Successor Operator for the purpose of being a
sub-licensee of such Exult Supplier Intellectual Property and the
terms of such sub-licence, such consent not to be unreasonably
withheld or delayed. Such licence shall be for use solely in
connection with the provision of services comparable to the
Services for the Client and Participating Affiliates.
19.7 ROYALTIES
In the event that Exult Supplier exploits by way of assignment,
license or otherwise, any Exult Supplier Intellectual Property
which has been developed by way of a Project under this Agreement
and such development was funded by the Client, then Exult Supplier
shall pay to the Client royalties in respect of the benefits
received from such exploitation. The royalty payable in each case
shall be determined as part of the implementation of the Project
pursuant to Schedule L and Schedule H.
19.8 CLIENT'S RIGHT TO USE SYSTEMS ON TERMINATION
In order to ensure that Exult Supplier is able to fulfil its
obligations to provide the licence under Clause 19.6, where a
System is to be developed specifically for the Client by Exult
Supplier using the services of a third party ("Developed System")
Exult Supplier shall before using such Developed System in the
provision of the Services:
19.8.1 take reasonable steps to obtain ownership rights in the
Developed System including obtaining any necessary
assignment of such rights from third parties; or
19.8.2 if Clause 19.8.1 is not reasonably practicable, take all
steps to procure a licence for itself substantially in the
form set out in Clause 19.6 for such Developed Systems; and
19.8.3 to the extent the steps described in Clauses 19.8.1 and
19.8.2 are not reasonably practicable, discuss and agree
with Client alternative arrangements to ensure Client can
continue to use the Developed System on termination or
expiry of this Agreement.
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* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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20 CONFIDENTIALITY
20.1 All Confidential Information communicated in connection with the
negotiation, preparation and performance of this Agreement was and
shall be received in confidence, used only for the purposes, and
within the duration, of this Agreement, and shall be protected in
the same manner as the party receiving such Confidential
Information protects its own Confidential Information, but in any
event in not less than a reasonable manner, except for Confidential
Information which:
20.1.1 is or becomes generally available to the public other than
as a result of a breach of this Clause 20;
20.1.2 is acquired from a third party who owes no obligation of
confidence to the disclosing party in respect of the
Confidential Information;
20.1.3 is independently developed by the receiving party without
the use of the disclosing party's Confidential Information;
20.1.4 the receiving party is required by law to disclose;
20.1.5 is already known by the receiving party at the time of its
receipt (as evidenced by its written records); or
20.1.6 is agreed by the Client and Exult Supplier from time to
time to be excluded.
Provided always that:
20.1.7 the onus shall be on the party disclosing the information
pursuant to Clauses 20.1.1 to 20.1.6 to prove through the
use of documentary evidence that the information fell
within one of Clauses 20.1.1 to 20.1.6 otherwise than
through unauthorised disclosure by that party; and
20.1.8 if either party (the "disclosing party") is required to
make a disclosure in accordance with Clause 20.1.4, it
will, if it is not prohibited by law from doing so, provide
the other party with prompt notice of any such requirement
or request to disclose any such Confidential Information so
that the non disclosing party may seek an appropriate
order. The disclosing party shall provide the other party
with all necessary assistance in any action taken by the
other party to obtain an appropriate order including an
order providing that the information does not have to be
disclosed, an appropriate protection order or other
reliable assurance that confidential treatment will be
accorded the information that the disclosing party is
required to disclose.
20.2 Any party disclosing any Confidential Information to any agent or
subcontractor shall obtain or have obtained from the authorised
agent or subcontractor a signed confidentially undertaking which
the party disclosing reasonably believes offers adequate protection
in relation to the matters contained in Clause 20.1. The parties
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agree that no Confidential Information will be disclosed after the
expiry or termination of this Agreement unless such Confidential
Information comes within one of the exceptions in Clauses 20.1.1 to
20.1.6.
20.3 Upon the expiration or termination of this Agreement, all
Confidential Information made available by one party to the other
pursuant to this Agreement, including any copies thereof, shall be
either returned to the disclosing party or destroyed pursuant to
the request of such disclosing party. The Client and Exult Supplier
may retain, however, subject to the terms of this Clause 20 and
Clause 19 (Intellectual Property Rights), copies of the
Confidential Information required for, in the case of Exult
Supplier compliance with applicable laws, professional standards or
quality assurance purposes, and in the case of BPA their continuing
operations or internal business purposes.
20.4 The obligations of each party in relation to Confidential
Information contained in this Clause 20 shall survive the
termination or expiry of this Agreement indefinitely.
20.5 Each party shall procure that its employees, subcontractors, agents
and Affiliates comply with this Clause 20 and shall, at the request
of the other party provide appropriate assurance of such compliance
and for the avoidance of doubt, Clause 12 (Audit) shall apply to
such obligation.
21 DATA PROTECTION AND SECURITY
21.1 Each party shall and shall procure that its Affiliates comply in
all respects with the data processing obligations contained in
Schedule Q and with all relevant laws relating to the holding,
processing and protection of data.
21.2 Exult Supplier shall maintain the integrity of all Client
Information and keep such information logically separate from any
information and/or data relating to third parties and shall procure
that such information shall not be disclosed to any third party.
Such information shall be used solely for the purposes of providing
the Services and Exult Supplier shall procure that no third party
shall obtain access to such information at any time other than its
authorised Employees and Subcontractors and other third parties
with the Client's prior consent.
21.3 If Exult Supplier becomes aware that it has received Client
Information which is not required to provide the Services, Exult
Supplier shall promptly inform the Client and return such
information to the Client on request without keeping copies of the
same.
21.4 Client Information shall remain the property of BPA or the
respective BPA Affiliates, as the case may be. Exult Supplier shall
provide BPA and/or the Participating Affiliates, as the case may
be, with a copy of any part of the Client Information that BPA
and/or the Participating Affiliates may, from time to time,
reasonably demand.
21.5 Exult Supplier shall and shall procure that its Employees and
Subcontractors shall develop, document and implement and at all
times maintain reasonable safeguards against the theft,
destruction, loss, wrongful use, disclosure, corruption or
alteration of
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Client Information in the possession or within the control or
responsibility of Exult Supplier, which safeguards are subject to
the Client's review and audit and which are at levels no less
rigorous than the safeguards maintained by the Client immediately
prior to the Commencement Date as such levels are established by
each Due Diligence Exercise or as otherwise agreed by the Client
and Exult Regional Project Leaders.
21.6 Exult Supplier shall use reasonable endeavours to prevent computer
viruses from being introduced by the Employees and Subcontractors
onto or into any of the IT and communications equipment used by
Client, the Participating Affiliates and their respective
employees, agents or contractors.
22 CONTRACT AND SERVICE MANAGEMENT
22.1 MANAGEMENT OF SERVICES
The Client and the Exult Supplier will manage their relationship,
including the provision of the Services, in accordance with the
Global Governance Arrangements set out in Schedule P.
22.2 [***]*
22.2.1 [***]*
22.2.2 [***]*
22.2.3 [***]*
22.2.4 [***]*
22.2.5 [***]*
22.3 SERVICE PERFORMANCE REPORTS
Service Performance Reports will be prepared by the Exult Country
Representative and shall include information, as applicable, on the
RSLs, KPIs, KPI Failures, Key Incidents and the procedures followed
in relation to them and shall set out the measures required to
reduce the likelihood of a recurrence of the relevant KPI Failure
and/or Key Incidents. Service Performance Reports shall be issued
by Exult Supplier:
(i) monthly to the BPA Country Representative to cover
information relating to the previous month; and
(ii) each calendar quarter to the Regional Governance Panel to
cover information relating to the previous calendar
quarter.
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* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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22.4 KEY INCIDENT REPORTING
22.4.1 The Country Representatives shall report all Key Incidents
promptly to the Regional Governance Panel.
22.4.2 The purpose of reporting Key Incidents is to:
(i) bring incidents quickly to the attention of Exult
Supplier's and the Client's management; and
(ii) highlight areas of control weakness, initiate
procedures reviews and generate action to remedy
control weaknesses identified.
22.4.3 The reporting of Key Incidents does not replace or
supersede, but shall be in addition to, the normal
reporting (including the provision of Service Performance
Reports under Clause 22.3) and updating of appropriate
management of routine work incidents.
22.5 SATISFACTION SURVEYS
22.5.1 Exult Supplier shall prepare customer satisfaction surveys
and management satisfaction surveys on a frequency and
basis to be agreed by the Regional Governance Panel.
22.5.2 Customer satisfaction surveys and management satisfaction
surveys shall be submitted to the Regional Governance Panel
by the Country Representatives and the results of such
surveys shall be summarised in the relevant Service
Performance Report.
22.6 CONTINUOUS IMPROVEMENT
22.6.1 Exult Supplier recognises that it has an obligation under
this Agreement to maintain continuous improvement in the
Service Delivery Model used in the provision of the
Services on an ongoing basis in order to establish and
maintain a position as a market leader and to continue
efficient and effective use of developing processes and
technologies.
22.6.2 In addition to the benchmarking exercises referred to in
Clause 22.2, Exult
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* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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Supplier shall report to the Client on an annual basis its
strategy plans to achieve continuous improvement referred
to in Clause 22.6.1.
22.6.3 To the extent that the parties agree particular Projects
are appropriate to maintain continuous improvement, these
shall be dealt with under Change Control Management
process, provided that the parties recognise Exult Supplier
should only bear an equitable proportion of the costs of
any developments which will be used by Exult Supplier in
the provision of services to other clients, including those
clients which Exult Supplier provides services to from the
Client Service Centre.
23 CONTRACT MINIMUMS
23.1 Contract Minimums for each Contract Minimum Year shall be
established in accordance with this Clause 23.
23.2 The Contract Minimum for:
23.2.1 [***]* and
23.2.2 [***]*
23.3 Prior the commencement of each calendar quarter in each Contract
Minimum Year, the Client may give Exult Supplier [***]* of a
proposed reduction in the Contract Minimums to take account of
reductions in the Client's requirements for Services.
23.4 This Clause 23 applies to situations which result in an actual
reduction in the Client's requirement for Services and, for the
avoidance of doubt, the Client may not assume responsibility
internally for services equivalent to the Services or appoint a
third party to provide services equivalent to the Services pursuant
to the terms of this Clause 23.
23.5 [***]* to the end of each Contract Minimum Year, the Regional
Governance Panel shall meet to assess the impact, including the
impact on the Charges for the then current Contract Minimum Year,
of the reductions in the Client's requirements for Services
notified in accordance with Clause 23.3 above. Subject to Clause
23.6, the Regional Governance Panel shall agree a decrease in the
Contract Minimum for the succeeding Contract Minimum Year which is
proportionate with the actual reduction in Charges arising from the
events and in the event that the Regional Governance Panel cannot
agree on the amount of the decrease the matter shall be referred to
an Expert to be appointed in accordance with Clause 29.2.
23.6 In no event shall a Contract Minimums be reduced by more than
[***]*
23.7 In the event that the impact of reductions in the Client's
requirements for Services as
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* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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reviewed under Clause 23.5 is or would be to reduce the Contract
Minimum for the succeeding Contract Minimum Year by more than
[***]* the matter will be referred by either party to the Regional
Governance Panel under Clause 18 of the Framework Agreement
(Contract Minimums) to reassess the impact of such reduction
across the relevant CSC Group. The decision of the Regional
Governance Panel (or Expert determination as the case may be) made
pursuant to Clause 18 of the Framework Agreement shall be
implemented hereunder.
24 WARRANTIES
24.1 Exult Supplier hereby represents and warrants to the Client that:
24.1.1 INCORPORATION AND EXISTENCE It is duly constituted,
organised and validly existing under its laws of
incorporation.
24.1.2 POWER AND AUTHORITY It has the legal right and full power
and authority to execute and deliver, and to exercise its
rights and perform its obligations under, this Agreement
and all the documents which are to be executed by it as
envisaged by this Agreement.
24.1.3 CORPORATE ACTION All corporate action required by it to
authorise the execution and delivery of, and to exercise
its rights and perform its obligations under this Agreement
and all other documents which are to be executed by it as
envisaged by this Agreement has been or will be taken.
24.1.4 ASSURANCE Nothing contained in this Agreement will:
(i) result in a breach of any provision of its
constitutional documents; or
(ii) result in a breach of any agreement, licence or
other instrument, order, judgment or decree of any
Court, governmental agency or regulatory body to
which it is bound.
24.2 YEAR 2000 AND EMU COMPLIANCE
24.2.1 Subject to Clause 24.2.2, Exult Supplier makes no
warranties in respect of Year 2000 or EMU Compliance in
respect of Services or Projects or other activities carried
out under this Agreement and the Client or BPA and the BPA
Affiliates shall be solely responsible for its and their
Year 2000 and EMU Compliance.
24.2.2 Exult Supplier warrants that Future Systems and Exult
Proprietary Systems are Year 2000 Compliant and EMU
Compliant and that it has used and shall continue to use
reasonable endeavours to ensure that other Exult Systems
are Year 2000 Compliant and EMU Compliant, including
wherever practicable obtaining appropriate warranties from
the third party providers and providing the Client with the
benefit of such warranties.
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24.2.3 Exult shall not be in breach of the warranties in Clause
24.2.2 to the extent that any failure of the Exult
Proprietary Systems and Future Systems to be Year 2000
Compliant or EMU Compliant is caused by data, interfaces
with third party systems including BPA Systems, other than
Exult Systems and software, in each case, which are not
Year 2000 Compliant or EMU Compliant.
24.3 The Client hereby represents and warrants to Exult Supplier that:
24.3.1 INCORPORATION AND EXISTENCE It is duly incorporated,
organised and validly existing under its law of
incorporation.
24.3.2 POWER AND AUTHORITY It has the legal right and full power
and authority to execute and deliver, and to exercise its
rights and perform its obligations under this Agreement and
all the documents which are to be executed by it as
envisaged by this Agreement.
24.3.3 CORPORATE ACTION All corporate action required by it to
authorise the execution and delivery of, and to exercise
its rights and perform its obligations under this Agreement
and all other documents which are to be executed by it as
envisaged by this Agreement has been or will be taken.
24.3.4 ASSURANCE Nothing contained in this Agreement will:
(i) result in a breach of any provision of its
constitutional documents; or
(ii) result in a breach of any agreement, licence or
other instrument, order, judgment or decree of any
Court, governmental agency or regulatory body to
which it is bound.
24.4 Each of the Client and Exult Supplier undertakes to perform its
obligations under this Agreement in compliance with all applicable
laws, enactments, orders and regulations.
24.5 Except as expressly stated in this Agreement, all warranties and
conditions, whether express or implied by statue, common law or
otherwise are hereby excluded to the extent permitted by law.
25 LIMITATION ON LIABILITY
25.1 Neither party shall limit or exclude its liability to the other in
respect of (i) death or personal injury caused by its negligence or
the negligence of its employees acting in the course of their
employment; (ii) for any fraudulent misrepresentation, including
fraudulent pre-contractual misrepresentation made by a party on
which the other party can be shown to have relied when entering
into this Agreement; and (iii) any other liability which by law
cannot be excluded.
25.2 Subject to Clauses 25.1, 25.3 and 25.4 each party's liability to
the other under this Agreement in respect of a claim arising out of
this Agreement shall be limited to an
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amount equal to [***]* Where an event which gives rise to a claim
occurs during the initial 16 months of this Agreement each party's
liability to the other shall be limited to [***]* established in
accordance with the provisions of Schedule C, (Charges and
Invoicing).
25.3 Each party's aggregate liability to the other during the term of
this Agreement for all claims arising out of this Agreement shall
be limited to an amount equal to [***]* For the purposes of
calculating the Charges under this Clause 25.3, [***]* provided
that the limitation in this Clause 25.3 at any time shall not
require the repayment of sums paid or payable in respect of claims
in any earlier period.
25.4 Each party's liability to the other for all claims arising under
this Agreement in respect of any Project shall, unless agreed
otherwise agreed in accordance with the procedure set out in
Schedule H, (Projects), be limited to [***]*
25.5 Subject to Clause 25.7, neither party shall be liable to the other
for any consequential or indirect loss or damage suffered by the
other party in connection with this Agreement.
25.6 Neither party shall be liable to the other for loss of profits,
loss of revenue, loss of goodwill or loss or failure to make any
anticipated savings.
25.7 In respect of the Client, the Client's re-establishment costs, and
in respect of Exult Supplier, the categories of cost identified in
Schedule C in relation to termination, such costs are not
considered consequential or indirect loss.
25.8 The limitations set out in Clauses 25.2 to 25.7 shall not apply
with respect to:
(i) Indemnities (including those set forth in Schedule J);
(ii) Payment under Letter of Credit (as described in Clause 22
of the Framework Agreement);
(iii) Payment under designated insurance policies (as described in
the Clause 22 of the Framework Agreement);
(iv) Client's obligation to pay, including with respect to Early
Termination Charges;
(v) Liabilities arising from the breach of the confidentiality
provisions under this Agreement;
(vi) Payment of Charges and Service Credits.
25.9 Subject to Clauses 34.12 (Legal Proceedings) and 34.13 (Equitable
Remedies) the parties recognise that damages are the only remedy
available under this Agreement and, to the extent permissible by
law, the limits under this Clause are the absolute limit
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* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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of each party's liability arising under or in connection with this
Agreement. All other liability is expressly excluded.
25.10 LIMITATIONS ON PARTICIPATING AFFILIATES' CLAIMS
25.10.1 The following represents the limit of all claims or actions
that may be made pursuant to this Agreement relative to
Participating Affiliates:
(i) subject to the terms of this Clause 25.10, the
Client shall have the right to bring actions against
Exult Supplier in respect of such Participating
Affiliates for Losses suffered by the Participating
Affiliates in respect of the Services or this
Agreement;
(ii) the Client shall wherever reasonably practicable
consolidate actions against Exult Supplier for
Losses suffered by Participating Affiliates in
respect of each alleged default; and
(iii) the Participating Affiliates' Losses shall be deemed
the direct Losses of the Client, but all such Losses
shall be subject to the exclusions and limitations
set out in this Agreement.
25.10.2 The Client shall procure that:
(i) the Participating Affiliate will not make any claim
or be a party to any claim or other action against
Exult Supplier, Exult or an Exult Affiliate or their
employees, offices or directors arising from or in
connection with this Agreement; and
(ii) the Participating Affiliate will direct all
communications regarding this Agreement through and
to the Client and not to Exult Supplier.
25.10.3 The Client is fully responsible for the performance of all
its obligations under this Agreement with respect to the
Services provided to such Participating Affiliates.
25.10.4 Nothing in Clause 25.10.1, 25.10.2 or Clause 25.10.3
relieves the Client of its obligations or expands Exult
Supplier's obligations under this Agreement.
26 INDEMNITIES AND DEFENCE OF CLAIMS
26.1 INDEMNIFICATION BY EXULT SUPPLIER
Subject to Clause 26.5, Exult Supplier shall indemnify and keep
indemnified the Client, BPA, the Participating Affiliates and its
and their respective officers, directors, employees, agents,
successors and assigns (each, an "Indemnified BPA Party") from and
against any and all Losses arising in connection with this
Agreement from any of the following:
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26.1.1 a claim by a BPA Third Party arising from the death or
illness of or personal injury to any BPA Third Party or
from any damage to any real or tangible personal property
of any BPA Third Party arising directly from and to the
extent of the negligent act or omission of Exult Supplier,
an Exult Participating Affiliate or its and their
respective employees, officers, agents or subcontractors;
26.1.2 a claim by a BPA Third Party arising from the death or
illness of or personal injury to any employee of Exult
Supplier or of an, Exult Participating Affiliate or to any
employee of their respective agents, or subcontractors or
arising from any damage to any real or tangible personal
property of any employee of Exult Supplier or of, an Exult
Participating Affiliate or of any employee of their
respective agents, or subcontractors, in each case,
notwithstanding that such claim arose from the negligence
of an Indemnified BPA Party;
26.1.3 a claim by a third party other than a BPA Affiliate to a
Third Party Contract where such claim arises in connection
with a breach of Exult Supplier's or Exult Participating
Affiliate's obligations under or relating to such Third
Party Contract assumed by Exult Supplier or the relevant
Exult Participating Affiliate pursuant to obtaining
consents in respect of such Third Party Contract to enable
Exult Supplier or the relevant Exult Participating
Affiliate to provide the Services; and
26.1.4 a claim by a BPA Third Party arising from and directly
connected with the breach of any law, rule, regulation or
order, where such breach arises directly from the negligent
act or omission of Exult Supplier, an Exult Participating
Affiliate or its and their respective employees, officers,
agents or subcontractors.
26.2 INDEMNIFICATION BY BPA
Subject to Clause 26.5, the Client shall indemnify and keep
indemnified Exult Supplier, the Exult Participating Affiliates and
its and their respective officers, directors, employees, agents,
successors and assigns (each, an "Indemnified Exult Party") from
and against any and all Losses arising in connection with this
Agreement from any of the following:
26.2.1 a claim by an Exult Third Party arising from the death or
illness of or personal injury to any Exult Third Party or
from any damage to any real or tangible personal property
of any Exult Third Party arising directly from and to the
extent of the negligent act or omission of the Client, a
Participating Affiliate or its and their respective
employees, officers, agents, or subcontractors;
26.2.2 a claim by an Exult Third Party arising from the death or
illness of or personal injury to any employee of the
Client, or of a Participating Affiliate or to any employee
of their respective agents or subcontractors or arising
from any damage to any real or tangible personal property
of any employee of the Client or of, a Participating
Affiliate or of any employee of their respective agents or
subcontractors, in each case, notwithstanding that such
claim arose from the
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negligence of an Indemnified Exult Party;
26.2.3 a claim by a third party other than an Exult Affiliate to
an Exult Third Party Contract where such claim arises in
connection with a breach of the Client's or Participating
Affiliate's obligations under or relating to such Exult
Third Party Contract assumed by the Client or the relevant
Participating Affiliate pursuant to obtaining consents in
respect of such Exult Third Party Contract obtained on the
termination or expiry of the relevant Country Agreement;
26.2.4 a claim by an Exult Third Party arising from and directly
connected with the breach of any law, rule, regulation or
order, where such breach arises directly from the negligent
act or omission of the Client, a Participating Affiliate or
its and their respective employees; and
26.2.5 a claim by an Exult Third Party where such Exult Third
Party:
(i) is an employee or former employee of the Client or
of a BPA Affiliate to the extent such claim relates
to the period such employee or former employee was
employed by the Client or a BPA Affiliate (except to
the extent that such claim is covered by the
indemnity provisions set forth in Schedule J of this
Agreement);
(ii) is a beneficiary under any Client or BPA Affiliate
employee related benefits plans, programmes or
schemes to the extent that such claim relates to
such plans, programmes or schemes; or
(iii) has a fiduciary role or responsibility in relation
to any the Client or BPA Affiliate's employee
related benefit plans, programmes or schemes to the
extent such claim relates to such role or
responsibility,
in each case, except to the extent that such claim results
from the negligence of Exult Supplier, an Exult
Participating Affiliate, or its or their respective
employees, officers, agents or subcontractors.
26.3 INDEMNIFICATION BY EXULT SUPPLIER WITH RESPECT TO INTELLECTUAL
PROPERTY
26.3.1 Subject to Clause 26.5, Exult Supplier shall indemnify and
keep indemnified the Client, its Affiliates and their
respective officers, directors, employees and agents, from
and against all reasonable costs and expenses (including
the amount of any damages awarded by a court of competent
jurisdiction) which the Client may incur as a result of
defending or settling any claim by a third party that the
Client's use or possession of any of the Exult Proprietary
Systems is unauthorised or infringes the Intellectual
Property rights of any third party.
26.3.2 In the event of any such claim being made, the Client shall
notify the Exult Regional Representative as soon as
practicable upon becoming aware of the
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same and, subject to being indemnified, at the request of
Exult Supplier, grant Exult Supplier sole conduct of the
claim and provide to Exult Supplier all reasonable
assistance in the conduct of the claim, provided that in
conducting the claim Exult Supplier shall minimise the
disruption to the business of BPA and the Participating
Affiliates, including the use of the Exult Supplier
Intellectual Property, as the case may be.
26.3.3 No liability shall exist under this Clause 26.3 to the
extent that any such claim arises solely from:
(i) the use by the Client and/or the Participating
Affiliates of the relevant Exult Systems, Future
Systems or Work Product for purposes not connected
with the provision of the Services or services
equivalent to the Services in the Country in which
those Services are being provided or as otherwise
authorised;
(ii) any modification of the relevant Exult Systems,
Future Systems or Work Product by or on behalf of
the Client and/or the Participating Affiliates to
which Exult Supplier or the third party, as the case
may be, has not given its consent; or
(iii) use of the relevant Exult Systems, Future Systems or
Work Product in connection with materials or data
supplied by the Client.
26.3.4 In the event that the Client's use or possession of any
part of the Exult Systems, the Future Systems or Work
Product is held to be unauthorised or to infringe any third
party Intellectual Property rights, then Exult Supplier
shall at its own expense and at the Client's option:
(i) obtain for the Client a licence or such other right
to continue to use that System or Work Product or
part thereof; or
(ii) replace or modify such part so as to avoid or
rectify the unauthorised use or infringement without
significant interruption or degradation in
performance of that System or the Services,
provided that the Client shall provide Exult Supplier with
all reasonable assistance (at the cost of Exult Supplier)
to enable Exult Supplier to so do.
26.4 INDEMNIFICATION OF EXULT IN RELATION TO INTELLECTUAL PROPERTY
26.4.1 Subject to Clause 26.5, the Client shall indemnify and keep
indemnified Exult Supplier from and against all reasonable
costs and expenses (including the amount of any damages
awarded by a court of competent jurisdiction) which Exult
Supplier may incur as a result of defending or settling any
claim by a third party that Exult Supplier's use of any of
the Client Systems which has been authorised by the Client
is unauthorised or infringes the Intellectual Property
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rights of any third party.
26.4.2 In the event of any such claim being made, Exult shall
notify the BPA Regional Representative as soon as
practicable upon becoming aware of the claim and, subject
to being indemnified at the request of the Client, grant
BPA or the Client sole conduct of the claim and provide to
the Client all reasonable assistance in the conduct of the
claim.
26.4.3 No liability shall exist under Clause 26.4 to the extent
that any such claim arises from:
(i) the use by Exult Supplier of the relevant Client
System for purposes not connected with the provision
of the Services in the Country in which the Services
are provided; or
(ii) any modification of the Client System by or on
behalf of Exult Supplier to which the Client has not
given its consent.
26.4.4 In the event that Exult Supplier's use of any part of the
Client Systems is held to be unauthorised or to infringe
any Intellectual Property rights relating thereto, then the
Client shall at its own expense:
(i) obtain for Exult Supplier a licence or such other
right to continue to use that System; or
(ii) replace or modify such part so as to avoid or
rectify the unauthorised use or infringement,
provided that Exult Supplier shall provide the Client with
all reasonable assistance to enable the Client to so do.
26.5 DEFENCE OF CLAIMS
26.5.1 Each party will defend and procure the relevant Affiliate
to defend any claim brought or threatened against the other
party to the extent that such claim is or may be subject to
the indemnity contained in Clauses 26.1, 26.2, 26.3 and
26.4 (the party providing such defence, the "Indemnifying
Party" and the party entitled to such defence, the
"Indemnified Party"). The Indemnifying Party will bear the
expense of such defence and pay any damages and legal fees
finally awarded by a court of competent jurisdiction which
are attributable to such claim.
26.5.2 The Indemnified Party shall notify the Indemnifying Party
of any claim under Clauses 26.1, 26.2, 26.3 and 26.4 within
30 days (or such shorter period as may be required to
respond to a third party claim) after receipt of notice.
The Indemnifying Party required to indemnify the
Indemnified Party under this Agreement shall have no
obligation for any claim under this Clause 26.5 to the
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extent that the defence of such claim is prejudiced by such
failure if:
(i) the Indemnified Party fails to notify the
Indemnifying Party of such claim as provided above;
(ii) the Indemnified Party fails to tender control of the
defence of such claim to the Indemnifying Party; or
(iii) the Indemnified Party fails to provide the
Indemnifying Party with all reasonable cooperation
in the defence of such claim (the cost thereof to be
borne by the Indemnifying Party).
26.5.3 The Indemnifying Party shall have no obligation for any
claim under this Agreement if the Indemnified Party makes
any admission or settlement regarding such claim without
the prior written consent of the Indemnifying Party, which
consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing sentence, the Indemnifying
Party may settle any claim involving only the payment of
money by the Indemnifying Party.
26.5.4 The Indemnified Party shall have the right (but not the
obligation) to participate in such defence or settlement
(and in the case of any proposed settlement of a claim
which does not involve only the payment of money, the
Indemnifying Party shall obtain the prior written consent
of the Indemnified Party to such settlement, such consent
not to be unreasonably withheld or delayed), in which event
the Indemnified Party shall pay its attorneys' fees
associated with such participation.
26.5.5 In conducting the defence of the claim the Indemnifying
Party shall liaise with the Indemnified Party and keep the
Indemnified Party informed as to the progress of the action
and shall take into account the requirements and requests
of the Indemnified Party and in particular shall not make
any public statement relating to the action without the
Indemnified Party's prior written consent and shall not do
anything which could potentially adversely prejudice the
reputation or goodwill of the Indemnified Party or its
Affiliates.
26.6 SURVIVAL OF RIGHTS
All indemnities, and exclusions and limitations of liability
contained in this Clause 26 and elsewhere in this Agreement shall
remain binding on the parties hereto, notwithstanding the expiry or
termination of this Agreement.
27 INSURANCE
Exult Supplier shall inform the Client immediately in the event that it
becomes aware that insurance cover as required under Clause 22 of the
Framework Agreement is not in place and in such event shall itself obtain
the appropriate insurance to the extent that this relates to this
Agreement.
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28 RECOVERY OF DAMAGE AWARDS
28.1 In the event that the parties cannot agree as to whether there is a
default or as to the amount to be paid to either party in
connection with any default by the other party under this
Agreement, the matter shall be resolved pursuant to the Dispute
Resolution Procedure in accordance with Clause 29.3.
28.2 In the event that it is agreed, or determined pursuant to Clause
28.1, that Exult Supplier is liable to pay an Award to the Client,
the mechanism for recovering such Award shall be as follows:
28.2.1 Exult Supplier shall first seek to recover the Award under
any relevant insurance policy maintained by Exult pursuant
to Clause 22 of the Framework Agreement (Insurance) and pay
the Award recovered to the Client;
28.2.2 if the Award is not paid to the Client pursuant to Clause
28.2.1 within 30 days of it being agreed or determined that
an Award is payable, the Client (or BPA acting on its
behalf) shall be entitled to seek to recover the Award
directly under the indemnity to principal provision
contained in any relevant insurance policy maintained by
Exult in accordance with Clause 22 of the Framework
Agreement (Insurance).
28.2.3 If the Award is not paid pursuant to Clause 28.2.1 or
Clause 28.2.2, the Client shall provide Exult Supplier with
[***]* within which Exult Supplier shall pay the Award to
the Client.
28.2.4 Subject to the provisions of Clause 23 of the Framework
Agreement (Letter of Credit), if the Award is not paid
pursuant to Clauses 28.2.1, 28.2.2 or 28.2.3 within the
expiry of the [***]* notice period in Clause 28.2.2, then
BPA shall have the right, but not the obligation to make a
demand under the Letter of Credit.
28.2.5 Exult Supplier shall not be entitled to seek to recover
under any insurance policy maintained pursuant to Clause 22
of the Framework Agreement (Insurance) in order to satisfy
any indemnity claim or obligation or to seek to recover any
Award made in connection with indemnity provisions other
than claims, obligations or Awards made in connection with
Clauses 26.1.1 and 26.1.2.
28.3 In respect of an Award or other indemnity claim or obligation that
the Client is liable to pay to Exult Supplier, the Client shall not
be entitled to seek to recover under any insurance policy
maintained pursuant to Clause 22 of the Framework Agreement
(Insurance) in order to satisfy any indemnity claim or obligation
or recover any Award made in connection with indemnity provisions
other than claims, obligations or Awards
- ----------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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made in connection with Clauses 26.2.1 and 26.2.2.
29 DISPUTE RESOLUTION
29.1 INFORMAL DISPUTE RESOLUTION
Prior to the initiation of dispute resolution procedures pursuant
to Clause 29.2 and 29.3, the parties shall attempt to resolve any
Dispute informally, as follows:
29.1.1 Upon the request of either Country Representative, in the
case of a Dispute which has not been resolved, or cannot be
resolved by the Country Representatives within [***]*, that
Dispute shall be referred to the Regional Governance Panel.
29.1.2 If the Regional Governance Panel is unable to resolve the
Dispute within [***]* after it is submitted to the Regional
Governance Panel, then the Dispute will be referred to the
Global Governance Panel. The Global Governance Panel shall
use its best efforts to resolve such Dispute.
29.1.3 If the Global Governance Panel is unable to resolve the
Dispute within [***]* after it is submitted to the Global
Governance Panel (or such later time as may be agreed by
the Global Governance Panel), then the Dispute shall be
referred to the Exult Chief Executive Officer and the BPA
Vice President Group HR.
29.1.4 If the BPA Vice President Group HR and the Exult Chief
Executive Officer have not been able to resolve the Dispute
within [***]* of the matter having been referred to them
(or such later date as they may agree), the Dispute shall
be referred to Expert Decision or Arbitration (as the case
may be) in accordance with the provisions of this
Agreement.
29.1.5 During the course of any discussions in accordance with
this Clause 29, all reasonable requests made by one party
to the other for information will be honoured in order that
the parties may be fully advised of each other's position.
Any Confidential Information disclosed will be treated by
the recipient in accordance with Clause 20
(Confidentiality).
29.1.6 Unless the Agreement specifies otherwise, all Disputes
shall be referred to the informal Dispute Resolution
Procedure and thereafter to Arbitration pursuant to Clause
29.3.
29.1.7 Only the informal Dispute Resolution Procedures set out in
Clause 29.1 can apply where the parties fail to agree to
carry out a new or Project or project or to make a
substantial or material change to the Agreement or any
Service or any provision specified in the Agreement as
being an agreement to agree.
- ----------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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29.2 EXPERT DECISION
29.2.1 Where a Dispute is designated in this Agreement as
appropriate for Expert Decision it shall be referred for
determination to an Expert nominated either jointly by the
parties, or failing agreement between them within the time
stated in this Agreement or, where no time is stated,
within 10 working days, on the application of the Client or
Exult Supplier, to:
(i) the Institute of Electrical Engineers for any issue
involving software, hardware, or systems;
(ii) the Institute of Chartered Accountants for England
and Wales for any issue involving finance,
accounting and tax; and
(iii) the Institute of Personnel and Development
Management for any issue involving human resources
polices and practices that cannot be referred to an
appropriate Expert under Clause 29.2.1(i) and (ii).
29.2.2 The parties agree:
(i) to supply the Expert with the assistance, documents
and information he/she requires for the purpose of
his/her determination;
(ii) that in all cases, the terms of appointment of the
Expert shall include a requirement on the Expert to
give his/her determination with 21 days or such
other period as may be agreed, to hold professional
indemnity insurance for both then and for 3 years
following the date of his/her determination and to
establish his/her own reasonable procedures to
enable him to give his determination; and
(iii) that in considering any issue relating to the KPIs
the Expert shall take into account the performance
levels of service achieved by the Client.
29.2.3 The Expert's Decision is final and binding on the parties
in the absence of negligence, manifest error or bad faith.
The Expert acts as an expert and not an arbitrator and the
Expert's Decision is not a quasi-judicial procedure. Save
as provided elsewhere in this Agreement, each party shall
bear its own costs and the costs of the Expert shall be
borne equally between the parties.
29.3 ARBITRATION
29.3.1 Subject to any other terms of this Agreement, if any
Dispute, which is designed as a Dispute to be referred to
Arbitration, arising in connection with this Agreement
cannot be resolved in accordance with the provisions of
Clause 29.1 it shall be referred to arbitration at the
written request of any party under the Rules of the
International Chamber of Commerce, which rules are deemed
to be incorporated by reference into this Clause 29.3.
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29.3.2 The parties agree that:
(i) the number of arbitrators shall be three;
(ii) the place of the arbitration shall be London;
(iii) the language to be used in the arbitration
proceedings shall be English; and
(iv) the ruling of the arbitrators on the Dispute shall
be final and binding.
30 FORCE MAJEURE
30.1 Subject to Clause 30.2, neither party shall be liable to the other
for any Loss of any kind whatsoever, including but not limited to
any damages, whether directly or indirectly caused to or incurred
by the other party to the extent such Loss arises by reason of any
failure or delay in the performance of its obligations hereunder
which is due to Force Majeure.
30.2 The party claiming to be prevented or delayed in the performance of
any of its obligations under this Agreement by reason of Force
Majeure shall use reasonable endeavours to continue to perform its
obligations under this Agreement without being obliged to incur any
significant additional cost to bring the Force Majeure to a close
or to find a solution by which the Agreement may be performed
despite the continuance of the Force Majeure circumstances.
30.3 If either party shall become aware of circumstances of Force
Majeure which give rise to or which are likely to give rise to any
such failure or delay on its part, it shall forthwith notify the
other by the most expeditious method then available and shall
inform the other of the period which it is estimated that such
failure or delay may continue. If Force Majeure continues for seven
days or longer the Global Governance Panel shall be notified by the
party affected by such Force Majeure and requested to decide upon a
course of action.
30.4 It is agreed that any failure by a party to perform or any delay by
a party in performing its obligations under this Agreement which
results from any failure or delay in the performance of its
obligations by any person, firm or company with which such party
shall have entered into any contract, supply arrangement or
sub-contract or otherwise shall be regarded as a failure or delay
due to Force Majeure only in the event that such person, firm or
company shall itself be prevented from or delayed in complying with
its obligations under such contract, supply arrangement or
sub-contract or otherwise as a result of circumstances which would
be Force Majeure for the purposes of this Agreement.
31 ASSIGNMENT
31.1 Exult Supplier shall not be entitled to and shall not assign,
novate or otherwise transfer
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this Agreement, in whole or in part, without the Client's prior
written consent.
31.2 The Client shall not be entitled to assign, novate or transfer this
Agreement or any part of it without Exult Supplier's prior written
consent save that the Client may assign, novate or otherwise
transfer this Agreement in whole or in part to a BPA Affiliate,
provided that if at any time following such transfer, assignment or
novation the relevant entity ceases to be a BPA Affiliate the
Client shall procure that such entity shall re-transfer, re-assign
or re-novate this Agreement, or the relevant part of it, to the
Client or another BPA Affiliate at that time.
32 SUBCONTRACTING
32.1 Exult Supplier may employ subcontractors which are Exult Affiliates
and may, subject to the other provisions of this Clause 32, employ
other subcontractors in the provision of any part of the Services.
Subcontractors listed in Schedule M are approved for the purposes
of Clause 32.2.
32.2 Exult Supplier shall not employ subcontractors without the BPA
Regional Commercial Contract Leader's prior written approval (such
approval not to be unreasonably withheld or delayed):
32.2.1 on any occasion where the value of a proposed individual
subcontract is in excess of [***]* per annum; or
32.2.2 where the subcontracted work relates to a Sensitive Third
Party Contract.
32.3 Exult Supplier shall promptly notify the BPA Regional Commercial
Contract Leader if at any time the total value of the subcontracted
work in any twelve month period would be greater than [***]*
32.4 Exult Supplier shall ensure that the Subcontractors are
appropriately skilled and qualified.
32.5 Exult Supplier shall remain liable to the Client in respect of any
such Services provided by Subcontractors.
32.6 Data protection and confidentiality provisions equivalent to those
contained in this Agreement shall be included in any agreement with
Subcontractors entered into by Exult Supplier pursuant to this
Clause 32, provided that in respect of Subcontractors which are
parties to Third Party Contracts which are assigned or novated to
Exult Supplier, Exult Supplier shall use reasonable endeavours to
comply with its obligations under this Clause relating to such
Subcontractors and shall inform the Client where it has not been
possible to fulfil such obligation.
- ----------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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32.7 For the purposes of this Clause 32, Subcontractors shall not
include contract staff whether hired on an individual basis or
through an agency where Exult Supplier exercises direction and
control over the work of such contract staff. The BPA Regional
Commercial Contract Leader's consent is not required in relation to
Exult Supplier hiring such contract staff.
32.8 Exult Supplier's use in the ordinary course of business of third
party services or products that are not dedicated solely to the
provision of the Services and that are not material to the
performance of the Services and which do not result in a material
change in the way Exult Supplier conducts its business will not be
subject to the provisions of this Clause 32. If the Client
expresses any concern to Exult Supplier about any such third party
services or products, Exult Supplier shall discuss such concerns
with the Client and work in good faith to resolve the Client's
concerns on a mutually acceptable basis.
32.9 It is understood that no approval given under this Clause 32 shall
generate contractual relations between the Client or any of its
Affiliates and any Subcontractor except as expressly contemplated
by this Clause 32.
33 PARTICIPATING AFFILIATES
33.1 Exult Supplier acknowledges that the Client has concluded this
Agreement for the benefit of the Client and the Participating
Affiliates.
33.2 At the request of the Client, Exult Supplier shall at the Client's
expense execute all deeds or other documents required to enable any
Loss incurred or sustained by any Participating Affiliate recovered
pursuant to Clause 25.10 (Limitations on Participating Affiliates'
Claims).
34 GENERAL TERMS
34.1 PUBLICITY
34.1.1 Except with the prior written consent of the other party
each party shall not and shall procure that its Affiliates
shall not make any press or other public announcements
relating to this Agreement, the Framework Agreement or any
other Country Agreement, or disclose any information
relating to the commercial or other terms of this
Agreement, the Framework Agreement or any other Country
Agreement.
34.1.2 It is the intention of the parties that immediately
following the Commencement Date, they will jointly develop
and agree a press release relating to their relationship
under this Agreement and the Framework Agreement.
34.2 NOTICES
Wherever under this Agreement a party is required or permitted to
give notice to the other party, such notice shall be in writing and
shall be delivered personally, sent by fax,
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(as appropriate) recognised express courier service or certified,
registered, or first class mail. Any such notice shall be deemed
given when actually received when so delivered personally, by fax
or express courier, or if mailed, on the 5th day after its
mailing, postage prepaid to the recipient party addressed as
follows:
In the case of the Client:
[Country Representative]
[address]Fax: [?]
BPA Regional Representative
[Address]
In the case of Exult Supplier:
Exult Country Representative
4 Park Plaza
Suite 350
Irvine
California 92614
Fax: (949) 250 8086
Attention: [name]
with a copy (which shall not constitute effective notice) to:
Legal Department
4 Park Plaza
Suite 350
Irvine
California 92614
Fax: (949) 250 8086
Any party may change its address for notices upon giving 10 days'
prior notice of the change to the other parties in the manner
provided in this Clause 34.2.
34.3 LIMITATION ON RECRUITING
34.3.1 Subject as hereinafter provided in this Clause 34.3, each
of the Client or Exult Supplier shall not during the term
of this Agreement or within six months of its termination
or expiry employ and/or solicit directly or indirectly any
employees
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of the other party who have been involved in providing the
Services or are otherwise connected with this Agreement.
34.3.2 Clause 34.3.1 will not restrict the Client or Exult
Supplier from employing employees of the other party:
(i) who apply unsolicited in response to a general
advertising or other general recruitment campaign;
(ii) which the party who employed the relevant employee
has agreed in writing may be so employed; or
(iii) as contemplated in Schedule J of this Agreement.
34.4 WAIVER
34.4.1 Subject to Clause 34.12 (Legal Proceedings) no delay or
omission by either party to exercise any right or power
shall impair such right or power or be construed as a
waiver.
34.4.2 A waiver by either of the parties of any covenants to be
performed by the other party or of any breach shall not be
construed to be a waiver of any succeeding breach or of any
other covenant.
34.4.3 No waiver of any of the provisions of this Agreement shall
be effective unless it is expressly stated to be a waiver
and communicated to the other party in writing in
accordance with the provisions of Clause 34.2 (Notices).
34.5 AMENDMENTS
The terms and conditions of this Agreement shall not be varied or
amended, except by a written instrument executed by or on behalf of
each of the parties in accordance with the Change Control
Management process.
34.6 SEVERABILITY
If any provision of this Agreement is held to be invalid,
unenforceable or void, such decision shall not have the effect of
invalidating or voiding the remainder of this Agreement, and the
parties agree that they shall immediately commence in good faith
negotiations to seek to remedy such invalidity, unenforceability or
illegality.
34.7 COSTS
Except as expressly otherwise provided for in this Agreement, each
party shall bear its own costs and expenses incurred in connection
with the negotiation and preparation of this Agreement.
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34.8 ENTIRE AGREEMENT
This Agreement shall constitute the entire agreement between the
parties with respect to the subject matter hereof and (to the
extent permissible by law) supersedes all prior representations,
writings, negotiations or understandings with respect thereto
provided that neither party is attempting to exclude any liability
for fraudulent statements including pre-contractual
misrepresentations on which the other party can be shown to have
relied.
34.9 CONFLICT AND INCONSISTENCIES
34.9.1 In the event and to the extent only of any conflict between
the Clauses and the Schedules, the Clauses shall prevail.
34.9.2 In the event of any inconsistencies between the English
language version of this Agreement and any contract
administration documents prepared in connection therewith
and any translation of such agreements or documents, the
English language version shall prevail. In the event of any
inconsistencies between any obligations of the parties set
out in this Agreement and the corresponding obligations in
any Framework Agreement, the corresponding obligations in
this Agreement shall prevail.
34.10 SURVIVAL
The terms and conditions of this Agreement which are expressly or
by implication intended to survive its termination or expiry shall
so survive and continue to bind the parties.
34.11 COUNTERPARTS
This Agreement may be executed in two or more counterparts or by
fax, each of which shall be deemed to be an original, but all of
which together shall constitute one agreement binding on all
parties, notwithstanding that all parties are not signatories to
the original or the same counterpart or fax copy.
34.12 LEGAL PROCEEDINGS
Any legal proceedings in relation to this Agreement must be
commenced by the relevant party within 2 years of the termination
or expiry of this Agreement.
34.13 EQUITABLE REMEDIES
The parties agree that damages shall be the only remedy available
in respect of each parties' liability arising under this Agreement
provided that the parties shall be free to seek equitable remedies
(including injunctive relief) in respect of breaches of
confidentiality and matters relating to the infringement of
Intellectual Property Rights.
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34.14 INDEPENDENT CONTRACTOR
In providing Services to the Client under this Agreement, Exult
Supplier is acting only as an independent contractor.
Notwithstanding any provision of this Agreement to the contrary,
this Agreement establishes and shall only be construed as
establishing a contract between unrelated business entities for the
provision and purchase of certain services and does not and shall
not be deemed to create a partnership, joint venture, agency
(except as expressly provided in this Agreement) or any other type
of joint relationship.
34.15 RESPONSIBILITY FOR EMPLOYEES
Employees shall be employees of Exult Supplier or the relevant
Exult Participating Affiliates as appropriate and under no
circumstances other than as provided in Schedule J (Employee
Transfer Arrangements) are Employees to be considered employees of
the Client or any BPA Affiliate. Exult Supplier or the relevant
Exult Participating Affiliate shall have the sole responsibility
for supervision and control of the Employees and for payment of
their entire compensation, including salary, Withholding Taxes and
social security taxes, workers compensation, employee and
disability benefits and the like and shall be responsible for all
employer obligations under all applicable laws.
34.16 RESTRICTIVE TRADE PRACTICES
Notwithstanding any other provision of this Agreement, no provision
of this Agreement which is of such a nature as to make this
Agreement liable to registration under the Restrictive Trade
Practices Act 1976 shall take effect until the day after that on
which particulars thereof have been duly furnished to the Director
General of Fair Trading pursuant to the said Act. For the purposes
of this Clause 34.16, the expression "this Agreement" shall include
any agreement forming part of the same arrangement.
34.17 GOVERNING LAW
This Agreement shall be governed and construed in accordance with
the laws of England and Wales.
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In witness whereof this Agreement has been executed the day and year first
written above.
SIGNED BY .................................
for and on behalf of the Client
in the presence of:
.................................
SIGNED BY .................................
for and on behalf of Exult Supplier
in the presence of:
.................................
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INDEX TO SCHEDULES
TO COUNTRY PRO FORMA AGREEMENT
Schedule A Scope of Services (indicative)
Schedule B Service Levels (indicative)
Schedule C Charges and Invoicing
Schedule D Third Party Contracts
Schedule E Assets
Schedule F Systems
Schedule G Part I Country Transition Plan
Part II Validation Exercise
Schedule H Projects/Projects
Schedule I Part I Key Employees
Part II BPA Key Employees
Schedule J Employee Transfer Arrangements
Schedule L Change Control Management
Schedule M Approved Exult Sub-contractors
Schedule O BPA Business Policies and Controls
Schedule P Global Governance Arrangements
Schedule Q Data Protection
Schedule R BPA Participating Affiliates
Schedule T Process Line Population
Schedule U Escrow Agreement
Schedule Z Definitions
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SCHEDULE Z
DEFINITIONS
1 DEFINITIONS
"ACTIVE SERVICED EMPLOYEE" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"ADDITIONAL AMOUNT" has the meaning ascribed to it in Clause 11.2.5(iii)
(Withholding Taxes);
"ADDITIONAL RESOURCE CHARGES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"AFFECTED PROCESS" has the meaning ascribed to it in Clause 15 (Suspension
of a Process);
"AFFILIATE" means in relation to Client a Client Affiliate and in relation
to Exult Supplier an Exult Affiliate;
"AGREEMENT" means the Clauses of and Schedules to this Agreement or any
revised version agreed between the parties in accordance with the terms of
this Agreement;
"ANNUAL WORK UNITS" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"ARBITRATOR" or "ARBITRATION" has the meaning ascribed to it in Clause
29.3 (Dispute Resolution);
"AUDITOR" has the meaning ascribed to it in Clause 12.2 (Audit);
"AWARD" means the amount awarded to a party by an Arbitrator pursuant to
Clause 29.3 (Dispute Resolution);
"BASE CHARGE" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"BASELINE" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"BPA AFFILIATE" means any company which is from time to time directly or
indirectly controlled by BPA and for this purpose:
(i) a company is directly controlled by another company beneficially
owning shares carrying the majority of votes at a general meeting
of shareholders (or its equivalent) of the first mentioned company;
(ii) a particular company is indirectly controlled by a company if a
series of companies can be specified, beginning with that company
and ending with the particular company, so related that each
company in the series is directly controlled by one or more of the
companies earlier in the series; and
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(iii) a company does not include any joint venture whether incorporated
or unincorporated.
"BPA COUNTRY REPRESENTATIVE" means any individual appointed by BPA
pursuant to the Agreement to be a Country Representative in respect of
this Agreement;
"BPA IT POLICY" means the document, describing the policies to be adopted
by the Exult and the Exult Affiliates in relation to the use of Systems in
connection with the provision of the Services, set out in Schedule O, Part
1 (BPA Policies and Controls);
"BPA KEY EMPLOYEES" means the BPA personnel identified by name and
position in Part II of Schedule I to this Agreement (Employees).
"BPA REGIONAL REPRESENTATIVE" means an individual appointed by Client
pursuant to the Framework Agreement;
"BPA RESPONSIBILITIES" means those actions described in Schedule A which
need to be performed by the Client in order for Exult Supplier to be able
to provide the Services;
"BPA THIRD PARTY" means a third party other than BPA, a BPA Affiliate and
its and their respective agents, subcontractors, officers, directors and
employers;
"CHANGE" means a change to this Agreement or the Framework Agreement
agreed in accordance with the Change Control Management process;
"CHANGE OF CONTROL" shall be deemed to have occurred in relation to any
company ("the COMPANY") if any Relevant Entity, together with any Relevant
Entity Affiliates:
(i) becomes interested (and, for the avoidance of doubt, was not
previously so interested), directly or indirectly, in more than 50
per cent of the shares of the Company or of the voting rights
attached thereto, including through an initial public offering of
more than 50 per cent of the share capital of the Company; or
(ii) acquires the right to appoint or remove a majority of the board of
directors of the Company
references to a Relevant Entity being "interested" in shares shall mean
interested in those shares for the purposes of Part VI of the Companies
Act 1985.
for the purposes of this definition only "RELEVANT ENTITY AFFILIATE"
means, in relation to any Relevant Entity, any other which is in Control
of, is Controlled by or is under common Control with such Relevant Entity,
"CONTROL" of a person shall mean:
(i) the right, whether direct or indirect, to vote 50 per cent or more
of the securities having the power to elect directors of such
person; or
(ii) the power, whether direct or indirect, to direct the management or
policies of such person.
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"CHANGE CONTROL MANAGEMENT" means the procedure by which changes may be
made to the Agreement pursuant to Clause 9 (Change Control Management
Process) and as further set out in Schedule L (Change Control Management);
"CHANGE REQUEST" means a request for a Change made in accordance with the
Change Control Management process;
"CHARGES" means the charges payable by the Client in respect of the
Services calculated in accordance with Schedule C (Charges and Invoicing);
"CLIENT ASSETS" means the goods and other assets which are owned or used
by BPA, a BPA Affiliate or the Client solely to provide the services
equivalent to the Services immediately before the Commencement Date,
including, but not limited to, Client Systems and Third Party Systems and
facilities whether or not the subject of Third Party Contracts and as
identified in Schedule E (Assets), in each case which are required to be
used by Exult Supplier to provide the Services;
"CLIENT INFORMATION" means the information provided by the Client which
comes into the possession of Exult Supplier or the Exult Affiliates or
their subcontractors pursuant to this Agreement, or created under or
arising out of data and records of the Client, BPA or BPA Affiliates
pursuant to this Agreement;"CLIENT INTELLECTUAL PROPERTY" has the meaning
ascribed to it in Clause 19.1 (Intellectual Property Rights);
"CLIENT PREMISES" means any premises of Client Affiliates in [Country]
which the Client or Client Affiliates use to provide services equivalent
to the Services immediately prior to the applicable Country Commencement
Date;
"CLIENT SERVICE CENTRE" means each of the remote service centres to be
established by Exult Supplier;
"CLIENT SYSTEMS" means Systems (or part thereof) in which the Intellectual
Property is owned by either Client or Client Affiliates and to be used in
whole or in part in the provision of the Services as identified in this
Agreement;
"COMMENCEMENT DATE" means the date of execution of this Agreement by both
of the parties to this Agreement;
"CONFIDENTIAL INFORMATION" means all information obtained from the other
party which by its nature should be treated as confidential information or
is marked as such which may come into its possession or into the
possession of its employees, agents or subcontractors as a result of or in
connection with this Agreement and any and all information which may be
derived from such information;
"CONTRACT MINIMUM(s)" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"CONTRACT MINIMUM YEAR" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
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"CONTRACT TRANSFER PLAN" means the plan to be developed and agreed by the
Exult Supplier and the Client relating to the Transfer of a Third Party
Contract to Exult Supplier or the assumption by Exult Supplier of an
administration role in relation to a Third Party Contract;
"CONTROLS" means those business practices (including computer security
provisions, procedures to protect Confidential Information and procedures
to ensure compliance with obligations to third parties in connection with
Exult Supplier's provision of the Services hereunder), controls, Client
policies, quality standards and human resource, financial and accounting
controls necessary for the provision and receipt of the Services in
accordance with this Agreement including:
(i) the Client Business Standards and Policy Document;
(ii) the Client Policy on the Business Conduct and Code of Business
Ethics;
(iii) the Client Disaster Recovery Plan; and
(iv) the BPA IT Policy.
which have been provided or will be provided from time to time to Exult
Supplier in writing and as listed in Schedule O (BPA Policies and
Controls);
"CORPORATE OVERHEAD" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"COUNTRIES" means the Countries in which Client requires Exult Supplier to
procure the provision of services such as the Services pursuant to the
Framework Agreement and "COUNTRY" means any one of them;
"COUNTRY AGREEMENT" means an agreement, substantially in the form set out
in Schedule N of the Framework Agreement, except as varied by or as
necessary to accommodate the relevant applicable laws of each Country or
as agreed by Client and Exult, to be entered into pursuant to the
Framework Agreement by a Participating Affiliate and Exult Participating
Affiliate in relation to the provision of Services to that Participating
Affiliate and any other Client Affiliates and/or Affiliates specified
therein;
"COUNTRY REPRESENTATIVES" means the representatives appointed by each of
the Client and Exult Supplier pursuant to, and having the responsibilities
referred to in Clause 22 (Contract and Service Management) and "COUNTRY
REPRESENTATIVE" means any one of them;
"COUNTRY TRANSITION PLAN" means the plan for the assumption of the
provision of the Service by the Exult Supplier set out in Schedule G
(Transition Plan);
"DECREASES" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"DEFAULT" means any material breach, or series of related or unrelated
persistent breaches which when taken together constitute a material breach
of its material obligations under this Agreement by either party;
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"DEVELOPED SYSTEMS" has the meaning ascribed in Clause 19.8.1
(Intellectual Property Rights);
"DISPUTE" means any dispute, controversy or claim arising under this
Agreement ;
"DISPUTE RESOLUTION PROCEDURE" means the procedure which the parties agree
should be used to resolve Disputes as set out in Clause 29 (Dispute
Resolution);
"DUE DILIGENCE COSTS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"DUE DILIGENCE EXERCISE" means the exercise carried out in relation to
each Country in accordance with Clause 4 (Due Diligence) of the Framework
Agreement which includes the production of the Due Diligence Reports;
"EARLY TERMINATION PAYMENT" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
Exult"EMBEDDED SERVICES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"EMPLOYEE" means any employee of Exult Supplier employed from time to time
wholly or mainly for the purposes of performing Exult Supplier's
obligations under this Agreement;
"EMU COMPLIANCE" means that all financial and accounting software, screen
layouts and hardware, conform with the applicable conversion and rounding
requirements set out in the European Council Regulation 1103/97 and with
the use of the euro as a dual and single currency but only to the extent
necessary to meet the business requirements of Client and Participating
Affiliates and where Exult Supplier has been given reasonable notice of
such business requirements;
"ESCROW AGREEMENT" means the agreement substantially in the form of that
contained in Schedule U (Escrow Agreement);
"EUROPE" means countries presently forming the European Union (Austria,
Belgium, Denmark, Finland, Continental France (including Corsica),
Germany, Greece, Ireland, Italy, Luxembourg, The Netherlands, Portugal,
Spain, Sweden and the United Kingdom) together with those territories or
countries presently known as Albania, Andorra, The Azores, Belorussia,
Bosnia, Bulgaria, The Canary Islands, Ceuta, The Channel Islands, Croatia,
Cyprus, The Czech Republic, Estonia, Gibraltar, Hungary, Iceland, Isle of
Man, Latvia, Liechtenstein, Lithuania, Macedonia, Maderia, Malta, Melilla,
Moldavia, Monaco, Norway, Poland, Romania, the Russian Federation to the
west of the Urals, San Marino, The Slovak Republic, Slovenia, Switzerland,
Turkey, Ukraine, Vatican City and The Yugoslav Republic including such
other countries as may be notified to Exult Supplier in writing from time
to time;
"EXISTING IT DOMAIN" means the IT infrastructure and systems architecture
existing at the Commencement Date;
"EXPERT'S DECISION" means the decision of the Expert pursuant to the
procedure described in
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Clause 29.2 (Dispute Resolution);
"EXPERT" has the meaning ascribed to it in Clause 29.2 (Dispute
Resolution);
"EXPIRY DATE" means the end of the Initial Period unless and until no
notice to terminate is given within the time limit specified in Clause
14.4 (Termination on Notice after the Initial Period) at which time the
Expiry Date shall mean the Framework Expiry Date;
"EXULT ACTUAL COST" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"EXULT AFFILIATE" means any company which is for the time being directly
or indirectly controlled by Exult Supplier and for this purpose:
(i) a company is directly controlled by another company beneficially
owning shares carrying the majority of votes at a general meeting
of shareholders (or its equivalent) of the first mentioned company;
and
(ii) a particular company is indirectly controlled by a company if a
series of companies can be specified, beginning with that company
and ending with the particular company, so related that each
company in the series is directly controlled by one or more of the
companies earlier in the series;
"EXULT ASSETS" means the goods and other assets which are owned by Exult
Supplier, Exult or an Exult Affiliate and acquired and used solely to
provide the Services immediately before the termination or expiry of this
Agreement, including Systems owned by Exult Supplier but excluding any
assets licensed or leased to Exult Supplier, Exult or Exult Affiliate by
way of a Third Party Contract;
"EXULT PROPRIETARY SYSTEMS" means Exult's Systems in which the
Intellectual Property is owned by Exult or Exult Supplier;
"EXULT REGIONAL REPRESENTATIVES" means the individuals appointed by Exult
Supplier pursuant to, the Framework Agreement;
"EXULT SUPPLIER INTELLECTUAL PROPERTY" has the meaning ascribed to it in
Clause 19.2 (Intellectual Property Rights);
"EXULT SUPPLIER DISASTER RECOVERY PLAN" means the plan to be agreed
between the parties which sets out the procedures to be adopted by Exult
Supplier and the Exult Participating Affiliates in the event that any
Systems used in the provision of the Services, or any data relating to the
Services, is damaged or becomes unavailable for any reason;
"EXULT SYSTEMS" means Systems used in the provision of the Services in
which Exult or Exult Supplier owns the Intellectual Property or has been
granted a licence to use the Intellectual Property, excluding Future
Systems and Client Systems;
"EXULT THIRD PARTY" means a third party other than Exult, an Exult
Affiliate and its and their
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respective agents, subcontractors, officers, directors and employees;
"EXULT THIRD PARTY CONTRACT" means any contracts, including subcontracts
and licences, but excluding contracts relating to employment, entered into
by, assigned to or novated to Exult, Exult Supplier or an Exult Supplier
Participating Affiliate the benefit of which relates to, or which are used
in whole or in part for, providing the Services;
"FAILED READINESS TEST" means a failure to complete all material elements
of a Readiness Test.
"FORCE MAJEURE" means any cause affecting the performance of the
obligations under this Agreement by a party arising from acts, events,
omissions, happenings or non-happenings beyond its reasonable control
including (but without limiting the generality thereof) governmental
regulations arising after the Commencement Date, civil and/or political
unrest, fire, flood, or any disaster or an industrial dispute (other than
those relating to Exult's employees) but shall not include lack of funds
or events caused by the party seeking to rely on the Force Majeure event
or by any third party employed or engaged by the party seeking to rely on
the Force Majeure event (except where and to the extent that such third
party is also affected by a Force Majeure event) and provided that in
determining what is in the reasonable control of Exult Supplier, full
account shall be taken of the existence of the Exult Supplier Disaster
Recovery Plan;
"FULL SERVICE DATE" means 00.01 a.m. on the date (which is the end of the
Transition Period) on which Exult Supplier is required to provide all of
the Services to the Client pursuant to the Country Transition Plan.
"FUTURE SYSTEMS" means Systems created by Exult Supplier or its
Affiliates, or which Exult Supplier or its Affiliates procure to be
created, in fulfilling obligations under this Agreement, during the term
of this Agreement and provided to the Client or used in the provision of
the Services;
"FRAMEWORK COMMENCEMENT DATE" means the date defined as Commencement Date
in the Framework Agreement;
"FRAMEWORK EXPIRY DATE" means the date 7 years from the *Framework
Commencement Date or in the event the Framework Agreement is extended by
agreement between the parties, the date which is then stated as being the
Expiry Date of the Framework Agreement;
"GENERAL WINDING UP PLAN" means the plan for co-ordinating the orderly
assumption of the provisions of the Services by the Successor Operator to
be produced pursuant to the Framework Agreement;
"GLOBAL GOVERNANCE PANEL" means the body to be established in accordance
with the Framework Agreement;
"GOOD INDUSTRY PRACTICE" means in relation to any undertaking and any
circumstances, the exercise of the degree of skill, care, prudence and
foresight which would be expected from a reasonably skilled and
experienced person engaged in the same type of undertaking under the same
or similar circumstances;
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"GUARANTEED MINIMUM SAVINGS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"GUARANTEED MINIMUM SAVINGS DATE" has the meaning ascribed to it in
Schedule C (Charges and Invoicing);
"HR IT SERVICES" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"INCREASES" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"INDEMNIFIED PARTY" has the meaning ascribed to it in Clause 26.5.1
(Defence of Claims);
"INDEMNIFYING PARTY" has the meaning ascribed to it in Clause 26.5.1
(Defence of Claims);
"INDEPENDENT BUSINESS" means any business unit within a Country designated
by Client executive committee from time to time to operate at arm's length
because (i) it is pending decision regarding a possible disposal of the
business unit; or (ii) the business unit operates under conditions
materially distinct from those applying to the Services as evidenced by
non participation in all or some of the other Client main stream support
services in that Country;
"IN-SITU PROCESS TAKE ON DATE" means 00:01AM on the day on which Exult
Supplier assumes responsibility for a Process in-situ;
"INITIAL BASELINE" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"INITIAL BASE CHARGES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"INITIAL PERIOD" means the period of 5 years from the Commencement Date;
"INITIAL RESOURCE VOLUMES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"INTELLECTUAL PROPERTY" means patents, trade marks, service marks,
copyrights, topography rights, rights to extract information from
databases, design rights, trade secrets and rights of confidence and all
rights or forms of protection of a similar nature or having equivalent or
similar effect to any of them which may subsist anywhere in the world,
whether or not any of them are registered and including applications for
registration of any of them;
"INTERNAL CONTROLS" means such controls as would be reasonably required in
accordance to Good Industry Practice;
"KEY EMPLOYEES" means those Employees to be identified pursuant to Section
2, Schedule I (Employees) to this Agreement;
"KEY INCIDENT" means an incident (whether or not a KPI failure) which
would have an impact either real or perceived on the operational
performance, finances or reputation of Client or the Client Affiliates or
Exult's or the Exult Affiliates' performance, finances or reputation;
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"KPI CREDIT" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"KPI FAILURE" means any failure by the Exult Supplier to achieve a KPI;
"KPI FAILURE PERIOD" means the period of time during which there has been
a KPI Failure;
"KPIs" means the key performance indicators set out in the Service Levels
in Schedule B (Service Levels) and "KPI" means any one of them;
"% OF KPI POOL" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"KPI PER EVENT CREDIT" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"LEVERAGED OPERATIONS" means the result of Exult Supplier's transformation
of the Services to Exult Supplier's Service Delivery Model intended to
improve the quality of HR services provided to the Client and achieve the
Guaranteed Minimum Savings.
"LEVERAGED PROCESS TAKE ON DATE" means 00:01AM local time on the day on
which Exult Supplier assumes responsibility for a Process in Leveraged
Operations;
"LOSSES" means all losses, liabilities, costs (including reasonable legal
costs), charges, expenses, actions, procedures, claims, demands and
damages (including the amount of damages awarded by an arbitrator pursuant
to Clause 29.3) (Dispute Resolution);
"MATERIALS" means all materials, including without limitation, magnetic
tapes, documents, designs, drawings, manuals, specifications, flowcharts,
and all stationery and other consumables as are, at the applicable Country
Commencement Date, in use by Client, the Client or their Affiliates for
the provision of the services equivalent to the Services to the Client;
"NON-TRANSFERRABLE THIRD PARTY CONTRACT" means a Third Party Contract
other than a Transferable Third Party Contract;
"NORTH AMERICA" means United States of America, Canada, and Trinidad and
Tobago;
"OPERATIONAL CHANGE" means a change to any Process which affects the
procedures, scheduled operations activities, output and/or functioning of
the Service Delivery Model, but which is not determined to be a Project,
and does not require an adjustment to the Agreement;
"PARTICIPATING AFFILIATES" means the Client Affiliates, in addition to the
Client, which will receive the Services from the Exult Supplier
Participating Affiliates under this Agreement and "Participating
Affiliate" mean any one of them;
"PASS THROUGH COSTS" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"PROCESS" means one of the 17 processes identified in Section II of
Schedule A (Scope of Services);
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"PROCESS TAKE ON DATE" means 00.01am local time on the day on which Exult
Supplier assume responsibility for the delivery of the applicable Process
pursuant to the Country Transition Plan.
"PROJECT" means a discrete piece of work which is not a Service, is not
included in the Baseline, is limited in duration, has specific
deliverables, has identifiable start and end dates, is agreed through the
Change Control Management process, and is subject to an Process Charge as
defined in Schedule C;
"PROPOSED CHANGE" means a change requested through a Change Request,
pending approval;
"QUALITY CONTROL DOCUMENT" means the summary document to be prepared by
Exult Supplier in accordance with Clause 3.2.8 (Controls) which sets out
the basis on which Exult Supplier will apply the Controls to the provision
of the Services;
"READINESS TEST" means the test agreed between the parties to establish
the readiness of both the Client and Exult Supplier to transition a
Process to Exult Supplier as described in Sections 7 and 8 of Schedule G
(Transition Plan).
"REDUCED RESOURCE CHARGES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"REGION" shall mean each of North America, Europe and the Rest of the
World;
"REGIONAL REPRESENTATIVES" means the BPA Regional Representative and the
Exult Regional Representative;]
"RELEVANT ENTITY" means a person who in the reasonable opinion of Client
either:
(i) is a competitor of the Client, Client or a Participating Affiliate
primarily engaged in the business of distribution and production of
oil and petrochemicals;
(ii) whose (i) financial substance and (ii) credit rating are weaker in
any material respect than those of the Company; or
(iii) may, through its control of the Company, have any adverse effect
on the reputation of Client or any member of the BP Group;
"RESOURCE UNITS" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"RESOURCE VOLUMES" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"REST OF THE WORLD" means [countries in which Client or the Client
Affiliates have operations other than Europe and North America;
"RETURN ON COSTS" or "R.O.C." has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
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"SALES TAXES" means any federal, national, state, local, sales, use,
excise, utility, gross receipts, value added taxes, other similar
tax-related charges and surcharges levied by any authorised tax authority,
agency or government department;
"SENSITIVE SERVICES" means those services in the nature of the Services
which are considered by the Client, Client or Client Affiliates to be of a
sensitive nature in that they represent a significant risk to the
reputation or ongoing business of the Client, Client or Client Affiliates
or if the nature of the services are such that they could, in the
Client's, Client's or Client Affiliate's view, potentially expose the
Client, Client or Client Affiliate to particular legal liability,
including those relating to administration benefit plans subject to the US
Employee Retirement Income Security Act 1974 as amended and are retained
and provided internally by the Client, Client or any Client Affiliates;
"SENSITIVE THIRD PARTY CONTRACTS" means those Third Party Contracts and
Exult Supplier Third Party Contracts which are considered by the Client to
be of a sensitive nature in that they represent a significant risk to the
reputation or ongoing business of the Client, Client or the Participating
Affiliates, or if the nature of the services provided under the contracts
are such that they could, in the Client's view, potentially expose the
Client, Client or the Participating Affiliate to particular liability;
"SERVICE CREDIT" means an amount payable by Exult Supplier to the Client
in respect of a KPI Failure;;
"SERVICE DELIVERY DESCRIPTION" means the documentation to be prepared by
Exult Supplier and/or Exult Supplier in accordance with Clause 16.5
(Winding Up Assistance);
"SERVICE DELIVERY MODEL" means the method by which the Services, or in the
case of Client, the services equivalent to the Services, are delivered.
"SERVICE LEVEL" means the level to which the Services are to be provided
to the Client as set out in Schedule B (Service Levels);
"SERVICE PERFORMANCE REPORTS" means the reports to be produced by the
Exult Supplier Country Representative in accordance with Clause 22.3
(Service Performance Reports);
"SERVICED EMPLOYEE" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"SERVICES" means the human resource management and related services
processes described in Schedule A (Scope of Services) as may be amended
from time to time in accordance with the Change Control Management
process.;
"STANDARD RATES" means the rate to be charged by Exult Supplier to the
Client for the provision of Projects as determined in accordance with
Schedule C (Charges and Invoicing);
"SUBCONTRACTOR" means any subcontractor of Exult Supplier engaged from
time to time in accordance with Clause 32 (Subcontracting) for the
purposes of performing any part of Exult Supplier's obligations under this
Agreement;
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"SUCCESSOR OPERATOR" means the entity (which may include Client or any
Client Affiliates) succeeding Exult Supplier in the provision or operation
of all or any of the Services;
"SYSTEMS" means computer programs, databases, the tangible media on which
they are recorded, and their supporting documentation, including input and
output format, program listings, narrative descriptions, source code,
object code, algorithms, logic and development tools, operating
instructions and user manuals;
"TAXES" means all federal, state, local or foreign income tax, duty,
charge, and any penalty or interest thereon and any of the costs and
charges whatsoever assessed or imposed by any competent legal or fiscal
authority in relation thereto, including Withholding Tax, but excluding
value added or other similar sales or use taxes;
"TERM VESTED ANNUITANTS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"THIRD PARTY CONTRACTS" means any contracts, including licences, but
excluding contracts relating to employment, entered into by Client, or any
Client Affiliates the benefit of which relates to, or which are used in
whole or in part for providing services equivalent to the Services
immediately prior to the Commencement Date as identified in Schedule D
(Third Party Contracts);
"THIRD PARTY HR CONTRACT" means a Third Party Contract pursuant to which a
third party provides the Client with services equivalent to the Services;
"THIRD PARTY SYSTEMS" means any Systems in which the Intellectual Property
is owned by a third party which Client, or any Client Affiliate has been
granted a licence to use and which are required to be used by Exult
Supplier to provide the Services as identified in Schedule F (Systems);
"TOTAL LABOUR RELATED COSTS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"TRANSFER" and "TRANSFERRED" in respect to a Third Party HR Contract or
Sensitive Third Party Contract refers to the transfer of such contract by
assignment or novation as well as to, upon termination or expiry of such
Third Party HR Contract, the taking over by Exult Supplier of the services
provided thereunder as Services under the relevant Country Agreement;
"TRANSFER/TRANSFORMATION COSTS" has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
"TRANSFERABLE THIRD PARTY CONTRACTS" means Third Party Contracts which are
identified during the Due Diligence Exercise or the Validation Exercise or
thereafter as being capable of being either terminated or assigned to
Exult Supplier at short notice and without incurring any penalty;
"VALIDATION EXERCISE" means the exercise to be carried out in accordance
with Part 2 of Schedule G (Transition Plan);
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"TRANSITION PERIOD" means the period between the Commencement Date and the
Full Service Date;
"TRANSITION SCHEDULE" means the time line for the transition of all
Processes for a Country to Exult Supplier (in-situ and/or Leveraged
Operations) as defined in Section 9 of Schedule G (Transition Plan).
"TRIGGER EVENT" means an event which will enable Client to obtain delivery
of the relevant source code materials under the terms of the Escrow
Agreement;
"UNDERLYING TECHNOLOGY" means the Exult Supplier IT Domain dedicated to
supporting the provision of the Services.
"VALIDATION EXERCISE" means the exercise for each applicable Country
consisting of the validation of the Baseline, volumetrics, resource
requirements, costs, Services, Third Party Contracts and Service Levels,
conducted within 60 days following the Country Commencement Date;
"WINDING UP ASSISTANCE" means the assistance to be given by Exult Supplier
to the Client as contained in a Winding Up Plan;
"WINDING UP ASSISTANCE COSTS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"WINDING UP PLAN" means the winding up plan to be developed in accordance
with the provisions of Clause 16 (Winding Up Assistance) to provide for
the orderly transitioning of the Services to the Successor Operator on
termination or expiry of the Agreement; and
"WITHHOLDING TAXES" means any Taxes required to be withheld or deducted by
the competent legal or fiscal authorities in the Country of the tax
residence of the Client or any sum payable by the Client to Exult Supplier
for the Charges under this Agreement.
"WORK PRODUCT" means any works, including documents or reports whether or
not in electronic form produced for delivery to the Client as part of the
Services and/or fulfilling the obligations of Exult Supplier under this
Agreement including the Service Delivery Description but excluding Future
Systems and the Exult Supplier Systems.
"YEAR 2000 COMPLIANT" means that all software, systems and hardware comply
with the British Standards Institute requirements set out in DISC PD
2000-1 "A Definition of Year 2000 Conformity Requirements".
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
CONTENTS PAGE
<S> <C>
1 Definitions and Interpretation.....................................................2
2 Term...............................................................................2
3 Services...........................................................................3
4 Exclusivity........................................................................7
5 Client Obligations including BPA Responsibilities..................................7
6 Transfer Arrangements..............................................................8
7 Third Party HR Contracts..........................................................10
8 Front End Consents................................................................13
9 Change Control Management Process.................................................14
10 Charges, Invoicing and Payment....................................................14
11 Taxes.............................................................................14
12 Audit.............................................................................16
13 Key Personnel.....................................................................18
14 Termination.......................................................................18
15 Suspension of a Process...........................................................20
16 Winding Up Assistance.............................................................21
17 Financial Consequences of Termination.............................................22
18 Transfer Arrangements on Termination..............................................25
19 Intellectual Property Rights......................................................27
20 Confidentiality...................................................................29
21 Data Protection and Security......................................................30
22 Contract and Service Management...................................................31
</TABLE>
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<TABLE>
<S> <C>
23 Contract Minimums.................................................................33
24 Warranties........................................................................34
25 Limitation on Liability...........................................................35
26 Indemnities and Defence of Claims.................................................37
27 Insurance.........................................................................42
28 Recovery of Damage Awards.........................................................43
29 Dispute Resolution................................................................44
30 Force Majeure.....................................................................46
31 Assignment........................................................................46
32 Subcontracting....................................................................47
33 Participating Affiliates..........................................................48
34 General Terms.....................................................................48
</TABLE>
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COUNTRY AGREEMENT PRO FORMA
SCHEDULE A
SCOPE OF SERVICES
<PAGE> 176
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 INTRODUCTION......................................................................1
2 EXULT SERVICES....................................................................1
A Training...................................................................1
B Organisation Development...................................................2
C HR Strategy................................................................2
D Labour Relations...........................................................2
E Expatriate Relocation and Administration...................................2
F HR Information Services ("HRIS") (Employee Records).......................2
G Benefits...................................................................3
H Compensation...............................................................3
I Employee Relations.........................................................3
J Compliance.................................................................3
K Vendor Administration......................................................3
L Payroll....................................................................3
M Employee Development.......................................................4
N Resourcing/Recruiting......................................................4
O Severance..................................................................4
P Performance Management.....................................................4
Q Domestic Relocation Administration.........................................4
R HR Information Technology ("HRIT").........................................5
</TABLE>
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SCHEDULE A
SCOPE OF SERVICES
1 INTRODUCTION
This Section describes certain duties, obligations and responsibilities
of Exult and of BPA in performing the Services.
Except where specifically set out in the applicable Country Transition
Plan, from the Commencement Date, Exult shall provide each process
included in the Services [***]*.
For the purposes of this Schedule, Exult shall mean Exult Supplier where
appropriate; BPA shall mean the Client where appropriate.
2 EXULT SERVICES
Exult and BPA will perform the services as defined in this Schedule A.
For responsibilities where there is no quantification of the service to
be provided, Exult and BPA will provide the [***]* Schedule T identifies
the BPA population, by Process, that shall receive the Services
identified in this Schedule.
The detailed scope is to be agreed before the applicable Process Take On
Date. Exult shall assume responsibility for each of the Processes set
out in this Schedule on the applicable Process Take On Date. For the
table included in each of the sections below, the following legend
applies:
Table Legend
X Performs Responsibility
A Approves
The parties recognise that there are third party agreements yet to be
evaluated that may be identified as Sensitive Third Party Agreements.
The current representation of process activities and responsibilities in
Schedule C of this Agreement reflects the intention of the parties in
the absence of Sensitive Third Party Agreements. Specific adjustment to
the responsibilities of BPA and Exult in any Process area affected by
Sensitive Third Party Agreements and/or Sensitive Services will be made
prior to the Process Take On Date to address the legal and operational
risks associated with the provision of Services by Exult, BPA and the
third parties associated with the above, for the period of time these
remain sensitive.
A TRAINING
Training as a process includes training needs assessment,
course/materials development, logistics co-ordination, conduct of
training and training leader selection, training effectiveness
assessment and post training follow-up. Delivery of training
materials includes traditional classroom, self-study,
computer-aided training and third party training delivery
mechanisms.
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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[***]*
B ORGANISATION DEVELOPMENT
Organisation development focuses on organisation design and
ensuring organisation effectiveness. These activities include
business and new venture organisation consulting, managing
organisational improvement efforts and overseeing organisation
consulting supplied by third parties. Assessment of existing and
proposed organisation models and reorganisations will also be
major activities in the area
[***]*
C HR STRATEGY
HR strategy develops the long-term HR strategy for BPA and
ensures the linkages to organisational goals and business
objectives. In addition, HR strategy directs the development of
the HR function and maintains ties to outside entities thereby
introducing new HR concepts into BPA
[***]*
D LABOUR RELATIONS
Labour relations promotes/maintains effective relationships
between BPA and its employees. Relationship management, for
example, with any BPA works councils, trade unions, collective
bargaining units, employee forums and all BPA employees includes
negotiations, problem/issue management, and interfacing with
regulatory entities on behalf of BPA
[***]*
[***]*
E EXPATRIATE RELOCATION AND ADMINISTRATION
Expatriate relocation and administration establishes expatriate
policies, manages the special needs of the expatriate population,
and assesses the many expatriate related problems/issues. Other
responsibilities include tax activities, spouse and dependent
programs, relocation assistance, and salary equalisation.
Repatriation of employees is also in the scope of this function.
[***]*
[***]*
F HR INFORMATION SERVICES ("HRIS") (EMPLOYEE RECORDS)
HR information services (employee records) responsibilities
include all activities necessary to capture, track, modify and
report employee related electronic and physical data. HRIS data
includes data on active employees, inactive employees such as
terminated, term vested, deceased, and annuitants, and
appropriate non-employee populations.
[***]*
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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[***]*
G BENEFITS
Benefits includes benefits strategy development, benefits plan
design and administration, and communications of benefit programs
to BPA employees. The function determines the appropriate
competitive level and mix of benefits for BPA, including health
and welfare plans, defined contribution plans, and defined
benefit plans.
[***]*
[***]*
H COMPENSATION
Compensation is the development of compensation plans and
strategies for BPA. The function ensures and administers the
various compensation programs that range from basic pay,
executive compensation, variable pay programs and other
business-needs based pay schemes. Additionally, the function
determines the appropriate competitive level and mix of base pay,
short-term incentives and long term incentives.
[***]*
I EMPLOYEE RELATIONS
Employee relations performs activities needed to keep a
productive and committed workforce in place. Assuring a healthy
work environment includes activities such as goal setting,
diversity programs, employee complaint resolution, employee
coaching/counselling and communicating workplace issues to
interested groups of employees.
[***]*
J COMPLIANCE
Compliance is the management of BPA's legal requirements and
internal business policies across all HR processes.
[***]*
[***]*
K VENDOR ADMINISTRATION
Vendor administration is the process by which third party
providers of HR or other related services to BPA are administered
by Exult to ensure acceptable quality and price. Vendor
selection, performance monitoring, service negotiation and vendor
certification are all critical efforts. The administration of
third party costs and allocation of these costs to the
appropriate business entities are also included here.
[***]*
[***]*
L PAYROLL
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Exchange Commission.
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Payroll processes include the collection of time and attendance
data, management of employee earning and deductions, calculation
of gross and net pay, and processing employee payments.
Additionally, the payroll function will compute and file payroll
related taxes, manage mandated deductions and perform the
accounting transactions necessary to accumulate labour expenses
at the detailed level including all general ledger interfaces.
[***]*
[***]*
M EMPLOYEE DEVELOPMENT
Employee development identifies employee development needs and
ensures that these development needs are planned with the
employee and the supervisor. Development tool construction,
managing the execution of development, tracking employee
development plans, and succession planning are all included.
[***]*
[***]*
N RESOURCING/RECRUITING
Resourcing/recruiting includes setting resourcing strategy,
conducting workforce planning and performing the hiring process,
which includes candidate pool solicitation, assessment,
negotiation and orientation activities. Vendor administration,
logistics and assessment of resourcing strategies are also
included.
[***]*
[***]*
O SEVERANCE
Severance responsibilities include development of successful
programs/policies to transition employees from BPA, policy
definition, program development, impact modelling and program
administration, selection of third party vendors for
outplacement, and managing the cost of severance programs.
[***]*
[***]*
P PERFORMANCE MANAGEMENT
Performance management sets performance goal structures for BPA
and develops the tools needed to assess employee/group
performance against these goals. Management of the performance
review process and reporting on the process outcomes are also
responsibilities.
[***]*
[***]*
Q DOMESTIC RELOCATION ADMINISTRATION
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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Domestic relocation administration oversees the work involved in
moving employees from one geographical location to another.
Policy development, cost tracking, employee education and
communication, third party administration and issue resolution
all reside in this area.
[***]*
[***]*
R HR INFORMATION TECHNOLOGY ("HRIT")
"BPA IT Domain" shall mean the data processing infrastructure,
servers, data communications equipment, local area networks,
desktop equipment and support, common office environment, and
wide area network facilities operated and maintained by BPA
and/or operated and maintained by third parties under Third Party
Contracts managed by BPA.
[***]*
[***]*
[***]*
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COUNTRY AGREEMENT PRO FORMA
SCHEDULE B
SERVICE LEVELS
<PAGE> 183
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 INTRODUCTION.........................................................................1
2 PRINCIPLES GOVERNING SERVICE LEVELS..................................................1
3 PROCESS..............................................................................1
4 SERVICE CREDITS......................................................................3
</TABLE>
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SCHEDULE B
SERVICE LEVELS
1 INTRODUCTION
This Schedule defines the principles and parameters governing the
Service Levels which shall be measured. This Schedule also describes how
these Service Levels shall be established.
There are two types of Service Levels that shall be defined, measured
and reported for each Country Agreement:
1.1 Key Performance Indicators ("KPIs"):
(i) KPI Surveys - these measure the satisfaction of BPA
employees and management with the Services that are
provided by Exult ;
(ii) KPI Service Levels - Service Levels that must be met to
avoid a significant financial or Service impact to BPA;
1.2 Reporting Service Levels ("RSLs") - these measure Exult's
performance of the Services using a range of quantitative and
qualitative Service Levels.
Each Country Transition Plan shall define the process by which
the Services shall be transitioned from the BPA Service Delivery
Model to the Exult Service Delivery Model. The impact of the
transition to the Leveraged Operations shall be assessed and any
changes to Service Levels, including KPIs, shall be agreed in
accordance with Schedule L, Change Management.
The process for initially establishing these Service is described
in Section 3, Process.
2 PRINCIPLES GOVERNING SERVICE LEVELS
Principles governing Service Levels are documented in the Framework
Agreement, Schedule B, Service Levels.
3 PROCESS
Following the Commencement Date of each Country Agreement and before the
Process Take On Date, the parties shall determine and agree the Service
Levels that shall be included in Schedule B, Service Levels, of the
Country Agreement. In addition, the appropriate measurement tools and
reporting process for each Service Level shall be identified.
The timeframe to determine the Service Levels, the measurement tools and
the reporting process shall be documented in the applicable Country
Transition Plan.
3.1 KPI Surveys
3.1.1 An agreed upon Service Level metric shall be determined
and implemented in accordance with the Country Transition
Plan.
3.1.2 Surveys shall then be conducted and measured against the
KPI Survey metric and reported in accordance with the
Service Performance Report obligation under the Country
Agreement.
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3.1.3 KPI Surveys Service Level Table
[***]*
3.2 KPI Service Levels
3.2.1 With respect to the KPI Service Levels for Payroll and
HRIT, as identified in each applicable Country Agreement,
the parties shall agree on the applicable KPI Service
Level metric prior to the Process Take On Date. Exult
shall report on its performance of the Services in
accordance with such KPI Service Level thereafter.
3.2.2 With respect to the remaining KPI Service Levels, the
parties shall agree on the applicable provisional KPI
Service Level metric prior to the Process Take On Date.
Exult shall measure and report its performance of the
Services in accordance with such provisional KPI Service
Levels for an agreed period of time, [***]*, in order to
determine the appropriate KPI Service Level metric. After
such period, the parties shall agree on the applicable KPI
Service Level metric and Exult shall report on its
performance of the services in accordance with such
Service Level thereafter.
3.2.3 KPI Service Level Table
KPI Process Weighting for KPI Service Levels shall be
determined by the Client and identified within the Country
Agreement. [***]* Each KPI [***]* shall be assigned a
value of [***]*
[***]*
To the extent that a KPI Service Level is not achieved due to any
non-performance of or any other defect in any systems, hardware
or other technical infrastructure, other than those systems,
hardware or other technical infrastructure supplied or controlled
by Exult under this Agreement, Exult Supplier shall have no
liability for such failure to achieve the KPI Service Levels.
3.4 Reporting Service Levels
The following table of RSLs is illustrative of those that will be
adopted in each Country. The intention is to adopt a limited
number of meaningful RSLs to reflect key aspects of each Process.
The parties recognise that the illustrative RSLs set out below
will need to be amended by agreement before the Process Take On
Date for each Process to reflect the greater understanding of
each Process that will be developed during the Validation
Exercise (and on an ongoing basis through the life of the
Agreement as the Service Delivery Model is enhanced).
The parties agree that the RSLs should wherever practicable and
appropriate be based on (i) information that is currently
reported on at the Process Take On Date; or (ii)
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<PAGE> 186
information which can be generated from the normal operation of
the Service Delivery Model and Systems without the need for extra
development or modification to the Systems or Service Delivery
Model. Any proposals for additional RSLs beyond the numerical
limits set out above or for RSLs which do not fit into the
category set out in the paragraph below shall be subject to
Change Control Management and the Parties recognise that an
appropriate equitable adjustment may be necessary to implement
such RSLs. As noted in Section 3.4 below, the parties shall
review Service Level metrics and shall determine and agree,
through the Change Control Management process, revised Service
Level metrics to reflect the benefits of Leveraged Operations.
Agreed changes to RSLs resulting from this review will be
implemented at Exult Supplier's expense.
The number of RSLs shall me limited to a maximum of [***]* for
each Country and wherever practicable and appropriate RSLs shall
be standardised for like Processes in each Country. Although it
is recognised that because requirements will vary between
Countries and that there will sometimes be a need for different
RSLs to be applied on a Country by Country basis, the intention
is that the total number of active RSLs shall be no greater that
50 on a global basis at any one time.
3.4.1 Once the measurement tools and the reporting process have
been determined, the RSLs shall be measured and reported
on an ongoing basis.
3.4.2 Reporting Service Levels Table (Illustrative)
[***]*
3.5 ANNUAL SERVICE LEVELS REVIEW
3.5.1 [***]* Processes being transformed to Leveraged
Operations, the Regional Governance Panel shall review
Service Level metrics and shall determine and agree,
through the Change Control Management process, revised
Service Level metrics to reflect the benefits of Leveraged
Operations.
3.5.2 These Service Levels shall be reviewed and revised,
through the Change Control Management process on an annual
basis thereafter.
4 SERVICE CREDITS
4.1 KPI Surveys and KPI Service Levels shall be subject to Service
Credits as set out in Schedule C.
4.2 Provisional KPI Service Levels and RSLs shall not be subject to
Service Credits.
4.3 A failure by the Exult Participating Affiliate to meet a KPI set
forth in the applicable Country Agreement shall entitle the BPA
Participating Affiliate to at its option (1) recover a service
credit as set forth in Schedule C and/or (2) seek any other
remedy set forth in the applicable Country Agreement.
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redacted portion has been omitted and filed separately with the Securities and
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<PAGE> 187
COUNTRY PRO FORMA AGREEMENT
SCHEDULE C
CHARGES AND INVOICING
<PAGE> 188
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 INTRODUCTION.........................................................................1
2 DEFINITIONS..........................................................................1
3 OVERVIEW.............................................................................3
4 CHARGING METHODOLOGY PRIOR TO THE GUARANTEED MINIMUM SAVINGS DATE....................8
5 CHARGING METHODOLOGY FOLLOWING THE GUARANTEED MINIMUM SAVINGS........................9
6 TRANSITION/TRANSFORMATION COSTS.....................................................15
7 CLIENT SERVICE CENTRE COSTS (CSC)...................................................15
8 AGGREGATION OF TRANSITION/TRANSFORMATION AND CLIENT SERVICE CENTRE COSTS............16
9 CORPORATE OVERHEAD/CENTRE OF EXCELLENCE/DUE DILIGENCE TREATMENT.....................16
10 IT INVESTMENTS......................................................................16
11 GAIN SHARING........................................................................16
12 CLASSIFICATION OF EXPENSE ITEMS SUBJECT TO MARGIN VERSUS PASS-THROUGH...............18
13 THIRD PARTY REVENUE.................................................................18
14 INVOICING...........................................................................18
15 TRANSFER OF ASSETS..................................................................19
16 CONTRACT MINIMUMS...................................................................19
17 INFLATION...........................................................................22
18 EARLY TERMINATION PAYMENT...........................................................22
</TABLE>
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SCHEDULE C
CHARGES AND INVOICING
1 INTRODUCTION
This Schedule describes the methodology for determining the charges to
be paid by BPA to Exult for the performance by Exult of its obligations
under this Agreement as well as the associated processes for invoicing
BPA for such charges.
2 DEFINITIONS
Any capitalised terms that are not defined in this Schedule shall have
the meanings assigned to them in the Agreement. The following terms
shall have the meanings set out below:
"ACTIVE SERVICED EMPLOYEE" shall mean any Serviced Employee who is
currently employed during the period when the Services are measured.
"ADDITIONAL RESOURCE CHARGES" or "ARCs" shall mean the incremental
charges payable by BPA, in addition to the Base Charge for resource
usage that exceeds the Resource Volumes.
"ANNUAL WORK UNITS" represents the annual total IT Work Units performed
by Work Type.
"BPA" shall mean BPA or the Client where appropriate
"BASE CHARGE" shall mean Exult's annual charge divided by 12 and
invoiced monthly for the period commencing [***]* from the Baseline
Validation and recalculated [***]*.
"BASELINE" shall mean the adjusted Initial Baseline as determined by
Baseline Validation.
"BASELINE GUARANTEE" means the minimum Initial Baseline and Baseline
related to each Process taken on by Exult prior to the Guaranteed
Minimum Savings Date as set out in Section 4.1. The Baseline Guarantee
is [***]*
"BASELINE VALIDATION" shall mean validation of the Initial Baseline to
be completed [***]*
"BENEFITS" shall mean those benefits set out in Schedule A.
"CENTRE OF EXCELLENCE COSTS OR COE COSTS" shall mean the actual costs
related to the organisation within Exult identified as such which
include the Exult subject matter experts and support staff. Functions
staff will perform shall include:
(i) Supporting complex inquiries and problem resolutions on calls to
the Client Service Centre; or
(ii) Assisting with the management of third party vendors in defining
service levels and monitoring performance; or
(iii) Assisting in the implementation of policy modifications and
changes that come from BPA ;
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or
(iv) Defining the continuous improvement and best practice trends per
Process that are requirements of the Country Agreement
"CHANGE REQUEST CHARGES" shall mean the charges relating to the
implementation of Changes authorised by BPA in accordance with Schedule
L.
"CLIENT HR COSTS" shall mean the Total Labour Related Costs required by
BPA to provide the Embedded Services and HR services [***]*
"CONTRACT MINIMUMS" shall mean the minimum monthly payments by BPA to
Exult as referenced in Clause 23 of the Country Agreement and in
accordance with this Schedule C.
"CONTRACT MINIMUM YEAR" means each period of 12 months following the
Guaranteed Minimum Savings Date.
"CORPORATE OVERHEAD" shall mean Exult's general and administration
costs.
"DECREASES" means the items set out in Section 3.4.2.
"DUE DILIGENCE COSTS" shall mean the costs incurred by Exult in
accordance with Clause 4.6 of the Framework Agreement in carrying out
the Due Diligence Exercise in the applicable Country.
"EMBEDDED SERVICES" shall mean those HR functions to be retained or
retained as the case may be by BPA.
"EXULT" shall mean Exult, the Exult Participating Affiliate or the Exult
Supplier where appropriate
"EXULT ACTUAL COST" shall mean the sum of [***]*
"GUARANTEED MINIMUM SAVINGS" shall mean the reduction to the Category A
costs included in the Baseline calculated in accordance with Section
5.1.1 and Table C-5.1.1.
"GUARANTEED MINIMUM SAVINGS DATE" shall mean [***]*
"HR IT SERVICES" shall mean the costs for information technology
services (as defined in Schedule A)
"INCREASES" means the items listed in Section 3.4.2.
"INITIAL BASELINE" shall mean [***]*
"INITIAL BASE CHARGES" shall mean the monthly charges calculated in
accordance with Section 4.1 for [***]*
"INITIAL RESOURCE VOLUMES" shall mean, with respect to the applicable
Country, the initial estimated amount of resources utilised by BPA (such
as the number of training classes or
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<PAGE> 191
domestic relocations) and/or the number of Active Serviced Employees
supported by BPA in the 12 month period prior to the Country
Commencement Date.
"KPI CREDIT" means the percentage subtracted from the applicable Exult
gain share portion.
"% OF KPI POOL" means the percentage used of the maximum Service Credits
per year.
"KPI PER EVENT CREDIT " means the percentage deducted for each missed
Service Level from the % of KPI Pool for a specific KPI.
"PASS THROUGH COSTS" shall mean those costs identified in the Country
Agreement [***]*, including the cost of [***]*, BPA charge-ins including
those relating to [***]*
"REDUCED RESOURCE CHARGES" or "RRCs" shall mean the incremental credits
payable to BPA for resource usage that is lower than the Resource
Volumes.
"RESOURCE UNITS" shall mean the units of measurement for the amount of
Resource Volumes used within each Process.
"RESOURCE VOLUMES" shall mean, with respect to the applicable Country,
the estimated amount of resources utilised by BPA (such as the number of
training courses, the number of attendees at training courses or
domestic relocations) and/or the number of Active Serviced Employees
required by BPA, annually from the Guaranteed Minimum Savings through
the term of the Country Agreement.
"RETURN ON COSTS" or "ROC" shall mean Exult's portion of gain share from
providing Services in a Country divided by the Exult Actual Cost for
Categories "A" and "B".
"SERVICED EMPLOYEE" shall mean any BPA employee, former employee, or
contractor that is supported by the Services.
"TOTAL LABOUR RELATED COSTS" shall mean the costs incurred by BPA in
relation to HR employees or individual contractors including salaries
and wages, payroll benefits and BPA employee taxes, contractors fees,
pension, travel expenses, training, meetings and entertainment, office
space and utilities, office expenses supplies and dues, desktop and
communication services, relocation and expatriate expenses. Pension
costs are only included to the extent that BPA is at the relevant
Process Take On Date making contributions to the employees' pension
plans.
"TRANSFER/TRANSFORMATION COSTS" shall mean the costs set out in Section
6.
"WINDING UP ASSISTANCE COSTS" shall mean the following costs associated
with the transfer of the Services upon termination of the Country
Agreement to BPA or a third party:
[***]*
3 OVERVIEW
3.1 PRINCIPLES
The main principles underlying the charging mechanism are as
follows:
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3.1.1 Subject to Sections 5.1.3 (ARCs/RRCs), 17 (Inflation) and
agreed Changes, Exult's charges shall not:
[***]*
3.1.2 Exult's charges shall be based upon BPA's Initial Baseline
and Baseline, as appropriate, as described in Sections 4.1
and 5 of this Schedule C.
3.1.3 The Exult Actual Cost in any year following the Guaranteed
Minimum Savings Date [***]*, subject to the following
adjustments:
(i) ARCs/RRCs (see Section 5.1.3)
(ii) Inflation (see Section 17)
(iii) Charges for agreed Changes (see Section 5.1.9 and
Schedule L)
(iv) Project Charges (see Section 5.1.9)
3.1.4 The Exult Actual Cost shall not [***]*
3.1.5 [***]*
3.1.6 During [***]* the parties will work together to ensure
that all in-scope BPA employee costs are identified so
that the Initial Base Charges calculated in accordance
with Sections 4 and 5, [***]*
3.1.7 From the Guaranteed Minimum Savings Date, and subject to
agreed Changes, Force Majeure events, BPA performing its
responsibilities under the applicable Country Agreement
and the specific Process being taken on prior to the
Guaranteed Minimum Savings Date. Exult shall provide
Guaranteed Minimum Savings on the [***]* costs with
respect to those Processes which have been taken on by the
Guaranteed Minimum Savings Date and for subsequent
Processes when taken on.
3.1.8 It is Exult's intention to try to reduce the cost of Third
Party Contracts transferred to Exult [***]*
3.2 CATEGORIES OF COST
The charging mechanisms will be based on cost categories related
to the Services. BPA's costs will be broken down into three main
categories:
- Category "A" costs are [***]*
- Category "B" costs are [***]*
- Category "C" costs are [***]*
[***]* BPA shall receive Guaranteed Minimum Savings, shown in
Table C-5.1.1, from
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Exult [***]*
3.3 COUNTRY DUE DILIGENCE EXERCISE
The Initial Baseline will be determined during the Country Due
Diligence Exercise prior to signature of the relevant Country
Agreement. [***]* The Country Due Diligence Exercises shall
determine whether the Guaranteed Minimum Savings and Exult's
Return can be achieved. [***]* The impact of any Withholding
Taxes shall also be included in Exult's Return as set out in
Clause 2.10 of the Framework Agreement.
3.4 ESTABLISHING BASELINE COSTS
3.4.1 Client HR Costs
The Client HR Costs shall be established by BPA during
each Country Due Diligence Exercise. The Client HR Costs
will be used to determine the actual [***]* cost savings
realised by BPA as the result of the Process being taken
on by Exult. [***]*, BPA will establish the numbers of HR
staff and designate each staff member with the following
categories:
- In-Scope employees.
- Embedded Services HR staff.
- Staff associated with the merger and harmonisation
of BP and Amoco.
- Staff whose status is still to be determined.
- Other staff associated with identified projects
In order to establish the Total Labour Related Costs no HR
personnel can be removed by BPA from the Client HR Cost
without first being designated within one of the above
five categories. Any dispute relating to the
classification of HR personnel shall be determined by an
Expert in accordance with Clause 24.2 of the Framework
Agreement (Dispute Resolution Procedure).
[***]*
3.4.2 Adjustments to Client HR Costs
Once the Client HR Costs are established, BPA shall put in
place financial controls and tracking mechanisms to allow
BPA to track costs and for Exult to verify such costs on a
monthly basis. The Client HR Costs shall be adjusted to
take into account "Increases" or "Decreases" as set out
below:
A Increases
Increases in costs shall include the following
activities:
- An increase in compensation or other Total
Labour Related
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Costs.
- Temporary staff required to replace staff
included as Client HR Costs.
- Replacement (either temporary or full-time)
staff to fill vacant positions for HR
personnel initially included as Client HR
Costs who leave BPA (or take a non-HR job
within BPA) and who do not transfer to Exult
prior to the applicable Process Take On
Date.
- Additional HR resources to handle expansions
and/or changes to BPA's business
requirements and or activities.
- Anticipated adjustments agreed by parties.
B Decreases
Decreases in costs shall include decreases not
caused by Exult taking on the Services:
- Savings in providing Embedded Services
resulting from non-Exult activities such as
using one HR advisor across more than one
business unit where two or more advisors
were used previously.
- Savings as a result of a reduction in
services provided by Embedded Services staff
such as the elimination of Organisational
Developmental services at a particular
business unit.
- Continuous improvement in the way Embedded
Services are provided such as the
restructuring of functions to consolidate
staff.
- Divestitures.
- Replacement of Embedded Services staff with
less expensive staff.
- Savings related to the harmonisation and
merger of BP and Amoco. Such savings
include, but are not limited to, for
example, the transition to a single payroll
system for the merged company in the
Country.
In the event of a dispute arising out of the
classification of a Decrease in cost as not having
been caused by Exult taking on the Services, the
matter shall be referred to an Expert pursuant to
Clause 24.2 of the Framework Agreement (Dispute
Resolution Procedure). Unless the parties agree
otherwise, all cost Decreases not classified as
Decreases
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not caused by Exult taking on the Services shall
form part of the [***]* and [***]* cost savings
realised by BPA as the result of Exult taking on
the Process.
The remaining Client HR Costs [***]* shall be
considered to be the cost of providing Embedded
Services.
3.4.3 Baseline Validation
Baseline Validation will commence once the final Process
Take On Date has occurred and prior to [***]* to establish
the actual Baseline to be used for the remaining term of
the Country Agreement. Baseline Validation will establish
the Baseline and resultant Base Charge to be applied
following the Guaranteed Minimum Savings Date.
The Baseline Validation shall cover those items included
in the Due Diligence Exercise as well as other costs or
items the are identified subsequent to the Due Diligence
Exercise. Baseline Validation shall also include
validation of the remaining Client HR Costs including the
merger and harmonisation costs associated with BP and
Amoco. Exult shall have the option to carry out an audit
at its own cost on the Client HR Costs established during
Baseline Validation. Any disagreements about the findings
of this audit may be referred to an Expert pursuant to
Clause 24.2 of the Framework Agreement (Dispute Resolution
Procedure).
3.4.4 [***]* Cost Validation
(i) Principles relating to costs
The principles underlying the Exult Actual Cost
[***]* are:
(a) Exult will use technology to assist it in
providing the Guaranteed Minimum Savings
(b) Exult intends to automate relevant
transactional processes and allow BPA
employee access through the implementation
of internet-enabled HR support by using
Client Service Centres (including the
integration of HR transactional processing
support), knowledge and case management,
workflow and data warehousing technology;
(c) Exult's use of technology will continue to
evolve as opportunities to use technology
effectively are identified during the term
of the Country Agreement;
(d) Exult shall not unreasonably be prevented
from using technological innovations;
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(e) as a result of Section (a) to (e) above,
[***]*
3.4.5 [***]* Charges
[***].*
3.4.6 [***] Validation
The [***]* costs for BPA (which are based upon the budget
provided by BPA) and Exult's budgeted [***]* costs shall
be validated as part of the Baseline Validation. To the
extent that the merger and harmonisation of BP and Amoco
has not been completed by the completion date for the
Baseline Validation an estimate for the anticipated impact
of any remaining merger and harmonisation activity will be
agreed and included in the Baseline Validation and such
estimate will be subject to further validation on the
completion of the merger and harmonisation activity. Both
parties shall make reasonable efforts to validate these
actual and budgeted costs. This shall include, where
possible, the parties comparing individual cost items on a
like-for-like basis. BPA's [***]* costs will need to be
adjusted to match the changes in technology used by Exult
to deliver the Services in order to achieve this
like-for-like comparison.
If the parties disagree with this comparison of [***]*
costs, the matter shall be referred to an Expert pursuant
to Clause 24.2 of the Framework Agreement (Dispute
Resolution Procedure).
3.4.7 Resource Volumes
Prior to the Process Take On Date the Resource Volumes for
the relevant process shall also be established.
3.4.8 [***]* Costs
[***]* Costs shall also be validated as part of the
Baseline Validation. The [***]* Costs shall go through a
review process to establish an agreed cost projection from
the third month following the Country Commencement Date
until the end of month fourteen. [***]* Costs shall be
tracked by Exult and reconciled with BPA [***]* following
the Country Commencement Date.
4 CHARGING METHODOLOGY PRIOR TO THE GUARANTEED MINIMUM SAVINGS DATE
Prior to the Guaranteed Minimum Savings Date and following the first
Process Take On Date, charges from Exult shall be based on the Initial
Base Charges.
4.1 CALCULATION OF THE INITIAL BASE CHARGES
Prior to the signature of each Country Agreement, Exult shall
provide the Baseline Guarantee for each Process. BPA shall pay to
Exult following each Process Take On Date the Initial Base
Charges which shall be an amount equal [***]*:
(i) [***]*
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During Baseline Validation, the parties will reconcile the
amounts invoiced in relation to each Process and the actual
[***]* cost savings realised by BPA relating to that Process
being taken on by Exult. If such actual costs are found to be:
(i) greater than the amounts invoiced by Exult, Exult shall
submit an invoice for the difference (actual [***]* cost
savings less the invoiced amount) .
(ii) less than the amounts invoiced by Exult, but greater than
the Baseline Guarantee, Exult shall issue BPA a credit on
the following month's invoice for the difference (invoiced
amount less the actual [***]* cost savings).
(iii) less than the amount invoiced by Exult and the Baseline
Guarantee, Exult shall issue BPA a credit on the following
month's invoice for an amount equal to the difference
between the invoice amount and the Baseline Guarantee.
TABLE C-4.1
BASELINE GUARANTEE FOR THE COUNTRY
IN USD
[***]*
Where the parties agree, the Baseline Guarantee for each Process may be
changed to reflect actual cost so long as the aggregate of all Processes
within the Baseline Guarantee for the Country is equal to $[***]*
If a Process is taken on prior to the completion of the Client HR Costs,
the Initial Base Charges shall be equal to the Baseline Guarantee and
reconciled at the end of the year for applicable costs exceeding the
Baseline Guarantee.
If a Process Take On Date is extended for more than 30 days, the parties
shall establish a panel with equal number of members from each party to
meet over a period of 30 days in order to decide the cause for such
delay. [***]*
Where the parties cannot agree which party caused a particular Process
Take On Date to be delayed, a payment or credit can still be agreed by
the panel although either or both parties may reserve the right to
review the cause for any such delays during Baseline Validation and to
refer any such disputes to the Informal Dispute Resolution Procedure
pursuant to Clause 24.1 of the Framework Agreement, and if the parties
are still unable to resolve such dispute, the matter shall be referred
to an Arbitrator pursuant to Clause 24.3 of the Framework Agreement.
5 CHARGING METHODOLOGY FOLLOWING THE GUARANTEED MINIMUM SAVINGS
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From the Guaranteed Minimum Savings Date until the termination or expiry
of the Country Agreement, BPA shall pay to Exult the greater of the
Baseline Guarantee and the Baseline (both of which shall be subject to
Guaranteed Minimum Savings). The Baseline Guarantee and Baseline charges
shall be subject to Contract Minimums in each Country.
[***]*
BPA's actual usage/counts of the Resource Volumes shall be measured and
reported by Exult [***]*, Exult shall calculate and apply the ARC/RRC
adjustments, Service Credits and gain sharing adjustments.
5.1 GUARANTEED MINIMUM SAVINGS CALCULATION
5.1.1 The Guaranteed Minimum Savings shall apply to the [***]*
charges in the Baseline in accordance with Table C-5.1.1.
The Guaranteed Minimum Savings for [***]* items will be
calculated [***]*
GUARANTEED MINIMUM SAVINGS
TABLE C-5.1.1
[***]*
For the Guaranteed Minimum Savings to apply in respect of a
Country, and provided that Exult has not delayed BPA, BPA must
give notice [***]* to Exult that it wishes to receive the
Services in that Country.
[***]*
5.1.2 Adjustments to Base Charge
(i) The Base Charge shall be adjusted during the last
month of each Contract Minimum Year to determine:
[***]*
(ii) During the last month of each Contract Minimum Year
the Base Charge shall be adjusted prior to the gain
share claculation as follows:
(a) any increase or decrease in the Resource
Volumes and the IT Work Unit Volumes that
has occurred during the Contract Minimum
Year; and
(b) to reflect an increase or decrease in the
cost of providing any new services or
modifying the Services agreed in accordance
with the Change Control Management process.
(iii) The Base Charge for the following Contract Minimum
Year shall be calculated by adjusting the Base
Charge as follows:
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[***]*
5.1.3 ARCs/RRCs
ARCs will be used when the actual Resource Volumes in the
current year exceed the upper threshold for Resource
Volumes for the previous year. ARCs will be calculated by
[***]*
RRCs will be used when the actual Resource Unit in the
current year is less than the lower threshold for Resource
Volumes for the previous year. RRCs will be calculated by
[***]*
The ARC and RRC thresholds shall be established as part of
the Baseline Validation.
ARCs and RRCs will be reconciled and invoiced on an annual
basis. ARCs and RRCs unit rates will be subject to
inflation adjustments in accordance with Section 16.
The ARC unit rates shall be agreed between the parties no
later than the commencement of the Guaranteed Minimum
Savings Date and [***]*. The RRC unit rates will be agreed
between the parties no later than the commencement of the
Guaranteed Minimum Savings Date and will be [***]* For
example, [***]*
5.1.4 Resource Units
The Resource Units identified below are intended to
provide the proper measurement of usage for the Services
and allow for a reasonable means to gather data. The
Resource Units may be changed based on agreement between
the parties at any time during the term of the Country
Agreement.
- [***]*
5.1.5 Charges Based on the Average Number of Active Serviced
Employees
Charges based on the average number of Active Serviced
Employees include the following functions:
[***]*
The relevant employee database will be used to track
Active Serviced Employees as the master repository for
Active Serviced Employee information. When an Active
Serviced Employee is added or removed, the relevant
employee database will be updated with this information.
Charges based on the average number of Active Serviced
Employees will be derived from the weighted average number
of Active Serviced Employees supported in BPA. Weighted
average will be
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calculated by taking the number of Active Serviced
Employees for both the first and last day of the month and
dividing by two (2).
In addition to the Resource Volumes for Active Serviced
Employee, HR Information Services will have limitations on
the number of reports (as these requests will come through
HR Information Services in support of multiple Processes).
This will be dependent upon the level of staffing. Reports
shall be included in the IT Work Units structure (as
defined in Section 5.2.4 below) determined during Baseline
Validation.
In order to ensure that Exult can implement desired
Process improvements and gain sharing while still
providing flexibility in meeting BPA's needs, Payroll will
be subject to two additional measurements beyond the
Active Serviced Employee measurement. Manual cheques will
be subject to a surcharge of [***]* per cheque and
off-cycle Payroll runs shall be subject to an agreed
surcharge.
5.1.6 Service Charge Adjustments Based on the Average Number of
Active Serviced Employees
If the weighted average actual number of Active Serviced
Employees varies above the Resource Volumes by [***]*,
then an adjustment to the Base Charge shall be calculated.
ARCs and RRCs shall be based on the entire variance from
the Resource Baseline Volumes. Should the actual Active
Serviced Employees vary from the Resource Volume [***]*,
the parties will agree upon an equitable adjustment to the
Base Charge.
5.1.7 Charges Based on Direct Usage
Charges based on the direct usage of each Process include
the following functions:
[***.]*
5.1.8 Adjustments to the Charges Based on Direct Usage
Should the direct usage count vary from the Resource
Volumes by [***]*, then an adjustment to the Base Charge
shall be calculated. ARCs and RRCs adjustments shall be
based on the entire variance from the Resource Volumes. If
the parties agree [***]* is not the appropriate threshold
to trigger an ARC or RRC adjustment, the threshold may
change subject to agreement by both parties. Should the
actual usage vary from the Resource Volume by [***]*, the
parties will agree upon an equitable adjustment to the
Base Charge. For those Processes based on number of
standard reports, these Processes will be grouped together
for ARC and RRC adjustments as they will not be identified
by Process when a request for a report is placed by BPA.
5.1.9 Project Charges
For each Project identified in Schedule H, the charges for
such Project will be agreed by the parties and set out in
the applicable Project Statement. Unless
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otherwise agreed, Project Charges shall be based on
[***]*. For services added that are not part of this
Country Agreement and that continue for the duration of
the Country Agreement, these services shall be handled
through Change Control Management.
5.1.10 Out-Of-Pocket Expenses
BPA will reimburse Exult for out-of-pocket expenses as
part of requests outside of Services. These out-of-pocket
are:
(i) Project related travel expenses approved by BPA.
(ii) Any other expenses approved by BPA.
5.2 [***]*
In addition to the charges shown in Section 5.2, other [***]*
items which Exult and BPA determine may be classified as [***]*
during the term of the Country Agreement through the Change
Control Management procedure.
5.2.1 Category B Base Charge will include [***]*:
[***]*
5.2.2 [***]*
5.2.3 [***]*
5.2.4 Information Technology Work Units (IT Work Units)
Exult shall, in accordance with the IT Work Unit
methodology perform modifications, enhancements, changes,
and installations to comply with regulatory or trade union
requirements and changes as disclosed to Exult by BPA.
Exult shall support regulatory reviews, audits, compliance
assessments, and related data gathering in a responsive
time frame as required by regulators. BPA acceptance
testing and final approval shall be required prior to
implementation of such regulatory compliance.
Exult shall, in accordance with the IT Work Unit
methodology, perform installation of upgrades and new
releases issued by the vendors of third party applications
software. Unless BPA directs otherwise, Exult shall
install and upgrade such software so as to remain within
one generation of the then-current maintenance release.
Exult shall notify BPA in writing within a reasonable time
prior to undertaking any such upgrade or installation.
Exceptions to this approach shall be mutually agreed and
shall be based on an assessment of risk and value
associated with implementing the new release. Exult shall
not upgrade third party applications software if Exult
notifies BPA that such an upgrade shall have no value or
an adverse impact on BPA and, after receiving such
notification, BPA decides not to proceed with such
upgrade.
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Exult shall, in accordance with the IT Work Unit
methodology, perform small enhancements to the computer
applications. Exult shall perform small enhancement as
requested and prioritised by BPA. Exult shall perform
small enhancements to the computer applications portfolio.
5.2.5 IT Work Unit Volumes
Exult and BPA shall consider the first [***]* as the
period to develop the IT Work Unit algorithm and
underlying assumptions. During this period the natural
rate/size unit and the size requested metrics shall be
collected. The parties intend that the basis shall reflect
the quantity of regulatory changes, trade union contract
changes, upgrades and small enhancement work required to
be performed by Exult [***]* To the extent that any review
of the IT Work Unit calculation algorithm generally
determines that this intention is not being effectuated,
the algorithm (or other aspects of the approach, as
applicable) shall be adjusted as necessary. The reviews in
subsequent years shall use each preceding year as the
baseline.
The format for representing the volume of IT Work Units is
represented in the following table. This catalogue is
subject to mutually agreed upon adjustments resulting from
the IT Work Unit review process described above.
CATALOGUE OF BPA WORK TYPES
<TABLE>
<CAPTION>
NATURAL NUMBER WORK UNIT / ANNUAL WORK
WORK TYPE SIZE UNIT REQUESTED SIZE UNIT UNITS
--------- --------- --------- --------- -----
<S> <C> <C> <C> <C>
Regulatory
Changes (Small)
Regulatory Changes
(Medium)
Regulatory Changes
(Large)
Union Contract
Changes
Small Enhancements
Upgrades
YEAR 1 TOTAL
</TABLE>
5.2.6 Definition of IT Work Unit Terms:
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"WORK TYPE" is a means to provide for a categorisation of
the types of work that can be requested and is included in
the IT Work Unit approach (e.g., regulatory changes, small
enhancements, upgrades).
"NATURAL SIZE UNIT" is a means to define the size unit
that best fits the work type that is discernible and
measurable and can be audited. An IT organisation performs
many different work types and each has its own "natural"
sizing measure (e.g., lines of code, function points, flat
rate, Primitive Value).
"PRIMITIVE VALUE" or "PV" represents the throughput
necessary to complete the types of work in the BPA
catalogue.
"NUMBER REQUESTED" represents the total number for the
Work Type Natural Size Unit for the year. In a Work Type
where the Natural Size Unit is Primitive Value the Number
Requested represents the number of the Work Types
completed in a year.
"WORK UNIT/SIZE UNIT" represents the IT Work Units
computed for the Work Type.
"ANNUAL WORK UNITS" represents the total IT Work Units
performed by Work Type.
"IT WORK UNITS" represents the base standard for measuring
the work performed by Exult HRIT staff in making specific
HRIT application systems changes calculated in accordance
with the IT Work Unit algorithm developed pursuant to
Section 5.2.5.
5.3 [***]*
[***]* Costs will be subject to an annual review between BPA and
Exult. The specific contracts will be identified and projections
for the subsequent 12 months will be made for each contract. Both
parties shall agree to the projected costs. [***]*
6 TRANSITION/TRANSFORMATION COSTS
Costs relating to the transfer of the Services from BPA to Exult
incurred by Exult after the relevant Country Commencement Date and prior
to the relevant Process Take On Date [***]*
7 CLIENT SERVICE CENTRE COSTS (CSC)
Client Service Centre costs are included in the [***]* charges as set
out below.
On an annual basis following the Guaranteed Minimum Savings Date through
the term of the applicable Country Agreement, the charges will be based
on the [***]*
The Client Service Centre costs will include all staffing expenses,
facility related expenses, management expenses related directly to the
Client Service Centre, hardware and software expenses, lease expenses,
finance charges, amortisation and depreciation, supplies and third
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party services related to the Service Centres. IT related costs that
support multiple customers shall be included as well in the
aforementioned categories. Client Service Centre costs will be allocated
to the appropriate [***]* Processes.
TABLE C-7.1
CLIENT SERVICE CENTRE COSTS MAXIMUM ALLOCATION
IN USD
[***]*
8 AGGREGATION OF TRANSITION/TRANSFORMATION AND CLIENT SERVICE CENTRE COSTS
By agreement at the time not to be unreasonably withheld, with respect
to the maximum allowed costs for Transition/Transformation in Section 6
and Client Service Centres in Section 7, Exult shall be allowed to
[***]*
9 CORPORATE OVERHEAD/CENTRE OF EXCELLENCE/DUE DILIGENCE TREATMENT
Corporate Overhead costs will be recovered from available gain share
before gain share is distributed. Following the Guaranteed Minimum
Savings Date, Corporate Overhead for the U.S. and U.K. will be allocated
at the lesser of:
- [***]*
Exult Centre of Excellence (COE) costs [***]* and recovered from
available gain share before gain share is distributed. Following the
Guaranteed Minimum Savings Date, indirect COE for the Country will be
allocated at the lesser of:
- [***]*
The Corporate Overhead/COE/Due Diligence costs allocation methodologies
on actuals may be changed subject to agreement between the parties.
10 IT INVESTMENTS
IT Investments shall fall into two types. The first type shall consist
of those IT investments authorised by BPA. [***]* The second type shall
consist of those IT investments that are intended to be for the benefit
of multiple Exult clients.
[***]*
If the second type of investment will result in the Exult Actual Cost
for [***]* exceeding the [***]* cost in the Baseline, Exult shall obtain
approval from BPA, such approval not to be unreasonably withheld, prior
to making such investment.
[***]*
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11 GAIN SHARING
BPA and Exult shall participate in a gain sharing exercise for [***]*
items. Gain sharing can only apply to [***]* once Guaranteed Minimum
Savings have been realised. The Base Charge and Exult's actual costs for
[***]* shall be used in quantifying the total amount of gain sharing to
be allocated between BPA and Exult. Each charge Category will be handled
differently under this gain sharing arrangement. [***]*
11.1 GAIN SHARING METHOD BY CATEGORIES
To determine the applicable gain share, Exult's Actual Costs for
[***]* items will be subtracted from the applicable Base Charge
for the preceding 12 months. Exult's, costs for Corporate
Overhead, Charge-Ins from BPA, COE and Amortisation of Due
Diligence will be subtracted from the amount available for gain
share. The remaining amount will be subject to gain share
distribution. Gain sharing [***]* will start from the [***]* and
at the end of every 12-month period thereafter to determine the
applicable gain share.
[***]* Following the Guaranteed Minimum Savings Date, [***]* gain
share will be subject to gain share distribution.
The method for gain sharing calculation shall be as follows:
(i) If the Exult Actual Cost for [***]* is less than the Base
Charge for [***]* items, then those savings (Base Charge
minus Exult Actual Costs for [***]*) will be subject to
adjustments and subsequently the Gain Sharing Distribution
Matrix shown below in Tables C-11.2.1 and C-11.2.2. The
levels of distribution that determine the proportion of
gain share are shown as part of the Distribution Matrices.
(ii) If the actual [***]* costs are less than the budgeted
[***]* costs (Budgeted [***]* cost - Actual [***]* cost)
then those savings shall be subject to the Gain Sharing
Distribution Matrix shown below in Tables C-11.2.1 and
C-11.2.2
11.2 GAIN SHARING DISTRIBUTION MATRIX
The Gain Sharing Distribution Matrix will be used to determine
the proportion of savings to be split between BPA and Exult
resulting from the calculation of the amount available for gain
sharing. [***]* The gain share will begin with the first level of
distribution and proceed to the next level until the amount
available for gain share has been fully distributed.
GAIN SHARING DISTRIBUTION MATRIX-NO SERVICE CREDITS TO BPA
TABLE C-11.2.1
[***]*
11.3 GAIN SHARING EXAMPLE
Table C-11.3 below is an example of the gain sharing calculation
amount and distribution.
[***]*
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[***]*
11.4 SERVICE CREDITS CALCULATION
KPIs are Service Levels that, when missed, are subject to Service
Credits. Service Credits for KPIs will be weighted in accordance
with Schedule B of this Agreement and will adjust the gain
sharing distribution between BPA and Exult. The Service Credits
shall be calculated on a Client Service Centre basis as part of
gain sharing and credited to the respective Countries (as advised
by BPA) on an annual basis.
The formula for calculating the Service Credits for Exult's
failure to achieve any one of the seven KPIs is set out below.
The total amount determined from the service credit calculations
for all KPIs shall be subtracted from Exult's gain share portion
prior to Service Credits. The net result shall equal Exult's gain
share portion after Service Credits.
[***]*
The calculation of Service Credits will be by KPI Process. Any
unutilised credits in the KPI Pool at the end of any year
following the Guaranteed Minimum Savings Date cannot be carried
forward to the succeeding year.
[***]*
SERVICE CREDITS CALCULATION METHOD EXAMPLE
TABLE C-11.4
[***]*
12 CLASSIFICATION OF EXPENSE ITEMS SUBJECT TO MARGIN VERSUS PASS-THROUGH
12.1 EXULT ACTUAL COST
The following costs shall be subject to margin as part of gain
sharing:
[***]*
12.2 OTHER COSTS
The following costs shall not be included in the Exult Actual
Cost:
TABLE C-12.2
[***]*
13 THIRD PARTY REVENUE
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Where the parties agree that third parties are permitted to market
services to BPA employees using Exult's Web-enabled HR services portal,
[***]*
14 INVOICING
14.1 Invoices for Base Charge and the Initial Base Charges as
applicable will be submitted monthly in advance on the first day
of each month. All other charges including [***]* will be
invoiced in arrears on the first day of the subsequent month.
Invoices will provide details of each Base Charge and such
supporting information as BPA may reasonably require and will be
in the Country's local currency. For those Processes delivered in
a Client Service Centre not sited in the Country being invoiced,
Exult will convert the cost of those items not invoiced in the
local currency using a fixed exchange rate established on each
anniversary of the Country Commencement Date. At the end of each
year of the Agreement, the invoice amounts will be recalculated
using the actual month end exchange rates for the period and a
credit or invoice, as appropriate, will be issued to BPA. In
addition, at the end of the year, all adjustments including ARCs
and RRCs, gain sharing and Service Credits will be made and
invoiced or credited in the subsequent month. BPA shall inform
Exult how gain sharing and Service Credits are to be distributed
between Countries.
14.2 The ARC and RRC adjustments, inflation adjustments, and BPA's
portion of gain share from the previous year will be used going
forward to calculate Base Charge for the following year subject
to end of year reconciliation in accordance with Section 5.1.2
14.3 Payments are due within [***]* of receipt of any invoice by BPA.
Interest for late payments will be charged at the rate of [***]*.
14.4 If as a result of any audit carried out in accordance with the
terms of a Country Agreement it is discovered that BPA has been
overcharged, Exult shall pay an amount equal to:
[***]*
15 TRANSFER OF ASSETS
As agreed between BPA and Exult, BPA's existing assets and management of
these assets may transfer to Exult as part of the Services that Exult
will provide to BPA. [***]*
16 CONTRACT MINIMUMS
16.1 Contract Minimums for each Contract Minimum Year shall be
established in accordance with Clause 18 of the Framework
Agreement.
16.2 The Contract Minimum for the initial Contract Minimum Year shall
be a sum equivalent to [***]*
16.3 Within [***]*, BPA may give Exult [***]* written notice of a
proposed reduction in the Contract Minimum to take account of
specified reductions in BPA's requirements for Services. These
reductions shall reflect material changes in BPA's business
operations or structure including those caused by Significant
Changes.
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16.4 This Section 16 applies to situations which result in an actual
reduction in BPA's requirement for Services and, for the
avoidance of doubt, BPA may not assume responsibility internally
for services equivalent to the Services or appoint a third party
to provide services equivalent to the Services pursuant to the
terms of this Section 16.
16.5 [***]* prior to the end of each Contract Minimum Year, the
Regional Governance Panel shall meet to assess the impact,
including the impact on the Charges for the then current Contract
Minimum Year, of the reductions in BPA's requirements for
Services arising from the events identified in a notice served in
accordance with Section 16.3 above. As appropriate, and subject
always to Section 16.6 below, the Regional Governance Panel shall
agree a decrease in the Contract Minimum for the succeeding
Contract Minimum Year which is proportionate with the actual
reduction in Charges arising from the events.
16.6 [***]*
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TABLE C-16.1
CONTRACT MINIMUMS EXAMPLE
[***]*
1
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17 INFLATION
All Base Charges shall be adjusted annually in arrears by a recognised
index in each Country for [***]*
The adjustment for inflation for [***]* charges and associated ARCs and
RRCs unit rates shall be subject to the percentage of Total Labour
Related Costs going to Exult as shown in Table C-5.1.1.
[***]*
Exult's Actual Cost for [***]* for allowing increases with respect to
cost increases greater than inflation, shall be set and measured at 90
days following the final Process Take On Date.
18 EARLY TERMINATION PAYMENT
18.1 Termination for convenience shall be calculated as:
- [***]*; and
- Winding Up Assistance Costs; and
- Remaining amortisation of Exult's Due Diligence Costs; and
- the remaining book value for the Assets as follows:
[***;]* and
- Redeployment costs of staff and equipment (to remove from
BPA's sites) that have not been transferred to BPA; and
- Remaining obligations for Third Party Contracts including
but not limited to outstanding loans and financing costs
related to such contracts as follows:
[***]*
18.2 Termination for Change of Control shall be calculated as:
- Winding Up Assistance Costs; and
- Remaining amortisation of Exult's Due Diligence Costs; and
- The remaining book value for the Assets as follows:
[***]* and
- Redeployment costs of staff and equipment (to remove from
BPA's sites) that
- ----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
22
<PAGE> 211
have not been transferred to BPA; and
- Remaining obligations for Third Party Contracts including
but not limited to outstanding loans and financing costs
related to such contracts as follows:
[***]*
18.3 Termination for Cause by BPA shall be calculated as follows:
- Winding Up Assistance Costs; and
- [***]*
- ----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
23
<PAGE> 212
COUNTRY AGREEMENT PRO FORMA
SCHEDULE D
THIRD PARTY CONTRACTS
<PAGE> 213
SCHEDULE D
THIRD PARTY CONTRACTS
This schedule sets forth the Third Party Contracts and designates whether such
contract is intended to be "Administered", "Transferred" or "Retained" by BPA.
This schedule shall be completed following the Commencement Date.
A. THIRD PARTY CONTRACTS
<TABLE>
<CAPTION>
REFERENCE
THIRD PARTY CONTRACT CONTRACT RETAINED
CONTRACTOR DESCRIPTION NUMBER TRANSFER ADMINISTER BY BPA STATUS
---------- ----------- ------ -------- ---------- ------ ------
<S> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
</TABLE>
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COUNTRY AGREEMENT PRO FORMA
SCHEDULE E
ASSETS
<PAGE> 215
SCHEDULE E
ASSETS
This schedule sets forth the Client Assets which may be used by Exult to provide
the Services and shall include details necessary to identify what the asset is,
its purpose and its location, to include as appropriate, id number, model,
hardware description, make, applications and location.
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COUNTRY AGREEMENT PRO FORMA
SCHEDULE F
SYSTEMS
<PAGE> 217
SCHEDULE F
SYSTEMS
This schedule sets forth the Third Party Systems which may be used by Exult to
provide the Services.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------
PLANNED
EXPIRY OR
APPLICATION AND DISPOSITION
LICENSOR NAME LICENSE DESCRIPTION PLATFORM DATE LOCATION
<S> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
</TABLE>
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COUNTRY AGREEMENT PRO FORMA
SCHEDULE G
TRANSITION PLAN
<PAGE> 219
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 INTRODUCTION.........................................................................1
2 VALIDATION EXERCISE..................................................................1
3 DETAILED WORK PLAN...................................................................1
4 TRANSITION APPROACH..................................................................1
5 PROCESS CHANGE MANAGEMENT AND COMMUNICATIONS.........................................2
6 TRANSITION PLAN SET UP PHASE.........................................................2
7 IN SITU PROCESS TAKE ON..............................................................2
8 LEVERAGED PROCESS TAKE ON............................................................3
9 [COUNTRY] TRANSITION SCHEDULE........................................................5
</TABLE>
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SCHEDULE G
TRANSITION PLAN
1 INTRODUCTION
This Schedule sets forth the Country Transition plan for conducting the
Validation Exercise, the plan for the transition of the Services from
the Client to the Exult Supplier and the approach to transition that
shall be followed.
2 VALIDATION EXERCISE
The Validation Exercise for each Process shall be conducted following
the Commencement Date and conclude prior to the Process Take On Date.
The Validation Exercise shall consist of validation of the Baseline,
volumetrics, resource requirements, cost, Services, Third Party
Contracts and Service Levels. This data shall be verified and adjusted,
as agreed by both parties, for each Process prior to the relevant
Process Take On Date in accordance with the Country Transition Schedule.
In the event that the Country Representatives fail to reach agreement,
such failure shall be resolved in the informal dispute resolution
process as detailed in Clause 29.1 of the Country Agreement.
3 DETAILED WORK PLAN
The final form of the Transition Schedule and the Detailed Work Plan
will be developed and agreed between the parties, [***]*.
In the event that the Country Representatives fail to reach agreement,
such failure shall be resolved in the informal dispute resolution
process as detailed in Clause 29.1 of the Country Agreement.
4 TRANSITION APPROACH
4.1 Two Path Transition Approach.
The purpose of transition is to move the Services to a Leveraged
Operations delivery model as efficiently as possible, with the
minimum of disruption to BPA operations. The Client and Exult
Supplier have agreed to two distinct paths through the transition
Process. The goals of the two path approach are to allow the
Client and Exult Supplier the opportunity to manage the risk of
transition and, [***]*
4.2 Transition Path One
For those Processes (or discrete parts of Processes) that follow
path one through the transition process, Exult Supplier shall
first assume responsibility for these Processes in-situ, referred
to as "In-Situ Process Take On". Once Exult Supplier is
successfully providing these Processes in-situ, Exult Supplier
shall transform these Processes to Leveraged Operations.
- ----------
* Confidential treatment is required for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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4.3 Transition Path Two
Processes in this category shall be transformed directly to
Leveraged Operations and, therefore, Exult Supplier shall not
assume operation responsibility for such Processes in-situ prior
to Transformation.
4.4 Path Selection
Exult Supplier and the Client shall agree to either path one or
path two for each Process based on an assessment of risk, the
degree of centralisation of the staff currently performing the
Processes, and the cyclical nature of the Processes. The
provisional allocation is set out in the Transition Schedule in
Section 9 of this Schedule.
5 PROCESS CHANGE MANAGEMENT AND COMMUNICATIONS
5.1 Process Change Management and Communications Approach
The establishment and maintenance of the process-change
management & communications infrastructure shall be managed
through Exult Supplier's project management office in concert
with Client Regional Project Leaders. The primary outcomes of
these activities shall be to:
[***]*
5.2 Process-Change Management and Communications Activities
For each Process that Exult Supplier shall take responsibility
for in-situ:
[***]*
6 TRANSITION PLAN SET UP PHASE
The set-up phase of the Transition Plan deals with the project
infrastructure necessary to support the successful completion of the
transition. This is the phase of the transition during which the Client
and Exult Supplier agree to the overall approach and schedule, the plan
to complete the work, and the staffing levels and commitments from both
organizations and the Detailed Work Plan. In addition, the Client and
Exult Supplier shall agree the process-change management program and
communications plan for the transition process. When the change
management actions are agreed, these are added to the details of the
Transition Schedule and Detailed Work Plan. Finally, the project
reporting and governance is agreed and put in place.
7 IN SITU PROCESS TAKE ON
The following steps shall be conducted prior to the Process Take On Date
for each Process.
7.1 Current Situation Assessment Phase
Exult Supplier shall collect data through a series of workshops,
structured interviews and field work, as well as reference to all
data collected during the contract due diligence
- ----------
* Confidential treatment is required for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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<PAGE> 222
phase. The scope of the data collection shall answer the
following questions:
- [***]*
Exult Supplier shall document the Processes to the level
necessary to clearly identify how Exult Supplier shall provide
the Processes in-situ.
7.2 Operational Plan
[***]*
7.3 Readiness Test
The Client and Exult Supplier shall agree to a specific set and
schedule of Readiness Tests to be satisfied prior to Exult
Supplier assuming responsibility for a Process. These tests shall
be specific to each Process and shall be designed to assure the
Client and Exult Supplier of the readiness of both parties to
transition the Process to Exult Supplier. Each Readiness Test
plan shall document the objective and measurable criteria to be
tested, the expected outcomes, the governance of the test, and
the results. Typical items that would appear in a Readiness Test
include:
[***]*
In the event that either party believes that there has been a
failure to complete a Readiness Test in all material respects, it
shall provide the other party with a written notice specifying
the grounds on which it believes the Readiness Test has been
failed, within 2 days of the completion of the Readiness Test. As
soon as reasonably practicable following the receipt of such
notice, the parties shall meet to discuss, and if possible, agree
whether and in what respects the Readiness Test has failed, and
to agree a plan to conduct a further Readiness Test.
7.4 Transfer of Responsibility
Exult Supplier shall assume responsibility for the Process on
successful completion of the Readiness Test. Once the Process has
transitioned to Exult Supplier, Exult Supplier shall measure its
performance to the Service Levels in accordance with Schedule B.
8 LEVERAGED PROCESS TAKE ON
8.1 Global Process Rationalisation Phase
This is the phase of the project where the Client and Exult
Supplier finalise the list of Processes that shall have a global
or cross-region approach and which Processes shall be specific to
the Country. Exult Supplier and the Client shall agree to
grouping of Processes, where appropriate, and Exult Supplier
shall conduct the overall design session for Process groups. The
parties shall agree to the timeline and sequencing of the
Processes for transformation. The Client and Exult Supplier shall
finalise the plan to transform to Leveraged Operations and agree
to the staff resource levels in the plan.
8.2 Design
- ----------
* Confidential treatment is required for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
3
<PAGE> 223
Design shall be conducted cross-region and by Process group where
applicable. Exult Supplier shall conduct Process design workshops
with the Client and shall design and agree to changes to the
Processes.
Exult Supplier shall document the new Process flows, the Service
Delivery Model to be used to support the new Process, and the
workforce requirements to support the new Process for both the
Client and Exult Supplier, and the parties shall agree to new
service levels based on the new Process.
8.3 Service Delivery Build
Exult Supplier shall develop and execute a plan to build the
delivery model for the newly designed Processes. The plan shall
identify:
[***]*
8.4 Readiness Test
The Client and Exult Supplier shall agree to a specific set and
schedule of Readiness Tests to be satisfied prior to the Client
migrating to a transformed Process. These tests shall be specific
to the Process and shall be designed to assure the Client and
Exult Supplier of the readiness of both parties. The test plan
shall document the objective and measurable criteria to be
tested, the expected outcomes, the governance of the test, and
the results. Typical items that would appear in a Readiness Test
include:
[***]*
At the request of the Client, Readiness Tests can be grouped with
the requirement that all grouped Processes pass the Readiness
Tests before Exult Supplier assumes responsibility for any one of
such Processes.
In the event that either party believes that there has been a
failure to complete a Readiness Test in all material respects, it
shall provide the other party with a written notice specifying
the grounds on which it believes the Readiness Test has been
failed, [***]* of the completion of the Readiness Test. As soon
as reasonably practicable following the receipt of such notice,
the parties shall meet to discuss, and if possible, agree whether
and in what respects the Readiness Test has failed, and to agree
a plan to conduct a further Readiness Test.
8.5 Transfer of Responsibility
When the Readiness Test for a Process or Process group has been
completed, Exult Supplier shall commence delivering services
using the new Process or group of Processes. If applicable, the
service level measurement period shall commence for that Process
or group of Processes as defined in the Country Agreement,
Schedule B, Service Levels. On completion of the measurement
period, Exult Supplier shall document the Service Levels and
measure its performance to such Service Levels.
8.6 Post Implementation Review
- ----------
* Confidential treatment is required for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
4
<PAGE> 224
Conduct post implementation review and document lessons learned
for incorporation in subsequent planning efforts. Implement any
required remediation.
9 [COUNTRY] TRANSITION SCHEDULE
<Insert Country Gant>
5
<PAGE> 225
COUNTRY AGREEMENT PRO FORMA
SCHEDULE H
PROJECTS
<PAGE> 226
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 PROJECTS INCLUDED AS AT COUNTRY COMMENCEMENT DATE....................................1
2 COUNTRY AGREEMENT PROCESS FOR AGREEING NEW PROJECTS AND CHANGES TO AGREED PROJECTS...1
3 PRO FORMA ISSUES LIST RE PROPOSED PROJECTS...........................................1
</TABLE>
i
<PAGE> 227
SCHEDULE H
PROJECTS
1 PROJECTS INCLUDED AS AT COUNTRY COMMENCEMENT DATE
As of the Commencement Date, Exult Supplier and the Client have
identified the following projects as being in-scope:
1.1 Peoplesoft and Payroll Integration Project - This project is in
progress. The primary objective is to assist in successfully
completing this project. Within 60 days of the Commencement Date
of the Framework Agreement, Exult Supplier and the Client shall
agree on an appropriate Project Statement; and
1.2 ARCO Integration Project - The ARCO Integration Project primary
objective will be to perform the activities and make the changes
necessary to integrate the ARCO employees and management into the
Services. Subject to regulatory approval of the acquisition of
ARCO by the Client, and within 180 days of the Commencement Date
or as otherwise agreed, Exult Supplier and the Client shall agree
to a Project Statement for this project.
2 COUNTRY AGREEMENT PROCESS FOR AGREEING NEW PROJECTS AND CHANGES TO
AGREED PROJECTS
Client may at any time during the term of this Agreement propose to
Exult Supplier that it undertakes a new Project pursuant to the Change
Control Management process. Any such requests will be made and evaluated
in accordance with the Change Control Management process in Schedule L.
3 PRO FORMA ISSUES LIST RE PROPOSED PROJECTS
3.1 The terms applicable to a Project shall be set out in a Project
statement to be signed by both parties. Once signed a Project
statement will, unless agreed otherwise in writing by the
parties, form part of this Agreement.
3.2 Content of Project statement
~ Scope of work
- Service Level Impact
- Impact Analysis including priority
- Deliverables [as applicable]
- Acceptance criteria, timeframe & process [ as applicable]
- Project Timetable (including start and end dates,
activity duration and critical dependencies
- Responsibilities
- Staffing (implementation and ongoing)
- Assumptions
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- Charges and Payment Terms
- Project Manager Contacts
- Other Terms and Conditions [to detail variations and/or
additions to the Country Agreement Clauses and/or
Schedules applicable in relation to the Project].
2
<PAGE> 229
COUNTRY AGREEMENT PRO FORMA
SCHEDULE I
EMPLOYEES
<PAGE> 230
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 INTRODUCTION......................................................................1
2 KEY EMPLOYEES.....................................................................1
3 EMPLOYEES TO BE TRANSFERRED FROM THE CLIENT TO EXULT SUPPLIER.....................2
</TABLE>
i
<PAGE> 231
SCHEDULE I
EMPLOYEES
1 INTRODUCTION
This schedule sets forth the Key Employees and the employees to be
transferred from the Client to Exult Supplier in accordance with
Schedule J.
2 KEY EMPLOYEES
As of the Commencement Date each of the parties shall identify the
individuals for each of the following positions.
Key Employees for the Client:
- BPA Global Project Leader
- BPA Regional Project Leader for the UK/Europe
- BPA Regional Project Leader for North America
- Chemical Stream Lead
- Down Stream Lead
- Up Stream Lead
- Gas Stream Lead (To be added at a later date)
Key Employees for Exult Supplier:
- Exult Global Project Leader
- Exult Regional Project Leader for the UK/Europe
- Exult Regional Project Leader for North America
- UK/Europe Transition Lead
- North America Transition Lead
- IT Lead
For each of the Client and Exult Supplier the responsibilities for the
Key Employees shall include the following:
- Regional and Global Project Leaders: [***]*
- Stream Leads: [***]*;
- Transition/Service Delivery Leads: [***]*
- IT Lead: [***]*
- ----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
1
<PAGE> 232
Individuals identified as Key Employees will be confirmed in their
positions within 30 days of the Commencement Date of the Framework
Agreement. Each will serve in their positions for a minimum of [***]*
unless otherwise agreed between the parties.
At anytime after [***]* one of the parties may request to reassign a Key
Employee. Reassignment may take place with a minimum of 4 weeks notice
and agreement between the parties. The parties will make a reasonable
effort to accommodate and achieve the reassignment and the timing of the
reassignment as requested.
[***]*
3 EMPLOYEES TO BE TRANSFERRED FROM THE CLIENT TO EXULT SUPPLIER
The table below lists the Client employees that shall be transferred
from the Client to Exult Supplier in accordance with Schedule J.
<TABLE>
<CAPTION>
NAME OF EMPLOYEE BPA STAFF NUMBER FULL/PART TIME
---------------- ---------------- --------------
<S> <C> <C>
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
</TABLE>
- ----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
2
<PAGE> 233
NON/ACQUIRED RIGHTS DIRECTIVE COUNTRY AGREEMENT PRO FORMA
SCHEDULE J
EMPLOYEE TRANSFER ARRANGEMENTS
<PAGE> 234
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 DEFINITIONS; RULES OF APPLICATION....................................................1
2 COLLECTIVE BARGAINING EMPLOYEES......................................................2
3 ASSIGNMENT OF EMPLOYEES..............................................................2
4 INDEMNITIES..........................................................................5
5 OFFER OF EMPLOYMENT..................................................................5
6 EMPLOYEE INFORMATION ON TERMINATION OR EXPIRATION....................................7
7 EMPLOYMENT PROVISIONS ON TERMINATION.................................................7
</TABLE>
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<PAGE> 235
SCHEDULE J
EMPLOYEE TRANSFER ARRANGEMENTS
1 DEFINITIONS; RULES OF APPLICATION
In this Schedule:
"ADDITIONAL ASSIGNED EMPLOYEES" means an employee of the Client or a BPA
Affiliate assigned to Exult Supplier pursuant to Section 3.10.
"AFFECTED EMPLOYEE" means any employee of the Client or an Appropriate
Affiliate employed wholly or mainly in providing one or more of the
Services immediately before the Commencement Date or who is employed
after the Commencement Date pursuant to Section 3.1.2 and would have
been an Affected Employee if such person had been employed immediately
before the Commencement Date.
"APPROPRIATE AFFILIATE" means, in relation to an Affected Employee, the
BPA Affiliate which employs that employee immediately prior to the
relevant In Situ Process Take On or Leveraged Process Take On, as
appropriate, each as defined in Section 4.2 of Schedule G.
"ASSIGNED EMPLOYEE" means an Affected Employee in the US who has been
placed on assignment by the Client or the Appropriate Affiliate to
perform Services under the direction and control of the Exult Supplier
at the time of an In Situ Process Take On.
"ASSIGNMENT" means the period of time during which an Assigned Employee
is assigned to perform Services under the general supervision and
control of Exult Supplier pursuant to Section 3.
"ASSIGNMENT DATE" means the date an Affected Employee becomes an
Assigned Employee in connection with the relevant In Situ Process Take
On under Section [4.2] of Schedule G.
"CURRENT EXULT EMPLOYEE" means an employee of Exult Supplier who is
[***]*
"EMPLOYEE OFFERED EMPLOYMENT" means an Affected Employee who is offered
employment with an Exult Supplier on or after the Commencement Date.
"EXULT EMPLOYMENT DATE" means the date of hire of a New Exult Employee.
"NEW EXULT EMPLOYEE" means an Affected Employee who accepts employment
with an Exult Supplier pursuant to Section 5.1 of this Schedule on or
after the date of the Commencement Date.
"REPRESENTED EMPLOYEE" means an Affected Employee who is represented by
a labor organization under the terms of a written collective bargaining
agreement with the Client or Appropriate Affiliate.
"STAFF COSTS" means any and all compensation, benefit costs, damages,
interest, legal costs, penalties, fines or other liabilities whatsoever,
arising from any claim by one or more Affected
- ----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
1
<PAGE> 236
Employees, the Internal Revenue Service and state and local taxing
agencies with respect to or resulting from any employment contract,
employment relationship or collective bargaining agreement or
termination of such relationship with an Affected Employee.
"TERMINATION DATE" means 23.59 local time on the date when this
Agreement expires or terminates.
In this Schedule, any reference to an obligation or duty of an
Appropriate Affiliate shall be treated as an obligation by the Client to
undertake such obligation itself or cause the Appropriate Affiliate to
do so.
2 COLLECTIVE BARGAINING EMPLOYEES
Except for employees who may be represented by the Central States
Petroleum Union, no Affected Employee is a Represented Employee. The
Client or the Appropriate Affiliate shall have any and all duties and
obligations, imposed by terms of the collective bargaining agreement or
by law, to negotiate with the labor organization that represents the
Represented Employees with respect to the effects of the transactions
contemplated by this Agreement on the Represented Employees. The Client
or the Appropriate Affiliate shall indemnify and hold the Exult Supplier
harmless from all liability, cost and expense with respect to the
foregoing duties and obligations to Represented Employees and any
additional Staff Costs resulting from such negotiations.
3 ASSIGNMENT OF EMPLOYEES
3.1 RESPONSIBILITY OF THE CLIENT AND APPROPRIATE AFFILIATE.
3.1.1 As of the relevant In Situ Process Take On Date as set
forth in Section 4.2 of Schedule G, the Client and/or
Appropriate Affiliate will in accordance with an Affected
Employee's individual transition plan agreed to by Exult
Supplier and the Client or Appropriate Affiliate place on
Assignment to the appropriate Exult Supplier those
Affected Employees with respect to the Services to be
managed by Exult Supplier In Situ immediately prior to the
In Situ Take On Date.
3.1.2 The Client shall not and shall procure that no Appropriate
Affiliate shall employ or engage further employees wholly
or mainly in providing one or more of the services similar
to the Services after the Process Take On Date for such
Services without consultation with Exult Supplier.
3.2 DURATION
An Assigned Employee's assignment to Exult Supplier will commence
on the relevant In Situ Process Take On Date and continue until
the earlier of (a) the period of the Assigned Employee's
Assignment ends in accordance with such Assigned Employee's
individual transition plan, (b) the Assigned Employee's
assignment is terminated in accordance with Section 3.6, (c) the
Assigned Employee becomes a New Exult Employee or (d) such other
date agreed between Exult Supplier and the Client .
3.3 TERMS AND CONDITIONS OF ASSIGNMENT
3.3.1 During the Assignment, the Assigned Employees will remain
employed by the Client or the Appropriate Affiliate and
will be assigned to Exult Supplier on the same terms and
conditions of employment as were in effect immediately
prior to the Assignment Date, as modified from time to
time by the Client or Appropriate Affiliate, provided that
notice of such modifications shall be provided to Exult
Supplier in sufficient time for Exult Supplier to comply
with its obligations in Section 3.3.5.
2
<PAGE> 237
3.3.2 During the Assignment, the Assigned Employees will perform
the services under the general supervision and control of
the Exult Supplier.
3.3.3 Prior to the commencement of any Assignment and in
sufficient time for Exult Supplier to comply with its
obligations under Sections 3.3 and 3.8 the Client or
Appropriate Affiliate shall deliver to Exult Supplier
copies of the terms and conditions of employment of the
Assigned Employees and its relevant non-discrimination,
non-harassment and health and safety obligations.
3.3.4 Subject to Section 3.3.1 and 3.3.3, Exult Supplier will
comply with the Assigned Employees' terms and conditions
of employment with the Client or Appropriate Affiliate.
3.3.5 Exult Supplier will maintain a record in a form specified
by the Client and/or the Appropriate Affiliate of each
Assigned Employee's absences and will notify the Client or
the Appropriate Affiliate of such absences and provide a
copy of such records to the Client or the Appropriate
Affiliate at its request.
3.4 EMPLOYEE RECORDS FOR ASSIGNED EMPLOYEES
3.4.1 As soon as reasonably practicable after the Commencement
Date, the Client and the Appropriate Affiliates, subject
to any restrictions imposed by law, will deliver to Exult
Supplier employment information containing the identity
of, job descriptions and skill qualifications of the
Assigned Employees, and such other employment information
as Exult Supplier shall reasonably request with respect to
an Assigned Employee and which the Client or Appropriate
Affiliate mutually agrees to provide.
3.4.2 Exult Supplier shall maintain comprehensive, accurate and
up to date employee records in a form to be specified by
the Client or Appropriate Affiliate in relation to the
Assigned Employees.
3.5 PAYMENT FOR SERVICES
3.5.1 As soon as practicable after the Commencement Date and in
any event prior to the first Assignment Date the Client
and/or each Appropriate Affiliate shall provide Exult
Supplier with details of the costs incurred by the
Appropriate Affiliate of employing Affected Employees.
3.5.2 Neither the Client nor the Appropriate Affiliate will
increase those costs other than in the ordinary course of
business.
3.5.3 The Client shall advise Exult Supplier of the costs
incurred by the Client or Appropriate Affiliates of
employing the Assigned Employees on a monthly basis, and
such costs [***]*
3.6 EARLY TERMINATION
3.6.1 Either party may terminate any Assigned Employee's
Assignment immediately by giving written notice to the
other if:
- ----------
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
3
<PAGE> 238
(i) the Assigned Employee does or omits to do anything
(whether in connection with the Assignment or not)
which would allow the Client or the Appropriate
Affiliate to terminate his or her employment
summarily; or
(ii) the Assigned Employee discloses or misuses any
confidential information or material, is convicted
of a felony, or engages in conduct related to the
Assigned Employee's services for which criminal or
civil penalties may be sought .
3.6.2 Exult Supplier may terminate any Employee on Assignment's
Assignment at any time on giving two week's written notice
to the other party, provided that in this case only, Exult
Supplier's obligation to deduct from charges invoiced to
the Client the costs of employing such Assigned Employee
on Assignment incurred by the Client or Appropriate
Affiliate, shall not cease until the earlier of the end of
the Assignment period or the date on which the Assigned
Employee's employment with the Appropriate Affiliate
ceases.
3.6.3 An Assigned Employee's Assignment will automatically
terminate on the termination of the Assigned Employee's
employment with the Client or Appropriate Affiliate.
3.7 DISCIPLINARY MATTERS AND EMPLOYEE COMPLAINTS
3.7.1 If a dispute arises between an Assigned Employee and Exult
Supplier as to the interpretation or application of any of
the Assigned Employee's terms and conditions of
employment, Exult will consult with the appropriate
managers of the Client or Appropriate Affiliate and will
abide by their decision. The Assignment shall not preclude
an Assigned Employee from utilizing any applicable
grievance or complaint procedure available to similarly
situated employees of the Client or BPA Affiliate.
3.7.2 If any disciplinary or grievance matter arises in relation
to any of the Assigned Employees during the Assignment,
Exult Supplier will notify the Client or the Appropriate
Affiliate as soon as reasonably possible. The Client or
the Appropriate Affiliate will deal with the matter in
accordance with its disciplinary or grievance procedure.
Exult Supplier will provide whatever assistance is
necessary.
3.8 NON-DISCRIMINATION, NON-HARASSMENT AND HEALTH AND SAFETY
Subject to Section 3.3.1 and 3.3.4, Exult Supplier will comply
with the Client's non-discrimination, non-harassment and health
and safety obligations in relation to the Assigned Employees,
provided that Assigned Employees shall comply with Exult
Supplier's health and safety rules with respect to services
performed on the Exult Supplier's premises. Exult Supplier will
co-operate with the Client or the Appropriate Affiliate in
respect of any action which it wishes to take in respect of the
Employee on Assignment in order to fulfil such obligations.
3.9 INTELLECTUAL PROPERTY
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During the Assignment any invention, design, copyright or other
intellectual property made by any of the Assigned Employees,
[***.]*
3.10 ADDITIONAL ASSIGNED EMPLOYEES
3.10.1 The Client may assign, for a period to be mutually agreed
by the parties, which period shall be at least 12 months
from the Commencement Date. Additional Assigned Employees
to Exult Supplier of up to one employee of its choice in
Grade 20 or above or Brand G or above per 5,000 employees
in respect of whom Exult Supplier is providing Services to
perform the Services for at least 12 months.
3.10.2 Assignments under Section 3.10.1 shall be on the same
terms and conditions as those set out in Sections 3.1
through 3.10, provided, however, that Exult Supplier shall
not be required to pay the Client or Appropriate Affiliate
for the services of such Additional Assigned Employees and
Sections 3.2, 3.5 and 3.6.2 shall not apply to such
Additional Assigned Employees.
4 INDEMNITIES
4.1 The Client and each Appropriate Affiliate will indemnify, keep
indemnified and reimburse Exult Supplier for any Staff Costs
incurred by Exult Supplier (other than Staff Costs which result
from an act or deliberate failure to act by Exult Supplier in its
dealing with an Affected Employee) with respect to an event
occurring before the Affected Employee becomes a New Exult
Employee irrespective of when such claim is made, or which relate
to, arise out of or are connected with any act or omission by the
Client or the Appropriate Affiliate, or which arise from any
claims by any Affected Employees pursuant to any employee benefit
plan or program of the Client or BPA Affiliate;
4.2 Subject to Section 4.1, Exult Supplier will indemnify the Client
and each Appropriate Affiliate and keep the Client and each
Appropriate Affiliate, indemnified against any Staff Costs which
relate to, arise out of or are connected with any act or
deliberate failure to act by Exult Supplier having its origin on
or after the commencement of an Assignment and which the Client
or Appropriate Affiliate incurs in relation to any contract of
employment, employment relationship or collective agreement
(except to the extent such cost relates to the Client's duty of
effects bargaining under Section 2) concerning one or more of the
Assigned Employees.
4.3 To the extent permitted by law, neither party shall bring any
claims against the other for any negligent acts or omissions of
Assigned Employees.
5 OFFER OF EMPLOYMENT
5.1 At any time after the Commencement Date, Exult Supplier may offer
to employ an Affected Employee on such terms and conditions as
the Exult Supplier shall determine.
5.2 As soon as reasonably practicable after the Commencement Date,
the Client and the Appropriate Affiliates, subject to any
restrictions imposed by law, will deliver to Exult Supplier
employment information containing the identity of, job
descriptions and skill qualifications of the Affected Employees,
and such other employment information as Exult
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Supplier shall reasonably request with respect to an Affected
Employee and which the Client or Appropriate Affiliate mutually
agrees to provide. As soon as reasonable practicable after
delivery to the Client or Appropriate Affiliate of a written
release agreement from an Affected Employee, the Client or
Appropriate Affiliate shall also deliver to Exult Supplier such
additional employment information the release of which is
authorized by such Affected Employee's release agreement. The
Client and Exult Supplier shall provide reasonable cooperation
with Exult Supplier's collection of employment information for
the Affected Employees, including the establishment of the form
of any release agreements and the procedures for requesting
Affected Employees to provide such releases agreements.
5.3 The Client or Appropriate Affiliate shall cause each New Exult
Employee to be fully vested in such Assigned Employees' accrued
benefits under the Client's or Appropriate Affiliates' retirement
and savings plans.
5.4 Exult Supplier shall permit each New Exult Employee to enroll in
Exult Supplier's benefit plans and programs under [***]*
5.4.1 [***]*
5.4.2 Exult Supplier will offer coverage under Exult Supplier's
health and welfare benefit plans to New Exult Employees
and their dependents in accordance with the terms of the
Exult Supplier's health and welfare benefit plans; [***]*
The Client or Appropriate Affiliate shall be responsible
for all health and welfare claims that are incurred by
employees prior to the date they become employees of Exult
Supplier. The Exult Supplier's health and welfare plans
shall be responsible for all health and welfare claims
that are incurred by employees after the effective date of
their coverage by the Exult Supplier's plan.
5.4.3 [***]* The Client or Appropriate Affiliate will be
responsible for all vacation benefits accrued by employees
up to the effective date of their employment by the Exult
Supplier. The Client or Appropriate Affiliate will pay out
all accrued but unused vacation pay to its employees who
accept employment with Exult Supplier according to the
Client or Appropriate Affiliate's practices. Exult
Supplier shall provide vacation according to Exult
Supplier's vacation policies, [***]* Except as
specifically provided for in Section 4.4, Exult Supplier
shall not be required to provide a New Exult Employee with
credit under my benefit plan or program or payroll
practice for service with the Client or the Appropriate
Affiliate.
5.4.4 The Client or Appropriate Affiliate shall be responsible
for all workers' compensation claims of an Affected
Employee timely filed, either prior to or subsequent to
the date an Affected Employee becomes a New Exult Employee
for instances of injury or illness, arising from or
incurred in the course of employment, that occur prior to
the date the Affected Employee becomes a New Exult
Employee. Exult Supplier shall be responsible for all
workers' compensation claims of a New Exult Employee for
instances of injury or illness, arising from or incurred
in the course of employment, that occur on and after the
date an individual becomes a New Exult Employee.
5.5 The Client or Appropriate Affiliate shall provide COBRA health
care continuation coverage under the Client's or Appropriate
Affiliate's group health benefit plans (as
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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amended from time to time) to each qualified beneficiary under
such plans. The Client or Appropriate Affiliate shall not
terminate its sponsorship of a group health plan in connection
with the transactions contemplated by this Agreement and shall
continue to maintain a group health benefit plan and provide
COBRA coverage for the maximum COBRA coverage period applicable
to each qualified beneficiary under the Client or Appropriate
Affiliate's group health plans who is, or whose qualifying event
occurred in connection with, an Affected Employee.
5.6 The Client or the Appropriate Affiliate will be responsible for
compliance with all laws, rules, ordinances and regulations
respecting termination of any Affected Employees, including,
without limitation, the Worker Adjustment, Notification and
Training Act, 29 U.S.C. Section 2101 et. seq. ("WARN") and any
similar state or local laws. Exult Supplier will provide such
reasonable cooperation as is requested by the Client or the
Appropriate Affiliate to comply with such laws, rules, ordinances
and regulations.
6 EMPLOYEE INFORMATION ON TERMINATION OR EXPIRATION
Two months before the expiration of this Agreement, or if this Agreement
has been terminated earlier for any reason within two weeks of being
requested to do so by the Client, Exult Supplier will provide to the
Client the following information in relation to all Current Exult
Employees who are employed exclusively in providing the Services:
6.1 the total number of the Current Exult Employees by name and
geographic location (including those on a leave of absence and
who have a statutory or contractual right to return to work);
6.2 details of all collective bargaining agreements and arrangements
entered into in relation to the Current Exult Employees who are
represented by a labor union with any collective bargaining
group.
7 EMPLOYMENT PROVISIONS ON TERMINATION
On termination or expiration of this Agreement, the following provisions
will apply:
7.1 The Client, Appropriate Affiliate, any other BPA Affiliate, Exult
Supplier or a Successor Operator may, at its absolute discretion,
offer to employ one or more of the Current Exult Employees after
the Transfer Date. The Exult Supplier will not discourage a
Current Exult Employee from accepting such offer and the Exult
Supplier shall release any Current Exult Employee who accepts
such offer of employment from its employment obligations to the
Exult Supplier (other than confidentiality obligations).
7.2 The Client and Appropriate Affiliate shall not for a period of
[***]* solicit or induce any employee of an Exult Supplier other
than a Current Exult Employee to terminate his or her employment
with the Exult Supplier. The Client or Appropriate Affiliate
shall cause its agreement with a Successor Operator to provide
that Successor Operator will not solicit or induce any employee
of an Exult Supplier other than a Current Employee to terminate
his or her employment with the Exult Supplier.
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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ACQUIRED RIGHTS DIRECTIVE COUNTRY AGREEMENT PRO FORMA
SCHEDULE J
EMPLOYEE TRANSFER ARRANGEMENTS
<PAGE> 243
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 DEFINITIONS..........................................................................1
2 TRANSFER PROVISIONS..................................................................2
3 INDEMNITIES..........................................................................3
4 EMPLOYEE RECORDS.....................................................................3
5 TRANSITION AND SEVERANCE PAYMENTS....................................................4
6 OFFER OF EMPLOYMENT..................................................................5
7 PENSIONS.............................................................................5
8 ASSIGNMENT...........................................................................5
9 SECONDMENT...........................................................................8
10 EMPLOYEE INFORMATION.................................................................8
11 EMPLOYMENT PROVISIONS ON TERMINATION.................................................8
</TABLE>
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SCHEDULE J
EMPLOYEE TRANSFER ARRANGEMENTS
1 DEFINITIONS
In this Schedule:
"AFFECTED EMPLOYEE" means any employee employed wholly or mainly in
providing one or more of the services similar to the Services in the UK
immediately before the Commencement Date or who would have been so
employed had his employment not been terminated for a reason connected
with this Agreement;
"APPROPRIATE AFFILIATE" means any BPA Affiliate which employs an
Affected, Assigned or Relevant Employee immediately before either his
Transition Date or any termination of his employment with that BPA
Affiliate;
"ASSIGNED EMPLOYEE" means an Affected Employee who has, before the first
Transition Date occurring in relation to the part of the Services in
which the Affected Employee is employed, notified the Appropriate
Affiliate in writing that he objects to transfer to the employment of
Exult Supplier pursuant to the Transfer Provisions, but who agrees to be
seconded to Exult Supplier.
"RELEVANT EMPLOYEE" means an Affected Employee employed by the Client or
Appropriate Affiliate immediately before the first Transition Date
occurring in relation to the part of the Services in which the Affected
Employee is employed but excludes any Assigned Employee;
"RELEVANT EMPLOYER" means the employer of a Returning Employee;
"RETURNING EMPLOYEES" means an employee employed wholly or mainly in
providing one or more of the Services immediately before the Transfer
Date;
"SEVERANCE PAYMENT" means a sum [***.]*
"STAFF COSTS" means any and all compensation, damages, interest,
reasonable legal costs, penalties, fines or other liabilities
whatsoever, arising from any claim by one or more Affected Employees,
the Inland Revenue or Customs and Excise in relation to any employment
contract, employment relationship or collective agreement including
without limitation any claim for a Severance Payment or Transition
Payment and any other claim whatsoever in contract or tort or under the
Employment Rights Act 1996, the Equal Pay Act 1970, the Equal Pay
(Amendment) Regulations 1983, the Sex Discrimination Act 1975, the Race
Discrimination Act 1976, the Disability Discrimination Act 1995, the
Trade Union and Labour Relations (Consolidation) Act 1992, the Working
Time Regulations 1998, the Human Rights Act 1998, the Transfer
Provisions and any provision of the Treaty of Rome or other provision of
EC Law,
"TRANSFER DATE" means 23.59 local time on the date when this Agreement
expires or terminates;
"TRANSFER PROVISIONS" means the Transfer of Undertakings (Protection of
Employment) Regulation 1981, as amended;
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"TRANSFEREE" means the Client and/or the Successor Operator;
"TRANSFERRED EMPLOYEE" means a Relevant Employee who transfers to the
employment of Exult Supplier on the relevant Transition Date pursuant to
Section 2.1 of this Schedule and pursuant to an individual transition
plan to be documented and agreed between Exult Supplier and the
Appropriate Affiliate;
"TRANSITION DATE" means the date on which an Affected Employee becomes
an employee of Exult Supplier pursuant to an individual transition plan
to be agreed and documented between Exult Supplier and the Appropriate
Affiliate;
"TRANSITION PAYMENT" means [***;]*
"TRANSITION PAYMENT DATE" means the date which is six months after
Transition Date.
2 TRANSFER PROVISIONS
2.1 It is the Parties' intention that the Transfer Provisions apply
to the outsourcing of each part of the Services at the point at
which Exult Supplier assumes responsibility for providing the
part of the Services concerned and that shall be the "time of
transfer" under the Transfer Provisions and also that the
contract of employment or the employment relationship of each
Relevant Employee shall have effect on and from the Transition
Date as if originally made between the Relevant Employee and
Exult Supplier save insofar as that contract or relationship
relates to any occupational pension scheme where the Transfer
Provisions exclude any such scheme from their scope.
2.2 The Client shall, and shall procure that the Appropriate
Affiliate shall, be responsible for all wages, salaries,
emoluments, taxation and national insurance contributions payable
in the ordinary course of business in respect of the Relevant
Employees and will discharge all such obligations in respect of
the Relevant Employees up to the Transition Date. Subject to
Sections 3.3 and 5.6 Exult Supplier shall be responsible for and
will discharge all such obligations in respect of the Transferred
Employees thereafter.
2.3 In accordance with its obligations under the Transfer Provisions,
Exult Supplier shall provide the Client in writing with such
information and at such time as will enable each Appropriate
Affiliate to carry out its obligations to inform and consult
under the Transfer Provisions.
2.4 The Client shall, and shall procure that the Appropriate
Affiliates shall, provide information to, and consult with, the
appropriate representatives (as defined in the Transfer
Provisions) of the Affected Employees in accordance with its
obligations under the Transfer Provisions.
2.5 The Client shall not and shall procure that no Appropriate
Affiliate shall employ or engage further employees wholly or
mainly in providing one or more of the services similar to the
Services after the Commencement Date without consultation with
Exult Supplier.
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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3 INDEMNITIES
3.1 Subject to Sections 2.2 and 8.5.3, the Client will, and will
procure that each Appropriate Affiliate will, indemnify, keep
indemnified and reimburse Exult Supplier against any Staff Costs
(other than any Staff Costs resulting from an act or deliberate
failure to act by Exult Supplier in its dealings with an Affected
Employee) incurred by Exult Supplier relating to the period
before the relevant Transition Date, irrespective of when such
claim is made, and any Staff Costs incurred by Exult Supplier
which arise out of or are connected with any act or omission by
the Appropriate Affiliate having its origin before the relevant
Transition Date.
3.2 Subject to Sections 3.1 and 5 Exult Supplier will indemnify the
Client and keep the Client indemnified, for itself and as trustee
for each Appropriate Affiliate, against:
3.2.1 any Staff Costs which relate to, arise out of or are
connected with any act or omission by Exult Supplier
having its origin on or after the relevant Transition Date
and which the Appropriate Affiliate incurs pursuant to the
Transfer Provisions; and
3.2.2 any Staff Costs which relate to or arise out of any act or
omission by Exult Supplier prior to the relevant
Transition Date which the Appropriate Affiliate incurs by
virtue of Regulation 5(5) of the Transfer Provisions
and/or Article 4(2) of Council Directive 77/187 EEC.
3.3 The Client will reimburse Exult Supplier (or where applicable,
the Exult Supplier will reimburse the Client) in respect of
accrued (or used) holiday pay entitlements and accrued holiday
entitlements and/or loans of the Relevant Employees as at the
relevant Transition Date against invoices in accordance with the
arrangements set out in Schedule C.
3.4 To the extent permitted by law, neither party shall bring any
claims against the other for any negligent acts or omissions of
Assigned Employees.
4 EMPLOYEE RECORDS
4.1 As soon as reasonably practicable after the relevant Transition
Date, the Client shall procure that the Appropriate Affiliates,
subject to any restrictions imposed by law, will:
4.1.1 deliver to Exult Supplier copies of all personnel and
other records (excluding health records) relating to the
employment by the Client or Appropriate Affiliate of any
Transferred Employee to Exult Supplier or, where such
records are held in any electronic or electromagnetic form
(including databases stored on computer tapes or discs),
paper copies of those records; and
4.1.2 deliver to Exult Supplier's medical officer or other
medically qualified doctor notified by Exult Supplier to
the Client copies of all records, documents and
information connected directly or indirectly with the
health of such Transferred Employees.
4.2 Exult Supplier shall maintain comprehensive, accurate and up to
date employee records in relation to the Employees.
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5 TRANSITION AND SEVERANCE PAYMENTS
5.1 A Transferred Employee will receive a Transition Payment from
Exult Supplier provided that he is employed by Exult Supplier on
the Transition Payment Date. Subject to Section 5.2 Transition
Payments will be paid via payroll [***.]*
5.2 A Transferred Employee who, by reason of redundancy, is not
employed by Exult Supplier on the Transition Payment Date shall
receive a Transition Payment from Exult Supplier [***.]* Such
employee will also receive a Severance Payment from Exult
Supplier, [***.]*
5.3 A Transferred Employee whose contract of employment is terminated
by Exult Supplier on or after the Transition Payment Date by
reason of redundancy, will receive a Severance Payment from Exult
Supplier, [***.]*
5.4 An Assigned Employee will receive a Transition Payment from Exult
Supplier in the month in which the Transition Payment Date
occurs, provided he remains seconded to Exult Supplier for the
period of the Assignment and is offered and accepts a job with
Exult Supplier at the end of the Assignment and is employed by
Exult Supplier on the Transition Payment Date.
5.5 An Assigned Employee will receive a Severance Payment, [***:]*
5.5.1 from Exult Supplier if during or at the end of the
Assignment he is offered and accepts employment with Exult
Supplier and his contract of employment with Exult
Supplier is subsequently terminated by Exult Supplier by
reason of redundancy provided always that he has not
previously received a Severance Payment from the Client or
Appropriate Affiliate in respect of the same period of
service; or
5.5.2 from the Appropriate Affiliate if before the end of the
Assignment his employment is terminated by the Appropriate
Affiliate by reason of redundancy and he has not
unreasonably refused an offer of a suitable alternative
job with a BPA Affiliate; or
5.5.3 from the Appropriate Affiliate provided he remains
seconded to Exult Supplier for the period of the
Assignment and at the end of the Assignment is either not
offered a job by Exult Supplier or is offered but does not
accept a job with Exult Supplier and in either case has
not unreasonably refused an offer of a suitable
alternative job with a BPA Affiliate.
5.6 The Client will, and will procure that each Appropriate Affiliate
will, indemnify, keep indemnified, and reimburse Exult Supplier,
[***]* of a request to do so or earlier if the payment
arrangements in Schedule C permit and on production of documents
endorsing the amount of the payment incurred, in respect of any
claim by an Affected Employee in relation to a Severance or
Transition Payment [***.]*
5.7 Exult Supplier and the Client or Appropriate Affiliate will agree
appropriate communications to Affected Employees in connection
with this Agreement.
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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6 OFFER OF EMPLOYMENT
During or on termination of an Assignment, Exult Supplier may offer to
employ an Assigned Employee. Such offer shall be in writing and will be
to employ an Assigned Employee on the same contractual terms upon which
he was employed at the date of the Offer (save in so far as those terms
relate to an occupational pension scheme) and Exult Supplier shall treat
such employee's continuous period of service with the Appropriate
Affiliate as continuous with Exult Supplier (the "OFFER").
7 PENSIONS
7.1 The Client shall, and shall procure that each Appropriate Affiliate
shall, perform and discharge its or their obligations in relation
to any occupational pension scheme of the Client or Appropriate
Affiliate and of which any Affected Employee is a member, including
without limitation its or their obligations to make employer's
contributions and to ensure that the consequences of the cessation
of any such Affected Employee's employment shall be administered in
accordance with the rules of such scheme and shall indemnify Exult
and keep Exult against any losses, costs (including reasonable
legal costs), penalties, fines or other expenditure incurred by
Exult as a result of the Client or Appropriate Affiliate failing so
to discharge.
7.2 The parties will [***]* of the Commencement Date of the Agreement
agree(by a side letter) in respect of any proposed Transferred
Employee and employees who accept employment with Exult Supplier
pursuant to Section 6:
[***.]*
8 ASSIGNMENT
The Client and/or the Appropriate Affiliate will second its or their
Assigned Employees to Exult Supplier on the following terms.
8.1 DURATION
Subject to Section 8.6 the Client and/or Appropriate Affiliate
will second the Assigned Employees to Exult Supplier to perform
the Services [***]* or such other period agreed between Exult
Supplier, the Client and the Assigned Employee (the
"ASSIGNMENT").
8.2 CONTINUING EMPLOYMENT BY THE CLIENT/APPROPRIATE AFFILIATE
8.2.1 During the Assignment the Assigned Employees will remain
employed by the Client or the Appropriate Affiliate and
will be assigned to Exult Supplier on their terms
immediately prior to the start of the Assignment as
amended from time to time provided always that such
amendments shall be notified to Exult Supplier in good
time for Exult Supplier to comply with its obligations in
Section 8.4.
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8.2.2 During the term of the Assignment, Assigned Employees will
observe their terms of employment as if Exult Supplier
were the actual employer in all respects other than
matters relating to the termination of the Assigned
Employee's employment by the Client or Appropriate
Affiliate.
8.2.3 The Client will reimburse Exult Supplier (or where
applicable, Exult Supplier will reimburse the Client) in
respect of accrued (or used) holiday pay entitlements and
accrued holiday pay entitlements of the Assigned Employees
as at the relevant transfer date.
8.3 DUTIES OF THE CLIENT OR AN APPROPRIATE AFFILIATE
8.3.1 The Client or the Appropriate Affiliate will pay the
Assigned Employees' salary and provide all contractual and
other benefits during the Assignment.
8.3.2 The Client or the Appropriate Affiliate will be
responsible for making appropriate tax and national
insurance deductions from the Assigned Employees'
remuneration.
8.3.3 The Client or Appropriate Affiliate shall be responsible
for confirming the arrangements set out in Section 8 in
writing to the Assigned Employee.
8.3.4 Prior to the commencement of any Assignment and in good
time for Exult Supplier to comply with its obligations
under Section 8.4 the Client or Appropriate Affiliate
shall deliver to Exult Supplier copies of the terms of
employment of any Assigned Employee.
8.4 DUTIES OF EXULT SUPPLIER
8.4.1 Subject to Section 8.7 Exult Supplier will observe the
Assigned Employees' terms of employment as if it were the
actual employer in all respects other than in matters
relating to the termination of the Assigned Employee's
employment with the Client or Appropriate Affiliate.
8.4.2 Exult Supplier will maintain a record of each Assigned
Employee's sickness absence and will notify the Client or
the Appropriate Affiliate of such absence and provide a
copy of such records to the Client or the Appropriate
Affiliate at its request.
8.5 PAYMENT FOR SERVICES
8.5.1 As soon as practicable after the Commencement Date and in
any event prior to the commencement of the first
Assignment occurring in relation to the part of the
Services in which an Assigned Employee works, the Client
shall and shall procure that any Appropriate Affiliate
shall provide Exult Supplier with details of the costs
incurred by the Appropriate Affiliate of employing
Assigned Employees on a monthly basis.
8.5.2 The Client shall not and shall procure that no Appropriate
Affiliate shall increase those costs other than in the
ordinary course of business.
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8.5.3 The Client shall advise Exult Supplier of the costs
incurred by the Appropriate Affiliates of employing the
Assigned Employees on a monthly basis, [***.]*
8.6 EARLY TERMINATION
8.6.1 Either party may terminate any Assigned Employee's
Assignment immediately by giving written notice to the
other if:
(i) the Assigned Employee does or omits to do anything
(whether in connection with the Assignment or not)
which would allow the Client or the Appropriate
Affiliate to terminate his employment summarily; or
(ii) the Assigned Employee is guilty of dishonesty or is
convicted of an offence (other than a motoring
offence which does not result in imprisonment)
whether in connection with the Assignment or not.
8.6.2 Exult Supplier may terminate any Assigned Employee's
Assignment at any time on giving two week's written notice
to the Appropriate Affiliate, provided that in this case
only Exult Supplier's obligation to deduct from charges
invoiced to the Client the costs of employing such an
Assigned Employee incurred by an Appropriate Affiliate,
shall not cease until the earlier of the end of the
Assignment period or the date on which the Assigned
Employee's employment with the Appropriate Affiliate
ceases.
8.6.3 An Assignment will automatically terminate on the
termination of the Assigned Employee's employment with the
Appropriate Affiliate.
8.7 DISCIPLINARY MATTERS
If any disciplinary or grievance matter arises in relation to any
of the Assigned Employees during the Assignment, Exult Supplier
will notify the Client or the Appropriate Affiliate as soon as
possible. The Client or the Appropriate Affiliate will deal with
the matter in accordance with its disciplinary or grievance
procedure. Exult Supplier will provide whatever assistance is
necessary.
8.8 HEALTH AND SAFETY
Exult Supplier will comply with its health and safety obligations
in relation to the Assigned Employees. Exult Supplier will
co-operate with the Client or the Appropriate Affiliate in
respect of any action which it wishes to take in respect of the
Assigned Employee in order to fulfil such obligations.
8.9 INTELLECTUAL PROPERTY
During the Assignment any invention, design, copyright or other
intellectual property made by any of the Assigned Employees,
[***.]*
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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9 SECONDMENT
9.1 In addition to the Assigned Employees, the Client may second to
Exult Supplier one employee of its choice [***]* (the "SECONDED
EMPLOYEE") per 5000 employees in respect of whom Exult Supplier
is providing Services to perform the Services for [***]* (the
"SECONDMENT").
9.2 The Secondment shall be on the terms set out in Section 8 other
than sub Sections 8.1, 8.5, and 8.6.2 substituting Seconded
Employee for Assigned Employee in that section and references to
Appropriate Affiliate being understood to be references to the
employer of the Seconded Employee. For the avoidance of doubt
Exult Supplier shall not be required to pay the Appropriate
Affiliate for the services of the Seconded Employee.
10 EMPLOYEE INFORMATION
Two months before the expiry of this Agreement, or if this Agreement has
been terminated earlier for any reason within two weeks of being
requested to do so by the Client, Exult Supplier will provide (and will
procure any other employer will provide) to the Client the following
information in relation to all employees who are employed wholly or
mainly in providing the Services ("CURRENT EMPLOYEES"):
10.1 the total number of the Current Employees (including those on
maternity leave or other long-term leave of absence and who have
a statutory or contractual right to return to work);
10.2 the name, sex, date of commencement of employment, period of
continuous employment, notice period, location, salary and other
contractual or non-contractual benefits including any bonus
entitlement, grade and age of each Current Employee;
10.3 the complete terms of the contract of employment for each Current
Employee entitled to a salary at a rate in excess of [***]* a
year;
10.4 a copy of each proforma contract of employment and other
contractual documentation for employees entitled to a salary at a
rate of [***]* or less and the complete terms of the contracts of
employment of any Current Employee not employed under a proforma
contract of employment;
10.5 details of dismissals or terminations of employment within the
previous 12 months of any person who during that period was
involved in the provision of the Services; and
10.6 details of all agreements and arrangements entered into in
relation to the Current Employees with any trade union or
association of trade unions, works council, staff association or
other similar organisation or body of employees.
11 EMPLOYMENT PROVISIONS ON TERMINATION
11.1 On termination or expiry of this Agreement it is the intention of
the parties that the Transfer Provisions will apply. If the
Transfer Provisions have effect the following provisions shall
apply in connection with such transfer:
- ----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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11.1.1 the contract of employment of each Returning Employee
(save insofar as that contract relates to any occupational
pension scheme where the Transfer Provisions exclude any
such scheme from their scope) shall be transferred to the
Transferee with effect from the Transfer Date which shall
be the `time of transfer' under the Transfer Provisions;
11.1.2 Exult Supplier shall, and shall procure that each Relevant
Employer shall, perform and discharge its or their
obligations in respect of all the Returning Employees for
its or their own account up to and including the Transfer
Date including, without limitation, discharging all wages,
salaries and emoluments of the Returning Employees or
employer's contributions to any relevant occupational
pension scheme and all other costs and expenses related to
their employment (including, without limitation, any
taxation, national insurance contributions, accrued
holiday pay, accrued bonus, commission or other sums
payable in respect of service prior to the Transfer Date)
and shall indemnify the Transferee and keep the Transferee
indemnified against any Staff Costs (substituting
Returning Employees for Affected Employees in that
definition and indemnified subject to Sections 5 and 3.1)
which the Transferee incurs arising from Exult Supplier's
or the Relevant Employer's failure so to discharge; the
Client or Appropriate Affiliate shall and shall procure
that the Successor Operator shall discharge all
responsibilities and obligations in respect of the
Returning Employees thereafter;
11.1.3 Exult Supplier shall, and shall procure that each Relevant
Employer, shall indemnify the Transferee and keep the
Transferee indemnified against all Staff Costs
(substituting Returning Employees for Affected Employees
in that definition and subject to Sections 5 and 3.1)
which relate to or arise out of any act or omission by
Exult Supplier or a Relevant Employer or any other event
or occurrence prior to the Transfer Date and which the
Transferee incurs in relation to any contract of
employment, employment relationship or collective
agreement concerning one or more of the Returning
Employees pursuant to the Transfer Provisions;
11.1.4 The Client will and will procure that the Appropriate
Affiliate or Successor Operator will indemnify and keep
Exult Supplier indemnified against:
(i) any Staff Costs (substituting Returning Employees
for Affected Employees in that definition and
subject to Sections 5 and 3.1) which relate to or
arise out of any act or omission by the Client,
Appropriate Affiliate or Successor Operator, having
its origin on or after the Transfer Date and which
Exult Supplier incurs pursuant to the Transfer
Provisions; and
(ii) any Staff Costs (substituting Returning Employees
for Affected Employees in that definition) which
relate to or arise out of any act or omission by
the Client, Appropriate Affiliate or Successor
Operator prior to the Transfer Date which Exult
Supplier incurs by virtue of Regulation 5(5) of the
Transfer Provisions and/or Article 4(2) of Council
Directive 77/187 EEC.
11.1.5 Exult Supplier shall, and shall procure that each Relevant
Employer, shall indemnify the Transferee and keep the
Transferee indemnified against all Staff Costs
(substituting Returning Employees for Affected Employees
in that definition and subject to Sections 5 and 3.1)
which relate to or arise out of any dismissal (including,
without limitation, constructive dismissal) by Exult
Supplier or a
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Relevant Employer of any employee (not being a Returning
Employee) which the Transferee incurs pursuant to the
Transfer Provisions.
11.2 If the contract of employment of an employee transfers to the
Transferee pursuant to the Transfer Provisions on a date other
than the Transfer Date (but after the date of this Agreement) the
provisions of Sections 10 and 11.1 above shall apply with the
substitution of the date of actual transfer for the Transfer Date
and references to the termination or expiry of the Agreement and
the definitions used in those sections shall be amended by the
same substitution. In respect of Section 10, Exult Supplier will
supply the information listed in that section within a reasonable
period (being no more than 10 working days, of a request for it
from the Client).
11.3 If in the Client's reasonable opinion the Transfer Provisions
will not apply to transfer the contract of employment of a
Returning Employee on the Transfer Date, the Client or a
Successor Operator may, at its absolute discretion, offer to
employ one or more of the Returning Employees after the Transfer
Date. The Relevant Employer will not discourage Returning
Employees from accepting such an offer.
11.4 In respect of each Returning Employee who transfers to the
Transferee pursuant to Section 11.1.1 above, the Exult Supplier
shall, and shall procure that each Relevant Employer shall,
provide such employee's employment records and medical records to
the Successor Operator in accordance with the terms of Section 4
with the necessary changes.
11.5 In Section 11 the undertakings and indemnities given by Exult
Supplier or procured by Exult Supplier to be given by a Relevant
Employer to the Transferee shall be given to the Client for
itself and as trustee for the Successor Operator.
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COUNTRY AGREEMENT PRO FORMA
SCHEDULE L
CHANGE CONTROL MANAGEMENT
<PAGE> 255
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 CHANGE REQUESTS.........................................................1
2 CLASSIFICATION OF THE CHANGE REQUEST....................................1
3 EVALUATION OF THE PROPOSED CHANGE.......................................1
4 IMPACT ANALYSIS.........................................................3
5 APPROVAL................................................................3
6 REPORTING...............................................................4
</TABLE>
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SCHEDULE L
CHANGE CONTROL MANAGEMENT
This Schedule sets out the procedure to be followed for any Proposed Change to
the Framework Agreement or any Country Agreement.
1 CHANGE REQUESTS
1.1 Either party may request a Proposed Change by submitting a Change
Request in accordance with the following process.
1.2 The Change Request shall be divided into two (2) sections.
Section One shall contain the general information regarding the
Proposed Change and shall be completed by the Country
Representative of the submitting party. Section Two shall contain
the impact analysis for the Proposed Change, which shall be
completed by the Exult Supplier Country Representative.
1.3 In each Country, Change Requests shall be presented by the
Country Representative of the submitting party to the other
party's Country Representative or designee who shall acknowledge
receipt by signature of the Change Request.
1.4 Any Proposed Change which has a potential impact on more than one
Country shall have a Change Request completed for each impacted
Country.
2 CLASSIFICATION OF THE CHANGE REQUEST
The Exult Supplier Country Representative and the Client Country
Representative shall agree to the classification of the Change Request
as follows:
2.1 Where it is determined that the Proposed Change is an Operational
Change, the Proposed Change shall be evaluated as set out in
Section 3.1.
2.2 Where it is determined that the Proposed Change is a change to
the Client's Policies and Procedures, the proposed change shall
be evaluated as set out in Section 3.2.
2.3 Where it is determined that the Proposed Change is a Project, the
Proposed Change shall be evaluated as set out in Section 3.3
2.4 Where it is determined that the Proposed Change is a change to
the terms and conditions of the Country Agreement or a change
related to the Schedules of the Country Agreement which is not
related to a specific Project or to a change to Client's Policies
and Procedures, the Proposed Change shall be evaluated as set out
in Section 3.4.
2.5 Where it is determined that the Proposed Change should not
proceed, the Change Request shall be rejected and returned to the
submitting party.
If the Exult Supplier's Country Representative and the Client's Country
Representative cannot agree to the classification of the Change Request,
then the Change Request shall be referred to the Regional Governance
Panel for classification.
3 EVALUATION OF THE PROPOSED CHANGE
The Proposed Change shall be evaluated, by classification, as described
below:
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3.1 Operational Changes
3.1.1 Operational Changes shall be implemented in accordance
with the operational change control procedures and
approved subject to Section 5 of this Schedule.
3.2 Changes to Client's Policies and Procedures
3.2.1 Exult Supplier shall perform the impact analysis as
described in Section 4.
3.2.2 The Exult Supplier Country Representative shall submit the
Proposed Change, including the Impact Analysis, to the
Client Country Representative.
3.2.3 Based on the results of the impact analysis, the Client
Country Representative shall, within a reasonable
timeframe:
(i) approve the Proposed Change and proceed to its
implementation subject to Section 5 of this
Schedule; or
(ii) request Exult Supplier in writing to re-submit the
Proposed Change stating which items of information
it is dissatisfied with, in which case Exult
Supplier shall re-submit the Proposed Change within
a reasonable timeframe; or
(iii) reject the Change Request in which case the
Agreement shall continue un-amended.
3.3 Projects
3.3.1 Exult Supplier shall perform the impact analysis as
described in Section 4.
3.3.2 Exult Supplier shall prepare a Project Statement as set
out in Schedule H.
3.3.3 The Exult Supplier Country Representative shall submit the
Proposed Change, including the Project Statement, to the
Client Country Representative
3.3.4 Based on the results of the impact analysis, the Client
Country Representative shall, within a reasonable
timeframe:
(i) approve the Proposed Change and the Project
Statement and proceed to its implementation subject
to Section 5 of this Schedule; or
(ii) request in writing that Exult Supplier re-submit
the Proposed Change and Project Statement stating
which items of information it is dissatisfied with,
and Exult Supplier shall re-submit the Proposed
Change and Project Statement within a reasonable
timeframe; or
(iii) reject the Change Request in which case Exult
Supplier will not implement the Project.
3.4 Changes to the Agreement (as described in Section 2.4)
3.4.1 Exult Supplier shall perform the impact analysis as
described in Section 4.
3.4.2 The Exult Supplier Country Representative shall submit the
Proposed Change, including the impact analysis, to the
Client Country Representative for approval
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subject to Section 5 of this Schedule.
4 IMPACT ANALYSIS
4.1 Upon determination of the classification of the Proposed Change,
Exult Supplier shall provide, at its expense, [***]* or as
otherwise agreed, an estimate of the time and cost that Exult
Supplier proposes to charge to the Client to complete the impact
analysis. The Client shall provide Exult Supplier, within 10
business days or as otherwise agreed, a decision as to whether to
proceed with the impact analysis as estimated.
4.2 If the Client Country Representative determines that the Proposed
Change should not proceed, the Change Request shall be rejected
and returned to the submitting party.
4.3 If the Client Country Representative decides to proceed, Exult
Supplier shall, as soon as reasonably practicable and acting in
good faith, conduct an impact analysis to assess and evaluate the
impact of the Proposed Change having regard to all relevant
factors including the following:
[***]*
4.4 In the case of Proposed Changes relating to Projects, Exult
Supplier, in addition to the impact analysis shall, acting in
good faith, provide the Client with the following information:
4.4.1 whether Exult Supplier considers the Project to be
technically feasible, and, if so, the estimated number,
grade, qualification and experience of personnel required
to provide the Project;
4.4.2 the estimated number of days that would be required to be
spent by each such person in order to provide the Project;
4.4.3 the estimated cost and timetable for implementation of the
Project including the date of its completion;
4.4.4 the anticipated impact, if any, on other aspects of the
Services and operation of the Systems by the Client;
4.4.5 the terms and conditions on which Exult Supplier is
willing to provide the Project, which shall so far as
reasonably appropriate shall be consistent with the terms
and conditions on which the Services are provided under
this Agreement; and
4.4.6 any other information the Client may reasonably require in
relation to the Project.
[***]*
5 APPROVAL
Subject to the delegated financial authority limits provided by the
relevant Client Global
- ----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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Commercial Contract Leader and Client Regional Commercial
Contract Leader, the following approval levels shall apply.
5.1 Change Requests that are classified as Operational Changes shall
be approved by the Client's Country Representative and Exult
Supplier's Country Representative or their designees except where
Operational Changes do not impact Client activities or costs, in
which case the Exult Country Representative or its designee may
approve the change.
5.2 Change Requests that are classified as changes to the Client's
Policies and Procedures shall be approved by the Client Country
Representative.
5.3 Change Requests that are classified as Projects shall be approved
by the Client's Country Representative.
5.4 Change Requests that are classified as changes to the terms and
conditions of the Country Agreement or as changes related to the
Schedules of the Country Agreement which are not related to a
specific Project or to a change to the Client's Policies and
Procedures, shall be approved by the Regional Governance Panel.
In the event that such changes have global implications, the
Change Request shall be approved by the Global Governance Panel.
Neither party shall be obliged to comply with any Proposed Changes
unless and until approval has been given in accordance with this Change
Control Management process and, pending approval, no Change shall be
made to the Services or to the Framework and Country Agreements.
6 REPORTING
A consolidated report of all Change Requests shall be presented by the
Exult Supplier Country Representative to the Regional Governance Panel
on a monthly basis. The Regional Governance Panel shall report Change
Requests on a quarterly basis to the Global Governance Panel.
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COUNTRY AGREEMENT PRO FORMA
SCHEDULE M
APPROVED EXULT SUBCONTRACTORS
<PAGE> 261
SCHEDULE M
APPROVED EXULT SUBCONTRACTORS
This schedule sets forth those subcontractors that have been approved by BPA.
1. [***.]*
- ----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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COUNTRY AGREEMENT PRO FORMA
SCHEDULE O
BPA POLICIES AND CONTROLS
<PAGE> 263
SCHEDULE O
BPA POLICIES AND CONTROLS
1 PART 1
The following Controls have been submitted to Exult in writing and Exult
shall fulfil its obligation under this Agreement in accordance with such
Controls.
[***]*
2 PART 2
The following Controls shall be reviewed and evaluated by BPA and Exult
in accordance with this Agreement.
[***]*
- ----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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COUNTRY AGREEMENT PRO FORMA
SCHEDULE P
GLOBAL GOVERNANCE ARRANGEMENTS
<PAGE> 265
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 INTRODUCTION..........................................................1
2 GLOBAL GOVERNANCE PANEL...............................................1
3 REGIONAL GOVERNANCE PANEL.............................................2
4 COUNTRY REPRESENTATIVES...............................................3
5 EXECUTIVE STEERING COMMITTEE..........................................4
6 REGIONAL STEERING COMMITTEES..........................................5
7 CONTRACT ADMINISTRATION DOCUMENTS.....................................6
</TABLE>
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SCHEDULE P
GLOBAL GOVERNANCE ARRANGEMENTS
1 INTRODUCTION
For the purposes of this Schedule, Exult shall mean Exult Supplier where
appropriate; BPA shall mean the Client, where appropriate.
2 GLOBAL GOVERNANCE PANEL
2.1 As soon as reasonably practicable following the Commencement Date
a Global Governance Panel will be established by the parties to
focus primarily on global strategic issues. It is agreed that the
Global Governance Panel should not be involved in day-to-day
issues.
2.2 The Global Governance Panel will be comprised of 4 voting
members as follows:
2.2.1 one Global Project Leader from each of Exult and BPA (who
will also be members of the Executive Steering Committee);
and
2.2.2 one Global Commercial Contract Leader from each of Exult
and BPA.
2.3 The initial members of the Global Governance Panel are:
BPA Global Project Leader
Exult Global Project Leader
BPA Global Commercial Contract Leader
Exult Global Commercial Contract Leader
Each party shall wherever reasonably practicable give the other 3
months written notice in the event it wishes to change its
representatives on the Global Governance Panel.
2.4 The Global Governance Panel shall be chaired alternately by a BPA
representative and an Exult representative.
2.5 The Global Governance Panel will meet no less than quarterly, and
at other times as agreed between the parties. The meetings will
be arranged to synchronise with those of the Regional Governance
Panels and will take place approximately two weeks after meetings
of the Regional Governance Panels.
2.6 Voting will be on a unanimous basis and a full quorum will be
required for voting purposes.
2.7 The responsibilities of the Global Governance Panel will include:
2.7.1 reviewing the overall performance of the parties'
respective roles and responsibilities under this Agreement
and of their respective Affiliates under the Country
Agreements;
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2.7.2 reviewing significant recommendations and suggestions made
by the Executive Steering Committee relating to the
Services and/or this Agreement or any Country Agreement
and initiate appropriate actions;
2.7.3 submitting quarterly performance review reports to the
Executive Steering Committee for its guidance and
recommendations;
2.7.4 when referred to it by any of the Regional Governance
Panels, considering and agreeing changes in accordance
with the Change Control Management procedure;
2.7.5 seeking to resolve any Dispute referred to it in
accordance with the Dispute Resolution Procedure.
2.8 The parties shall procure that the members of the Global
Governance Panel shall, at all times, act reasonably and in good
faith having due regard to the interests of all parties.
3 REGIONAL GOVERNANCE PANEL
3.1 As soon as reasonably practicable at the time of contracting the
first Country in a region a Regional Governance Panel will be
established by the parties for that Region to focus primarily on
regional strategic issues. It is agreed that the Regional
Governance Panels should not be involved in day-to-day issues.
3.2 Each Regional Governance Panel will be comprised of 4 voting
members as follows:
3.2.1 one Regional Project Leader from each of Exult and BPA;
and
3.2.2 one Regional Commercial Contract Leader from each of Exult
and BPA.
3.3 The Regional Governance Panel shall be chaired alternately by a
BPA representative and an Exult representative.
3.4 The Regional Governance Panel will meet monthly, and at other
times as agreed between the parties. The meetings will be
arranged to synchronise with those of the Global Governance Panel
as appropriate and will take place approximately two weeks before
the meetings of the Global Governance Panel.
3.5 Voting will be on a unanimous basis and a full quorum will be
required for voting purposes.
3.6 The responsibilities and authorities of the Regional Governance
Panel will be determined and delegated in each case by the Global
Governance Panel and may include matters within the relevant
Region such as:
3.6.1 agreeing an efficient and effective Due Diligence Exercise
in each relevant Country;
3.6.2 managing the internal interfaces with the Participating
Affiliates and the Exult Participating Affiliates in
relation to the Framework Agreement and the relevant
Country Agreements;
3.6.3 addressing, co-ordinating and prioritising with issues
affecting the provision of the Services to Participating
Affiliates under the Country Agreements as referred to it
by the Country Representatives;
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3.6.4 reviewing the overall performance of the parties'
respective Affiliates under the relevant Country
Agreements;
3.6.5 reviewing significant recommendations and suggestions made
by Regional Steering Committee relating to the Services
and/or any relevant Country Agreements and initiate
appropriate actions;
3.6.6 submitting quarterly performance review reports to the
Regional Steering Committee for its guidance and
recommendations;
3.6.7 submit quarterly performance review reports to the Global
Governance Panel.
3.6.8 managing Change Requests outside the authority of the
relevant Country Representative and otherwise in
accordance with the Change Control Management procedure;
3.6.9 seeking to resolve any Disputes referred to in accordance
with the Dispute Resolution Procedure;
3.6.10 referring matters outside its authority to the Global
Governance Panel;
3.6.11 identifying issues which may have an impact outside the
relevant Region and referring these to the Global
Governance Panel as required; and
3.6.12 monitoring and reviewing the ongoing status of Third Party
Contracts which are not Transferred to Exult Supplier.
3.7 The parties shall procure that the members of the Regional
Governance Panel shall, at all times, act reasonably and in good
faith having due regard to the interests of all parties.
4 COUNTRY REPRESENTATIVES
4.1 As soon as reasonably practicable following a Country
Commencement Date, BPA and Exult shall procure that, the relevant
Affiliates each appoint a Country Representative in respect of
that Country.
4.2 The Country Representatives will have day-to-day responsibility
for managing the operation of the Country Agreement and
supervising the co-operation and other matters between the
parties.
4.3 The responsibilities and authorities of each Country
Representative will be determined and delegated in each case by
the relevant Regional Governance Panel and may include matters
such as:
4.4 reviewing the overall performance of the parties' respective
Affiliates under the relevant Country Agreement;
4.5 interpretation of the Agreement;
4.6 ensuring efficient flow of documentation under the Agreement;
4.7 handling of Disputes within the authority of the Country
Representative and referring others to the Regional Governance
Panel in accordance with the Dispute Resolution Procedure;
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4.8 handling of Change Requests within the authority of the Country
Representative and referring others to the Regional Governance
Panel in accordance with the Change Control Procedure;
4.9 submitting issues concerning the relationship between the
parties to the Regional Steering Committee for its guidance and
recommendations;
4.10 submit [monthly/regular] performance review reports to the
Regional Governance Panel;
4.11 generally dealing with any matter or issue arising out of or in
connection with the Country Agreement within the delegated
authority of, the Country Representative;
4.12 identifying and referring matters outside the Country
Representative authority to the Regional Governance Panel; and
4.13 identifying issues which may have an impact outside the relevant
Country and referring these to the Regional Governance Panel for
their attention.
4.14 The parties shall procure that the Country Representatives shall,
at all times, act reasonably and in good faith having due regard
to the interests of all parties.
5 EXECUTIVE STEERING COMMITTEE
5.1 As soon as reasonably practicable following the Commencement Date
an Executive Steering Committee will be established by the
parties to focus primarily on global relationship issues. It is
agreed that the Executive Steering Committee should not be
involved in day-to-day issues.
The Executive Steering Committee will be comprised as follows:
For BPA:
5.1.1 the Executive Steering Committee shall be chaired by a BPA
Group representative;
5.1.2 one Global Project Leader from BPA (who will also be a
member of the Global Governance Panel);
5.1.3 four business stream representatives; and
5.1.4 one IT representative.
5.1.5 For Exult:
5.1.6 one Exult corporate executive representative;
5.1.7 one Global Project Leader who will also be a member of the
Global Governance Panel; and
5.1.8 IT/e-commerce/services representation.
Each party shall wherever reasonably practicable give the other 3
months written notice in the event it wishes to change its
representatives on the Global Governance Panel.
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5.2 The Executive Steering Committee will meet quarterly, and at
other times as agreed between the parties.
5.3 The Executive Steering Committee shall be a non-voting body.
5.4 The responsibilities of the Executive Steering Committee will
include:
5.4.1 reviewing the global relationship issues arising out of
the Framework Agreement and the Country Agreements;
5.4.2 reviewing significant recommendations and suggestions made
by the Regional Steering Committee relating to issues
affecting the relationships between the parties and
relationships between the stakeholders;
5.4.3 reviewing performance and providing advice and guidance to
the Global Governance Panel for Performance improvement
and making recommendations directly to BPA and Exult on
issues affecting the relationships between the parties and
relationships between the stakeholders.
5.5 The parties shall procure that the members of the Executive
Steering Committee shall, at all times, act reasonably and in
good faith having due regard to the interests of all parties.
6 REGIONAL STEERING COMMITTEES
6.1 At the same time as a Regional Governance Panel is established a
Regional Steering Committee will be established by the parties
for that Region to focus primarily on issues effecting
relationships between the parties and between the stakeholders in
the relevant Region. It is agreed that the Regional Steering
Committees should not be involved in day-to-day issues.
6.2 The Regional Steering Committee will be comprised as follows:
6.2.1 one member of the relevant Regional Governance Panel from
each of Exult and BPA;
6.2.2 two other appropriate representatives from Exult such as
the IT manager, the Service Centre Manager or
representatives from equivalent roles; and
6.2.3 up to four other representatives from BPA.
6.3 The Regional Steering Committees shall be chaired by a BPA
representative.
6.4 The Regional Steering Committees will meet quarterly or
otherwise, at times as agreed between the parties and will be
synchronised to precede the Executive Steering Committee
meetings.
6.5 The Regional Steering Committees shall be non-voting bodies.
6.6 The responsibilities and authorities of the Regional Steering
Committees will be determined and delegated in each case by the
Executive Steering Committee and may include matters such as;
6.6.1 reviewing the Regional relationship issues arising out of
the Framework Agreement and of the relevant Country
Agreements;
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6.6.2 reviewing significant recommendations and suggestions made
by the Country Representatives relating to issues
affecting the relationships between the parties and
relationships between the stakeholders in the relevant
Region;
6.6.3 reviewing performance and providing advice and guidance to
the Regional Governance Panel for performance improvement
and making recommendations directly to the Executive
Steering Committee on issues affecting the relationships
between the parties [and relationships between the
Stakeholders];
6.6.4 submitting quarterly reviews to the Executive Steering
Committee.
6.7 The parties shall procure that the members of the Regional
Steering Committees shall, at all times, act reasonably and in
good faith having due regard to the interests of all parties.
7 CONTRACT ADMINISTRATION DOCUMENTS
7.1 All contract administration documents shall be in English unless
required otherwise by any law of a Country, in which case
contract administration documents shall be prepared in both
English and the language required by law of the relevant Country.
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COUNTRY AGREEMENT PRO FORMA
SCHEDULE Q
DATA PROTECTION
<PAGE> 273
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 DEFINITIONS..............................................................1
2 PROCESSOR'S OBLIGATIONS AND WARRANTIES...................................2
3 DATA EXPORT..............................................................4
4 WARRANTY.................................................................5
5 BPA'S OBLIGATIONS........................................................5
</TABLE>
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SCHEDULE Q
DATA PROTECTION
PART I
DATA PROCESSING OBLIGATIONS
1 DEFINITIONS
For the purposes of this Schedule, the following terms shall have the
following meanings:
"AGREEMENT" means this Agreement and each Country Agreement;
"APPROPRIATE TECHNICAL AND ORGANISATIONAL MEASURES" means such necessary
measures that need to be taken in order to guarantee the security of the
personal data and to avoid unauthorised, accidental or unlawful
alteration, loss, disclosure, access to and processing of the personal
data, taking account of the state of technology and the cost of their
implementation, the nature of the personal data stored, and the risks
posed by the processing whether they arise from human action or from
physical or natural means. Specific regard shall be had to any relevant
guidance, if any, provided by the Authority in each Country;
"AUTHORITY" means the relevant data protection authority in the Country;
"AUTOMATED DECISION" means a decision which produces legal effects or
significantly affects a data subject and which is based solely on
automated processing of data intended to evaluate certain personal
aspects such as performance at work, creditworthiness, reliability and
conduct etc;
"BPA" means BPA and each BPA Participating Affiliate;
"CLIENT PERSONAL DATA" means any personal data Processed by Exult
Supplier for or on behalf of BPA in the context of the provision of the
Services;
"DATA SUBJECT" is one who can be identified, directly or indirectly, in
particular by reference to an identification number or to one or more
factors specific to his physical, physiological, mental, economic,
cultural or social identity from any personal data;
"DIRECTIVES" means the European Union Directive entitled "Directive
95/46/EC of the European Parliament and of the Council of 24 October
1995 on the protection of individuals with regard to the processing of
personal data and on the free movement of such data" and the European
Union Directive entitled "Directive 97/66/EC concerning the processing
of personal data and the protection of privacy in the telecommunications
sector";
"EXULT" means Exult and each Exult Participating Affiliate;
"IMPLEMENTING LEGISLATION" means the legislation and any guidance,
policy or recommendations providing by the Authority (if any) in the
Country which implements the Directives;
"PERSONAL DATA" means any information relating to an identified or
identifiable natural person. For the purposes of this definition, an
identifiable person is one who can be identified, directly or
indirectly, in particular by reference to an identification number or to
one or more factors specific to his physical, physiological, mental,
economic, cultural or social identity;
"PROCESS" or "PROCESSING" means any operation or set of operations which
is/are performed upon personal data, whether or not by automatic means,
including collection, recording, organisation, storage, adaptation or
alteration, retrieval, consultation, use, disclosure by
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transmission, dissemination or otherwise making available, alignment or
combination, blocking, erasure or destruction;
"PURPOSES" means the purposes for which BPA personal data is to be
Processed, as may be amended from time to time by the parties, and as
currently set out in Schedule A (Scope of Services);
"SENSITIVE DATA" means personal data revealing racial or ethnic origin,
political opinions, religious or philosophical beliefs, trade-union
membership, or health or sex life;
"THIRD COUNTRY" means any country outside the European Economic Area.
2 PROCESSOR'S OBLIGATIONS AND WARRANTIES
2.1 GENERAL OBLIGATIONS
Exult hereby agrees during the term of the Agreement:
2.1.1 to act only solely on the instructions of BPA and in so
doing to process BPA personal data on behalf of BPA solely
for the Purposes;
2.1.2 to process BPA personal data in accordance with the
Directives and Implementing Legislation if the personal
detail is subject to the Directives; and
2.1.3 to process BPA personal data in accordance with the
provisions of this Agreement.
2.2 SPECIFIC OBLIGATIONS
Without limiting the generality of Section 2.1, Exult shall;
2.2.1 REGISTRATION AND AUTHORITY
Ensure that it has the necessary legal authority for the
purpose of processing BPA personal data for the Purposes
in accordance with the terms of this Agreement;
2.2.2 SECURITY
Prior to any processing of BPA personal data:
(i) put in place appropriate technical and
organisational measures to protect BPA personal
data (including suitable measures to protect
Sensitive Data) against accidental or unlawful
destruction or accidental loss, alteration,
unauthorised disclosure or access and against all
other unlawful forms of processing;
(ii) put in place adequate security programmes and
procedures to ensure that unauthorised persons will
not have access to the equipment used to process
BPA personal data, and that any persons it
authorises to have access to BPA personal data will
respect and maintain the confidentiality and
security of BPA personal data; and
(iii) have reviewed and to continue to review its
security programmes and procedures to ensure that
they are adequate, having regard to industry good
practice and the cost of their implementation at
that time; and
(iv) once processing has commenced in accordance with
this Agreement, if at any time Exult becomes aware
of any breach in security advise
2
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BPA forthwith of the nature and extent of the
breach and shall take all necessary remedial action
and shall indemnify BPA against all costs, damages
or other losses arising out of such breach, except
to the extent such loss results from BPA failing to
perform its obligations in Section 5 below.
2.2.3 ASSISTANCE AND ENQUIRIES
(i) without limitation to the other provisions of this
Agreement, take all reasonable steps to enable BPA
to comply with its obligations under the Directives
and relevant Implementing Legislation in relation
to BPA personal data, promptly upon being notified
of such steps by BPA;
(ii) upon receiving any request for information or
assistance in relation to BPA personal data, from
BPA, the Authority, other regulatory body in which
has jurisdiction or a data subject, Exult will
promptly provide all relevant information to BPA or
the Authority as requested by BPA;
(iii) promptly appoint an individual (a "Data Protection
Officer") within its organisation authorised to
respond to any enquiries made pursuant to this
Section 2.2.3 or otherwise in relation to this
Agreement and with such other roles,
responsibilities and powers (if any) as may be
required by the laws implementing the Directives in
the jurisdiction of BPA and shall promptly notify
the details of this individual to BPA.
2.2.4 ENFORCEMENT
Recognise and agree BPA employees may enforce against
Exult any of their rights as Data Subjects under the
Directives or Implementing Legislation in relation to the
processing by Exult of the BPA personal data;
2.2.5 DATA QUALITY
Subject to Section 2.1.1 above, to, where necessary,
maintain the accuracy of BPA personal data and keep it up
to date. Exult shall comply with all instructions from BPA
or any data subject to whom BPA personal data relates to
rectify, delete and update any BPA personal data and, if
so requested by BPA, shall notify in writing BPA and/or
the data subject as appropriate within a reasonable time
that it has done so.
2.2.6 DATA EXPORT
Not export from any Country within the European Economic
Area any BPA personal data to any Third Country without
BPA's prior written consent such consent not to be
unreasonably withheld or delayed provided that BPA has
given such consent in relation to the USA;
2.2.7 ACCESS
If the personal data is subject to the Directives, provide
the data subject with the same rights of access,
correction, blocking, suppression or deletion available to
such individual in the relevant Countries which are
subject to the Directives;
2.2.8 DISCLOSURE
(i) not to disclose, either free of charge or in return
for payment, not even for its preservation, any BPA
personal data to any other legal or natural person
other than where BPA has given its prior written
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consent to such disclosure or where there is a
legal obligation or there is a regulatory
obligation or where Exult is responding to a
request from the Authority or other authorial
regulatory body, in which case BPA must, where this
is permitted by law, be informed where practicable
prior to such disclosure; and
(ii) where BPA has consented to a disclosure in
accordance with 2.2.6(i) above, BPA may require
Exult to procure any disclosee to whom BPA personal
data is disclosed pursuant to such clause to enter
into an agreement for the protection of personal
data in similar terms to this Agreement.
2.2.9 RETENTION AND DESTRUCTION
Keep BPA personal data in such form as shall permit the
identification of data subjects for no longer than is
necessary for the Purposes of providing the Services or as
instructed by BPA;
2.2.10 AUDIT
Submit its facilities used to process personal data, data
files and documentation needed for processing for auditing
and/or certification by BPA (or other duly qualified
auditors of inspection authorities not reasonably objected
to by Exult and approved by BPA) on reasonable notice and
at reasonable times to ascertain compliance with the
obligations and warranties in this Schedule; and
2.2.11 EMPLOYEE COMPLIANCE
Ensure the compliance of its employees from time to time
with the terms of this Schedule.
3 DATA EXPORT
3.1 If BPA consents to the export of BPA personal data in accordance
with Section 2.2.6 of this Schedule and if the personal data is
subject to the Directives it shall ensure that the party to whom
BPA personal data is exported shall:
3.1.1 process BPA personal data in accordance with any industry
or other codes of practice to which it subscribes and in
accordance with the data protection principles set out in
the Directive, including without limitation the principles
in Article 6 of the Directive relating to data quality and
Article 17 of the Directive relating to security;
3.1.2 provide the data subject with the same rights of access,
correction, blocking, suppression or deletion available to
such individual Countries in which the personal data is
subject to the Directives;
3.1.3 process BPA personal data purposes of and to the extent
required to provide the Services;
3.1.4 maintain the accuracy of the data and keep it up to date;
3.1.5 comply with all instructions from BPA to rectify, delete
and update any personal data and confirm to BPA within a
reasonable time that it has done so;
3.1.6 appoint, and identify to BPA and, if requested by BPA to
the Authority, an individual within its organisation
authorised to respond to enquiries from the
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Authority or a data subject concerning its processing of
his or her personal data;
4 WARRANTY
Exult warrants that it will process BPA personal data only:
4.1 for the purposes of and to the extent required to provide the
Services;
4.2 to the extent they are applicable, in accordance with the
Directives and the provisions of the Implementing Legislation;
and
4.3 in accordance with the provisions of this Agreement.
5 BPA'S OBLIGATIONS
5.1 BPA warrants that:
5.1.1 it will obtain the written consent of all Data Subjects
whose personal data may be processed by Exult as part of
the Services under this Agreement;
5.1.2 it will indemnify and hold harmless Exult against all
costs, damages or other losses caused by any inaccuracy in
the personal data which BPA provides to Exult and which
results in Exult having any enforcement proceedings taken
by BPA employees and/or Authorities;
5.1.3 it shall ensure that it is permitted under its
registrations with the Authorities in all Countries to
transfer personal data to third party suppliers such as
Exult;
5.1.4 it will co-operate with Exult to ensure that all personal
data is accurate and that the Directives and Implementing
Legislation are complied with in the applicable Countries.
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<PAGE> 279
COUNTRY AGREEMENT PRO FORMA
SCHEDULE R
BPA PARTICIPATING AFFILIATES
<PAGE> 280
SCHEDULE R
BPA PARTICIPATING AFFILIATES
This schedule sets forth the BPA Affiliates that shall receive the Services
under the applicable Country Agreement.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
REGISTERED OFFICE OR
COUNTRY PARENT IF NOT THE PRINCIPAL OR PLACE OF
COMPANY CLIENT BUSINESS
------- ------------------------- ---------------------
<S> <C> <C>
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
</TABLE>
1
<PAGE> 281
COUNTRY AGREEMENT PRO FORMA
SCHEDULE T
PROCESS LINE POPULATION
<PAGE> 282
SCHEDULE T
PROCESS LINE POPULATION
This schedule sets forth the populations that shall receive the Services for
this County Agreement. The table below shall be completed prior to the Process
Take On Date for each Process. The Client shall provide both initial data and
monthly updates for this table until such time as the systems are available to
automatically report on this data.
PROCESS LINE POPULATION TABLE
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION
POPULATION BY PROCESS LINE
- ------------------------------------------------------------------------------------------------------------------------------
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations Compliance
==============================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
OIL (COUNTRY)
- ------------------------------------------------------------------------------------------------------------------------------
Retail
- ------------------------------------------------------------------------------------------------------------------------------
CI
- ------------------------------------------------------------------------------------------------------------------------------
MAS
- ------------------------------------------------------------------------------------------------------------------------------
Corporate
Functions
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION
POPULATION BY PROCESS LINE
- ---------------------------------------------------------------------------------------------------------
Under E/U Resourcing/ Performance Domestic
Admin Payroll Development Recruiting Severance Management Relocation HRIT
=========================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
OIL (COUNTRY)
- ---------------------------------------------------------------------------------------------------------
Retail
- ---------------------------------------------------------------------------------------------------------
CI
- ---------------------------------------------------------------------------------------------------------
MAS
- ---------------------------------------------------------------------------------------------------------
Corporate
Functions
- ---------------------------------------------------------------------------------------------------------
</TABLE>
1
<PAGE> 283
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION
POPULATION BY PROCESS LINE
- ------------------------------------------------------------------------------------------------------------------------------
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations Compliance
==============================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Other
- ------------------------------------------------------------------------------------------------------------------------------
(1)________________
- ------------------------------------------------------------------------------------------------------------------------------
(2)________________
- ------------------------------------------------------------------------------------------------------------------------------
OIL (INTERNATIONAL)
- ------------------------------------------------------------------------------------------------------------------------------
Air
- ------------------------------------------------------------------------------------------------------------------------------
Marine
- ------------------------------------------------------------------------------------------------------------------------------
Shipping
- ------------------------------------------------------------------------------------------------------------------------------
Other
- ------------------------------------------------------------------------------------------------------------------------------
(1)________________
- ------------------------------------------------------------------------------------------------------------------------------
(2)________________
- ------------------------------------------------------------------------------------------------------------------------------
EXPLORATION
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION
POPULATION BY PROCESS LINE
- ---------------------------------------------------------------------------------------------------------
Under E/U Resourcing/ Performance Domestic
Admin Payroll Development Recruiting Severance Management Relocation HRIT
=========================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Other
- ---------------------------------------------------------------------------------------------------------
(1)________________
- ---------------------------------------------------------------------------------------------------------
(2)________________
- ---------------------------------------------------------------------------------------------------------
OIL (INTERNATIONAL)
- ---------------------------------------------------------------------------------------------------------
Air
- ---------------------------------------------------------------------------------------------------------
Marine
- ---------------------------------------------------------------------------------------------------------
Shipping
- ---------------------------------------------------------------------------------------------------------
Other
- ---------------------------------------------------------------------------------------------------------
(1)________________
- ---------------------------------------------------------------------------------------------------------
(2)________________
- ---------------------------------------------------------------------------------------------------------
EXPLORATION
- ---------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE> 284
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION
POPULATION BY PROCESS LINE
- ------------------------------------------------------------------------------------------------------------------------------
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations Compliance
==============================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Business Units
- ------------------------------------------------------------------------------------------------------------------------------
(1)_________________
- ------------------------------------------------------------------------------------------------------------------------------
(2)_________________
- ------------------------------------------------------------------------------------------------------------------------------
Corporate Functions
- ------------------------------------------------------------------------------------------------------------------------------
Other
- ------------------------------------------------------------------------------------------------------------------------------
(1)_________________
- ------------------------------------------------------------------------------------------------------------------------------
(2)_________________
- ------------------------------------------------------------------------------------------------------------------------------
CHEMICALS
- ------------------------------------------------------------------------------------------------------------------------------
Business Units
- ------------------------------------------------------------------------------------------------------------------------------
(1)_________________
- ------------------------------------------------------------------------------------------------------------------------------
(2)_________________
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION
POPULATION BY PROCESS LINE
- ---------------------------------------------------------------------------------------------------------
Under E/U Resourcing/ Performance Domestic
Admin Payroll Development Recruiting Severance Management Relocation HRIT
=========================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Business Units
- ---------------------------------------------------------------------------------------------------------
(1)_________________
- ---------------------------------------------------------------------------------------------------------
(2)_________________
- ---------------------------------------------------------------------------------------------------------
Corporate Functions
- ---------------------------------------------------------------------------------------------------------
Other
- ---------------------------------------------------------------------------------------------------------
(1)_________________
- ---------------------------------------------------------------------------------------------------------
(2)_________________
- ---------------------------------------------------------------------------------------------------------
CHEMICALS
- ---------------------------------------------------------------------------------------------------------
Business Units
- ---------------------------------------------------------------------------------------------------------
(1)_________________
- ---------------------------------------------------------------------------------------------------------
(2)_________________
- ---------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE> 285
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION
POPULATION BY PROCESS LINE
- ------------------------------------------------------------------------------------------------------------------------------
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations Compliance
==============================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Corporate Functions
- ------------------------------------------------------------------------------------------------------------------------------
Other
- ------------------------------------------------------------------------------------------------------------------------------
(1)________________
- ------------------------------------------------------------------------------------------------------------------------------
(2)________________
- ------------------------------------------------------------------------------------------------------------------------------
SOLAR
- ------------------------------------------------------------------------------------------------------------------------------
Business Units
- ------------------------------------------------------------------------------------------------------------------------------
(1)________________
- ------------------------------------------------------------------------------------------------------------------------------
(2)________________
- ------------------------------------------------------------------------------------------------------------------------------
Corporate Functions
- ------------------------------------------------------------------------------------------------------------------------------
Other
- ------------------------------------------------------------------------------------------------------------------------------
(1)________________
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION
POPULATION BY PROCESS LINE
- ---------------------------------------------------------------------------------------------------------
Under E/U Resourcing/ Performance Domestic
Admin Payroll Development Recruiting Severance Management Relocation HRIT
=========================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Corporate Functions
- ---------------------------------------------------------------------------------------------------------
Other
- ---------------------------------------------------------------------------------------------------------
(1)________________
- ---------------------------------------------------------------------------------------------------------
(2)________________
- ---------------------------------------------------------------------------------------------------------
SOLAR
- ---------------------------------------------------------------------------------------------------------
Business Units
- ---------------------------------------------------------------------------------------------------------
(1)________________
- ---------------------------------------------------------------------------------------------------------
(2)________________
- ---------------------------------------------------------------------------------------------------------
Corporate Functions
- ---------------------------------------------------------------------------------------------------------
Other
- ---------------------------------------------------------------------------------------------------------
(1)________________
- ---------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE> 286
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION
POPULATION BY PROCESS LINE
- ------------------------------------------------------------------------------------------------------------------------------
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations Compliance
==============================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(2)_______________
- ------------------------------------------------------------------------------------------------------------------------------
GAS
- ------------------------------------------------------------------------------------------------------------------------------
Business Units
- ------------------------------------------------------------------------------------------------------------------------------
(1)_______________
- ------------------------------------------------------------------------------------------------------------------------------
Corporate Functions
- ------------------------------------------------------------------------------------------------------------------------------
Other
- ------------------------------------------------------------------------------------------------------------------------------
(1)
- ------------------------------------------------------------------------------------------------------------------------------
(2)
- ------------------------------------------------------------------------------------------------------------------------------
OTHER COUNTRY
UNITS SUPPORTED
- ------------------------------------------------------------------------------------------------------------------------------
(1)_______________
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION
POPULATION BY PROCESS LINE
- ---------------------------------------------------------------------------------------------------------
Under E/U Resourcing/ Performance Domestic
Admin Payroll Development Recruiting Severance Management Relocation HRIT
=========================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
(2)_______________
- ---------------------------------------------------------------------------------------------------------
GAS
- ---------------------------------------------------------------------------------------------------------
Business Units
- ---------------------------------------------------------------------------------------------------------
(1)_______________
- ---------------------------------------------------------------------------------------------------------
Corporate Functions
- ---------------------------------------------------------------------------------------------------------
Other
- ---------------------------------------------------------------------------------------------------------
(1)
- ---------------------------------------------------------------------------------------------------------
(2)
- ---------------------------------------------------------------------------------------------------------
OTHER COUNTRY
UNITS SUPPORTED
- ---------------------------------------------------------------------------------------------------------
(1)_______________
- ---------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE> 287
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION
POPULATION BY PROCESS LINE
- ------------------------------------------------------------------------------------------------------------------------------
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations Compliance
==============================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(2)_____________
- ------------------------------------------------------------------------------------------------------------------------------
OTHER POPULATIONS
- ------------------------------------------------------------------------------------------------------------------------------
(1) EXAMPLE-
ANNUITANTS
- ------------------------------------------------------------------------------------------------------------------------------
(2)_____________
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION
POPULATION BY PROCESS LINE
- ---------------------------------------------------------------------------------------------------------
Under E/U Resourcing/ Performance Domestic
Admin Payroll Development Recruiting Severance Management Relocation HRIT
=========================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
(2)_____________
- ---------------------------------------------------------------------------------------------------------
OTHER POPULATIONS
- ---------------------------------------------------------------------------------------------------------
(1) EXAMPLE-
ANNUITANTS
- ---------------------------------------------------------------------------------------------------------
(2)_____________
- ---------------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE> 288
COUNTRY AGREEMENT PRO FORMA
SCHEDULE U
ESCROW AGREEMENT
<PAGE> 289
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 DEFINITIONS..............................................................1
2 OWNER'S DUTIES AND WARRANTIES............................................2
3 LICENSEE'S RESPONSIBILITIES..............................................2
4 ESCROW AGENT DUTIES......................................................2
5 PAYMENT..................................................................3
6 RELEASE EVENTS...........................................................3
7 CONFIDENTIALITY..........................................................4
8 INTELLECTUAL PROPERTY RIGHTS.............................................4
9 VERIFICATION.............................................................4
10 ESCROW AGENT'S LIABILITY.................................................4
11 TERMINATION..............................................................5
12 GENERAL..................................................................5
</TABLE>
i
<PAGE> 290
SCHEDULE U
ESCROW AGREEMENT
BETWEEN:
(1) Exult, Inc. whose registered office is at 4 Park Plaza, Suite 350,
Irvine, California 92614 (the "Owner");
(2) BP Amoco plc whose registered office is at Britannic House, 1 Finsbury
Circus, London, EC2M 7BA (the "Licensee"); and
(3) NCC Escrow International Limited whose registered office is at Oxford
House, Oxford Road, Manchester, M1 7ED (the "Escrow Agent")
PRELIMINARY:
(A) The Licensee has been granted a license to use a software package
comprising computer programs.
(B) Certain technical information and documentation describing the software
package and other process flowcharts describing the way in which the
Owner provides certain services to the Owner and its affiliates, are the
confidential property of the Owner and are required for understanding,
maintaining and correcting the software package and the provision of the
services respectively.
(C) The Owner acknowledges that in certain circumstances the Licensee may
require possession of the technical information and documentation held
under this Agreement.
(D) Each of the parties to this Agreement acknowledges that the
considerations for their respective undertakings given under it are the
undertakings given under it by each of the other parties.
IT IS AGREED THAT:
1 DEFINITIONS
In this Agreement the following terms shall have the following meanings:
1.1 "FULL VERIFICATION SERVICE" means those bespoke tests agreed
between the Licensee and Escrow Agent for the verification of the
Material;
1.2 "INTELLECTUAL PROPERTY RIGHTS" means copyright, trade secret,
patent, and all other rights of a similar nature;
1.3 "SERVICES AGREEMENT" means the agreement pursuant to which the
Owner grants a licence to the Licensee for the Package;
1.4 "MATERIAL" means the source code of the Package comprising the
latest technical information and documentation described in
Schedules 1 and 2;
1.5 "PACKAGE" means the software package licensed to the Licensee
under the Services Agreement; and
1.6 "STANDARD VERIFICATION SERVICE" means those tests detailed in the
Standard Verification Service published by Escrow Agent from time
to time.
1
<PAGE> 291
2 OWNER'S DUTIES AND WARRANTIES
2.1 The Owner shall:
2.1.1 deliver a copy of the Material to Escrow Agent within 30
days of the date of this Agreement;
2.1.2 at all times ensure that the Material as delivered to
Escrow Agent is capable of being used to generate the
latest version of the Package issued to the Licensee and
shall deliver further copies of the Material as and when
necessary;
2.1.3 deliver to Escrow Agent a replacement copy of the Material
within 12 months of the last delivery;
2.1.4 deliver a replacement copy of the Material within 14 days
of receipt of a notice served upon it by Escrow Agent
under the provisions of Section 4.1.5; and
2.1.5 deliver with each deposit of the Material the information
detailed in Schedule 2.
2.2 The Owner warrants that:
2.2.1 it owns the Intellectual Property Rights in the Material
and has authority to enter into this Agreement; and
2.2.2 the Material lodged under Section 2.1 shall contain all
information in human readable form and on suitable media
to enable a reasonably skilled programmer or analyst to
understand, maintain and correct the Package and to enable
a suitably skilled person to understand and maintain the
provision of services under the Services Agreement without
the assistance of any other person.
3 LICENSEE'S RESPONSIBILITIES
It shall be the responsibility of the Licensee to notify Escrow Agent of
any change to the Package that necessitates a replacement deposit of the
Material.
4 ESCROW AGENT DUTIES
4.1 Escrow Agent shall:
4.1.1 hold the Material in a safe and secure environment;
4.1.2 inform the Owner and the Licensee of the receipt of any
copy of the Material;
4.1.3 in accordance with the terms of Section 9 perform those
tests that form part of its Standard Verification Service
form time to time;
4.1.4 at all times retain a copy of the latest verified deposit
of the Material; and
4.1.5 notify the Owner if it becomes aware at any time during
the term of this Agreement that the copy of the Material
held by it has been lost, damaged or destroyed.
4.2 Escrow Agent shall not be responsible for procuring the delivery
of the Material in the event of failure by the Owner to do so.
2
<PAGE> 292
5 PAYMENT
Escrow Agent's fees are payable in accordance with Schedule 4.
6 RELEASE EVENTS
6.1 Subject to the provisions of Sections 6.2 and 6.3, Escrow Agent
will release the Material to a duly authorised officer of the
Licensee if any of the following events occur:
6.1.1 the Owner enters into any composition or arrangement with
its creditors or (being a company) enters into liquidation
whether compulsory or voluntary (other than for the
purposes of solvency reconstruction or amalgamation) or
has a receiver or administrative receiver appointed over
all or any party off its assets or undertaking or a
petition is presented for an Administration Order or
(being an individual or partnership) becomes bankrupt, or
an event occurs within the jurisdiction of the country in
which the Owner is situated which has a similar effect to
any of the above events in the United Kingdom; or
6.1.2 the Owner ceases to trade; or
6.1.3 the Owner assigns copyright in the Material and the
assignee fails within 60 days of such assignment to offer
the Licensee substantially similar protection to that
provided by this Agreement without significantly
increasing the cost to the Licensee; or
6.1.4 the Owner has defaulted in any obligation to provide the
Material under the Services Agreement and has failed to
remedy such default notified by the Licensee to the Owner.
6.2 The Licensee must notify Escrow Agent of the event(s) specified
in Section 6.1 by delivering to Escrow Agent a declaration (the
"Declaration") made by an officer of the Licensee attesting that
such event has occurred exhibiting:
6.2.1 such documentation in support of the Declaration as Escrow
Agent shall reasonably require;
6.2.2 a copy of the Services Agreement;
6.2.3 a signed confidentiality undertaking as detailed in
Schedule 3
then Escrow Agent will release the Source Code to the Licensee
upon receipt of the release fee stated in Schedule 3.
6.3 Upon receipt of a Declaration from the Licensee claiming a
release event under Section 6.1.4 then Escrow Agent will release
the Material to the Licensee upon receipt of the release fee
stated in Schedule 4.
6.4 Where there is any dispute as to the occurrence of any of the
events set out in Section 6 or the fulfilment of any obligations
detailed therein, such dispute will be referred at the request of
either the Owner or the Licensee to the dispute resolution
procedure set out in the Services Agreement.
3
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7 CONFIDENTIALITY
7.1 The Material shall remain the confidential property of the Owner
and in the event that Escrow Agent provides a copy of the
Material to the Licensee, the Licensee shall be permitted to use
the Material only in accordance with a confidentiality
undertaking in the form contained in Schedule 3 of this
Agreement.
7.2 Escrow Agent agrees to maintain all information and/or
documentation coming into its possession or to its knowledge
under this Agreement in strictest confidence and secrecy. Escrow
Agent further agrees not to make use of such information and/or
documentation other than for the purposes of this Agreement and
will not disclose or release it other than in accordance with the
terms of this Agreement.
7.3 Termination of this Agreement will not relieve Escrow Agent or
its employees or the Licensee or its employees from the
obligations of confidentiality contained in this Section 7.
8 INTELLECTUAL PROPERTY RIGHTS
The release of the Material to the Licensee will not act as an
assignment of any Intellectual Property Rights that the Owner possesses
in the Material.
9 VERIFICATION
9.1 Subject to the provisions of Sections 9.2 and 9.3, Escrow Agent
shall bear no obligation or responsibility to any person, firm,
company or entity whatsoever to determine the existence,
relevance, completeness, accuracy, effectiveness or any other
aspect of the Material.
9.2 Upon the Material being lodged with Escrow Agent, Escrow Agent
shall perform those tests in accordance with its Standard
Verification Service and shall provide a copy of the test report
to the parties to this Agreement.
9.3 The Licensee shall be entitled to require that Escrow Agent
carries out a Full Verification. Any reasonable charges and
expenses incurred by Escrow Agent in carrying out the Full
Verification will be paid by the Licensee save that if in the
opinion of the expert appointed by the Managing Director of
Escrow Agent, the Material is substantially defective in content
any such reasonable charges and expenses will be paid by the
Owner.
10 ESCROW AGENT'S LIABILITY
10.1 Escrow Agent shall not be liable for loss caused to the Owner or
the Licensee either jointly or severally except for loss or
damage to the Material to the extent that such loss or damage is
caused by the negligent acts or omissions of Escrow Agent, its
employees, agents or sub-contractors and in such event Escrow
Agent's total liability in respect of all claims arising under or
by virtue of this Agreement shall not (except in the case of
claims for personal injury or death) exceed the sum of Pound
Sterling 500,000.
10.2 Escrow Agent shall in no circumstances be liable to the Owner or
the Licensee for indirect or consequential loss of any nature
whatsoever whether for loss of profit, loss of business or
otherwise.
10.3 Escrow Agent shall be protected in acting upon any written
request, waiver, consent, receipt or other document furnished to
it pursuant to this Agreement, not only in assuming its due
execution and the validity and effectiveness of its provisions
but also as to the
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truth and acceptability of any information contained in it,
which Escrow Agent in good faith believes to be genuine and what
it purports to be.
11 TERMINATION
11.1 Escrow Agent may terminate this Agreement after failure by the
Owner or the Licensee to comply with a 30 day written notice from
Escrow Agent to pay any outstanding fee. If the failure to pay is
on the part of the Owner, the Licensee shall be given the option
of paying such fee itself. Such amount will be recoverable by the
Licensee direct from the Owner.
11.2 Escrow Agent may terminate this Agreement by giving 60 days
written notice to the Owner and the Licensee. In that event the
Owner and the Licensee shall appoint a mutually acceptable new
custodian on terms similar to those contained in this Agreement.
11.3 If a new custodian is not appointed within 30 days of delivery of
any notice issued by Escrow Agent in accordance with the
provisions of Section 11.2, the Owner or the Licensee shall be
entitled to request the President for the time being of the
British Computer Society to appoint a suitable new custodian upon
such terms and conditions as he shall require. Such appointment
shall be final and binding on all parties.
11.4 The Licensee may terminate this Agreement at any time by giving
written notice to the Owner and Escrow Agent.
11.5 The Owner may only terminate this Agreement with the written
request of the Licensee.
11.6 This Agreement shall terminate upon release of the Material to
the Licensee in accordance with Section 6.
11.7 Upon termination under the provisions of Sections 11.2, 11.4,
11.5 or 11.6, Escrow Agent will deliver the Material to the
Owner. IF Escrow Agent is unable to trace the Owner, Escrow Agent
will destroy the Material.
11.8 Upon termination under the provisions o Section 11.1 the Material
will be available for collection by the Owner from Escrow Agent
for 30 days from the date of termination. After such 30 day
period Escrow Agent will destroy the Material.
11.9 Escrow Agent may forthwith terminate this Agreement and destroy
the Material if it is unable to trace the Owner having used all
reasonable endeavours to do so.
12 GENERAL
12.1 This Agreement shall be governed by and construed in accordance
with the laws of England and Wales.
12.2 This Agreement represents the whole agreement relating to the
escrow arrangements between the parties for the Package and
supersedes all prior arrangements, negotiations and undertakings.
12.3 All notices to be given to the parties under this Agreement shall
be deemed to have been duly given or made when delivered
personally or 7 days after posting or if sent by facsimile, 12
hours after despatch to the party to which such notice is
required to be given or made under this Agreement address to the
principal place of business or for companies based in the UK, the
registered office.
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SCHEDULE 1
MATERIAL: TECHNICAL INFORMATION
The source code of the Package known as [ ]
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SCHEDULE 2
MATERIAL: TECHNICAL INFORMATION
The Material shall be supplied with details of the following:
1. Details of the deposit; full name and version details, number of
media items, media type and density, file or archive format, list
or retrieval commands, archive hardware and operating system
details.
2. Name and functionality of each module/application of the
Material.
3. Names and versions of development tools etc.
4. Documentation describing the procedures for
building/compiling/executing/using the software (technical
notes, user guides).
5. Hardcopy directory listings of the contents of the media.
6. Name and contact details of employee(s) with knowledge of how to
maintain and support the Material.
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SCHEDULE 3
CONFIDENTIALITY UNDERTAKING
This undertaking is given on release of the Material pursuant to an Escrow Agent
dated [date] between:
(1) ("the Owner");
(2) ("the Licensee"); and
(3) Escrow Agent
1. Definitions contained in the Escrow Agent will apply to this
undertaking.
2. In consideration of Escrow Agent delivering the Materials to the
Licensee, the Licensee undertakes with the Owner and Escrow Agent.
2.1 to use the Material only for the purpose of understanding,
maintaining, developing, enhancing and correcting the Package
exclusively on behalf of the Licensee;
2.2 not to use the Material for any other purpose nor disclose it to
any person save such of its employees or contractors who need to
know the same in order to understand, maintain, develop, enhance
and correct the Package exclusively on behalf of the Licensee. ;
2.3 to hold all media containing the Material in a safe and secure
environment when not in use; and
2.4 forthwith to destroy the same should the Licensee cease to be
entitled to use the Package.
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SCHEDULE 4
ESCROW AGENT'S FEES (ST POUND STERLING)
1. Initial Fee
2. Annual Fee
(payable on completion of this Agreement and on each anniversary
thereafter)
1. Update Fee
(per update after the first 4 updates per annum)
1. Storage Fee
(per annum, per cubic foot payable if the source exceeds 1 cubic foot)
1. Release Fee
(plus Escrow Agent's reasonable expenses)
(i) All fees are subject to VAT where applicable(1)
(ii) All fees are reviewed by Escrow Agent from time to time
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(1) Only applicable to countries within the EU.
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Signed on behalf of Exult, Inc.
Name:
--------------------------------------------------------------
Position: (Authorised Signatory)
-------------------------------
Signed on behalf of BP Amoco plc
Name:
--------------------------------------------------------------
Position: (Authorised Signatory)
-------------------------------
Signed on behalf of Escrow Agent
Name:
--------------------------------------------------------------
Position: (Authorised Signatory)
-------------------------------
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FRAMEWORK AGREEMENT
SCHEDULE O
BPA POLICIES AND CONTROLS
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SCHEDULE O
BPA POLICIES AND CONTROLS
1 PART 1
The following Controls have been submitted to Exult in writing and Exult
shall fulfil its obligation under this Agreement in accordance with such
Controls.
[***]*
2 PART 2
The following Controls shall be reviewed and evaluated by BPA and Exult in
accordance with this Agreement.
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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[***]*
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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FRAMEWORK AGREEMENT
SCHEDULE P
GLOBAL GOVERNANCE ARRANGEMENTS
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TABLE OF CONTENTS
Page
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1. INTRODUCTION.............................................................. 1
2. GLOBAL GOVERNANCE PANEL................................................... 1
3. REGIONAL GOVERNANCE PANEL................................................. 2
4. COUNTRY REPRESENTATIVES................................................... 3
5. EXECUTIVE STEERING COMMITTEE.............................................. 4
6. REGIONAL STEERING COMMITTEES.............................................. 5
7. CONTRACT ADMINISTRATION DOCUMENTS......................................... 6
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SCHEDULE P
GLOBAL GOVERNANCE ARRANGEMENTS
1. INTRODUCTION
For the purposes of this Schedule, Exult shall mean Exult or the Exult
Participating Affiliate where appropriate; BPA shall mean BPA or the BPA
Participating Affiliate where appropriate.
2. GLOBAL GOVERNANCE PANEL
2.1 As soon as reasonably practicable following the Commencement Date a
Global Governance Panel will be established by the parties to focus
primarily on global strategic issues. It is agreed that the Global
Governance Panel should not be involved in day-to-day issues.
2.2 The Global Governance Panel will be comprised of 4 voting members as
follows:
2.2.1 one Global Project Leader from each of Exult and BPA (who will
also be members of the Executive Steering Committee); and
2.2.2 one Global Commercial Contract Leader from each of Exult and BPA.
2.3 The initial members of the Global Governance Panel are:
BPA Global Project Leader
Exult Global Project Leader
BPA Global Commercial Contract Leader
Exult Global Commercial Contract Leader
Each party shall wherever reasonably practicable give the other 3 months
written notice in the event it wishes to change its representatives on
the Global Governance Panel.
2.4 The Global Governance Panel shall be chaired alternately by a BPA
representative and an Exult representative.
2.5 The Global Governance Panel will meet no less than quarterly, and at
other times as agreed between the parties. The meetings will be arranged
to synchronise with those of the Regional Governance Panels and will
take place approximately two weeks after meetings of the Regional
Governance Panels.
2.6 Voting will be on a unanimous basis and a full quorum will be required
for voting purposes.
2.7 The responsibilities of the Global Governance Panel will include:
2.7.1 reviewing the overall performance of the parties' respective roles
and responsibilities under this Agreement and of their respective
Affiliates under the Country Agreements;
2.7.2 reviewing significant recommendations and suggestions made by the
Executive Steering Committee relating to the Services and/or this
Agreement or any Country Agreement and initiate appropriate
actions;
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2.7.3 submitting quarterly performance review reports to the Executive
Steering Committee for its guidance and recommendations;
2.7.4 when referred to it by any of the Regional Governance Panels,
considering and agreeing changes in accordance with the Change
Control Management procedure;
2.7.5 seeking to resolve any Dispute referred to it in accordance with
the Dispute Resolution Procedure.
2.8 The parties shall procure that the members of the Global Governance
Panel shall, at all times, act reasonably and in good faith having due
regard to the interests of all parties.
3. REGIONAL GOVERNANCE PANEL
3.1 As soon as reasonably practicable at the time of contracting the first
Country in a region a Regional Governance Panel will be established by
the parties for that Region to focus primarily on regional strategic
issues. It is agreed that the Regional Governance Panels should not be
involved in day-to-day issues.
3.2 Each Regional Governance Panel will be comprised of 4 voting members as
follows:
3.2.1 one Regional Project Leader from each of Exult and BPA; and
3.2.2 one Regional Commercial Contract Leader from each of Exult and
BPA.
3.3 The Regional Governance Panel shall be chaired alternately by a BPA
representative and an Exult representative.
3.4 The Regional Governance Panel will meet monthly, and at other times as
agreed between the parties. The meetings will be arranged to synchronise
with those of the Global Governance Panel as appropriate and will take
place approximately two weeks before the meetings of the Global
Governance Panel.
3.5 Voting will be on a unanimous basis and a full quorum will be required
for voting purposes.
3.6 The responsibilities and authorities of the Regional Governance Panel
will be determined and delegated in each case by the Global Governance
Panel and may include matters within the relevant Region such as:
3.6.1 agreeing an efficient and effective Due Diligence Exercise in
each relevant Country;
3.6.2 managing the internal interfaces with the Participating
Affiliates and the Exult Participating Affiliates in relation to
the Framework Agreement and the relevant Country Agreements;
3.6.3 addressing, co-ordinating and prioritising with issues affecting
the provision of the Services to Participating Affiliates under
the Country Agreements as referred to it by the Country
Representatives;
3.6.4 reviewing the overall performance of the parties' respective
Affiliates under the relevant Country Agreements;
3.6.5 reviewing significant recommendations and suggestions made by
Regional Steering Committee relating to the Services and/or any
relevant Country Agreements and initiate appropriate actions;
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3.6.6 submitting quarterly performance review reports to the Regional
Steering Committee for its guidance and recommendations;
3.6.7 submit quarterly performance review reports to the Global
Governance Panel;
3.6.8 managing Change Requests outside the authority of the relevant
Country Representative and otherwise in accordance with the
Change Control Management procedure;
3.6.9 seeking to resolve any Disputes referred to in accordance with
the Dispute Resolution Procedure;
3.6.10 referring matters outside its authority to the Global Governance
Panel;
3.6.11 identifying issues which may have an impact outside the relevant
Region and referring these to the Global Governance Panel as
required; and
3.6.12 monitoring and reviewing the ongoing status of Third Party
Contracts which are not Transferred to Exult Supplier.
3.7 The parties shall procure that the members of the Regional Governance
Panel shall, at all times, act reasonably and in good faith having due
regard to the interests of all parties.
4. COUNTRY REPRESENTATIVES
4.1 As soon as reasonably practicable following a Country Commencement Date,
BPA and Exult shall procure that, the relevant Affiliates each appoint a
Country Representative in respect of that Country.
4.2 The Country Representatives will have day-to-day responsibility for
managing the operation of the Country Agreement and supervising the
co-operation and other matters between the parties.
4.3 The responsibilities and authorities of each Country Representative will
be determined and delegated in each case by the relevant Regional
Governance Panel and may include matters such as:
4.3.1 reviewing the overall performance of the parties' respective
Affiliates under the relevant Country Agreement;
4.3.2 interpretation of the Agreement;
4.3.3 ensuring efficient flow of documentation under the Agreement;
4.3.4 handling of Disputes within the authority of the Country
Representative and referring others to the Regional Governance
Panel in accordance with the Dispute Resolution Procedure;
4.3.5 handling of Change Requests within the authority of the Country
Representative and referring others to the Regional Governance
Panel in accordance with the Change Control Procedure;
4.3.6 submitting issues concerning the relationship between the parties
to the Regional Steering Committee for its guidance and
recommendations;
4.3.7 submit [monthly/regular] performance review reports to the
Regional Governance Panel;
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4.3.8 generally dealing with any matter or issue arising out of or in
connection with the Country Agreement within the delegated
authority of, the Country Representative;
4.3.9 identifying and referring matters outside the Country
Representative authority to the Regional Governance Panel; and
4.3.10 identifying issues which may have an impact outside the relevant
Country and referring these to the Regional Governance Panel for
their attention.
4.4 The parties shall procure that the Country Representatives shall, at all
times, act reasonably and in good faith having due regard to the
interests of all parties.
5. EXECUTIVE STEERING COMMITTEE
5.1 As soon as reasonably practicable following the Commencement Date an
Executive Steering Committee will be established by the parties to focus
primarily on global relationship issues. It is agreed that the Executive
Steering Committee should not be involved in day-to-day issues.
The Executive Steering Committee will be comprised as follows:
For BPA:
5.1.1 the Executive Steering Committee shall be chaired by a BPA Group
representative;
5.1.2 one Global Project Leader from BPA (who will also be a member of
the Global Governance Panel);
5.1.3 four business stream representatives; and
5.1.4 one IT representative.
For Exult:
5.1.5 one Exult corporate executive representative;
5.1.6 one Global Project Leader who will also be a member of the Global
Governance Panel; and
5.1.7 IT/e-commerce/services representation.
Each party shall wherever reasonably practicable give the other 3 months
written notice in the event it wishes to change its representatives on
the Global Governance Panel.
5.2 The Executive Steering Committee will meet quarterly, and at other times
as agreed between the parties.
5.3 The Executive Steering Committee shall be a non-voting body.
5.4 The responsibilities of the Executive Steering Committee will include:
5.4.1 reviewing the global relationship issues arising out of the
Framework Agreement and the Country Agreements;
5.4.2 reviewing significant recommendations and suggestions made by the
Regional Steering Committee relating to issues affecting the
relationships between the parties and relationships between the
stakeholders;
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5.4.3 reviewing performance and providing advice and guidance to the
Global Governance Panel for Performance improvement and making
recommendations directly to BPA and Exult on issues affecting the
relationships between the parties and relationships between the
stakeholders.
5.5 The parties shall procure that the members of the Executive Steering
Committee shall, at all times, act reasonably and in good faith having
due regard to the interests of all parties.
6. REGIONAL STEERING COMMITTEES
6.1 At the same time as a Regional Governance Panel is established a
Regional Steering Committee will be established by the parties for that
Region to focus primarily on issues effecting relationships between the
parties and between the stakeholders in the relevant Region. It is
agreed that the Regional Steering Committees should not be involved in
day-to-day issues.
6.2 The Regional Steering Committee will be comprised as follows:
6.2.1 one member of the relevant Regional Governance Panel from each of
Exult and BPA;
6.2.2 two other appropriate representatives from Exult such as the IT
manager, the Service Centre Manager or representatives from
equivalent roles; and
6.2.3 up to four other representatives from BPA.
6.3 The Regional Steering Committees shall be chaired by a BPA
representative.
6.4 The Regional Steering Committees will meet quarterly or otherwise, at
times as agreed between the parties and will be synchronised to precede
the Executive Steering Committee meetings.
6.5 The Regional Steering Committees shall be non-voting bodies.
6.6 The responsibilities and authorities of the Regional Steering Committees
will be determined and delegated in each case by the Executive Steering
Committee and may include matters such as;
6.6.1 reviewing the Regional relationship issues arising out of the
Framework Agreement and of the relevant Country Agreements;
6.6.2 reviewing significant recommendations and suggestions made by the
Country Representatives relating to issues affecting the
relationships between the parties and relationships between the
stakeholders in the relevant Region;
6.6.3 reviewing performance and providing advice and guidance to the
Regional Governance Panel for performance improvement and making
recommendations directly to the Executive Steering Committee on
issues affecting the relationships between the parties [and
relationships between the Stakeholders];
6.6.4 submitting quarterly reviews to the Executive Steering Committee.
6.7 The parties shall procure that the members of the Regional Steering
Committees shall, at all times, act reasonably and in good faith having
due regard to the interests of all parties.
7. CONTRACT ADMINISTRATION DOCUMENTS
7.1 All contract administration documents shall be in English unless
required otherwise by any law of a Country, in which case contract
administration documents shall be prepared in both English and the
language required by law of the relevant Country.
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FRAMEWORK AGREEMENT
SCHEDULE Q
DATA PROTECTION
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TABLE OF CONTENTS
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1 DEFINITIONS............................................................... 1
2 PROCESSOR'S OBLIGATIONS AND WARRANTIES.................................... 2
3 DATA EXPORT............................................................... 4
4 WARRANTY.................................................................. 5
5 BPA'S OBLIGATIONS......................................................... 5
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SCHEDULE Q
DATA PROTECTION
PART I
DATA PROCESSING OBLIGATIONS
1 DEFINITIONS
For the purposes of this Schedule, the following terms shall have the
following meanings:
"AGREEMENT" means this Agreement and each Country Agreement;
"APPROPRIATE TECHNICAL AND ORGANISATIONAL MEASURES" means such necessary
measures that need to be taken in order to guarantee the security of the
personal data and to avoid unauthorised, accidental or unlawful alteration,
loss, disclosure, access to and processing of the personal data, taking
account of the state of technology and the cost of their implementation, the
nature of the personal data stored, and the risks posed by the processing
whether they arise from human action or from physical or natural means.
Specific regard shall be had to any relevant guidance, if any, provided by
the Authority in each Country;
"AUTHORITY" means the relevant data protection authority in the Country;
"AUTOMATED DECISION" means a decision which produces legal effects or
significantly affects a data subject and which is based solely on automated
processing of data intended to evaluate certain personal aspects such as
performance at work, creditworthiness, reliability and conduct etc;
"BPA" means BPA and each BPA Participating Affiliate;
"CLIENT PERSONAL DATA" means any personal data Processed by Exult Supplier
for or on behalf of BPA in the context of the provision of the Services;
"DATA SUBJECT" is one who can be identified, directly or indirectly, in
particular by reference to an identification number or to one or more factors
specific to his physical, physiological, mental, economic, cultural or social
identity from any personal data;
"DIRECTIVES" means the European Union Directive entitled "Directive 95/46/EC
of the European Parliament and of the Council of 24 October 1995 on the
protection of individuals with regard to the processing of personal data and
on the free movement of such data" and the European Union Directive entitled
"Directive 97/66/EC concerning the processing of personal data and the
protection of privacy in the telecommunications sector";
"EXULT" means Exult and each Exult Participating Affiliate;
"IMPLEMENTING LEGISLATION" means the legislation and any guidance, policy or
recommendations providing by the Authority (if any) in the Country which
implements the Directives;
"PERSONAL DATA" means any information relating to an identified or
identifiable natural person. For the purposes of this definition, an
identifiable person is one who can be identified, directly or indirectly, in
particular by reference to an identification number or to one or more factors
specific to his physical, physiological, mental, economic, cultural or social
identity;
"PROCESS" or "PROCESSING" means any operation or set of operations which
is/are performed upon personal data, whether or not by automatic means,
including collection, recording, organisation, storage, adaptation or
alteration, retrieval, consultation, use, disclosure by transmission,
dissemination or otherwise making available, alignment or combination,
blocking, erasure or destruction;
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"PURPOSES" means the purposes for which BPA personal data is to be Processed,
as may be amended from time to time by the parties, and as currently set out
in Schedule A (Scope of Services);
"SENSITIVE DATA" means personal data revealing racial or ethnic origin,
political opinions, religious or philosophical beliefs, trade-union
membership, or health or sex life;
"THIRD COUNTRY" means any country outside the European Economic Area.
2 PROCESSOR'S OBLIGATIONS AND WARRANTIES
2.1 GENERAL OBLIGATIONS
Exult hereby agrees during the term of the Agreement:
2.1.1 to act only solely on the instructions of BPA and in so doing to
process BPA personal data on behalf of BPA solely for the
Purposes;
2.1.2 to process BPA personal data in accordance with the Directives and
Implementing Legislation if the personal detail is subject to the
Directives; and
2.1.3 to process BPA personal data in accordance with the provisions of
this Agreement.
2.2 SPECIFIC OBLIGATIONS
Without limiting the generality of Section 2.1, Exult shall;
2.2.1 REGISTRATION AND AUTHORITY
Ensure that it has the necessary legal authority for the purpose
of processing BPA personal data for the Purposes in accordance
with the terms of this Agreement;
2.2.2 SECURITY
Prior to any processing of BPA personal data:
(i) put in place appropriate technical and organisational
measures to protect BPA personal data (including suitable
measures to protect Sensitive Data) against accidental or
unlawful destruction or accidental loss, alteration,
unauthorised disclosure or access and against all other
unlawful forms of processing;
(ii) put in place adequate security programmes and procedures to
ensure that unauthorised persons will not have access to the
equipment used to process BPA personal data, and that any
persons it authorises to have access to BPA personal data
will respect and maintain the confidentiality and security
of BPA personal data; and
(iii) have reviewed and to continue to review its security
programmes and procedures to ensure that they are adequate,
having regard to industry good practice and the cost of
their implementation at that time; and
(iv) once processing has commenced in accordance with this
Agreement, if at any time Exult becomes aware of any breach
in security advise BPA forthwith of the nature and extent of
the breach and shall take all necessary remedial action and
shall indemnify BPA against all costs, damages or other
losses arising out of such breach, except to the extent such
loss results from BPA failing to perform its obligations in
Section 5 below.
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2.2.3 ASSISTANCE AND ENQUIRIES
(i) without limitation to the other provisions of this
Agreement, take all reasonable steps to enable BPA to comply
with its obligations under the Directives and relevant
Implementing Legislation in relation to BPA personal data,
promptly upon being notified of such steps by BPA;
(ii) upon receiving any request for information or assistance in
relation to BPA personal data, from BPA, the Authority,
other regulatory body in which has jurisdiction or a data
subject, Exult will promptly provide all relevant
information to BPA or the Authority as requested by BPA;
(iii) promptly appoint an individual (a "Data Protection Officer")
within its organisation authorised to respond to any
enquiries made pursuant to this Section 2.2.3 or otherwise
in relation to this Agreement and with such other roles,
responsibilities and powers (if any) as may be required by
the laws implementing the Directives in the jurisdiction of
BPA and shall promptly notify the details of this individual
to BPA.
2.2.4 ENFORCEMENT
Recognise and agree BPA employees may enforce against Exult any of
their rights as Data Subjects under the Directives or Implementing
Legislation in relation to the processing by Exult of the BPA
personal data;
2.2.5 DATA QUALITY
Subject to Section 2.1.1 above, to, where necessary, maintain the
accuracy of BPA personal data and keep it up to date. Exult shall
comply with all instructions from BPA or any data subject to whom
BPA personal data relates to rectify, delete and update any BPA
personal data and, if so requested by BPA, shall notify in writing
BPA and/or the data subject as appropriate within a reasonable
time that it has done so.
2.2.6 DATA EXPORT
Not export from any Country within the European Economic Area any
BPA personal data to any Third Country without BPA's prior written
consent such consent not to be unreasonably withheld or delayed
provided that BPA has given such consent in relation to the USA;
2.2.7 ACCESS
If the personal data is subject to the Directives, provide the
data subject with the same rights of access, correction, blocking,
suppression or deletion available to such individual in the
relevant Countries which are subject to the Directives;
2.2.8 DISCLOSURE
(i) not to disclose, either free of charge or in return for
payment, not even for its preservation, any BPA personal
data to any other legal or natural person other than where
BPA has given its prior written consent to such disclosure
or where there is a legal obligation or there is a
regulatory obligation or where Exult is responding to a
request from the Authority or other authorial regulatory
body, in which case BPA must, where this is permitted by
law, be informed where practicable prior to such disclosure;
and
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FA Sch. Q 3 Exult
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<PAGE> 315
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
- --------------------------------------------------------------------------------
(ii) where BPA has consented to a disclosure in accordance with
2.2.6(i) above, BPA may require Exult to procure any
disclosee to whom BPA personal data is disclosed pursuant to
such clause to enter into an agreement for the protection of
personal data in similar terms to this Agreement.
2.2.9 RETENTION AND DESTRUCTION
Keep BPA personal data in such form as shall permit the
identification of data subjects for no longer than is necessary
for the Purposes of providing the Services or as instructed by
BPA;
2.2.10 AUDIT
Submit its facilities used to process personal data, data files
and documentation needed for processing for auditing and/or
certification by BPA (or other duly qualified auditors of
inspection authorities not reasonably objected to by Exult and
approved by BPA) on reasonable notice and at reasonable times to
ascertain compliance with the obligations and warranties in this
Schedule; and
2.2.11 EMPLOYEE COMPLIANCE
Ensure the compliance of its employees from time to time with the
terms of this Schedule.
3 DATA EXPORT
3.1 If BPA consents to the export of BPA personal data in accordance with
Section 2.2.6 of this Schedule and if the personal data is subject to
the Directives it shall ensure that the party to whom BPA personal data
is exported shall:
3.1.1 process BPA personal data in accordance with any industry or other
codes of practice to which it subscribes and in accordance with
the data protection principles set out in the Directive, including
without limitation the principles in Article 6 of the Directive
relating to data quality and Article 17 of the Directive relating
to security;
3.1.2 provide the data subject with the same rights of access,
correction, blocking, suppression or deletion available to such
individual Countries in which the personal data is subject to the
Directives;
3.1.3 process BPA personal data purposes of and to the extent required
to provide the Services;
3.1.4 maintain the accuracy of the data and keep it up to date;
3.1.5 comply with all instructions from BPA to rectify, delete and
update any personal data and confirm to BPA within a reasonable
time that it has done so;
3.1.6 appoint, and identify to BPA and, if requested by BPA to the
Authority, an individual within its organisation authorised to
respond to enquiries from the Authority or a data subject
concerning its processing of his or her personal data;
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COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
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4 WARRANTY
Exult warrants that it will process BPA personal data only:
4.1 for the purposes of and to the extent required to provide the Services;
4.2 to the extent they are applicable, in accordance with the Directives and
the provisions of the Implementing Legislation; and
4.3 in accordance with the provisions of this Agreement.
5 BPA'S OBLIGATIONS
5.1 BPA warrants that:
5.1.1 it will obtain the written consent of all Data Subjects whose
personal data may be processed by Exult as part of the Services
under this Agreement;
5.1.2 it will indemnify and hold harmless Exult against all costs,
damages or other losses caused by any inaccuracy in the personal
data which BPA provides to Exult and which results in Exult having
any enforcement proceedings taken by BPA employees and/or
Authorities;
5.1.3 it shall ensure that it is permitted under its registrations with
the Authorities in all Countries to transfer personal data to
third party suppliers such as Exult;
5.1.4 it will co-operate with Exult to ensure that all personal data is
accurate and that the Directives and Implementing Legislation are
complied with in the applicable Countries.
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FA Sch. Q 5 Exult
Final
<PAGE> 1
EXHIBIT 10.9
Dated 7 December, 1999
BP AMERICA INC
and
EXULT, INC.
US COUNTRY AGREEMENT
LINKLATERS
One Silk Street
London EC2Y 8HQ
Tel: (44-171) 456 2000
Ref: JPC/CXC
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
CONTENTS PAGE
- -------- ----
<S> <C>
1 Definitions and Interpretation.................................................... 2
2 Term.............................................................................. 2
3 Services.......................................................................... 3
4 Exclusivity....................................................................... 6
5 Client Obligations including BPA Responsibilities................................. 7
6 Transfer Arrangements............................................................. 8
7 Third Party HR Contracts.......................................................... 10
8 Front End Consents................................................................ 13
9 Change Control Management Process................................................. 13
10 Charges, Invoicing and Payment.................................................... 13
11 Taxes............................................................................. 14
12 Audit............................................................................. 15
13 Key Personnel..................................................................... 17
14 Termination....................................................................... 17
15 Suspension of a Process........................................................... 19
16 Winding Up Assistance............................................................. 20
17 Financial Consequences of Termination............................................. 21
18 Transfer Arrangements on Termination.............................................. 23
19 Intellectual Property Rights...................................................... 25
20 Confidentiality................................................................... 27
21 Data Protection and Security...................................................... 28
22 Contract and Service Management................................................... 29
23 Contract Minimums................................................................. 31
24 Warranties........................................................................ 32
25 Limitation on Liability........................................................... 33
26 Indemnities and Defence of Claims................................................. 35
27 Insurance......................................................................... 40
28 Recovery of Damage Awards......................................................... 40
29 Dispute Resolution................................................................ 41
30 Force Majeure..................................................................... 43
31 Assignment........................................................................ 44
32 Subcontracting.................................................................... 44
33 Participating Affiliates.......................................................... 45
34 General Terms..................................................................... 45
</TABLE>
i
<PAGE> 3
PARTIES
THIS AGREEMENT is made on December 1999
BETWEEN:
(1) BP AMERICA INC, a company incorporated under the laws of Delaware, whose
principal office is at 200 East Randolph Drive, Chicago, IL 60601
("CLIENT"); and
(2) EXULT, INC., a company incorporated under the laws of Delaware whose
principal office is at 4 Park Plaza, Suite 350, Irvine, California,
92614 ("EXULT SUPPLIER").
WHEREAS:
(A) By an agreement (the "Framework Agreement") dated 7 December, 1999
between BPA Amoco p.l.c. ("BPA") a company incorporated under the laws
of England, and Exult, Inc. ("Exult"), a company incorporated under the
laws of the State of Delaware, a framework was agreed to enable Exult
and its Affiliates to provide certain human resource management services
to BPA and certain of its Affiliates.
(B) The purpose of this Agreement is to set out the terms on which Exult
Supplier is to supply the Services to the Client in the United States of
America.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 The definitions applying to this Agreement are set out in Schedule
Z (Definitions).
1.2 A reference to any statute, enactment, order, regulation or other
similar instrument shall be construed as a reference to the
statute, enactment, order, regulation or instrument as amended by
any subsequent statute, enactment, order, regulation or instrument
or as contained in any subsequent re-enactment thereof.
1.3 Headings are included in this Agreement for ease of reference only
and shall not affect the interpretation or construction of this
Agreement.
1.4 References to Clauses and Schedules are, unless otherwise
provided, references to clauses and schedules in or to this
Agreement.
1.5 References to the words "include(s)" or "including" shall be
construed without limitation to the generality of the preceding
words.
2 TERM
This Agreement shall take effect on the Commencement Date and, unless
the Client provides notice under Clause 14.4 (Termination on Notice
after the Initial Period) that it wishes to terminate the Agreement on
notice after the Initial Period, the Agreement shall continue
2
<PAGE> 4
thereafter subject to the other provisions of Clause 14 (Termination).
3 SERVICES
3.1 The Services
3.1.1 Exult Supplier shall provide the Services to the Client and
the Participating Affiliates in accordance with the
Transition Plan, the Service Levels, the Controls, Good
Industry Practice and otherwise in accordance with the terms
and conditions of this Agreement.
3.1.2 Exult Supplier shall supply sufficient and appropriately
qualified and skilled Employees and Subcontractors to
provide the Services to the Client.
3.1.3 Exult Supplier shall be responsible for the management and
technical supervision of the performance of the Services by
Employees and Subcontractors under this Agreement.
3.1.4 Except as otherwise provided in this Agreement, Exult
Supplier shall be responsible for ensuring it has all the
assets required to provide the Services.
3.1.5 In performing the Services Exult Supplier shall use
reasonable endeavours to perform its duties in such manner
and at such times so that no act, omission or default of the
Exult Supplier shall, to its knowledge, constitute, cause or
contribute to any breach by BPA, the Client or any of the
Participating Affiliates of any contract, including, but not
limited to, the Third Party Contracts binding upon BPA, the
Client or the Participating Affiliates relating to the
Client Premises, the Client Assets or, the provision of the
Services.
3.2 CONTROLS
3.2.1 For the avoidance of doubt, the Client shall be responsible
for establishing and maintaining BPA Controls, including,
but not limited to, management overview and determination of
BPA Controls relating to human resource management policies
and practices. Exult Supplier shall have no responsibility
for the establishment and maintenance of BPA Controls, but
shall comply with BPA Controls in accordance with the terms
of this Agreement.
3.2.2 As at the Commencement Date, the BPA Controls listed in Part
1 of Schedule O, BPA Controls, have been provided to Exult
Supplier in writing and the parties have agreed that Exult
Supplier shall comply with such agreed BPA Controls when
fulfilling its obligations under this Agreement.
3.2.3 During the 6 month period following the Commencement Date,
the parties shall work together in good faith to review and
evaluate the BPA Controls listed in Part 2 of Schedule O.
Such review will involve an assessment of the applicability
of such BPA Controls to the performance of Exult Supplier's
obligations under this Agreement and the impact, if any, of
Exult's compliance
3
<PAGE> 5
with such BPA Controls in terms of the scope of Services,
Service Levels, Charges or any other aspect of this
Agreement.
3.2.4 It is the intention of the parties that through the review
process referenced in Clause 3.2.3, the BPA Controls listed
in Part 2 of Schedule O will be agreed between the parties
and included within Part 1 of Schedule O and Exult
Supplier's performance of its obligations under this
Agreement shall be subject to compliance with such
additional agreed BPA Controls.
3.2.5 In the event that the parties are unable to reach agreement
within [***]* of the review as to the inclusion of any BPA
Controls pursuant to Clause 3.2.4 then at the end of such
[***]* period, those BPA Controls shall be deemed to have
been included in Part 1 and the Change Control Management
process shall be applied to implement such BPA Controls.
3.2.6 In addition to the provisions in Clauses 3.2.4 and 3.2.5 for
inclusion of BPA Controls into this Agreement, the parties
shall procure the Regional Governance Panel to review the
BPA Controls periodically during the term of this Agreement
and to use reasonable endeavours to agree and include:
(i) any improvements and updates to BPA Controls; and
(ii) any additional BPA Controls established or determined
by the Client in relation to human resource management
or to its business generally.
3.2.7 In the event that the parties are unable to reach agreement
as to the inclusion of any BPA Controls pursuant to Clause
3.2.6 within [***]* of the review, those BPA Controls shall
be deemed to have been included in Part 1 and the Change
Control Management process shall be applied to implement
such BPA Controls.
3.2.8 Within [***]* following the Commencement Date and consistent
with the Process Take On Dates as set out in the Country
Transition Plan, Exult Supplier will develop a Quality
Control Document. The Quality Control Document shall
thereafter be reviewed periodically by the Regional
Governance Panel with a view to agreeing and incorporating
any improvements and updates thereto.
3.2.9 Any alleged or suspected violation of the BPA Controls by
any Employees in the performance of this Agreement shall be
promptly reported by the party with knowledge of the alleged
or suspected violation to the other party. Exult Supplier
shall permit the Client to conduct an investigation into the
matter and shall co-operate with any investigation into such
matter conducted by the Client and shall take whatever Exult
Supplier deems to be the appropriate corrective action with
respect to any such violation by the Exult Personnel.
3.3 NON-PERFORMANCE AGAINST KPI'S
3.3.1 Exult Supplier's performance of the Services shall be
measured against Service Levels, including the KPIs.
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
4
<PAGE> 6
3.3.2 If at any time after the applicable date determined in
accordance with Schedule B (Service Levels), there is a KPI
Failure, Exult Supplier shall credit the Client with the
applicable Service Credit in accordance with the procedure
set out in Schedule C (Charges and Invoicing) and the Client
may at its option seek any other remedy set forth in this
Agreement, provided that:
(i) the amount of such Service Credit shall be taken into
account when assessing any Award made to the Client
pursuant to any other remedy in relation to the default
resulting in the KPI Failure; and
(ii) the Client shall provide Exult Supplier with notice
that it intends to pursue such alternative remedy
within [***]* of recovery of the relevant Service
Credit from Exult Supplier in accordance with Schedule
C (Charges and Invoicing).
3.4 PROJECTS
The Client may from time to time request Exult Supplier by written
notice to undertake a Project in accordance with the Change
Control Management process and the procedures set out in Schedule
H (Projects). Projects included within the scope of this Agreement
at the Commencement Date, if any, are set out in Schedule H.
Unless otherwise agreed, Projects will be charged at the Standard
Rates.
3.5 DISASTER RECOVERY
3.5.1 In respect of each Process, Exult Supplier shall, from the
relevant Process Take On Date use and comply with the
existing BPA Disaster Recovery Plan (except to the extent
that Client has not provided Exult Supplier with a copy of
the existing BPA Disaster Recovery Plan) and shall within
[***]* of the Commencement Date develop and implement an
Exult Supplier Disaster Recovery Plan appropriate to the
provision of the Services. BPA makes no representation that
the BPA Disaster Recovery Plan is adequate for these
purposes and, therefore, Exult Supplier shall have no
liability for its failure to reinstate any of the Services
to the extent that it has complied with such plan. The Exult
Supplier Disaster Recovery Plan shall cover critical
personnel, operations, Systems and processing at facilities
used in the provision of the Services. Exult Supplier shall
maintain the Exult Supplier Disaster Recovery Plan and shall
conduct annual tests to ensure its effectiveness. Exult
Supplier shall consult with the Client in the preparation
and development of the Exult Supplier Disaster Recovery Plan
and the Regional Governance Panel shall use its reasonable
endeavours to agree any improvements to it. In the event
that such agreement is not reached within [***]* of the
proposal being made the improvement will be deemed to be
adopted and will be implemented in accordance with the
Change Control Management process.
3.5.2 As part of the consultation process described in Clause
3.5.1, Exult Supplier shall provide the Client with copies
of the Exult Supplier Disaster Recovery Plan, including any
updates to such plan which are developed by Exult Supplier.
- ----------------------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
5
<PAGE> 7
3.6 COMPATIBILITY OF IT SYSTEMS
It is the intention of the parties that the Systems and IT
infrastructure, including the Exult IT Domain, Exult Systems and
Future Systems, to be developed to support the provision of the
Services shall be compatible with BPA's IT infrastructure and
systems architecture existing at the Commencement Date (the
"Existing IT Domain"). The parties will co-operate in good faith
to ensure that this can be achieved so that the Leveraged
Operations can be implemented with the minimum of disruption to
the Existing IT Domain, provided that if either party considers
that a change to the Existing IT Domain is necessary in order to
allow the provision of the Services to the Service Levels and
achieve Leveraged Operations then such change shall be implemented
by way of the Change Control Management process.
3.7 VALIDATION EXERCISE
3.7.1 Following the Commencement Date, Exult Supplier and the
Client will work in co-operation to complete the Validation
Exercise in accordance with Schedule G.
3.7.2 The costs of the Validation Exercise shall be dealt with in
accordance with Schedule C.
3.8 PROCESS DESCRIPTIONS
3.8.1 Exult Supplier shall maintain in an electronic format (where
possible) updated system documentation and procedures
providing a clear description of the Service Delivery Model
once the Services are delivered (the "Process
Descriptions").
3.8.2 Exult Supplier shall provide the Client with access to such
Process Descriptions as reasonably requested by the Client.
4 EXCLUSIVITY
The parties acknowledge that Exult Supplier will have an exclusive right
to offer to provide Services and Underlying Technology to the Client in
the United States of America save that the Client has the right to
obtain human resources services (including the Services) directly from
itself, from BPA, from a BPA Affiliate or from a third party in respect
of:
4.1 [***]*
4.2 services received by the Client under Third Party Contracts which
are not Transferred to Exult Supplier pursuant to Clause 7 (Third
Party HR Contracts);
4.3 services received by the Client under Sensitive Third Party
Contracts pursuant to Clause 7 (Third Party HR Contracts);
4.4 [***]*
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
6
<PAGE> 8
4.5 [***]*
4.6 any Affected Process in relation to which the Client has
terminated this Agreement pursuant to Clause 15.5.1 (Suspension of
a Process).
5 CLIENT OBLIGATIONS INCLUDING BPA RESPONSIBILITIES
5.1 The Client shall perform its obligations under this Agreement,
including, but not limited to, the BPA Responsibilities, in
accordance with this Agreement.
5.2 The Client shall arrange for the giving of timely approvals,
management input, information and management review of issues as
and when they are requested by Exult Supplier. The Client will
provide Exult Supplier and its Employees and Subcontractors full
and timely access to all staff relevant to the provision of the
Services to the extent reasonably needed by Exult Supplier to make
decisions in relation to, or to perform the Services. In the event
that such access is not provided, Exult's Country Representative
will advise the Client's Country Representative.
5.3 The Client shall be responsible for establishing and maintaining
its management policies and strategies, including, but not limited
to, policies relating to the Client's human resources function.
Exult Supplier shall have no responsibility for the establishment
or maintenance of such policies.
5.4 Exult Supplier shall not be liable for any delay or failure on its
part to provide all or any of the Services or failure to perform
its other obligations under this Agreement to the extent that this
results from:
5.4.1 a failure by the Client to meet any of the Client's
obligations under this Agreement, including, but not limited
to, BPA Responsibilities;
5.4.2 errors, omissions or inadequacies in data, information or
instructions provided by the Client which Exult Supplier
relies on to provide the Services, but only to the extent
that Exult Supplier ought not to have been aware of any such
errors, omissions or inadequacies;
5.4.3 the negligent acts or negligent omissions of the Client in
connection with this Agreement; or
5.4.4 the Client preventing Exult Supplier from implementing the
agreed Exult Service Delivery Model by failing to fulfil its
obligations in respect of such implementation as set out in
this Agreement or as otherwise agreed between the parties.
5.5 Exult Supplier shall notify the Client on becoming aware of the
occurrence of any of the circumstances in Clause 5.4.1 to Clause
5.4.4 that may cause a delay or failure and shall use reasonable
endeavours to continue to provide the Services. To the extent that
either party believes consequential changes to Services, Charges,
Service Levels or any other obligations arising under the
Agreement are necessary as a result of the Client's failure to
meet its obligations, the matter shall be referred to the Regional
Governance Panel
- ----------------------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
7
<PAGE> 9
which shall determine the changes, if any, that should be
implemented in accordance with the Change Control Management
process. If the Regional Governance Panel is unable to resolve
this issue the matter shall be referred to an Arbitrator appointed
pursuant to Clause 29.3 (Dispute Resolution).
6 TRANSFER ARRANGEMENTS
6.1 CLIENT PREMISES
6.1.1 The Client shall use its reasonable endeavours to make
available, or to procure that there is made available,
should Exult Supplier so reasonably request, Client Premises
to enable Exult Supplier to perform the Services.
6.1.2 Exult Supplier shall occupy the Client Premises made
available to Exult Supplier in accordance with terms and
conditions of this Agreement and other terms which are
appropriate for those Client Premises as agreed between the
parties.
6.1.3 Any charges charged by the Client to Exult Supplier for the
use of Client Premises shall be charged back to the Client
as Pass Through Costs. Any reasonable costs incurred by
Exult Supplier in vacating Client Premises and in
establishing alternative premises shall be charged to the
Client as Pass Through Costs.
6.2 CLIENT ASSETS
6.2.1 Without prejudice to Clause 19 (Intellectual Property), the
Client shall use its reasonable endeavours to transfer,
license, lease or otherwise make available, to the extent it
has the power to do so, the Client Assets (as agreed between
the parties pursuant to the Due Diligence Exercise and/or
Validation Exercise) to enable Exult Supplier to perform the
Services.
6.2.2 Exult Supplier shall use Client Assets in accordance with
terms and conditions which are appropriate for those Client
Assets as agreed by the parties.
6.2.3 Any Charges charged by the Client to Exult Supplier for the
use of Client Assets shall be charged back to the Client as
Pass Through Costs.
6.3 EXULT SYSTEMS
6.3.1 Licences in respect of Exult Systems shall be dealt with in
accordance with Clause 19.
6.3.2 Subject to Clause 6.3.3 and Clause 19.6 (Licences of Exult
Supplier Intellectual Property on Termination), the licences
granted under Clause 6.3.1 shall be royalty free.
6.3.3 Where the Exult Systems or Future Systems include software
or other material licensed from a third party for which such
third party generally charges a royalty to licensees, Exult
Supplier reserves the right to charge the Client such
royalty
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<PAGE> 10
in respect of such software or materials. Any such royalty
will be equivalent to the royalty sum Exult Supplier pays to
the third party in respect of the licence. Any such royalty
charged to the Client shall be charged as a Pass Through
Cost.
6.3.4 Subject to Clause 6.3.5, Exult Supplier and the Client agree
to be bound by the terms of the Escrow Agreement in respect
of source code materials relating to the Exult Systems and
Future Systems other than standard commercially available
Third Party Systems, and Exult Supplier agrees to update
where possible the relevant source code materials held in
escrow, in accordance with the Escrow Agreement.
6.3.5 In respect of those Systems to which Clause 6.3.4 applies
and which are licensed to Exult Supplier from a third party,
Exult Supplier shall before using such Systems in the
provision of the Services take reasonable steps to:
(i) obtain the source code materials relating to such
Systems and place such materials in escrow in
accordance with Clause 6.3.4;
(ii) if this is not reasonably practicable, procure that the
source code materials be made available to the Client,
including in an escrow account on substantially the
same terms to those contained in Clause 6.3.4;
If (i) and (ii) are not reasonably practicable, the parties
shall discuss and agree on alternative arrangements to
obtain appropriate rights of access to the source code
materials.
6.3.6 The parties agree that the Escrow Agreement referred to in
Clause 6.3.4 shall be entered into with NCC Escrow
International Limited ("NCC") and that the Escrow Agreement
should be based on the standard model Single Licensee (UK),
amended to reflect the parties requirements pursuant to
fulfilling the respective obligations under this and the
other Country Agreements. The parties intend the form of the
agreement should be substantially similar to that contained
in Schedule U and that if it is not possible to obtain such
agreement with NCC, the parties shall agree on a suitable
alternative escrow agent.
6.3.7 Any costs associated with Exult Supplier's compliance with
Clauses 6.3.4, 6.3.5 and 6.3.6 shall be charged to the
Client as a Pass Through Cost.
6.4 MISCELLANEOUS PROVISIONS RELATING TO THIRD PARTY CONTRACTS
6.4.1 The Client shall procure, so far as is reasonably
practicable and subject to the provisions of Clause 8 (Front
End Consents), that Exult Supplier shall be entitled to the
benefit, subject to the burden, of the Client's or BPA's
interest in Third Party Contracts other than Third Party HR
Contracts which shall be dealt with in accordance with
Clause 7.
6.4.2 All charges and expenses arising from the Third Party
Contracts transferred to
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Exult Supplier (including Third Party HR Contracts) (to the
extent that the same relate to the Services) shall, subject
to Clause 8 (Front End Consents), be equitably apportioned
between the Client and Exult Supplier as at the date of the
Transfer.
7 THIRD PARTY HR CONTRACTS
7.1 THIRD PARTY HR CONTRACTS
Those contracts identified during the Due Diligence Exercise as
potential Third Party HR Contracts are set out in Schedule D. The
parties acknowledge that more potential Third Party HR Contracts
may be identified during the term of the Agreement in which case
such Third Party HR Contracts shall be added to Schedule D and be
subject to the provisions of this Clause 7. It is the intention of
the parties that, subject to the other provisions of this Clause,
where practicable the responsibility for the provision of the
services provided under Third Party HR Contracts should be
Transferred to Exult Supplier either by termination of such Third
Party HR Contracts or by an assignment or novation of such Third
Party HR Contracts to Exult Supplier, and in any event upon the
expiry of such Third Party HR Contracts. However, the parties
recognise that this may not be practicable in all circumstances
and have agreed that the following procedure shall apply to Third
Party HR Contracts.
7.2 THIRD PARTY CONTRACTS IN SCOPE
7.2.1 As soon as practicable after any potential Third Party HR
Contracts are identified, the Regional Governance Panel:
(i) shall consider and agree whether each such contract
falls within the scope of Services and is therefore a
Third Party HR Contract; and
(ii) [***]*
7.2.2 Any disagreement between the parties in relation to Clause
7.2.1(i) shall be if possible resolved in accordance with
the provisions of Clause 7.8.
7.2.3 [***]*
7.2.4 Any Third Party HR Contract categorised by the Client as a
Sensitive Third Party Contract shall be retained within
Schedule D and dealt with in accordance with the following
provisions of this Clause 7.
7.3 TRANSFER OF THIRD PARTY HR CONTRACTS
7.3.1 On the expiry of any Third Party HR Contract other than a
Sensitive Third Party Contract (which shall be dealt with
under Clause 7.6), Exult shall take on responsibility for
the provision of the Services equivalent to the services
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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previously provided under such Third Party HR Contract, and
the provisions of Clause 7.3.4, Clause 7.3.5 and Clause 7.7
will apply thereto.
7.3.2 [***]*
7.3.3 In the event of failure to agree pursuant to Clause 7.3.2,
the matter shall be referred to and if possible resolved in
accordance with the provisions of Clause 7.8.
7.3.4 If the parties agree pursuant to Clause 7.3.2 or if it is
resolved pursuant to Clause 7.3.3 that the Third Party HR
Contract should be Transferred to Exult Supplier or if the
services previously provided by such Third Party HR Contract
are Transferred to Exult Supplier pursuant to Clause 7.3.1
then:
(i) the parties shall agree on which category of cost
(being either Category A, B or C) the Third Party HR
Contract should be allocated to in accordance with
Schedule C and shall agree a suitable Contract Transfer
Plan; and
(ii) shall ensure that the Third Party HR Contract is
Transferred to Exult Supplier in accordance with such
Contract Transfer Plan in the most practical and
efficient manner and with the minimum of disruption to
the Client, the Participating Affiliates and to the
provision of the Services.
7.3.5 Where the parties fail to agree whether a Third Party HR
Contract should be Transferred to Exult Supplier under
Clause 7.3.2 to Clause 7.3.5 inclusive, and Services
equivalent to the services previously provided by such Third
Party HR Contract are not Transferred to Exult Supplier
pursuant to Clause 7.3.1, such Third Party HR Contract shall
be retained by the Client until its expiry or earlier
termination and on the occurrence of either event the
provisions of Clause 7.3.1 shall apply.
7.4 ADMINISTRATION OF THIRD PARTY HR CONTRACTS
7.4.1 Where the parties agree pursuant to Clause 7.3.2 or Clause
7.3.3 that a Third Party HR Contract should be administered
by Exult Supplier the parties shall agree a suitable
Contract Transfer Plan and shall ensure that Exult Supplier
takes over administration of the Third Party HR Contract in
accordance with Clause 7.3.1 and such Contract Transfer
Plan, in the most practicable and efficient manner and with
the minimum of disruption to the Client, BPA, the
Participating Affiliates and to the provision of the
Services. The Contract Transfer Plan shall include the scope
of Exult Suppliers' responsibilities relating to its
administration role together with the Client's role and
responsibilities.
7.4.2 Exult Supplier's duties with respect to Third Party HR
Contracts under this Clause 7.4 relating to any Benefit Plan
as defined in Schedule W shall be limited to (a) monitoring
the third party's performance in accordance with the terms
of the Third Party HR Contract and any other policies and
guidelines established by the appropriate fiduciaries of
such Benefit Plan, (b) reporting to the Client Country
Representative on the result of its monitoring activities
and (c) taking such action as directed by the Client Country
Representative with
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respect to such Third Party HR Contract.
7.5 MONITORING AND REVIEW OF THIRD PARTY HR CONTRACTS
In the event that a Third Party HR Contract is not Transferred to
Exult Supplier or administered by Exult Supplier, the parties,
through the Regional Governance Panel, shall continue to monitor
the Third Party HR Contract and work towards integrating Exult
Supplier into the relationship with the third party with a view to
Transferring the Third Party HR Contract or its administration to
Exult Supplier when the parties agree it is appropriate to do so.
7.6 SENSITIVE THIRD PARTY CONTRACTS
7.6.1 [***]*
7.6.2 In the case of Sensitive Third Party Contracts Transferred
by assignment or novation to Exult Supplier pursuant to
Clause 7.3.1 to Clause 7.3.5 inclusive, Exult Supplier
shall:
(i) not terminate any such Sensitive Third Party Contract
without the prior written consent of the Client; and
(ii) not enter into a new contract with a third party in
relation to Services provided under any such Sensitive
Third Party Contract without the prior written consent
of the Client.
7.6.3 Without prejudice to the Client's right under Clauses 4.1
and 4.3 to obtain such human resources services (including
the Services) directly from itself, from BPA, from a BPA
Affiliate or from a third party, in the event that the
Client wishes to Exult Supplier to provide any Special
Services, the provisions of Schedule W shall apply.
7.6.4 [***]*
7.7 USE OF CHANGE CONTROL
Any changes to this Agreement, including the relevant Schedules
which are required as a result of the Transfer, termination or
expiry of any Third Party Contract or required as a result of
Exult Supplier assuming or ceasing administration responsibilities
in relation to any Third Party Contract, shall be dealt with in
accordance with the Change Control Management process.
7.8 FAILURE TO REACH AGREEMENT
If the parties fail to reach agreement pursuant to Clause 7.2 to
Clause 7.5 inclusive, the
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matter shall be referred to the Regional Governance Panel in
accordance with Clause 29.1.2 (Dispute Resolution) and thereafter,
if possible, resolved in accordance with the provisions of Clause
29.1.3, provided that the matter shall not be referred to an
Expert or an Arbitrator in the event the BPA Vice President Group
HR and Exult Chief Executive Officer have not been able to resolve
the matter.
8 FRONT END CONSENTS
8.1 Where the consent of any third party is required to provide to
Exult Supplier the benefit of the arrangements under which the
Client holds or uses any of the Client Assets, Third Party Systems
or Third Party Contracts or such a consent is otherwise required
to enable Exult Supplier to perform the Services in the manner
contemplated by this Agreement, the Client shall use reasonable
endeavours, to procure that such consent is granted or at the
Client's option procure suitable alternative rights or services
are provided to Exult Supplier to enable it to perform the
Services. Exult Supplier shall use reasonable endeavours to
cooperate in obtaining such consents or obtaining suitable
alternative rights, including where necessary entering into new
agreements or agreeing to comply with the terms of the relevant
existing agreements. The use of reasonable endeavours shall not
include the payment of any monies by any party, but where consent
can only be obtained in return for the payment of an additional
sum, the parties shall consider paying such sum if it appears the
most cost effective way of proceeding. Any such payment shall be
charged as a Pass Through Cost.
8.2 Subject to Clause 8.1, if Exult Supplier does not have the right
to use the Client Assets, Third Party Systems, or the benefit of
the Third Party Contracts or any suitable alternative, Exult
Supplier shall not be liable for any failure to provide that part
of the Services to the extent that such failure results from the
lack of such right or benefit, provided that Exult Supplier shall
use reasonable endeavours to minimise the extent of such failure.
9 CHANGE CONTROL MANAGEMENT PROCESS
Any changes to this Agreement shall be dealt with in accordance with the
Change Control Management process set out in Schedule L.
10 CHARGES, INVOICING AND PAYMENT
10.1 The Client shall pay the Charges to Exult Supplier in accordance
with the provisions of this Agreement, including Schedule C. The
Client shall pay all Charges invoiced by Exult Supplier regardless
of, and without prejudice to, whether it disputes all or any of
such invoice.
10.2 Exult Supplier shall, on the Client's request, provide copies of
all relevant accounts and records on which the calculations are
based to demonstrate that the amounts invoiced have been properly
calculated in accordance with the methodology set out in Schedule
C and such other information as the Client may reasonably require
to enable the Client to
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assess the legitimacy of the Charges made pursuant to the
provisions of Schedule C.
10.3 The Client shall have the right to conduct an audit pursuant to
Clause 12 (Audit) to verify the amount paid to Exult Supplier
under Clause 10.1 and if the Audit reveals that any over payment
has been made, the provisions of Section 14 of Schedule C (Charges
and Invoicing) shall apply.
11 TAXES
11.1 RESPONSIBILITY FOR TAXES
11.1.1 Each party shall be solely responsible for all Taxes which
shall be properly and lawfully assessed or imposed on it by
any competent legal or fiscal authority in connection with
the carrying out of or receiving of the Services or
otherwise under this Agreement.
11.1.2 Exult Supplier shall retain all necessary and reasonable Tax
information and documents as shall enable Exult Supplier to
comply with its obligations under Clause 11.1.1 for such a
period as may be required in the relevant jurisdiction, and
in any event not to be a period of less than 6 years.
11.1.3 Exult Supplier shall be liable for all income Taxes which
shall be properly and lawfully assessed or imposed on Exult
Supplier by any competent authority in connection with the
carrying out of the Services under this Agreement. Exult
Supplier acknowledges that the Client is not and shall not
become liable to any taxes referred to in this Clause
11.1.3.
11.1.4 Each party shall indemnify and keep indemnified the other
against all liabilities incurred by the other as a
consequence of its breach of any of the obligations under
Clause 11.1.1 and (in the case of Exult Supplier) under
Clauses 11.1.2 and 11.1.3.
11.2 GROSSING UP FOR SALES TAXES
11.2.1 Notwithstanding the provisions of Clause 11.1, all sums due
to Exult Supplier under this Agreement are exclusive of any
VAT, sales and use tax, and any other similar taxes which
apply or may from time to time be introduced, which shall be
charged thereon in accordance with the relevant regulations
in force at the time of making the taxable supply, and shall
be paid by [***]*
11.2.2 Where required by the relevant fiscal regulations, invoices
shall show the relevant currency and any conversion of the
VAT, sales and use tax, or other similar taxes, into any
currency required to be shown in accordance with the
relevant fiscal regulations of the Country, or Countries
concerned.
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11.2.3 Exult Supplier shall (if required by the relevant fiscal
regulations of the Country concerned) in respect of this
Agreement be duly registered in the jurisdiction where the
Services are performed for the purposes of VAT or other
similar sales taxes where such registration is required.
11.2.4 Exult Supplier shall indemnify the Client in respect of any
penalties and/or interest charges imposed by a competent tax
authority on the Client arising out of error or omission by
Exult Supplier in relation to VAT or other similar sales
taxes, provided that the Client notifies Exult Supplier
within 30 calendar days of such penalties and/or interest
charges being brought to the Client's attention by the
competent tax authority.
11.2.5 WITHHOLDING TAXES
(i) If the Client is properly and lawfully required by any
competent legal or fiscal authority in the Country to
withhold or deduct Withholding Tax on any amounts
payable under this Agreement to Exult Supplier it shall
cooperate reasonably with Exult Supplier, including by
forwarding the relevant withholding or deducting
certificate or certificates as soon as reasonably
practicable to Exult Supplier in respect of such
withholding or deduction so that Exult Supplier is able
to seek to recover from the relevant competent legal or
fiscal authority the amount so withheld or deducted.
(ii) Exult Supplier shall use reasonable endeavours to
mitigate the effect of any Withholding Tax imposed on
any payment under this Agreement by seeking to reduce
the rate of Withholding Tax by credit, off-set,
deduction, repayment or otherwise, or by eliminating
such Withholding Tax by making use of any applicable
double taxation treaties or similar provisions.
(iii) If the Client withholds or deducts Withholding Tax in
accordance with Clause 11.2.5(i) and Exult Supplier is
unable to mitigate the effect of any Withholding Tax as
set out in Clause 11.2.5(ii), the Client and Exult
Supplier shall agree an additional amount ("Additional
Amount") of cost to be included in Exult Return and
ROC. Such Additional Amount may be any amount
(including zero) agreed as reasonable by Exult Supplier
and the Client on a case by case basis (taking account,
inter alia, Exult Supplier's overall Tax position in
the Country or, if different, in its Country of Tax
residence) but shall not exceed such additional amount
as will result in receipt by Exult Supplier of more
than the full sum payable under this Agreement.
(iv) If there is any dispute in relation to any matter under
this Clause 11.2.5, the matter shall be referred to an
Expert appointed pursuant to Clause 29.2 (Dispute
Resolution). The costs of such Expert shall be borne
equally by the parties.
12 AUDIT
12.1 The Client shall have the right at all reasonable times (in
accordance with Clause 12.2) and on reasonable notice to audit
(which for the avoidance of doubt includes inspection)
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Exult Systems, procedures, supporting documentation, financial and
other books and records to the extent that they relate to the
provision of the Services as shall be necessary in the reasonable
opinion of the Client, to verify:
12.1.1 that the methodology in Schedule C has been correctly
applied in determining the Charges to be allocated to the
Client;
12.1.2 that the actual level of performance of the Services is the
same as the level of performance reported to the Client;
12.1.3 that Exult Supplier has adequate Internal Controls in place;
12.1.4 that the costs incurred and charged by Exult Supplier in
connection with the Winding Up Plan, the General Winding Up
Plan and the Validation Exercise are accurate;
12.1.5 that the amount claimed by Exult Supplier in respect of any
Early Termination Payment is in accordance with Clause 17.2
(Termination for Convenience Payment); and
12.1.6 Exult Supplier's compliance with any other obligation under
this Agreement.
12.2 The audits referred to in Clause 12.1 may be carried out by the
Client or its authorised representatives (the "AUDITOR"),
including BPA, and may be undertaken [***]* at such time as the
Client, reasonably requests or more frequently in exceptional
circumstances as determined by the Regional Governance Panel. The
Client, shall use reasonable endeavours to conduct any such audits
in a manner which will result in the minimum of inconvenience to
Exult Supplier including, but not limited to, conducting such
audit in conjunction with Exult Supplier's own internal and/or
external audits where practicable.
12.3 Where the Client exercises its rights under Clause 12.1, and where
the Auditor has access to any Exult Confidential Information or
third party confidential information, the Auditor shall enter into
a separate confidentiality agreement with respect to that
confidential information with Exult Supplier and/or, at Exult
Supplier's election, with the third party prior to such exercise
by the Client. No Auditor shall be selected without the prior
written consent of Exult Supplier as to the identity of the
Auditor, such consent not to be unreasonably withheld or delayed.
12.4 Exult Supplier shall provide the Auditor reasonable access to
Employees, Subcontractors, documents, records and systems relating
to the provision of the Services and shall provide the Auditor
with routine assistance in connection with the audits. The Auditor
shall have the right to copy and retain copies of any relevant
records solely for the purposes of conducting the audit and
subject to the applicable confidentiality obligations.
12.5 Any amounts agreed as a result of the audit to have been
incorrectly charged by Exult Supplier shall be adjusted in the
next regular payment by the Client in accordance with Schedule C
(Charges and Invoicing).
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12.6 In the event that there is any Dispute relating to any report
produced pursuant to any audit carried out under the provisions of
Clause 12.1, the matter shall be referred to an Expert appointed
pursuant to Clause 29.2 (Dispute Resolution). [***]*
12.7 Exult Supplier shall use reasonable endeavours to seek to obtain
for the Client the right to audit on terms equivalent to those
contained in this Clause 12 the relevant documents, records and
Systems of Exult, Exult Affiliates and any Subcontractors.
12.8 Exult Supplier and the Client shall [***]* costs with respect to
any audits carried out pursuant to this Clause 12.
12.9 Exult Supplier shall make available all books of account and
records held on behalf of the Client and relating to the provision
of the Services by Exult Supplier to the internal and external
auditors of the Client for the purposes of performing any
statutory or regulatory audit in relation to the Client.
12.10 The audit rights contained in this Clause 12 shall survive the
termination or expiry of this Agreement for a period of [***]*
from the date of such expiry or termination.
13 KEY PERSONNEL
13.1 Exult Supplier shall ensure, to the extent that it is within its
reasonable control, that the Key Employees are actively involved
in supplying the Services for the minimum period specified in
Schedule I (Employees) in relation to each Key Employee and shall
not replace any Key Employees with another person during that
period unless the parties agree that the relevant Key Employees
need no longer be actively involved in the provision of the
Services.
13.2 The Client shall, to the extent that it is within its reasonable
control, ensure that the BPA Key Employees are actively involved
in fulfilling the Client's obligations under this Agreement for
the minimum period's specified in Schedule I (Employees) in
relation to each BPA Key Employee. The Client shall not replace
any BPA Key Employees with another person during that period
unless the parties agree that the relevant BPA Key Employees no
longer needs to be actively involved in the performance of this
Agreement.
14 TERMINATION
14.1 TERMINATION ON WINDING UP OR DEFAULT
Either the Client or Exult Supplier may at any time by notice in
writing terminate this Agreement as from, subject to Clause 14.7,
the date of giving such notice to terminate if:
14.1.1 in the case of the Client, Exult Supplier or in the case of
Exult Supplier, the Client passes a resolution or the court
makes an order that it be wound up otherwise than for the
purposes of a reconstruction or amalgamation, or a receiver
manager or administrator on behalf of a creditor is
appointed in respect of the other party's business, or
circumstances arise which would entitle a creditor to
request that a court appoint a receiver, manager or
administrator or
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which would entitle the court otherwise than for the purpose
of a bona fide reconstruction or amalgamation to make a
winding-up order, or the other party is unable to pay its
debts within the meaning of Section 123 of the UK Insolvency
Act 1986 or its relevant foreign jurisdiction;
14.1.2 in the case of the Client, Exult Supplier or in the case of
Exult Supplier, the Client, is in Default and the party in
Default fails to remedy or compensate for the Default within
[***]* of a written notice from the other party specifying
the Default and requiring its remedy; or
14.1.3 in the case of the Client if there are:
[***]*
14.2 TERMINATION FOR CONVENIENCE
The Client may, subject to Clause 17.2 (Termination for
Convenience Payment), terminate this Agreement by giving Exult
Supplier [***]* prior written notice, such notice not to take
effect before [***]* where no Winding Up Plan is implemented or on
such later date as is determined in accordance with Clause 14.7.
14.3 TERMINATION ON TERMINATION OF FRAMEWORK AGREEMENT
This Agreement shall, subject to Clause 14.7, terminate upon the
termination or expiry of the Framework Agreement.
14.4 TERMINATION ON NOTICE AFTER THE INITIAL PERIOD
The Client may terminate this Agreement by giving not [***]*
notice to Exult Supplier such notice to take effect, subject to
Clause 14.7, on the expiry of the Initial Period.
14.5 TERMINATION FOR FORCE MAJEURE
If an event of Force Majeure arises which cannot be readily
resolved and continues for a period of 6 months which materially
prevents or hinders the performance of material obligations under
this Agreement in relation to one or more Processes then either
party may at any time by notice terminate this Agreement in
relation to the Process or Processes affected by the Force Majeure
event as from, subject to Clause 14.7, the date of giving such
notice. In the event of a partial termination of this Agreement in
accordance with this Clause 14.5, the provisions of this Agreement
relating to termination for Force Majeure and the consequences of
termination, including Winding Up Assistance shall apply (but only
to the extent of the Process or Processes affected by the Force
Majeure event).
14.6 TERMINATION FOR CHANGE OF CONTROL
The Client may at any time by notice terminate this Agreement as
from, subject to Clause 14.7, the date of giving such notice if
there is a Change of Control of Exult
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Supplier, provided that such notice is given [***]* of Exult
Supplier notifying the Client of such Change of Control.
14.7 EXTENSION OF TERM FOR WINDING UP PLAN
Any date for the termination of this Agreement provided in this
Clause 14 shall be subject to any extension agreed or determined
by the parties pursuant to the Winding Up Plan.
14.8 NOTIFICATION TO REGIONAL REPRESENTATIVES
The Client or Exult Supplier, as the case may be, will wherever
practicable inform the Regional Representatives in writing [***]*
prior to giving notice under Clause 14.1 or 14.2, provided that
failure to give such notice shall not affect the Client's or Exult
Supplier's right to terminate the Agreement.
14.9 PRESERVATION OF RIGHTS OF ACTION
Any termination or expiry of this Agreement shall, subject to
Clause 34.12 (Legal Proceedings), be without prejudice to and
shall not affect any right of action or remedy which shall have
accrued or shall thereafter accrue under the terms of this
Agreement.
15 SUSPENSION OF A PROCESS
15.1 [***]*
15.2 [***]*
15.3 [***]*
15.4 As soon as it can be demonstrated to the reasonable satisfaction
of the Regional Governance Panel that the Default has been
remedied and a plan has been agreed between the parties for
reinstatement of the Affected Process, the Client will by notice
terminate the suspension and reinstate Exult Supplier's provision
of the Affected Process.
15.5 If, at the end of the suspension period, it has not been
demonstrated to the reasonable satisfaction of the Regional
Governance Panel that the Default has been remedied the Client
shall either:-
15.5.1 serve written notice on Exult Supplier to terminate this
Agreement in relation to the Affected Process with immediate
effect; or
15.5.2 reinstate Exult Supplier's provision of the Affected Process
in accordance with an agreed plan for reinstatement and
resume the payment of Charges relating to the Affected
Process.
15.6 In the event that Exult Supplier's provision of the Affected
Process is reinstated in accordance with Clauses 15.4 and 15.5.2,
Exult Supplier shall only be responsible for meetingService
Levels, including KPIs, applicable to the Affected Process once
Exult
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Supplier has resumed the provision of the Affected Process for a
period in excess of [***]*
15.7 In the event of a partial termination of this Agreement in
accordance with Clause 15.5.1, the provisions of this Agreement
relating to termination for Default and consequences of
termination, including Winding Up Assistance shall apply (but only
to the extent of the Affected Process), and [***]*
15.8 In the event of suspension pursuant to Clause 15.2, Exult Supplier
shall offer to grant or to procure the grant of a licence in the
terms set out in Clause 19.6 and shall give the Client, BPA and
its Affiliates and its contractors such access to and use of the
Client Assets, Exult Proprietary Systems and Future Systems and
any other resources then being used to provide the Affected
Process as the Client may reasonably require in order to provide
for itself or procure the Affected Process through a third party
in accordance with Clause 15.2; provided that in exercising its
rights, the Client shall seek to minimise the disruption to Exult
Supplier's other business. In this Clause 15.8, any contractor
employed by the Client during the suspension period shall be
deemed to be a Successor Operator for the purposes of the
application of Clause 19.6. Any licence and/or access rights
granted pursuant to this Clause 15.8 shall apply solely for the
suspension period.
15.9 The remedies of the Client under this Clause 15 may be exercised
in respect of any one or more Defaults of this Agreement by Exult
Supplier.
16 WINDING UP ASSISTANCE
16.1 [***]* prior to the Framework Expiry Date or on notice of
termination of this Agreement at the request of BPA:
16.1.1 the parties will promptly meet and develop and agree the
Winding Up Plan to provide an orderly transitioning of the
Services provided under the Agreement to the Successor
Operator(s), including, but not limited to, the orderly
transitioning of support and maintenance in respect of Exult
Systems and Future Systems; and
16.1.2 Exult Supplier shall co-operate fully with the Client, BPA
and the Participating Affiliates to implement the Winding Up
Plan, to minimise the cost and disruption of termination to
the Client, BPA and the Participating Affiliates and to
facilitate the orderly transitioning of the Services from
Exult Supplier to Successor Operator in accordance with the
provisions of this Agreement.
16.2 The Winding Up Plan is to cover the period [***]* from the earlier
of (i) the Expiry Date; and (ii) the date of giving notice of
termination of this Agreement.
16.3 In the event that the parties fail to agree the Winding Up Plan
within [***]* of first meeting in accordance with Clause 16.1, the
matter shall be referred to the informal Dispute Resolution
Procedure pursuant to Clause 29.1, and, if necessary, to an Expert
in accordance with Clause 29.2. The costs of such Expert shall be
borne equally by the parties.
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16.4 Exult Supplier shall provide all assistance reasonably required by
the BPA Regional Project Leader or the Client for, or in
connection with, the Winding Up Plan and/or to ensure an orderly
migration of the obligations of Exult Supplier (including the
provision of the Services) to a Successor Operator for the period
of the Winding Up Plan.
16.5 Exult Supplier shall develop a Service Delivery Description and
shall deliver it to the BPA Regional Representatives and the
Client as soon as reasonably practical after first meeting to
develop and agree the Winding Up Plan. It will include up-to-date
process flowcharts and any other documentation reasonably
necessary to provide the BPA Regional Representatives and the
Client with a clear understanding of how the Services are
delivered and to enable the Client or Successor Operator to take
over the provision of the Services and to maintain and develop the
Service Delivery Model.
16.6 BPA and the Client shall have the right, through their employees
and/or Successor Operator, if applicable, to interface with Exult
Supplier, Employees and Subcontractors to gain such an
understanding of and familiarity with the systems documentation
and processes used in providing the Services to enable their
employees or a Successor Operator to provide services equivalent
to the Services.
16.7 In the event of a termination pursuant to Clause 14.3 (Termination
of the Framework Agreement), the Winding Up Plan will be subject
to and determined by the General Winding Up Plan.
16.8 The parties shall continue to perform their obligations in
accordance with this Agreement during the period of the Winding Up
Plan except as expressly provided in the Winding Up Plan,
provided, however, that the obligations set forth in the following
Clauses shall not apply during the period of the Winding Up Plan:
Clauses 4, 7, 13 and 22.
17 FINANCIAL CONSEQUENCES OF TERMINATION
17.1 WINDING UP ASSISTANCE
17.1.1 The Client shall bear it's own costs and the reasonable
charges and expenses of Exult Supplier (which shall be based
on the Standard Rates) incurred in connection with the
Winding Up Assistance, including the preparation and
production of the Service Delivery Description, provided
that, for the avoidance of doubt, this will not prevent the
Client from seeking to recover damages in respect of any
loss it suffers pursuant to any termination of this
Agreement (i) as a result of Exult Supplier's Default,
pursuant to Clause 14.1; or (ii) pursuant to Clause 14.3 on
the termination of the Framework Agreement as a result of
Exult's Default.
17.1.2 Exult Supplier shall invoice in respect of charges and
expenses due pursuant to Clause 17.1.1 on a monthly basis
and such invoices shall be paid within 30 days of receipt of
an invoice in respect of such costs.
17.2 TERMINATION FOR CONVENIENCE PAYMENT
17.2.1 In the event of the termination of this Agreement by the
Client pursuant to Clause 14.2 (Termination for
Convenience), the Client shall pay to Exult
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Supplier the Early Termination Payment [***]* of an invoice
together with copies of all relevant accounts and records on
which the calculations are based to demonstrate that the
amount has been properly calculated in accordance with the
methodology in Schedule C.
17.2.2 The Client shall have the right to conduct an audit pursuant
to Clause 12 (Audit) to verify the amount paid to Exult
Supplier under Clause 17.2.1 and if the audit reveals that
any over payment has been made, the provisions of Section 14
of Schedule C shall apply.
17.2.3 Notwithstanding Clauses 17.2.1 and 17.2.2, if the Client
reasonably disputes the amount claimed by Exult Supplier
under Clause 17.2.1, then the dispute will be referred to
the informal Dispute Resolution Procedure in accordance with
Clause 29.1 and in the event the parties fail to agree the
Dispute shall be referred to an Expert for resolution, such
Expert to be appointed in accordance with Clause 29.2.
17.3 THIRD PARTY CONTRACTS
17.3.1 GENERAL
Notwithstanding the other provisions of this Clause 17.3, on
the termination of this Agreement for any reason, any
financial consequences arising or flowing from any Exult
Third Party Contracts or the termination of any such Exult
Third Party Contracts:
(i) the duration of which Exult Supplier has agreed to
extend beyond the Expiry Date; and
(ii) the terms and conditions of which have not been
approved in writing by the BPA Regional Representative
prior to the entering into or extension of such Exult
Third Party Contracts,
shall, subject to Clauses 17.3.5 and 17.3.6, be borne in
their entirety by Exult Supplier.
17.3.2 TERMINATION FOR EXULT SUPPLIER'S DEFAULT
On the termination of this Agreement by the Client pursuant
to Clause 14.1 (Termination on Winding Up or Default), any
financial consequences arising or flowing from any Exult
Third Party Contracts or the termination of any such Exult
Third Party Contracts shall, subject to Clause 17.3.4
(Mitigation), be borne in their entirety by Exult Supplier.
17.3.3 TERMINATION FOR ANY OTHER REASON
On the termination of this Agreement for any reason other
than by the Client pursuant to Clause 14.1 (Termination on
Winding Up or Default) any financial consequences arising or
flowing from any Exult Third Party Contracts or the
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termination of any such Exult Third Party Contract shall,
subject to Clause 17.3.4 (Mitigation) and Clause 17.3.5, be
borne in their entirety by the Client.
17.3.4 MITIGATION
The parties each agree to take reasonable steps to mitigate
costs arising on termination of this Agreement, and agree
that where either party is able to make use of the Exult
Third Party Contracts, in whole or in part, for itself, its
Affiliates or another client, it shall use reasonable
endeavours to do so and the other party's obligation in
relation to any Exult Third Party Contracts shall extend
only to that element of cost of the Exult Third Party
Contracts which remains unused.
17.3.5 Exult Supplier further agrees that for a period of [***]*
the date of termination of this Agreement if, subsequent to
being reimbursed by the Client under this Clause 17, Exult
or an Exult Affiliate or their clients use the whole or part
of the Exult Third Party Contract for which Exult Supplier
has been previously reimbursed by the Client, Exult Supplier
shall refund to the Client such portion of the reimbursement
which represents the use by Exult, Exult Affiliate or their
clients of such Exult Third Party Contract.
17.3.6 EMPLOYEES
The termination costs associated with Employees shall be
dealt with in accordance with Schedule J (Employee Transfer
Arrangements).
17.4 ASSETS
On termination or expiration of this Agreement, the Client shall
have the option and in certain circumstances the obligation to
purchase Exult Assets at the written down book value as set out in
Clause 18.2 (Transfer Arrangements on Termination - Exult Assets).
18 TRANSFER ARRANGEMENTS ON TERMINATION
18.1 CLIENT PREMISES
Exult Supplier shall vacate any Client Premises on or before the
termination or expiry of this Agreement, provided that Client
Premises or rights to Client Premises transferred to Exult
Supplier pursuant to Clause 6.1 shall, on termination or expiry of
this Agreement, be dealt with in accordance with Clause 18.2.
18.2 EXULT ASSETS
18.2.1 On the termination of this Agreement for all other reasons
than by the Client pursuant to Clause 14.1 (Termination on
Winding Up or Default). Exult Supplier shall offer to sell
to the Client or its nominee and the Client shall or shall
cause its nominee to, subject to Clause 18.2.3, purchase the
Exult Assets at the
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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written down book value as at termination or expiry.
18.2.2 On the termination of this Agreement by the Client pursuant
to Clause 14.1 (Termination on Winding Up or Default), Exult
Supplier shall offer to sell to the Client or its nominee
the Exult Assets (at the written down book value as at
termination or expiry), but the Client shall not be obliged
to purchase such Exult Assets.
18.2.3 The parties agree to take reasonable steps to mitigate costs
arising from or in connection with the Exult Assets on
termination or expiry of this Agreement and the parties
agree that where a party is able to make use of an Exult
Asset for itself, its Affiliates or another client it shall
use reasonable endeavours to do so at the request of the
other party.
18.2.4 Exult Supplier further agrees, at the Client's cost, to
co-operate in the relocation of any Exult Assets to be
purchased by the Client pursuant to this Clause, provided
that for the avoidance of doubt this will not prevent the
Client from seeking to recover damages in respect of any
loss it suffers pursuant to any termination of this
Agreement as a result of Exult Supplier's Default.
18.2.5 On expiry of this Agreement Exult Supplier shall offer to
transfer ownership of any fully amortised Exult Assets to
the Client at no cost.
18.3 SYSTEMS
On the termination or expiry of this Agreement for any reason:
18.3.1 LICENCES
All licences and all other rights to any Systems shall be
dealt with in accordance with Clause 19.
18.3.2 ESCROW
Exult Supplier shall, on Client's written request, provide
the Client with a copy of any source code materials held in
escrow pursuant to Clause 6.3.4.
18.3.3 RETURN OF CLIENT SYSTEMS AND MATERIALS
As soon as reasonably practicable following the termination
or expiry of this Agreement, Exult Supplier shall return to
the Client all Client Systems, Materials and Client
Information subject to the Exult Supplier having the right
to retain a copy of such Client Systems, Materials and
Client Information for compliance with applicable laws,
professional standards or quality assurance purposes.
18.4 THIRD PARTY CONTRACTS
On the termination or expiry of this Agreement, the parties shall,
subject to Clause 17.3 (Third Party Contracts) and at the Client's
option and request, use reasonable endeavours to transfer or
assign all, or in the case of Exult Third Party Contracts which
are not used solely to provide the Services to the Client, the
relevant parts of, Exult Third
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Party Contracts entered into by Exult Supplier to provide the
Services to the Client, BPA, a Participating Affiliate or a
Successor Operator, as the Client may direct.
18.5 EMPLOYEES
The transfer of Employees on termination or expiry shall be dealt
with in accordance with Schedule J (Employee Transfer
Arrangements).
18.6 BACK END CONSENTS
Where the consent of any third party is required to enable Exult
Supplier to provide the Client or Successor Operator, with the
benefit of the arrangements under which Exult Supplier holds or
uses any Exult Assets, Third Party Systems or Third Party
Contracts or such a consent is otherwise required to enable the
Client, or Successor Operator to take over the provision of the
Services from Exult Supplier in the manner contemplated by this
Agreement, Exult Supplier shall use reasonable endeavours, to
procure that such consent is granted or at Exult Supplier's
option, procure suitable alternative rights or services are
provided to the Client or Successor Operator to enable it to
perform the Services. The Client shall use reasonable endeavours
to co-operate in obtaining such consents or obtaining suitable
alternative rights, including where necessary entering into new
agreements or agreeing to comply with the terms of the relevant
existing agreements. The use of reasonable endeavours shall not
include the payment of any monies by any party, but where consent
can only be obtained in return for the payment of an additional
sum, the parties shall consider paying such sum if it appears the
most cost effective way of proceeding. Any such payment shall be
charged as a Pass Through Cost.
19 INTELLECTUAL PROPERTY RIGHTS
19.1 CLIENT INTELLECTUAL PROPERTY
All Intellectual Property Rights subsisting in or relation to
Client Assets, Client Information, Client Systems, Materials and
the BPA Service Delivery Model (collectively, the "Client
Intellectual Property") shall (as between the parties) belong to
and be vested in BPA or the relevant BPA Affiliate or their
respective licensors as appropriate.
19.2 EXULT SUPPLIER INTELLECTUAL PROPERTY
All Intellectual Property Rights subsisting in or relation to
Exult Systems, Future Systems, Work Product, and the Exult Service
Delivery Model (collectively, the "Exult Supplier Intellectual
Property") shall (as between the parties) belong to and be vested
in Exult Supplier, Exult Participating Affiliates or their
respective licensors as appropriate.
19.3 LICENCE OF CLIENT INTELLECTUAL PROPERTY
The Client hereby grants to Exult Supplier (or, in the case of
Client Intellectual Property licensed to the Client, to the extent
that such grant is not within its power, shall use reasonable
endeavours to procure the grant to Exult Supplier of) a worldwide,
non-
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exclusive, unlimited user, royalty free licence to use and the
right to sublicence to subcontractors, the Client Intellectual
Property solely for the purposes of providing the Services to the
Client under this Agreement.
19.4 LICENCE OF EXULT SUPPLIER INTELLECTUAL PROPERTY
Exult Supplier hereby grants to the Client (or, in the case of
Exult Supplier Intellectual Property licensed to Exult Supplier by
third parties to the extent that such grant is not within its
power, shall use reasonable endeavours, to procure the grant to
the Client of) a worldwide non-exclusive, unlimited user licence,
together with a right to sub-license to third parties, to use the
Exult Supplier Intellectual Property or any physical material
created as a result of the use of the same in connection with the
supply of the Services to the extent necessary to enable the
Client to receive the benefit of the Services.
19.5 LICENCES OF CLIENT INTELLECTUAL PROPERTY ON TERMINATION
On expiration or termination of this Agreement for any reason, the
licences granted pursuant to Clause 19.3 shall automatically
terminate.
19.6 LICENCES OF EXULT SUPPLIER INTELLECTUAL PROPERTY ON TERMINATION
On expiration or termination of this Agreement for any reason,
Exult Supplier shall offer to, and at the Client's option, grant
to the Client or Successor Operator (or, in the case of Exult
Supplier Intellectual Property licensed to Exult Supplier from a
third party, use reasonable endeavours for the provision of
services substantially similar to the Services under similar
economic arrangements ) to procure the grant to the Client, BPA
and the BPA Affiliates or Successor Operator of) a worldwide,
perpetual, irrevocable, non-exclusive, unlimited user licence
(which shall be at the lesser of the standard market rates and the
lowest royalty Exult Supplier charges to other licensees for
similar licences for the provision of services substantially
similar to the Services provided under similar economic
arrangements to use, modify and enhance any Exult Supplier
Intellectual Property used for the provision of the Services in
the [***]* immediately before the termination or expiry of this
Agreement, with a right to grant sub-licences to Successor
Operators, subject to Exult Supplier's prior consent to the
identity of such Successor Operator for the purpose of being a
sub-licensee of such Exult Supplier Intellectual Property and the
terms of such sub-licence, such consent not to be unreasonably
withheld or delayed. Such licence shall be for use solely in
connection with the provision of services comparable to the
Services for the Client and Participating Affiliates.
19.7 ROYALTIES
In the event that Exult Supplier exploits by way of assignment,
license or otherwise, any Exult Supplier Intellectual Property
which has been developed by way of a Project under this Agreement
and such development was funded by the Client, then Exult Supplier
shall pay to the Client royalties in respect of the benefits
received from such exploitation. The royalty payable in each case
shall be determined as part of the implementation of the Project
pursuant to Schedule L and Schedule H.
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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19.8 CLIENT'S RIGHT TO USE SYSTEMS ON TERMINATION
In order to ensure that Exult Supplier is able to fulfil its
obligations to provide the licence under Clause 19.6, where a
System is to be developed specifically for the Client by Exult
Supplier using the services of a third party ("Developed System")
Exult Supplier shall before using such Developed System in the
provision of the Services:
19.8.1 take reasonable steps to obtain ownership rights in the
Developed System including obtaining any necessary
assignment of such rights from third parties; or
19.8.2 if Clause 19.8.1 is not reasonably practicable, take all
steps to procure a licence for itself substantially in the
form set out in Clause 19.6 for such Developed Systems; and
19.8.3 to the extent the steps described in Clauses 19.8.1 and
19.8.2 are not reasonably practicable, discuss and agree
with Client alternative arrangements to ensure Client can
continue to use the Developed System on termination or
expiry of this Agreement.
20 CONFIDENTIALITY
20.1 All Confidential Information communicated in connection with the
negotiation, preparation and performance of this Agreement was and
shall be received in confidence, used only for the purposes, and
within the duration, of this Agreement, and shall be protected in
the same manner as the party receiving such Confidential
Information protects its own Confidential Information, but in any
event in not less than a reasonable manner, except for
Confidential Information which:
20.1.1 is or becomes generally available to the public other than
as a result of a breach of this Clause 20;
20.1.2 is acquired from a third party who owes no obligation of
confidence to the disclosing party in respect of the
Confidential Information;
20.1.3 is independently developed by the receiving party without
the use of the disclosing party's Confidential Information;
20.1.4 the receiving party is required by law to disclose;
20.1.5 is already known by the receiving party at the time of its
receipt (as evidenced by its written records); or
20.1.6 is agreed by the Client and Exult Supplier from time to time
to be excluded.
Provided always that:
20.1.7 the onus shall be on the party disclosing the information
pursuant to Clauses
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20.1.1 to 20.1.6 to prove through the use of documentary
evidence that the information fell within one of Clauses
20.1.1 to 20.1.6 otherwise than through unauthorised
disclosure by that party; and
20.1.8 if either party (the "disclosing party") is required to make
a disclosure in accordance with Clause 20.1.4, it will, if
it is not prohibited by law from doing so, provide the other
party with prompt notice of any such requirement or request
to disclose any such Confidential Information so that the
non disclosing party may seek an appropriate order. The
disclosing party shall provide the other party with all
necessary assistance in any action taken by the other party
to obtain an appropriate order including an order providing
that the information does not have to be disclosed, an
appropriate protection order or other reliable assurance
that confidential treatment will be accorded the information
that the disclosing party is required to disclose.
20.2 Any party disclosing any Confidential Information to any agent or
subcontractor shall obtain or have obtained from the authorised
agent or subcontractor a signed confidentially undertaking which
the party disclosing reasonably believes offers adequate
protection in relation to the matters contained in Clause 20.1.
The parties agree that no Confidential Information will be
disclosed after the expiry or termination of this Agreement unless
such Confidential Information comes within one of the exceptions
in Clauses 20.1.1 to 20.1.6.
20.3 Upon the expiration or termination of this Agreement, all
Confidential Information made available by one party to the other
pursuant to this Agreement, including any copies thereof, shall be
either returned to the disclosing party or destroyed pursuant to
the request of such disclosing party. The Client and Exult
Supplier may retain, however, subject to the terms of this Clause
20 and Clause 19 (Intellectual Property Rights), copies of the
Confidential Information required for, in the case of Exult
Supplier compliance with applicable laws, professional standards
or quality assurance purposes, and in the case of BPA their
continuing operations or internal business purposes.
20.4 The obligations of each party in relation to Confidential
Information contained in this Clause 20 shall survive the
termination or expiry of this Agreement indefinitely.
20.5 Each party shall procure that its employees, subcontractors,
agents and Affiliates comply with this Clause 20 and shall, at the
request of the other party provide appropriate assurance of such
compliance and for the avoidance of doubt, Clause 12 (Audit) shall
apply to such obligation.
21 DATA PROTECTION AND SECURITY
21.1 Each party shall and shall procure that its Affiliates comply in
all respects with the data processing obligations contained in
Schedule Q and with all relevant laws relating to the holding,
processing and protection of data.
21.2 Exult Supplier shall maintain the integrity of all Client
Information and keep such
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information logically separate from any information and/or data
relating to third parties and shall procure that such information
shall not be disclosed to any third party. Such information shall
be used solely for the purposes of providing the Services and
Exult Supplier shall procure that no third party shall obtain
access to such information at any time other than its authorised
Employees and Subcontractors and other third parties with the
Client's prior consent.
21.3 If Exult Supplier becomes aware that it has received Client
Information which is not required to provide the Services, Exult
Supplier shall promptly inform the Client and return such
information to the Client on request without keeping copies of the
same.
21.4 Client Information shall remain the property of BPA or the
respective BPA Affiliates, as the case may be. Exult Supplier
shall provide BPA and/or the Participating Affiliates, as the case
may be, with a copy of any part of the Client Information that BPA
and/or the Participating Affiliates may, from time to time,
reasonably demand.
21.5 Exult Supplier shall and shall procure that its Employees and
Subcontractors shall develop, document and implement and at all
times maintain reasonable safeguards against the theft,
destruction, loss, wrongful use, disclosure, corruption or
alteration of Client Information in the possession or within the
control or responsibility of Exult Supplier, which safeguards are
subject to the Client's review and audit and which are at levels
no less rigorous than the safeguards maintained by the Client
immediately prior to the Commencement Date as such levels are
established by each Due Diligence Exercise or as otherwise agreed
by the Client and Exult Regional Project Leaders.
21.6 Exult Supplier shall use reasonable endeavours to prevent computer
viruses from being introduced by the Employees and Subcontractors
onto or into any of the IT and communications equipment used by
Client, the Participating Affiliates and their respective
employees, agents or contractors.
22 CONTRACT AND SERVICE MANAGEMENT
22.1 MANAGEMENT OF SERVICES
The Client and the Exult Supplier will manage their relationship,
including the provision of the Services, in accordance with the
Global Governance Arrangements set out in Schedule P.
22.2 [***]*
22.3 SERVICE PERFORMANCE REPORTS
Service Performance Reports will be prepared by the Exult Country
Representative and shall include information, as applicable, on
the RSLs, KPIs, KPI Failures, Key Incidents and the procedures
followed in relation to them and shall set out the measures
required to reduce the likelihood of a recurrence of the relevant
KPI Failure and/or Key Incidents.
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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Service Performance Reports shall be issued by Exult Supplier:
(i) monthly to the BPA Country Representative to cover
information relating to the previous month; and
(ii) each calendar quarter to the Regional Governance Panel to
cover information relating to the previous calendar quarter.
22.4 KEY INCIDENT REPORTING
22.4.1 The Country Representatives shall report all Key Incidents
promptly to the Regional Governance Panel.
22.4.2 The purpose of reporting Key Incidents is to:
(i) bring incidents quickly to the attention of Exult
Supplier's and the Client's management; and
(ii) highlight areas of control weakness, initiate
procedures reviews and generate action to remedy
control weaknesses identified.
22.4.3 The reporting of Key Incidents does not replace or
supersede, but shall be in addition to, the normal reporting
(including the provision of Service Performance Reports
under Clause 22.3) and updating of appropriate management of
routine work incidents.
22.5 SATISFACTION SURVEYS
22.5.1 Exult Supplier shall prepare customer satisfaction surveys
and management satisfaction surveys on a frequency and basis
to be agreed by the Regional Governance Panel.
22.5.2 Customer satisfaction surveys and management satisfaction
surveys shall be submitted to the Regional Governance Panel
by the Country Representatives and the results of such
surveys shall be summarised in the relevant Service
Performance Report.
22.6 CONTINUOUS IMPROVEMENT
22.6.1 Exult Supplier recognises that it has an obligation under
this Agreement to maintain continuous improvement in the
Service Delivery Model used in the provision of the Services
on an ongoing basis in order to establish and maintain a
position as a market leader and to continue efficient and
effective use of developing processes and technologies.
22.6.2 In addition to the benchmarking exercises referred to in
Clause 22.2, Exult Supplier shall report to the Client on an
annual basis its strategy plans to achieve continuous
improvement referred to in Clause 22.6.1.
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22.6.3 To the extent that the parties agree particular Projects are
appropriate to maintain continuous improvement, these shall
be dealt with under Change Control Management process,
provided that the parties recognise Exult Supplier should
only bear an equitable proportion of the costs of any
developments which will be used by Exult Supplier in the
provision of services to other clients, including those
clients which Exult Supplier provides services to from the
Client Service Centre.
23 CONTRACT MINIMUMS
23.1 Contract Minimums for each Contract Minimum Year shall be
established in accordance with this Clause 23.
23.2 The Contract Minimum for:
23.2.1 [***]*
23.2.2 [***]*
23.3 Prior the commencement of each calendar quarter in each Contract
Minimum Year, the Client may give Exult Supplier [***]* of a
proposed reduction in the Contract Minimums to take account of
reductions in the Client's requirements for Services.
23.4 This Clause 23 applies to situations which result in an actual
reduction in the Client's requirement for Services and, for the
avoidance of doubt, the Client may not assume responsibility
internally for services equivalent to the Services or appoint a
third party to provide services equivalent to the Services
pursuant to the terms of this Clause 23.
23.5 [***]* prior to the end of each Contract Minimum Year, the
Regional Governance Panel shall meet to assess the impact,
including the impact on the Charges for the then current Contract
Minimum Year, of the reductions in the Client's requirements for
Services notified in accordance with Clause 23.3 above. Subject to
Clause 23.6, the Regional Governance Panel shall agree a decrease
in the Contract Minimum for the succeeding Contract Minimum Year
which is proportionate with the actual reduction in Charges
arising from the events and in the event that the Regional
Governance Panel cannot agree on the amount of the decrease the
matter shall be referred to an Expert to be appointed in
accordance with Clause 29.2.
23.6 In no event shall a Contract Minimums be reduced by more than
[***]*
23.7 In the event that the impact of reductions in the Client's
requirements for Services as reviewed under Clause 23.5 is or
would be to reduce the Contract Minimum for the succeeding
Contract Minimum Year by more than [***]* the matter will be
referred by either party to the Regional Governance Panel under
Clause 18 of the Framework Agreement (Contract Minimums) to
reassess the impact of such reduction across the
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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relevant CSC Group.
The decision of the Regional Governance Panel (or Expert determination
as the case may be) made pursuant to Clause 18 of the Framework
Agreement shall be implemented hereunder.
24 WARRANTIES
24.1 Exult Supplier hereby represents and warrants to the Client that:
24.1.1 INCORPORATION AND EXISTENCE It is duly constituted,
organised and validly existing under its laws of
incorporation.
24.1.2 POWER AND AUTHORITY It has the legal right and full power
and authority to execute and deliver, and to exercise its
rights and perform its obligations under, this Agreement and
all the documents which are to be executed by it as
envisaged by this Agreement.
24.1.3 CORPORATE ACTION All corporate action required by it to
authorise the execution and delivery of, and to exercise its
rights and perform its obligations under this Agreement and
all other documents which are to be executed by it as
envisaged by this Agreement has been or will be taken.
24.1.4 ASSURANCE Nothing contained in this Agreement will:
(i) result in a breach of any provision of its
constitutional documents; or
(ii) result in a breach of any agreement, licence or other
instrument, order, judgment or decree of any Court,
governmental agency or regulatory body to which it is
bound.
24.2 YEAR 2000 AND EMU COMPLIANCE
24.2.1 Subject to Clause 24.2.2, Exult Supplier makes no warranties
in respect of Year 2000 or EMU Compliance in respect of
Services or Projects or other activities carried out under
this Agreement and the Client or BPA and the BPA Affiliates
shall be solely responsible for its and their Year 2000 and
EMU Compliance.
24.2.2 Exult Supplier warrants that Future Systems and Exult
Proprietary Systems are Year 2000 Compliant and EMU
Compliant and that it has used and shall continue to use
reasonable endeavours to ensure that other Exult Systems are
Year 2000 Compliant and EMU Compliant, including wherever
practicable obtaining appropriate warranties from the third
party providers and providing the Client with the benefit of
such warranties.
24.2.3 Exult shall not be in breach of the warranties in Clause
24.2.2 to the extent that any failure of the Exult
Proprietary Systems and Future Systems to be Year 2000
Compliant or EMU Compliant is caused by data, interfaces
with third party systems including BPA Systems, other than
Exult Systems and software, in each case, which are not Year
2000 Compliant or EMU Compliant.
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24.3 The Client hereby represents and warrants to Exult Supplier that:
24.3.1 INCORPORATION AND EXISTENCE It is duly incorporated,
organised and validly existing under its law of
incorporation.
24.3.2 POWER AND AUTHORITY It has the legal right and full power
and authority to execute and deliver, and to exercise its
rights and perform its obligations under this Agreement and
all the documents which are to be executed by it as
envisaged by this Agreement.
24.3.3 CORPORATE ACTION All corporate action required by it to
authorise the execution and delivery of, and to exercise its
rights and perform its obligations under this Agreement and
all other documents which are to be executed by it as
envisaged by this Agreement has been or will be taken.
24.3.4 ASSURANCE Nothing contained in this Agreement will:
(i) result in a breach of any provision of its
constitutional documents; or
(ii) result in a breach of any agreement, licence or other
instrument, order, judgment or decree of any Court,
governmental agency or regulatory body to which it is
bound.
24.4 Each of the Client and Exult Supplier undertakes to perform its
obligations under this Agreement in compliance with all applicable
laws, enactments, orders and regulations.
24.5 Except as expressly stated in this Agreement, all warranties and
conditions, whether express or implied by statue, common law or
otherwise are hereby excluded to the extent permitted by law.
25 LIMITATION ON LIABILITY
25.1 Neither party shall limit or exclude its liability to the other in
respect of (i) death or personal injury caused by its negligence
or the negligence of its employees acting in the course of their
employment; (ii) for any fraudulent misrepresentation, including
fraudulent pre-contractual misrepresentation made by a party on
which the other party can be shown to have relied when entering
into this Agreement; and (iii) any other liability which by law
cannot be excluded.
25.2 Subject to Clauses 25.1, 25.3 and 25.4 each party's liability to
the other under this Agreement in respect of a claim arising out
of this Agreement shall be limited to an amount equal to [***]*.
Where an event which gives rise to a claim occurs during the
initial 16 months of this Agreement each party's liability to the
other shall be limited to [***]* established in accordance with
the provisions of Schedule C, (Charges and Invoicing).
25.3 Each party's aggregate liability to the other during the term of
this Agreement for all claims arising out of this Agreement shall
be limited to an amount equal to [***]* For the
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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purposes of calculating the Charges under this Clause 25.3,
[***]*, provided that the limitation in this Clause 25.3 at any
time shall not require the repayment of sums paid or payable in
respect of claims in any earlier period.
25.4 Each party's liability to the other for all claims arising under
this Agreement in respect of any Project shall, unless agreed
otherwise agreed in accordance with the procedure set out in
Schedule H, (Projects), be limited to [***]*
25.5 Subject to Clause 25.7, neither party shall be liable to the other
for any consequential or indirect loss or damage suffered by the
other party in connection with this Agreement.
25.6 Neither party shall be liable to the other for loss of profits,
loss of revenue, loss of goodwill or loss or failure to make any
anticipated savings.
25.7 In respect of the Client, the Client's re-establishment costs, and
in respect of Exult Supplier, the categories of cost identified in
Schedule C in relation to termination, such costs are not
considered consequential or indirect loss.
25.8 The limitations set out in Clauses 25.2 to 25.7 shall not apply
with respect to:
(i) Indemnities (including those set forth in Schedule J);
(ii) Payment under Letter of Credit (as described in Clause 22 of
the Framework Agreement);
(iii) Payment under designated insurance policies (as described in
the Clause 22 of the Framework Agreement);
(iv) Client's obligation to pay, including with respect to Early
Termination Charges;
(v) Liabilities arising from the breach of the confidentiality
provisions under this Agreement;
(vi) Payment of Charges and Service Credits.
25.9 Subject to Clauses 34.12 (Legal Proceedings) and 34.13 (Equitable
Remedies) the parties recognise that damages are the only remedy
available under this Agreement and, to the extent permissible by
law, the limits under this Clause are the absolute limit of each
party's liability arising under or in connection with this
Agreement. All other liability is expressly excluded.
25.10 LIMITATIONS ON PARTICIPATING AFFILIATES' CLAIMS
25.10.1 The following represents the limit of all claims or actions
that may be made pursuant to this Agreement relative to
Participating Affiliates:
(i) subject to the terms of this Clause 25.10, the Client
shall have the right to bring actions against Exult
Supplier in respect of such Participating Affiliates
for Losses suffered by the Participating Affiliates in
respect of the Services or this Agreement;
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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(ii) the Client shall wherever reasonably practicable
consolidate actions against Exult Supplier for Losses
suffered by Participating Affiliates in respect of each
alleged default; and
(iii) the Participating Affiliates' Losses shall be deemed
the direct Losses of the Client, but all such Losses
shall be subject to the exclusions and limitations set
out in this Agreement.
25.10.2 The Client shall procure that:
(i) the Participating Affiliate will not make any claim or
be a party to any claim or other action against Exult
Supplier, Exult or an Exult Affiliate or their
employees, offices or directors arising from or in
connection with this Agreement; and
(ii) the Participating Affiliate will direct all
communications regarding this Agreement through and to
the Client and not to Exult Supplier.
25.10.3 The Client is fully responsible for the performance of all
its obligations under this Agreement with respect to the
Services provided to such Participating Affiliates.
25.10.4 Nothing in Clause 25.10.1, 25.10.2 or Clause 25.10.3
relieves the Client of its obligations or expands Exult
Supplier's obligations under this Agreement.
26 INDEMNITIES AND DEFENCE OF CLAIMS
26.1 INDEMNIFICATION BY EXULT SUPPLIER
Subject to Clause 26.5, Exult Supplier shall indemnify and keep
indemnified the Client, BPA, the Participating Affiliates and its
and their respective officers, directors, employees, agents,
successors and assigns (each, an "Indemnified BPA Party") from and
against any and all Losses arising in connection with this
Agreement from any of the following:
26.1.1 a claim by a BPA Third Party arising from the death or
illness of or personal injury to any BPA Third Party or from
any damage to any real or tangible personal property of any
BPA Third Party arising directly from and to the extent of
the negligent act or omission of Exult Supplier, an Exult
Participating Affiliate or its and their respective
employees, officers, agents or subcontractors;
26.1.2 a claim by a BPA Third Party arising from the death or
illness of or personal injury to any employee of Exult
Supplier or of an, Exult Participating Affiliate or to any
employee of their respective agents, or subcontractors or
arising from any damage to any real or tangible personal
property of any employee of Exult Supplier or of, an Exult
Participating Affiliate or of any employee of their
respective agents, or subcontractors, in each case,
notwithstanding that such claim arose from the negligence of
an Indemnified BPA Party;
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26.1.3 a claim by a third party other than a BPA Affiliate to a
Third Party Contract where such claim arises in connection
with a breach of Exult Supplier's or Exult Participating
Affiliate's obligations under or relating to such Third
Party Contract assumed by Exult Supplier or the relevant
Exult Participating Affiliate pursuant to obtaining consents
in respect of such Third Party Contract to enable Exult
Supplier or the relevant Exult Participating Affiliate to
provide the Services; and
26.1.4 a claim by a BPA Third Party arising from and directly
connected with the breach of any law, rule, regulation or
order, where such breach arises directly from the negligent
act or omission of Exult Supplier, an Exult Participating
Affiliate or its and their respective employees, officers,
agents or subcontractors.
26.2 INDEMNIFICATION BY BPA
Subject to Clause 26.5, the Client shall indemnify and keep
indemnified Exult Supplier, the Exult Participating Affiliates and
its and their respective officers, directors, employees, agents,
successors and assigns (each, an "Indemnified Exult Party") from
and against any and all Losses arising in connection with this
Agreement from any of the following:
26.2.1 a claim by an Exult Third Party arising from the death or
illness of or personal injury to any Exult Third Party or
from any damage to any real or tangible personal property of
any Exult Third Party arising directly from and to the
extent of the negligent act or omission of the Client, a
Participating Affiliate or its and their respective
employees, officers, agents, or subcontractors;
26.2.2 a claim by an Exult Third Party arising from the death or
illness of or personal injury to any employee of the Client,
or of a Participating Affiliate or to any employee of their
respective agents or subcontractors or arising from any
damage to any real or tangible personal property of any
employee of the Client or of, a Participating Affiliate or
of any employee of their respective agents or
subcontractors, in each case, notwithstanding that such
claim arose from the negligence of an Indemnified Exult
Party;
26.2.3 a claim by a third party other than an Exult Affiliate to an
Exult Third Party Contract where such claim arises in
connection with a breach of the Client's or Participating
Affiliate's obligations under or relating to such Exult
Third Party Contract assumed by the Client or the relevant
Participating Affiliate pursuant to obtaining consents in
respect of such Exult Third Party Contract obtained on the
termination or expiry of the relevant Country Agreement;
26.2.4 a claim by an Exult Third Party arising from and directly
connected with the breach of any law, rule, regulation or
order, where such breach arises directly from the negligent
act or omission of the Client, a Participating Affiliate or
its and their respective employees; and
26.2.5 a claim by an Exult Third Party where such Exult Third
Party:
(i) is an employee or former employee of the Client or of a
BPA Affiliate
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to the extent such claim relates to the period such
employee or former employee was employed by the Client
or a BPA Affiliate (except to the extent that such
claim is covered by the indemnity provisions set forth
in Schedule J of this Agreement);
(ii) is a beneficiary under any Client or BPA Affiliate
employee related benefits plans, programmes or schemes
to the extent that such claim relates to such plans,
programmes or schemes; or
(iii) has a fiduciary role or responsibility in relation to
any the Client or BPA Affiliate's employee related
benefit plans, programmes or schemes to the extent
such claim relates to such role or responsibility,
in each case, except to the extent that such claim results
from the negligence of Exult Supplier, an Exult
Participating Affiliate, or its or their respective
employees, officers, agents or subcontractors.
26.2.6 a claim by an Exult Third Party arising from the provision
by Exult Supplier of any Special Services, except to the
extent caused by Exults Supplier's negligent acts or
omissions.
26.3 INDEMNIFICATION BY EXULT SUPPLIER WITH RESPECT TO INTELLECTUAL
PROPERTY
26.3.1 Subject to Clause 26.5, Exult Supplier shall indemnify and
keep indemnified the Client, its Affiliates and their
respective officers, directors, employees and agents, from
and against all reasonable costs and expenses (including the
amount of any damages awarded by a court of competent
jurisdiction) which the Client may incur as a result of
defending or settling any claim by a third party that the
Client's use or possession of any of the Exult Proprietary
Systems is unauthorised or infringes the Intellectual
Property rights of any third party.
26.3.2 In the event of any such claim being made, the Client shall
notify the Exult Regional Representative as soon as
practicable upon becoming aware of the same and, subject to
being indemnified, at the request of Exult Supplier, grant
Exult Supplier sole conduct of the claim and provide to
Exult Supplier all reasonable assistance in the conduct of
the claim, provided that in conducting the claim Exult
Supplier shall minimise the disruption to the business of
BPA and the Participating Affiliates, including the use of
the Exult Supplier Intellectual Property, as the case may
be.
26.3.3 No liability shall exist under this Clause 26.3 to the
extent that any such claim arises solely from:
(i) the use by the Client and/or the Participating
Affiliates of the relevant Exult Systems, Future
Systems or Work Product for purposes not connected with
the provision of the Services or services equivalent to
the Services in the Country in which those Services are
being provided or as otherwise authorised;
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(ii) any modification of the relevant Exult Systems, Future
Systems or Work Product by or on behalf of the Client
and/or the Participating Affiliates to which Exult
Supplier or the third party, as the case may be, has
not given its consent; or
(iii) use of the relevant Exult Systems, Future Systems or
Work Product in connection with materials or data
supplied by the Client.
26.3.4 In the event that the Client's use or possession of any part
of the Exult Systems, the Future Systems or Work Product is
held to be unauthorised or to infringe any third party
Intellectual Property rights, then Exult Supplier shall at
its own expense and at the Client's option:
(i) obtain for the Client a licence or such other right to
continue to use that System or Work Product or part
thereof; or
(ii) replace or modify such part so as to avoid or rectify
the unauthorised use or infringement without
significant interruption or degradation in performance
of that System or the Services,
provided that the Client shall provide Exult Supplier with
all reasonable assistance (at the cost of Exult Supplier) to
enable Exult Supplier to so do.
26.4 INDEMNIFICATION OF EXULT IN RELATION TO INTELLECTUAL PROPERTY
26.4.1 Subject to Clause 26.5, the Client shall indemnify and keep
indemnified Exult Supplier from and against all reasonable
costs and expenses (including the amount of any damages
awarded by a court of competent jurisdiction) which Exult
Supplier may incur as a result of defending or settling any
claim by a third party that Exult Supplier's use of any of
the Client Systems which has been authorised by the Client
is unauthorised or infringes the Intellectual Property
rights of any third party.
26.4.2 In the event of any such claim being made, Exult shall
notify the BPA Regional Representative as soon as
practicable upon becoming aware of the claim and, subject to
being indemnified at the request of the Client, grant BPA or
the Client sole conduct of the claim and provide to the
Client all reasonable assistance in the conduct of the
claim.
26.4.3 No liability shall exist under Clause 26.4 to the extent
that any such claim arises from:
(i) the use by Exult Supplier of the relevant Client System
for purposes not connected with the provision of the
Services in the Country in which the Services are
provided; or
(ii) any modification of the Client System by or on behalf
of Exult Supplier to which the Client has not given its
consent.
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26.4.4 In the event that Exult Supplier's use of any part of the
Client Systems is held to be unauthorised or to infringe any
Intellectual Property rights relating thereto, then the
Client shall at its own expense:
(i) obtain for Exult Supplier a licence or such other right
to continue to use that System; or
(ii) replace or modify such part so as to avoid or rectify
the unauthorised use or infringement,
provided that Exult Supplier shall provide the Client with
all reasonable assistance to enable the Client to so do.
26.5 DEFENCE OF CLAIMS
26.5.1 Each party will defend and procure the relevant Affiliate to
defend any claim brought or threatened against the other
party to the extent that such claim is or may be subject to
the indemnity contained in Clauses 26.1, 26.2, 26.3 and 26.4
(the party providing such defence, the "Indemnifying Party"
and the party entitled to such defence, the "Indemnified
Party"). The Indemnifying Party will bear the expense of
such defence and pay any damages and legal fees finally
awarded by a court of competent jurisdiction which are
attributable to such claim.
26.5.2 The Indemnified Party shall notify the Indemnifying Party
of any claim under Clauses 26.1, 26.2, 26.3 and 26.4 within
30 days (or such shorter period as may be required to
respond to a third party claim) after receipt of notice. The
Indemnifying Party required to indemnify the Indemnified
Party under this Agreement shall have no obligation for any
claim under this Clause 26.5 to the extent that the defence
of such claim is prejudiced by such failure if:
(i) the Indemnified Party fails to notify the
Indemnifying Party of such claim as provided above;
(ii) the Indemnified Party fails to tender control of the
defence of such claim to the Indemnifying Party; or
(iii) the Indemnified Party fails to provide the
Indemnifying Party with all reasonable cooperation in
the defence of such claim (the cost thereof to be
borne by the Indemnifying Party).
26.5.3 The Indemnifying Party shall have no obligation for any
claim under this Agreement if the Indemnified Party makes
any admission or settlement regarding such claim without the
prior written consent of the Indemnifying Party, which
consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing sentence, the Indemnifying
Party may settle any claim involving only the payment of
money by the Indemnifying Party.
26.5.4 The Indemnified Party shall have the right (but not the
obligation) to participate
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in such defence or settlement (and in the case of any
proposed settlement of a claim which does not involve only
the payment of money, the Indemnifying Party shall obtain
the prior written consent of the Indemnified Party to such
settlement, such consent not to be unreasonably withheld or
delayed), in which event the Indemnified Party shall pay its
attorneys' fees associated with such participation.
26.5.5 In conducting the defence of the claim the Indemnifying
Party shall liaise with the Indemnified Party and keep the
Indemnified Party informed as to the progress of the action
and shall take into account the requirements and requests of
the Indemnified Party and in particular shall not make any
public statement relating to the action without the
Indemnified Party's prior written consent and shall not do
anything which could potentially adversely prejudice the
reputation or goodwill of the Indemnified Party or its
Affiliates.
26.6 SURVIVAL OF RIGHTS
All indemnities, and exclusions and limitations of liability
contained in this Clause 26 and elsewhere in this Agreement shall
remain binding on the parties hereto, notwithstanding the expiry
or termination of this Agreement.
27 INSURANCE
Exult Supplier shall inform the Client immediately in the event that it
becomes aware that insurance cover as required under Clause 22 of the
Framework Agreement is not in place and in such event shall itself
obtain the appropriate insurance to the extent that this relates to this
Agreement.
28 RECOVERY OF DAMAGE AWARDS
28.1 In the event that the parties cannot agree as to whether there is
a default or as to the amount to be paid to either party in
connection with any default by the other party under this
Agreement, the matter shall be resolved pursuant to the Dispute
Resolution Procedure in accordance with Clause 29.3.
28.2 In the event that it is agreed, or determined pursuant to Clause
28.1, that Exult Supplier is liable to pay an Award to the Client,
the mechanism for recovering such Award shall be as follows:
28.2.1 Exult Supplier shall first seek to recover the Award under
any relevant insurance policy maintained by Exult pursuant
to Clause 22 of the Framework Agreement (Insurance) and pay
the Award recovered to the Client;
28.2.2 if the Award is not paid to the Client pursuant to Clause
28.2.1 within 30 days of it being agreed or determined that
an Award is payable, the Client (or BPA acting on its
behalf) shall be entitled to seek to recover the Award
directly under the indemnity to principal provision
contained in any relevant insurance policy maintained by
Exult in accordance with Clause 22 of the Framework
Agreement (Insurance).
28.2.3 If the Award is not paid pursuant to Clause 28.2.1 or Clause
28.2.2, the Client
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shall provide Exult Supplier with [***]* within which Exult
Supplier shall pay the Award to the Client.
28.2.4 Subject to the provisions of Clause 23 of the Framework
Agreement (Letter of Credit), if the Award is not paid
pursuant to Clauses 28.2.1, 28.2.2 or 28.2.3 within the
expiry of the [***]* period in Clause 28.2.2, then BPA shall
have the right, but not the obligation to make a demand
under the Letter of Credit.
28.2.5 Exult Supplier shall not be entitled to seek to recover
under any insurance policy maintained pursuant to Clause 22
of the Framework Agreement (Insurance) in order to satisfy
any indemnity claim or obligation or to seek to recover any
Award made in connection with indemnity provisions other
than claims, obligations or Awards made in connection with
Clauses 26.1.1 and 26.1.2.
28.3 In respect of an Award or other indemnity claim or obligation that
the Client is liable to pay to Exult Supplier, the Client shall
not be entitled to seek to recover under any insurance policy
maintained pursuant to Clause 22 of the Framework Agreement
(Insurance) in order to satisfy any indemnity claim or obligation
or to recover any Award made in connection with indemnity
provisions other than claims, obligations or Awards made in
connection with Clauses 26.2.1 and 26.2.2.
29 DISPUTE RESOLUTION
29.1 INFORMAL DISPUTE RESOLUTION
Prior to the initiation of dispute resolution procedures pursuant
to Clause 29.2 and 29.3, the parties shall attempt to resolve any
Dispute informally, as follows:
29.1.1 Upon the request of either Country Representative, in the
case of a Dispute which has not been resolved, or cannot be
resolved by the Country Representatives within [***]*, that
Dispute shall be referred to the Regional Governance Panel.
29.1.2 If the Regional Governance Panel is unable to resolve the
Dispute within [***]* after it is submitted to the Regional
Governance Panel, then the Dispute will be referred to the
Global Governance Panel. The Global Governance Panel shall
use its best efforts to resolve such Dispute.
29.1.3 If the Global Governance Panel is unable to resolve the
Dispute within [***]* after it is submitted to the Global
Governance Panel (or such later time as may be agreed by the
Global Governance Panel), then the Dispute shall be referred
to the Exult Chief Executive Officer and the BPA Vice
President Group HR.
29.1.4 If the BPA Vice President Group HR and the Exult Chief
Executive Officer have not been able to resolve the Dispute
within [***]* of the matter having been
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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referred to them (or such later date as they may agree), the
Dispute shall be referred to Expert Decision or Arbitration
(as the case may be) in accordance with the provisions of
this Agreement.
29.1.5 During the course of any discussions in accordance with this
Clause 29, all reasonable requests made by one party to the
other for information will be honoured in order that the
parties may be fully advised of each other's position. Any
Confidential Information disclosed will be treated by the
recipient in accordance with Clause 20 (Confidentiality).
29.1.6 Unless the Agreement specifies otherwise, all Disputes shall
be referred to the informal Dispute Resolution Procedure and
thereafter to Arbitration pursuant to Clause 29.3.
29.1.7 Only the informal Dispute Resolution Procedures set out in
Clause 29.1 can apply where the parties fail to agree to
carry out a new or Project or project or to make a
substantial or material change to the Agreement or any
Service or any provision specified in the Agreement as being
an agreement to agree.
29.2 EXPERT DECISION
29.2.1 Where a Dispute is designated in this Agreement as
appropriate for Expert Decision it shall be referred for
determination to an Expert nominated either jointly by the
parties, or failing agreement between them within the time
stated in this Agreement or, where no time is stated, within
10 working days, on the application of the Client or Exult
Supplier, to:
(i) the Institute of Electrical and Electronic Engineers
for any issue involving software, hardware, or
systems;
(ii) the Institute of Certified Public Chartered
Accountants for any issue involving finance,
accounting and tax; and
(iii) the Society for Human Resource Professional for any
issue involving human resources polices and practices
that cannot be referred to an appropriate Expert under
Clause 29.2.1(i) and (ii).
29.2.2 The parties agree:
(i) to supply the Expert with the assistance, documents and
information he/she requires for the purpose of his/her
determination;
(ii) that in all cases, the terms of appointment of the
Expert shall include a requirement on the Expert to
give his/her determination with 21 days or such other
period as may be agreed, to hold professional indemnity
insurance for both then and for 3 years following the
date of his/her determination and to establish his/her
own reasonable procedures to enable him to give his
determination; and
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(iii) that in considering any issue relating to the KPIs the
Expert shall take into account the performance levels
of service achieved by the Client.
29.2.3 The Expert's Decision is final and binding on the parties in
the absence of negligence, manifest error or bad faith. The
Expert acts as an expert and not an arbitrator and the
Expert's Decision is not a quasi-judicial procedure. Save as
provided elsewhere in this Agreement, each party shall bear
its own costs and the costs of the Expert shall be borne
equally between the parties.
29.3 ARBITRATION
29.3.1 Subject to any other terms of this Agreement, if any
Dispute, which is designed as a Dispute to be referred to
Arbitration, arising in connection with this Agreement
cannot be resolved in accordance with the provisions of
Clause 29.1 it shall be referred to arbitration at the
written request of any party under the Rules of the
International Chamber of Commerce, which rules are deemed to
be incorporated by reference into this Clause 29.3.
29.3.2 The parties agree that:
(i) the number of arbitrators shall be three;
(ii) the place of the arbitration shall be London;
(iii) the language to be used in the arbitration proceedings
shall be English; and
(iv) the ruling of the arbitrators on the Dispute shall be
final and binding.
30 FORCE MAJEURE
30.1 Subject to Clause 30.2, neither party shall be liable to the other
for any Loss of any kind whatsoever, including but not limited to
any damages, whether directly or indirectly caused to or incurred
by the other party to the extent such Loss arises by reason of any
failure or delay in the performance of its obligations hereunder
which is due to Force Majeure.
30.2 The party claiming to be prevented or delayed in the performance
of any of its obligations under this Agreement by reason of Force
Majeure shall use reasonable endeavours to continue to perform its
obligations under this Agreement without being obliged to incur
any significant additional cost to bring the Force Majeure to a
close or to find a solution by which the Agreement may be
performed despite the continuance of the Force Majeure
circumstances.
30.3 If either party shall become aware of circumstances of Force
Majeure which give rise to or which are likely to give rise to any
such failure or delay on its part, it shall forthwith notify the
other by the most expeditious method then available and shall
inform the other of the period which it is estimated that such
failure or delay may continue. If Force Majeure continues for
seven days or longer the Global Governance Panel shall be
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notified by the party affected by such Force Majeure and requested
to decide upon a course of action.
30.4 It is agreed that any failure by a party to perform or any delay
by a party in performing its obligations under this Agreement
which results from any failure or delay in the performance of its
obligations by any person, firm or company with which such party
shall have entered into any contract, supply arrangement or
sub-contract or otherwise shall be regarded as a failure or delay
due to Force Majeure only in the event that such person, firm or
company shall itself be prevented from or delayed in complying
with its obligations under such contract, supply arrangement or
sub-contract or otherwise as a result of circumstances which would
be Force Majeure for the purposes of this Agreement.
31 ASSIGNMENT
31.1 Exult Supplier shall not be entitled to and shall not assign,
novate or otherwise transfer this Agreement, in whole or in part,
without the Client's prior written consent.
31.2 The Client shall not be entitled to assign, novate or transfer
this Agreement or any part of it without Exult Supplier's prior
written consent save that the Client may assign, novate or
otherwise transfer this Agreement in whole or in part to a BPA
Affiliate, provided that if at any time following such transfer,
assignment or novation the relevant entity ceases to be a BPA
Affiliate the Client shall procure that such entity shall
re-transfer, re-assign or re-novate this Agreement, or the
relevant part of it, to the Client or another BPA Affiliate at
that time.
32 SUBCONTRACTING
32.1 Exult Supplier may employ subcontractors which are Exult
Affiliates and may, subject to the other provisions of this Clause
32, employ other subcontractors in the provision of any part of
the Services. Subcontractors listed in Schedule M are approved for
the purposes of Clause 32.2.
32.2 Exult Supplier shall not employ subcontractors without the BPA
Regional Commercial Contract Leader's prior written approval (such
approval not to be unreasonably withheld or delayed):
32.2.1 on any occasion where the value of a proposed individual
subcontract is in excess of [***]* or
32.2.2 where the subcontracted work relates to a Sensitive Third
Party Contract.
32.3 Exult Supplier shall promptly notify the BPA Regional Commercial
Contract Leader if at any time the total value of the
subcontracted work in any twelve month period would be [***]*
32.4 Exult Supplier shall ensure that the Subcontractors are
appropriately skilled and qualified.
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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32.5 Exult Supplier shall remain liable to the Client in respect of any
such Services provided by Subcontractors.
32.6 Data protection and confidentiality provisions equivalent to those
contained in this Agreement shall be included in any agreement
with Subcontractors entered into by Exult Supplier pursuant to
this Clause 32, provided that in respect of Subcontractors which
are parties to Third Party Contracts which are assigned or novated
to Exult Supplier, Exult Supplier shall use reasonable endeavours
to comply with its obligations under this Clause relating to such
Subcontractors and shall inform the Client where it has not been
possible to fulfil such obligation.
32.7 For the purposes of this Clause 32, Subcontractors shall not
include contract staff whether hired on an individual basis or
through an agency where Exult Supplier exercises direction and
control over the work of such contract staff. The BPA Regional
Commercial Contract Leader's consent is not required in relation
to Exult Supplier hiring such contract staff.
32.8 Exult Supplier's use in the ordinary course of business of third
party services or products that are not dedicated solely to the
provision of the Services and that are not material to the
performance of the Services and which do not result in a material
change in the way Exult Supplier conducts its business will not be
subject to the provisions of this Clause 32. If the Client
expresses any concern to Exult Supplier about any such third party
services or products, Exult Supplier shall discuss such concerns
with the Client and work in good faith to resolve the Client's
concerns on a mutually acceptable basis.
32.9 It is understood that no approval given under this Clause 32 shall
generate contractual relations between the Client or any of its
Affiliates and any Subcontractor except as expressly contemplated
by this Clause 32.
33 PARTICIPATING AFFILIATES
33.1 Exult Supplier acknowledges that the Client has concluded this
Agreement for the benefit of the Client and the Participating
Affiliates.
33.2 At the request of the Client, Exult Supplier shall at the Client's
expense execute all deeds or other documents required to enable
any Loss incurred or sustained by any Participating Affiliate
recovered pursuant to Clause 25.10 (Limitations on Participating
Affiliates' Claims).
34 GENERAL TERMS
34.1 PUBLICITY
34.1.1 Except with the prior written consent of the other party
each party shall not and shall procure that its Affiliates
shall not make any press or other public announcements
relating to this Agreement, the Framework Agreement or any
other Country Agreement, or disclose any information
relating to the commercial or other terms of this Agreement,
the Framework Agreement or any other Country Agreement.
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34.1.2 It is the intention of the parties that immediately
following the Commencement Date, they will jointly develop
and agree a press release relating to their relationship
under this Agreement and the Framework Agreement.
34.2 NOTICES
Wherever under this Agreement a party is required or permitted to
give notice to the other party, such notice shall be in writing
and shall be delivered personally, sent by fax, (as appropriate)
recognised express courier service or certified, registered, or
first class mail. Any such notice shall be deemed given when
actually received when so delivered personally, by fax or express
courier, or if mailed, on the 5th day after its mailing, postage
prepaid to the recipient party addressed as follows:
In the case of the Client:
Country Representative
200 East Randolph Drive
Chicago
IL 60601
BPA Regional Representative
200 East Randolph Drive
Chicago
IL 60601
In the case of Exult Supplier:
Exult Country Representative
4 Park Plaza
Suite 350
Irvine
California 92614
Fax: (949) 250 8086
with a copy (which shall not constitute effective notice) to:
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Legal Department
4 Park Plaza
Suite 350
Irvine
California 92614
Fax: (949) 250 8086
Any party may change its address for notices upon giving 10 days'
prior notice of the change to the other parties in the manner
provided in this Clause 34.2.
34.3 LIMITATION ON RECRUITING
34.3.1 Subject as hereinafter provided in this Clause 34.3, each of
the Client or Exult Supplier shall not during the term of
this Agreement or within six months of its termination or
expiry employ and/or solicit directly or indirectly any
employees of the other party who have been involved in
providing the Services or are otherwise connected with this
Agreement.
34.3.2 Clause 34.3.1 will not restrict the Client or Exult Supplier
from employing employees of the other party:
(i) who apply unsolicited in response to a general
advertising or other general recruitment campaign;
(ii) which the party who employed the relevant employee has
agreed in writing may be so employed; or
(iii) as contemplated in Schedule J of this Agreement.
34.4 WAIVER
34.4.1 Subject to Clause 34.12 (Legal Proceedings) no delay or
omission by either party to exercise any right or power
shall impair such right or power or be construed as a
waiver.
34.4.2 A waiver by either of the parties of any covenants to be
performed by the other party or of any breach shall not be
construed to be a waiver of any succeeding breach or of any
other covenant.
34.4.3 No waiver of any of the provisions of this Agreement shall
be effective unless it is expressly stated to be a waiver
and communicated to the other party in writing in accordance
with the provisions of Clause 34.2 (Notices).
34.5 AMENDMENTS
The terms and conditions of this Agreement shall not be varied or
amended, except by a
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written instrument executed by or on behalf of each of the parties
in accordance with the Change Control Management process.
34.6 SEVERABILITY
If any provision of this Agreement is held to be invalid,
unenforceable or void, such decision shall not have the effect of
invalidating or voiding the remainder of this Agreement, and the
parties agree that they shall immediately commence in good faith
negotiations to seek to remedy such invalidity, unenforceability
or illegality.
34.7 COSTS
Except as expressly otherwise provided for in this Agreement, each
party shall bear its own costs and expenses incurred in connection
with the negotiation and preparation of this Agreement.
34.8 ENTIRE AGREEMENT
This Agreement shall constitute the entire agreement between the
parties with respect to the subject matter hereof and (to the
extent permissible by law) supersedes all prior representations,
writings, negotiations or understandings with respect thereto
provided that neither party is attempting to exclude any liability
for fraudulent statements including pre-contractual
misrepresentations on which the other party can be shown to have
relied.
34.9 CONFLICT AND INCONSISTENCIES
34.9.1 In the event and to the extent only of any conflict between
the Clauses and the Schedules, the Clauses shall prevail.
34.9.2 In the event of any inconsistencies between the English
language version of this Agreement and any contract
administration documents prepared in connection therewith
and any translation of such agreements or documents, the
English language version shall prevail. In the event of any
inconsistencies between any obligations of the parties set
out in this Agreement and the corresponding obligations in
any Framework Agreement, the corresponding obligations in
this Agreement shall prevail.
34.10 SURVIVAL
The terms and conditions of this Agreement which are expressly or
by implication intended to survive its termination or expiry shall
so survive and continue to bind the parties.
34.11 COUNTERPARTS
This Agreement may be executed in two or more counterparts or by
fax, each of which shall be deemed to be an original, but all of
which together shall constitute one agreement binding on all
parties, notwithstanding that all parties are not signatories to
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the original or the same counterpart or fax copy.
34.12 LEGAL PROCEEDINGS
Any legal proceedings in relation to this Agreement must be
commenced by the relevant party within 2 years of the termination
or expiry of this Agreement.
34.13 EQUITABLE REMEDIES
The parties agree that damages shall be the only remedy available
in respect of each parties' liability arising under this Agreement
provided that the parties shall be free to seek equitable remedies
(including injunctive relief) in respect of breaches of
confidentiality and matters relating to the infringement of
Intellectual Property Rights.
34.14 INDEPENDENT CONTRACTOR
In providing Services to the Client under this Agreement, Exult
Supplier is acting only as an independent contractor.
Notwithstanding any provision of this Agreement to the contrary,
this Agreement establishes and shall only be construed as
establishing a contract between unrelated business entities for
the provision and purchase of certain services and does not and
shall not be deemed to create a partnership, joint venture, agency
(except as expressly provided in this Agreement) or any other type
of joint relationship.
34.15 RESPONSIBILITY FOR EMPLOYEES
Employees shall be employees of Exult Supplier or the relevant
Exult Participating Affiliates as appropriate and under no
circumstances other than as provided in Schedule J (Employee
Transfer Arrangements) are Employees to be considered employees of
the Client or any BPA Affiliate. Exult Supplier or the relevant
Exult Participating Affiliate shall have the sole responsibility
for supervision and control of the Employees and for payment of
their entire compensation, including salary, Withholding Taxes and
social security taxes, workers compensation, employee and
disability benefits and the like and shall be responsible for all
employer obligations under all applicable laws.
34.16 RESTRICTIVE TRADE PRACTICES
Notwithstanding any other provision of this Agreement, no
provision of this Agreement which is of such a nature as to make
this Agreement liable to registration under the Restrictive Trade
Practices Act 1976 shall take effect until the day after that on
which particulars thereof have been duly furnished to the Director
General of Fair Trading pursuant to the said Act. For the purposes
of this Clause 34.16, the expression "this Agreement" shall
include any agreement forming part of the same arrangement.
34.17 GOVERNING LAW
This Agreement shall be governed and construed in accordance with
the laws of England and Wales.
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In witness whereof this Agreement has been executed the day and year first
written above.
SIGNED BY
-----------------------------------
for and on behalf of the Client
in the presence of:
- -----------------------------------
SIGNED BY
-----------------------------------
for and on behalf of Exult Supplier
in the presence of:
- -----------------------------------
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INDEX TO SCHEDULES
TO US COUNTRY AGREEMENT
<TABLE>
<S> <C>
Schedule A Scope of Services (indicative)
Schedule B Service Levels (indicative)
Schedule C Charges and Invoicing
Schedule D Third Party Contracts
Schedule E Assets
Schedule F Systems
Schedule G Part I Country Transition Plan
Part II Validation Exercise
Schedule H Projects/Projects
Schedule I Part I Key Employees
Part II BPA Key Employees
Schedule J Employee Transfer Arrangements
Schedule L Change Control Management
Schedule M Approved Exult Sub-contractors
Schedule O BPA Business Policies and Controls
Schedule P Global Governance Arrangements
Schedule Q Data Protection
Schedule R BPA Participating Affiliates
Schedule T Process Line Population
Schedule U Escrow Agreement
Schedule W Matters to be taken into account when considering
changes to Agreements or any schedule to reflect any
Special Services provided by Exult Supplier
Schedule Z Definitions
</TABLE>
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SCHEDULE Z
DEFINITIONS
1 DEFINITIONS
"ACTIVE SERVICED EMPLOYEE" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"ADDITIONAL AMOUNT" has the meaning ascribed to it in Clause 11.2.5(iii)
(Withholding Taxes);
"ADDITIONAL RESOURCE CHARGES" has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
"AFFECTED PROCESS" has the meaning ascribed to it in Clause 15
(Suspension of a Process);
"AFFILIATE" means in relation to Client a Client Affiliate and in
relation to Exult Supplier an Exult Affiliate;
"AGREEMENT" means the Clauses of and Schedules to this Agreement or any
revised version agreed between the parties in accordance with the terms
of this Agreement;
"ANNUAL WORK UNITS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"ARBITRATOR" or "ARBITRATION" has the meaning ascribed to it in Clause
29.3 (Dispute Resolution);
"AUDITOR" has the meaning ascribed to it in Clause 12.2 (Audit);
"AWARD" means the amount awarded to a party by an Arbitrator pursuant to
Clause 29.3 (Dispute Resolution);
"BASE CHARGE" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"BASELINE" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"BPA AFFILIATE" means any company which is from time to time directly or
indirectly controlled by BPA and for this purpose:
(i) a company is directly controlled by another company beneficially
owning shares carrying the majority of votes at a general meeting
of shareholders (or its equivalent) of the first mentioned
company;
(ii) a particular company is indirectly controlled by a company if a
series of companies can be specified, beginning with that company
and ending with the particular company, so related that each
company in the series is directly controlled by one or more of the
companies earlier in the series; and
(iii) a company does not include any joint venture whether incorporated
or unincorporated.
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"BPA COUNTRY REPRESENTATIVE" means any individual appointed by BPA
pursuant to the Agreement to be a Country Representative in respect of
this Agreement;
"BPA IT POLICY" means the document, describing the policies to be
adopted by the Exult and the Exult Affiliates in relation to the use of
Systems in connection with the provision of the Services, set out in
Schedule O, Part 1 (BPA Policies and Controls);
"BPA KEY EMPLOYEES" means the BPA personnel identified by name and
position in Part II of Schedule I to this Agreement (Employees).
"BPA REGIONAL REPRESENTATIVE" means an individual appointed by Client
pursuant to the Framework Agreement;
"BPA RESPONSIBILITIES" means those actions described in Schedule A which
need to be performed by the Client in order for Exult Supplier to be
able to provide the Services;
"BPA THIRD PARTY" means a third party other than BPA, a BPA Affiliate
and its and their respective agents, subcontractors, officers, directors
and employers;
"CHANGE" means a change to this Agreement or the Framework Agreement
agreed in accordance with the Change Control Management process;
"CHANGE OF CONTROL" shall be deemed to have occurred in relation to any
company ("THE COMPANY") if any Relevant Entity, together with any
Relevant Entity Affiliates:
(i) becomes interested (and, for the avoidance of doubt, was not
previously so interested), directly or indirectly, in more than 50
per cent of the shares of the Company or of the voting rights
attached thereto, including through an initial public offering of
more than 50 per cent of the share capital of the Company; or
(ii) acquires the right to appoint or remove a majority of the board of
directors of the Company
references to a Relevant Entity being "interested" in shares shall mean
interested in those shares for the purposes of Part VI of the Companies
Act 1985.
for the purposes of this definition only "RELEVANT ENTITY AFFILIATE"
means, in relation to any Relevant Entity, any other which is in Control
of, is Controlled by or is under common Control with such Relevant
Entity, "CONTROL" of a person shall mean:
(i) the right, whether direct or indirect, to vote 50 per cent or more
of the securities having the power to elect directors of such
person; or
(ii) the power, whether direct or indirect, to direct the management or
policies of such person.
"CHANGE CONTROL MANAGEMENT" means the procedure by which changes may be
made to the Agreement pursuant to Clause 9 (Change Control Management
Process) and as further set out in Schedule L (Change Control
Management);
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"CHANGE REQUEST" means a request for a Change made in accordance with
the Change Control Management process;
"CHARGES" means the charges payable by the Client in respect of the
Services calculated in accordance with Schedule C (Charges and
Invoicing);
"CLIENT ASSETS" means the goods and other assets which are owned or used
by BPA, a BPA Affiliate or the Client solely to provide the services
equivalent to the Services immediately before the Commencement Date,
including, but not limited to, Client Systems and Third Party Systems
and facilities whether or not the subject of Third Party Contracts and
as identified in Schedule E (Assets), in each case which are required to
be used by Exult Supplier to provide the Services;
"CLIENT INFORMATION" means the information provided by the Client which
comes into the possession of Exult Supplier or the Exult Affiliates or
their subcontractors pursuant to this Agreement, or created under or
arising out of data and records of the Client, BPA or BPA Affiliates
pursuant to this Agreement; "CLIENT INTELLECTUAL PROPERTY" has the
meaning ascribed to it in Clause 19.1 (Intellectual Property Rights);
"CLIENT PREMISES" means any premises of Client Affiliates in the United
States of America which the Client or Client Affiliates use to provide
services equivalent to the Services immediately prior to the applicable
Country Commencement Date;
"CLIENT SERVICE CENTRE" means each of the remote service centres to be
established by Exult Supplier;
"CLIENT SYSTEMS" means Systems (or part thereof) in which the
Intellectual Property is owned by either Client or Client Affiliates and
to be used in whole or in part in the provision of the Services as
identified in this Agreement;
"COMMENCEMENT DATE" means the date of execution of this Agreement by
both of the parties to this Agreement;
"CONFIDENTIAL INFORMATION" means all information obtained from the other
party which by its nature should be treated as confidential information
or is marked as such which may come into its possession or into the
possession of its employees, agents or subcontractors as a result of or
in connection with this Agreement and any and all information which may
be derived from such information;
"CONTRACT MINIMUM(s)" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"CONTRACT MINIMUM YEAR" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"CONTRACT TRANSFER PLAN" means the plan to be developed and agreed by
the Exult Supplier and the Client relating to the Transfer of a Third
Party Contract to Exult Supplier or the assumption by Exult Supplier of
an administration role in relation to a Third Party Contract;
"CONTROLS" means those business practices (including computer security
provisions, procedures to protect Confidential Information and
procedures to ensure compliance with obligations to third
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parties in connection with Exult Supplier's provision of the Services
hereunder), controls, Client policies, quality standards and human
resource, financial and accounting controls necessary for the provision
and receipt of the Services in accordance with this Agreement including:
(i) the Client Business Standards and Policy Document;
(ii) the Client Policy on the Business Conduct and Code of Business
Ethics;
(iii) the Client Disaster Recovery Plan; and
(iv) the BPA IT Policy.
which have been provided or will be provided from time to time to Exult
Supplier in writing and as listed in Schedule O (BPA Policies and
Controls);
"CORPORATE OVERHEAD" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"COUNTRIES" means the Countries in which Client requires Exult Supplier
to procure the provision of services such as the Services pursuant to
the Framework Agreement and "COUNTRY" means any one of them;
"COUNTRY AGREEMENT" means an agreement, substantially in the form set
out in Schedule N of the Framework Agreement, except as varied by or as
necessary to accommodate the relevant applicable laws of each Country or
as agreed by Client and Exult, to be entered into pursuant to the
Framework Agreement by a Participating Affiliate and Exult Participating
Affiliate in relation to the provision of Services to that Participating
Affiliate and any other Client Affiliates and/or Affiliates specified
therein;
"COUNTRY REPRESENTATIVES" means the representatives appointed by each of
the Client and Exult Supplier pursuant to, and having the
responsibilities referred to in Clause 22 (Contract and Service
Management) and "COUNTRY REPRESENTATIVE" means any one of them;
"COUNTRY TRANSITION PLAN" means the plan for the assumption of the
provision of the Service by the Exult Supplier set out in Schedule G
(Transition Plan);
"DECREASES" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"DEFAULT" means any material breach, or series of related or unrelated
persistent breaches which when taken together constitute a material
breach of its material obligations under this Agreement by either party;
"DEVELOPED SYSTEMS" has the meaning ascribed in Clause 19.8.1
(Intellectual Property Rights);
"DISPUTE" means any dispute, controversy or claim arising under this
Agreement ;
"DISPUTE RESOLUTION PROCEDURE" means the procedure which the parties
agree should be used to resolve Disputes as set out in Clause 29
(Dispute Resolution);
"DUE DILIGENCE COSTS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
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"DUE DILIGENCE EXERCISE" means the exercise carried out in relation to
each Country in accordance with Clause 4 (Due Diligence) of the
Framework Agreement which includes the production of the Due Diligence
Reports;
"EARLY TERMINATION PAYMENT" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
Exult "EMBEDDED SERVICES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"EMPLOYEE" means any employee of Exult Supplier employed from time to
time wholly or mainly for the purposes of performing Exult Supplier's
obligations under this Agreement;
"EMU COMPLIANCE" means that all financial and accounting software,
screen layouts and hardware, conform with the applicable conversion and
rounding requirements set out in the European Council Regulation 1103/97
and with the use of the euro as a dual and single currency but only to
the extent necessary to meet the business requirements of Client and
Participating Affiliates and where Exult Supplier has been given
reasonable notice of such business requirements;
"ESCROW AGREEMENT" means the agreement substantially in the form of that
contained in Schedule U (Escrow Agreement);
"EUROPE" means countries presently forming the European Union (Austria,
Belgium, Denmark, Finland, Continental France (including Corsica),
Germany, Greece, Ireland, Italy, Luxembourg, The Netherlands, Portugal,
Spain, Sweden and the United Kingdom) together with those territories or
countries presently known as Albania, Andorra, The Azores, Belorussia,
Bosnia, Bulgaria, The Canary Islands, Ceuta, The Channel Islands,
Croatia, Cyprus, The Czech Republic, Estonia, Gibraltar, Hungary,
Iceland, Isle of Man, Latvia, Liechtenstein, Lithuania, Macedonia,
Maderia, Malta, Melilla, Moldavia, Monaco, Norway, Poland, Romania, the
Russian Federation to the west of the Urals, San Marino, The Slovak
Republic, Slovenia, Switzerland, Turkey, Ukraine, Vatican City and The
Yugoslav Republic including such other countries as may be notified to
Exult Supplier in writing from time to time;
"EXISTING IT DOMAIN" means the IT infrastructure and systems
architecture existing at the Commencement Date;
"EXPERT'S DECISION" means the decision of the Expert pursuant to the
procedure described in Clause 29.2 (Dispute Resolution);
"EXPERT" has the meaning ascribed to it in Clause 29.2 (Dispute
Resolution);
"EXPIRY DATE" means the end of the Initial Period unless and until no
notice to terminate is given within the time limit specified in Clause
14.4 (Termination on Notice after the Initial Period) at which time the
Expiry Date shall mean the Framework Expiry Date;
"EXULT ACTUAL COST" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"EXULT AFFILIATE" means any company which is for the time being directly
or indirectly controlled
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by Exult Supplier and for this purpose:
(i) a company is directly controlled by another company beneficially
owning shares carrying the majority of votes at a general meeting
of shareholders (or its equivalent) of the first mentioned
company; and
(ii) a particular company is indirectly controlled by a company if a
series of companies can be specified, beginning with that company
and ending with the particular company, so related that each
company in the series is directly controlled by one or more of the
companies earlier in the series;
"EXULT ASSETS" means the goods and other assets which are owned by Exult
Supplier, Exult or an Exult Affiliate and acquired and used solely to
provide the Services immediately before the termination or expiry of
this Agreement, including Systems owned by Exult Supplier but excluding
any assets licensed or leased to Exult Supplier, Exult or Exult
Affiliate by way of a Third Party Contract;
"EXULT PROPRIETARY SYSTEMS" means Exult's Systems in which the
Intellectual Property is owned by Exult or Exult Supplier;
"EXULT REGIONAL REPRESENTATIVES" means the individuals appointed by
Exult Supplier pursuant to, the Framework Agreement;
"EXULT SUPPLIER DISASTER RECOVERY PLAN" means the plan to be agreed
between the parties which sets out the procedures to be adopted by Exult
Supplier and the Exult Participating Affiliates in the event that any
Systems used in the provision of the Services, or any data relating to
the Services, is damaged or becomes unavailable for any reason;
"EXULT SUPPLIER INTELLECTUAL PROPERTY" has the meaning ascribed to it in
Clause 19.2 (Intellectual Property Rights);
"EXULT SYSTEMS" means Systems used in the provision of the Services in
which Exult or Exult Supplier owns the Intellectual Property or has been
granted a licence to use the Intellectual Property, excluding Future
Systems and Client Systems;
"EXULT THIRD PARTY" means a third party other than Exult, an Exult
Affiliate and its and their respective agents, subcontractors, officers,
directors and employees;
"EXULT THIRD PARTY CONTRACT" means any contracts, including subcontracts
and licences, but excluding contracts relating to employment, entered
into by, assigned to or novated to Exult, Exult Supplier or an Exult
Supplier Participating Affiliate the benefit of which relates to, or
which are used in whole or in part for, providing the Services;
"FAILED READINESS TEST" means a failure to complete all material
elements of a Readiness Test.
"FORCE MAJEURE" means any cause affecting the performance of the
obligations under this Agreement by a party arising from acts, events,
omissions, happenings or non-happenings beyond its reasonable control
including (but without limiting the generality thereof) governmental
regulations arising after the Commencement Date, civil and/or political
unrest, fire, flood, or any
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disaster or an industrial dispute (other than those relating to Exult's
employees) but shall not include lack of funds or events caused by the
party seeking to rely on the Force Majeure event or by any third party
employed or engaged by the party seeking to rely on the Force Majeure
event (except where and to the extent that such third party is also
affected by a Force Majeure event) and provided that in determining what
is in the reasonable control of Exult Supplier, full account shall be
taken of the existence of the Exult Supplier Disaster Recovery Plan;
"FULL SERVICE DATE" means 00.01 a.m. on the date (which is the end of
the Transition Period) on which Exult Supplier is required to provide
all of the Services to the Client pursuant to the Country Transition
Plan.
"FUTURE SYSTEMS" means Systems created by Exult Supplier or its
Affiliates, or which Exult Supplier or its Affiliates procure to be
created, in fulfilling obligations under this Agreement, during the term
of this Agreement and provided to the Client or used in the provision of
the Services;
"FRAMEWORK COMMENCEMENT DATE" means the date defined as Commencement
Date in the Framework Agreement;
"FRAMEWORK EXPIRY DATE" means the date 7 years from the Framework
Commencement Date or in the event the Framework Agreement is extended by
agreement between the parties, the date which is then stated as being
the Expiry Date of the Framework Agreement;
"GENERAL WINDING UP PLAN" means the plan for co-ordinating the orderly
assumption of the provisions of the Services by the Successor Operator
to be produced pursuant to the Framework Agreement;
"GLOBAL GOVERNANCE PANEL" means the body to be established in accordance
with the Framework Agreement;
"GOOD INDUSTRY PRACTICE" means in relation to any undertaking and any
circumstances, the exercise of the degree of skill, care, prudence and
foresight which would be expected from a reasonably skilled and
experienced person engaged in the same type of undertaking under the
same or similar circumstances;
"GUARANTEED MINIMUM SAVINGS" has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
"GUARANTEED MINIMUM SAVINGS DATE" has the meaning ascribed to it in
Schedule C (Charges and Invoicing);
"HR IT SERVICES" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"INCREASES" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"INDEMNIFIED PARTY" has the meaning ascribed to it in Clause 26.5.1
(Defence of Claims);
"INDEMNIFYING PARTY" has the meaning ascribed to it in Clause 26.5.1
(Defence of Claims);
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"INDEPENDENT BUSINESS" means any business unit within a Country
designated by Client executive committee from time to time to operate at
arm's length because (i) it is pending decision regarding a possible
disposal of the business unit; or (ii) the business unit operates under
conditions materially distinct from those applying to the Services as
evidenced by non participation in all or some of the other Client main
stream support services in that Country;
"IN-SITU PROCESS TAKE ON DATE" means 00:01AM on the day on which Exult
Supplier assumes responsibility for a Process in-situ;
"INITIAL BASELINE" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"INITIAL BASE CHARGES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"INITIAL PERIOD" means the period of 5 years from the Commencement Date;
"INITIAL RESOURCE VOLUMES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"INTELLECTUAL PROPERTY" means patents, trade marks, service marks,
copyrights, topography rights, rights to extract information from
databases, design rights, trade secrets and rights of confidence and all
rights or forms of protection of a similar nature or having equivalent
or similar effect to any of them which may subsist anywhere in the
world, whether or not any of them are registered and including
applications for registration of any of them;
"INTERNAL CONTROLS" means such controls as would be reasonably required
in accordance to Good Industry Practice;
"KEY EMPLOYEES" means those Employees to be identified pursuant to
Section 2, Schedule I (Employees) to this Agreement;
"KEY INCIDENT" means an incident (whether or not a KPI failure) which
would have an impact either real or perceived on the operational
performance, finances or reputation of Client or the Client Affiliates
or Exult's or the Exult Affiliates' performance, finances or reputation;
"KPI CREDIT" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"KPI FAILURE" means any failure by the Exult Supplier to achieve a KPI;
"KPI FAILURE PERIOD" means the period of time during which there has
been a KPI Failure;
"KPIS" means the key performance indicators set out in the Service
Levels in Schedule B (Service Levels) and "KPI" means any one of them;
"% OF KPI POOL" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"KPI PER EVENT CREDIT" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"LEVERAGED OPERATIONS" means the result of Exult Supplier's
transformation of the Services to Exult Supplier's Service Delivery
Model intended to improve the quality of HR services provided
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to the Client and achieve the Guaranteed Minimum Savings.
"LEVERAGED PROCESS TAKE ON DATE" means 00:01AM local time on the day on
which Exult Supplier assumes responsibility for a Process in Leveraged
Operations;
"LOSSES" means all losses, liabilities, costs (including reasonable
legal costs), charges, expenses, actions, procedures, claims, demands
and damages (including the amount of damages awarded by an arbitrator
pursuant to Clause 29.3) (Dispute Resolution);
"MATERIALS" means all materials, including without limitation, magnetic
tapes, documents, designs, drawings, manuals, specifications,
flowcharts, and all stationery and other consumables as are, at the
applicable Country Commencement Date, in use by Client, the Client or
their Affiliates for the provision of the services equivalent to the
Services to the Client;
"NON-TRANSFERRABLE THIRD PARTY CONTRACT" means a Third Party Contract
other than a Transferable Third Party Contract;
"NORTH AMERICA" means United States of America, Canada, and Trinidad and
Tobago;
"OPERATIONAL CHANGE" means a change to any Process which affects the
procedures, scheduled operations activities, output and/or functioning
of the Service Delivery Model, but which is not determined to be a
Project, and does not require an adjustment to the Agreement;
"PARTICIPATING AFFILIATES" means the Client Affiliates, in addition to
the Client, which will receive the Services from the Exult Supplier
Participating Affiliates under this Agreement and "Participating
Affiliate" mean any one of them;
"PASS THROUGH COSTS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"PROCESS" means one of the 17 processes identified in Section II of
Schedule A (Scope of Services);
"PROCESS TAKE ON DATE" means 00.01am local time on the day on which
Exult Supplier assume responsibility for the delivery of the applicable
Process pursuant to the Country Transition Plan.
"PROJECT" means a discrete piece of work which is not a Service, is not
included in the Baseline, is limited in duration, has specific
deliverables, has identifiable start and end dates, is agreed through
the Change Control Management process, and is subject to an Process
Charge as defined in Schedule C;
"PROPOSED CHANGE" means a change requested through a Change Request,
pending approval;
"QUALITY CONTROL DOCUMENT" means the summary document to be prepared by
Exult Supplier in accordance with Clause 3.2.8 (Controls) which sets out
the basis on which Exult Supplier will apply the Controls to the
provision of the Services;
"READINESS TEST" means the test agreed between the parties to establish
the readiness of both the Client and Exult Supplier to transition a
Process to Exult Supplier as described in Sections 7
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and 8 of Schedule G (Transition Plan).
"REDUCED RESOURCE CHARGES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"REGION" shall mean each of North America, Europe and the Rest of the
World;
"REGIONAL REPRESENTATIVES" means the BPA Regional Representative and the
Exult Regional Representative;]
"RELEVANT ENTITY" means a person who in the reasonable opinion of Client
either:
(i) is a competitor of the Client, Client or a Participating Affiliate
primarily engaged in the business of distribution and production
of oil and petrochemicals;
(ii) whose (i) financial substance and (ii) credit rating are weaker in
any material respect than those of the Company; or
(iii) may, through its control of the Company, have any adverse effect
on the reputation of Client or any member of the BP Group;
"RESOURCE UNITS" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"RESOURCE VOLUMES" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"REST OF THE WORLD" means countries in which Client or the Client
Affiliates have operations other than Europe and North America;
"RETURN ON COSTS" or "R.O.C." has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
"SALES TAXES" means any federal, national, state, local, sales, use,
excise, utility, gross receipts, value added taxes, other similar
tax-related charges and surcharges levied by any authorised tax
authority, agency or government department;
"SENSITIVE SERVICES" means those services in the nature of the Services
which are considered by the Client, Client or Client Affiliates to be of
a sensitive nature in that they represent a significant risk to the
reputation or ongoing business of the Client, Client or Client
Affiliates or if the nature of the services are such that they could, in
the Client's, Client's or Client Affiliate's view, potentially expose
the Client, Client or Client Affiliate to particular legal liability,
including those relating to administration benefit plans subject to the
US Employee Retirement Income Security Act 1974 as amended and are
retained and provided internally by the Client, Client or any Client
Affiliates;
"SENSITIVE THIRD PARTY CONTRACTS" means those Third Party Contracts and
Exult Supplier Third Party Contracts which are considered by the Client
to be of a sensitive nature in that they represent a significant risk to
the reputation or ongoing business of the Client, Client or the
Participating Affiliates, or if the nature of the services provided
under the contracts are such that they could, in the Client's view,
potentially expose the Client, Client or the Participating Affiliate to
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particular liability;
"SERVICE CREDIT" means an amount payable by Exult Supplier to the Client
in respect of a KPI Failure;;
"SERVICE DELIVERY DESCRIPTION" means the documentation to be prepared by
Exult Supplier and/or Exult Supplier in accordance with Clause 16.5
(Winding Up Assistance);
"SERVICE DELIVERY MODEL" means the method by which the Services, or in
the case of Client, the services equivalent to the Services, are
delivered.
"SERVICE LEVEL" means the level to which the Services are to be provided
to the Client as set out in Schedule B (Service Levels);
"SERVICE PERFORMANCE REPORTS" means the reports to be produced by the
Exult Supplier Country Representative in accordance with Clause 22.3
(Service Performance Reports);
"SERVICED EMPLOYEE" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"SERVICES" means the human resource management and related services
processes described in Schedule A (Scope of Services) as may be amended
from time to time in accordance with the Change Control Management
process.;
"SPECIAL SERVICES" means any services provided by Exult Supplier
relating to Benefit Plans (as defined in Schedule W) that are subject to
the Employment Retirement Income Security Act 1974, including services
comprising or in connection with Sensitive Services or Sensitive Third
Party Contracts;
"STANDARD RATES" means the rate to be charged by Exult Supplier to the
Client for the provision of Projects as determined in accordance with
Schedule C (Charges and Invoicing);
"SUBCONTRACTOR" means any subcontractor of Exult Supplier engaged from
time to time in accordance with Clause 32 (Subcontracting) for the
purposes of performing any part of Exult Supplier's obligations under
this Agreement;
"SUCCESSOR OPERATOR" means the entity (which may include Client or any
Client Affiliates) succeeding Exult Supplier in the provision or
operation of all or any of the Services;
"SYSTEMS" means computer programs, databases, the tangible media on
which they are recorded, and their supporting documentation, including
input and output format, program listings, narrative descriptions,
source code, object code, algorithms, logic and development tools,
operating instructions and user manuals;
"TAXES" means all federal, state, local or foreign income tax, duty,
charge, and any penalty or interest thereon and any of the costs and
charges whatsoever assessed or imposed by any competent legal or fiscal
authority in relation thereto, including Withholding Tax, but excluding
value added or other similar sales or use taxes;
"TERM VESTED ANNUITANTS" has the meaning ascribed to it in Schedule C
(Charges and
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Invoicing);
"THIRD PARTY CONTRACTS" means any contracts, including licences, but
excluding contracts relating to employment, entered into by Client, or
any Client Affiliates the benefit of which relates to, or which are used
in whole or in part for providing services equivalent to the Services
immediately prior to the Commencement Date as identified in Schedule D
(Third Party Contracts);
"THIRD PARTY HR CONTRACT" means a Third Party Contract pursuant to which
a third party provides the Client with services equivalent to the
Services;
"THIRD PARTY SYSTEMS" means any Systems in which the Intellectual
Property is owned by a third party which Client, or any Client Affiliate
has been granted a licence to use and which are required to be used by
Exult Supplier to provide the Services as identified in Schedule F
(Systems);
"TOTAL LABOUR RELATED COSTS" has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
"TRANSFER" and "TRANSFERRED" in respect to a Third Party Contract or
Sensitive Third Party Contract refers to the transfer of such contract
by assignment or novation as well as to, upon termination or expiry of
such Third Party Contract, the taking over by Exult Supplier of the
services provided thereunder as Services under the relevant Country
Agreement;
"TRANSFER/TRANSFORMATION COSTS" has the meaning ascribed to it in
Schedule C (Charges and Invoicing);
"TRANSFERABLE THIRD PARTY CONTRACTS" means Third Party Contracts which
are identified during the Due Diligence Exercise or the Validation
Exercise or thereafter as being capable of being either terminated or
assigned to Exult Supplier at short notice and without incurring any
penalty; "VALIDATION EXERCISE" means the exercise to be carried out in
accordance with Part 2 of Schedule G (Transition Plan);
"TRANSITION PERIOD" means the period between the Commencement Date and
the Full Service Date;
"TRANSITION SCHEDULE" means the time line for the transition of all
Processes for a Country to Exult Supplier (in-situ and/or Leveraged
Operations) as defined in Section 9 of Schedule G (Transition Plan).
"TRIGGER EVENT" means an event which will enable Client to obtain
delivery of the relevant source code materials under the terms of the
Escrow Agreement;
"UNDERLYING TECHNOLOGY" means the Exult Supplier IT Domain dedicated to
supporting the provision of the Services.
"VALIDATION EXERCISE" means the exercise for each applicable Country
consisting of the validation of the Baseline, volumetrics, resource
requirements, costs, Services, Third Party Contracts and Service Levels,
conducted within 60 days following the Country Commencement
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<PAGE> 65
Date;
"WINDING UP ASSISTANCE" means the assistance to be given by Exult
Supplier to the Client as contained in a Winding Up Plan;
"WINDING UP ASSISTANCE COSTS" has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
"WINDING UP PLAN" means the winding up plan to be developed in
accordance with the provisions of Clause 16 (Winding Up Assistance) to
provide for the orderly transitioning of the Services to the Successor
Operator on termination or expiry of the Agreement; and
"WITHHOLDING TAXES" means any Taxes required to be withheld or deducted
by the competent legal or fiscal authorities in the Country of the tax
residence of the Client or any sum payable by the Client to Exult
Supplier for the Charges under this Agreement.
"WORK PRODUCT" means any works, including documents or reports whether
or not in electronic form produced for delivery to the Client as part of
the Services and/or fulfilling the obligations of Exult Supplier under
this Agreement including the Service Delivery Description but excluding
Future Systems and the Exult Supplier Systems.
"YEAR 2000 COMPLIANT" means that all software, systems and hardware
comply with the British Standards Institute requirements set out in DISC
PD 2000-1 "A Definition of Year 2000 Conformity Requirements".
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<PAGE> 66
UNITED STATES COUNTRY AGREEMENT
SCHEDULE A
SCOPE OF SERVICES
<PAGE> 67
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1 INTRODUCTION...............................................................................................1
2 EXULT SERVICES.............................................................................................1
A Training.....................................................................................1
B Organisation Development.....................................................................2
C HR Strategy..................................................................................2
D Labour Relations.............................................................................2
E Expatriate Relocation and Administration.....................................................2
F HR Information Services ("HRIS") (Employee Records).........................................3
G Benefits.....................................................................................3
H Compensation.................................................................................3
I Employee Relations...........................................................................3
J Compliance...................................................................................3
K Vendor Administration........................................................................4
L Payroll......................................................................................4
M Employee Development.........................................................................4
N Resourcing/Recruiting........................................................................4
O Severance....................................................................................5
P Performance Management.......................................................................5
Q Domestic Relocation Administration...........................................................5
R HR Information Technology ("HRIT")...........................................................5
</TABLE>
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SCHEDULE A
SCOPE OF SERVICES
1 INTRODUCTION
This Section describes certain duties, obligations and responsibilities
of Exult and of BPA in performing the Services.
Except where specifically set out in the applicable Country Transition
Plan, from the Commencement Date, Exult shall provide each process included in
the Services [***]*
For the purposes of this Schedule, Exult shall mean Exult Supplier where
appropriate; BPA shall mean the Client where appropriate.
2 EXULT SERVICES
Exult and BPA will perform the services as defined in this Schedule A.
For responsibilities where there is no quantification of the service to
be provided, Exult and BPA will provide the function [***]* Schedule T
identifies the BPA population, by Process, that shall receive the
Services identified in this Schedule.
The detailed scope is to be agreed before the applicable Process Take On
Date. Exult shall assume responsibility for each of the Processes set
out in this Schedule on the applicable Process Take On Date. For the
table included in each of the sections below, the following legend
applies:
Table Legend
X Performs Responsibility
A Approves
The parties recognise that there are third party agreements yet to be
evaluated that may be identified as Sensitive Third Party Agreements.
The current representation of process activities and responsibilities in
Schedule C of this Agreement reflects the intention of the parties in
the absence of Sensitive Third Party Agreements. Specific adjustment to
the responsibilities of BPA and Exult in any Process area affected by
Sensitive Third Party Agreements and/or Sensitive Services will be made
prior to the Process Take On Date to address the legal and operational
risks associated with the provision of Services by Exult, BPA and the
third parties associated with the above, for the period of time these
remain sensitive.
For the avoidance of doubt, adjustments of responsibilities in relation
to Section G, Benefits is anticipated in order to effectively manage
legal risk and ensure operational effectiveness of the Services.
A TRAINING
Training as a process includes training needs assessment,
course/materials development, logistics co-ordination, conduct of
training and training leader selection,
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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training effectiveness assessment and post training follow-up. Delivery
of training materials includes traditional classroom, self-study,
computer-aided training and third party training delivery mechanisms.
[***]*
[***]*
B ORGANISATION DEVELOPMENT
Organisation development focuses on organisation design and ensuring
organisation effectiveness. These activities include business and new
venture organisation consulting, managing organisational improvement
efforts and overseeing organisation consulting supplied by third
parties. Assessment of existing and proposed organisation models and
reorganisations will also be major activities in the area
[***]*
[***]*
C HR STRATEGY
HR strategy develops the long-term HR strategy for BPA and ensures the
linkages to organisational goals and business objectives. In addition,
HR strategy directs the development of the HR function and maintains
ties to outside entities thereby introducing new HR concepts into BPA
[***]*
[***]*
D LABOUR RELATIONS
Labour relations promotes/maintains effective relationships between BPA
and its employees. Relationship management, for example, with any BPA
works councils, trade unions, collective bargaining units, employee
forums and all BPA employees includes negotiations, problem/issue
management, and interfacing with regulatory entities on behalf of BPA
[***]*
[***]*
E EXPATRIATE RELOCATION AND ADMINISTRATION
Expatriate relocation and administration establishes expatriate
policies, manages the special needs of the expatriate population, and
assesses the many expatriate related problems/issues. Other
responsibilities include tax activities, spouse and dependent programs,
relocation assistance, and salary equalisation. Repatriation of
employees is also in the scope of this function.
[***]*
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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[***]*
F HR INFORMATION SERVICES ("HRIS") (EMPLOYEE RECORDS)
HR information services (employee records) responsibilities include all
activities necessary to capture, track, modify and report employee
related electronic and physical data. HRIS data includes data on active
employees, inactive employees such as terminated, term vested, deceased,
and annuitants, and appropriate non-employee populations.
[***]*
[***]*
G BENEFITS
Benefits includes benefits strategy development, benefits plan design
and administration, and communications of benefit programs to BPA
employees. The function determines the appropriate competitive level and
mix of benefits for BPA, including health and welfare plans, defined
contribution plans, and defined benefit plans.
[***]*
[***]*
H COMPENSATION
Compensation is the development of compensation plans and strategies for
BPA. The function ensures and administers the various compensation
programs that range from basic pay, executive compensation, variable pay
programs and other business-needs based pay schemes. Additionally, the
function determines the appropriate competitive level and mix of base
pay, short-term incentives and long term incentives.
[***]*
[***]*
I EMPLOYEE RELATIONS
Employee relations performs activities needed to keep a productive and
committed workforce in place. Assuring a healthy work environment
includes activities such as goal setting, diversity programs, employee
complaint resolution, employee coaching/counselling and communicating
workplace issues to interested groups of employees.
[***]*
[***]*
J COMPLIANCE
Compliance is the management of BPA's legal requirements and internal
business policies across all HR processes.
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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[***]*
[***]*
K VENDOR ADMINISTRATION
Vendor administration is the process by which third party providers of
HR or other related services to BPA (except for providers who have
fiduciary responsibilities to BPA employees) are administered by Exult
to ensure acceptable quality and price. Vendor selection, performance
monitoring, service negotiation and vendor certification are all
critical efforts. The administration of third party costs and allocation
of these costs to the appropriate business entities are also included
here.
[***]*
[***]*
L PAYROLL
Payroll processes include the collection of time and attendance data,
management of employee earning and deductions, calculation of gross and
net pay, and processing employee payments. Additionally, the payroll
function will compute and file payroll related taxes, manage mandated
deductions and perform the accounting transactions necessary to
accumulate labour expenses at the detailed level including all general
ledger interfaces.
[***]*
[***]*
M EMPLOYEE DEVELOPMENT
Employee development identifies employee development needs and ensures
that these development needs are planned with the employee and the
supervisor. Development tool construction, managing the execution of
development, tracking employee development plans, and succession
planning are all included.
[***]*
[***]*
N RESOURCING/RECRUITING
Resourcing/recruiting includes setting resourcing strategy, conducting
workforce planning and performing the hiring process, which includes
candidate pool solicitation, assessment, negotiation and orientation
activities. Vendor administration, logistics and assessment of
resourcing strategies are also included.
[***]*
[***]*
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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O SEVERANCE
Severance responsibilities include development of successful
programs/policies to transition employees from BPA, policy definition,
program development, impact modelling and program administration,
selection of third party vendors for outplacement, and managing the cost
of severance programs.
[***]*
[***]*
P PERFORMANCE MANAGEMENT
Performance management sets performance goal structures for BPA and
develops the tools needed to assess employee/group performance against
these goals. Management of the performance review process and reporting
on the process outcomes are also responsibilities.
[***]*
[***]*
Q DOMESTIC RELOCATION ADMINISTRATION
Domestic relocation administration oversees the work involved in moving
employees from one geographical location to another. Policy development,
cost tracking, employee education and communication, third party
administration and issue resolution all reside in this area.
[***]*
[***]*
R HR INFORMATION TECHNOLOGY ("HRIT")
"BPA IT Domain" shall mean the data processing infrastructure, servers,
data communications equipment, local area networks, desktop equipment
and support, common office environment, and wide area network facilities
operated and maintained by BPA and/or operated and maintained by third
parties under Third Party Contracts managed by BPA.
[***]*
[***]*
[***]*
[***]*
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE B
SERVICE LEVELS
<PAGE> 74
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1 INTRODUCTION...................................................................................................1
2 PRINCIPLES GOVERNING SERVICE LEVELS............................................................................1
3 PROCESS........................................................................................................1
4 SERVICE CREDITS................................................................................................4
</TABLE>
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SCHEDULE B
SERVICE LEVELS
1 INTRODUCTION
This Schedule defines the principles and parameters governing the
Service Levels which shall be measured. This Schedule also describes how
these Service Levels shall be established.
There are two types of Service Levels that shall be defined, measured
and reported for each Country Agreement:
1.1 Key Performance Indicators ("KPIs"):
(i) KPI Surveys - these measure the satisfaction of BPA
employees and management with the Services that are
provided by Exult ;
(ii) KPI Service Levels - Service Levels that must be met to
avoid a significant financial or Service impact to BPA;
1.2 Reporting Service Levels ("RSLs") - these measure Exult's
performance of the Services using a range of quantitative and
qualitative Service Levels.
Each Country Transition Plan shall define the process by which
the Services shall be transitioned from the BPA Service Delivery
Model to the Exult Service Delivery Model. The impact of the
transition to the Leveraged Operations shall be assessed and any
changes to Service Levels, including KPIs, shall be agreed in
accordance with Schedule L, Change Management.
The process for initially establishing these Service is
described in Section 3, Process.
2 PRINCIPLES GOVERNING SERVICE LEVELS
Principles governing Service Levels are documented in the Framework
Agreement, Schedule B, Service Levels.
3 PROCESS
Following the Commencement Date of each Country Agreement and before the
Process Take On Date, the parties shall determine and agree the Service
Levels that shall be included in Schedule B, Service Levels, of the
Country Agreement. In addition, the appropriate measurement tools and
reporting process for each Service Level shall be identified.
The timeframe to determine the Service Levels, the measurement tools and
the reporting process shall be documented in the applicable Country
Transition Plan.
3.1 KPI Surveys
3.1.1 An agreed upon Service Level metric shall be determined
and implemented in accordance with the Country
Transition Plan.
3.1.2 Surveys shall then be conducted and measured against the
KPI Survey metric and reported in accordance with the
Service Performance Report obligation under the Country
Agreement.
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3.1.2 KPI Surveys Service Level Table
[***]*
3.2 KPI Service Levels
3.2.1 With respect to the KPI Service Levels for Payroll and
HRIT, as identified in each applicable Country
Agreement, the parties shall agree on the applicable KPI
Service Level metric prior to the Process Take On Date.
Exult shall report on its performance of the Services in
accordance with such KPI Service Level thereafter.
3.2.2 With respect to the remaining KPI Service Levels, the
parties shall agree on the applicable provisional KPI
Service Level metric prior to the Process Take On Date.
Exult shall measure and report its performance of the
Services in accordance with such provisional KPI Service
Levels for an agreed period of time, [***]* in order to
determine the appropriate KPI Service Level metric.
After such period, the parties shall agree on the
applicable KPI ---- Service Level metric and Exult shall
report on its performance of the services in accordance
with such Service Level thereafter.
3.2.3 KPI Service Level Table
KPI Process Weighting for KPI Service Levels shall be
determined by the Client and identified within the
Country Agreement. [***]* Each KPI Service Level shall
be assigned a value of [***]*
3.3 [***]*
To the extent that a KPI Service Level is not achieved due to any
non-performance of or any other defect in any systems, hardware or other
technical infrastructure, other than those systems, hardware or other
technical infrastructure supplied or controlled by Exult under this
Agreement, Exult Supplier shall have no liability for such failure to
achieve the KPI Service Levels.
3.4 Reporting Service Levels
The following table of RSLs is illustrative of those that will be
adopted in each Country. The intention is to adopt a limited number of
meaningful RSLs to reflect key aspects of each Process. The parties
recognise that the illustrative RSLs set out below will need to be
amended by agreement before the Process Take On Date for each Process to
reflect the greater understanding of each Process that will be developed
during the Validation Exercise (and on an ongoing basis through the life
of the Agreement as the Service Delivery Model is enhanced).
The parties agree that the RSLs should wherever practicable and
appropriate be based on (i) information that is currently reported on at
the Process Take On Date; or (ii) information which can b generated from
the normal operation of the Service Delivery Model and Systems without
the need for extra development or modification to the Systems or Service
Delivery Model. Any proposals for additional RSLs beyond the numerical
limits set out above or for RSLs which do not fit into the category set
out in the
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paragraph below shall be subject to Change Control Management and the
Parties recognise that an appropriate equitable adjustment may be
necessary to implement such RSLs. As noted in Section 3.4 below, the
parties shall review Service Level metrics and shall determine and
agree, through the Change Control Management process, revised Service
Level metrics to reflect the benefits of Leveraged Operations. Agreed
changes to RSLs resulting from this review will be implemented at Exult
Supplier's expense.
The number of RSLs shall me limited to [***]* for each Country and
wherever practicable and appropriate RSLs shall be standardised for like
Processes in each Country. Although it is recognised that because
requirements will vary between Countries and that there will sometimes
be a need for different RSLs to be applied on a Country by Country
basis, the intention is that the total number of active RSLs shall be no
greater that 50 on a global basis at any one time.
3.4.1 Once the measurement tools and the reporting process have been
determined, the RSLs shall be measured and reported on an
ongoing basis.
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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3.4.2 Reporting Service Levels Table (Illustrative)
[***]*
3.5 ANNUAL SERVICE LEVELS REVIEW
3.5.1 [***]* Processes being transformed to Leveraged
Operations, the Regional Governance Panel shall review
Service Level metrics and shall determine and agree,
through the Change Control Management process, revised
Service Level metrics to reflect the benefits of
Leveraged Operations.
3.5.2 These Service Levels shall be reviewed and revised,
through the Change Control Management process on an
annual basis thereafter.
4 SERVICE CREDITS
4.1 KPI Surveys and KPI Service Levels shall be subject to Service
Credits as set out in Schedule C.
4.2 Provisional KPI Service Levels and RSLs shall not be subject to
Service Credits.
4.3 A failure by the Exult Participating Affiliate to meet a KPI set
forth in the applicable Country Agreement shall entitle the BPA
Participating Affiliate to at its option (1) recover a service
credit as set forth in Schedule C and/or (2) seek any other
remedy set forth in the applicable Country Agreement.
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE C
CHARGES AND INVOICING
<PAGE> 80
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 INTRODUCTION.........................................................................2
2 DEFINITIONS..........................................................................2
3 OVERVIEW.............................................................................4
4 CHARGING METHODOLOGY PRIOR TO THE GUARANTEED MINIMUM SAVINGS DATE....................9
5 CHARGING METHODOLOGY FOLLOWING THE GUARANTEED MINIMUM SAVINGS.......................10
6 TRANSITION/TRANSFORMATION COSTS.....................................................16
7 CLIENT SERVICE CENTRE COSTS (CSC)...................................................16
8 AGGREGATION OF TRANSITION/TRANSFORMATION AND CLIENT SERVICE CENTRE COSTS............17
9 CORPORATE OVERHEAD/CENTRE OF EXCELLENCE/DUE DILIGENCE TREATMENT.....................17
10 IT INVESTMENTS......................................................................17
11 GAIN SHARING........................................................................17
12 CLASSIFICATION OF EXPENSE ITEMS SUBJECT TO MARGIN VERSUS PASS-THROUGH...............19
13 THIRD PARTY REVENUE.................................................................19
14 INVOICING...........................................................................19
15 TRANSFER OF ASSETS..................................................................20
16 CONTRACT MINIMUMS...................................................................20
17 INFLATION...........................................................................20
18 EARLY TERMINATION PAYMENT...........................................................21
</TABLE>
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SCHEDULE C
CHARGES AND INVOICING
1 INTRODUCTION
This Schedule describes the methodology for determining the charges to
be paid by BPA to Exult for the performance by Exult of its obligations
under this Agreement as well as the associated processes for invoicing
BPA for such charges.
2 DEFINITIONS
Any capitalised terms that are not defined in this Schedule shall have
the meanings assigned to them in the Agreement. The following terms
shall have the meanings set out below:
"ACTIVE SERVICED EMPLOYEE" shall mean any Serviced Employee who is
currently employed during the period when the Services are measured.
"ADDITIONAL RESOURCE CHARGES" or "ARCs" shall mean the incremental
charges payable by BPA, in addition to the Base Charge for resource
usage that exceeds the Resource Volumes.
"ANNUAL WORK UNITS" represents the annual total IT Work Units performed
by Work Type.
"BPA" shall mean BPA or the Client where appropriate
"BASE CHARGE" shall mean Exult's annual charge divided by 12 and
invoiced monthly for the period commencing [***]* from the Baseline
Validation and recalculated [***]*.
"BASELINE" shall mean the adjusted Initial Baseline as determined by
Baseline Validation.
"BASELINE GUARANTEE" means the minimum Initial Baseline and Baseline
related to each Process taken on by Exult prior to the Guaranteed
Minimum Savings Date as set out in Section 4.1. The Baseline Guarantee
is [***]*
"BASELINE VALIDATION" shall mean validation of the Initial Baseline to
be completed by [***]*
"BENEFITS" shall mean those benefits set out in Schedule A.
"CENTRE OF EXCELLENCE COSTS OR COE COSTS" shall mean the actual costs
related to the organisation within Exult identified as such which
include the Exult subject matter experts and support staff. Functions
staff will perform shall include:
(i) Supporting complex inquiries and problem resolutions on calls to
the Client Service Centre; or
(ii) Assisting with the management of third party vendors in defining
service levels and monitoring performance; or
(iii) Assisting in the implementation of policy modifications and
changes that come from BPA ; or
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(iv) Defining the continuous improvement and best practice trends per
Process that are requirements of the Country Agreement
"CHANGE REQUEST CHARGES" shall mean the charges relating to the
implementation of Changes authorised by BPA in accordance with Schedule
L.
"CLIENT HR COSTS" shall mean the Total Labour Related Costs required by
BPA to provide the Embedded Services and HR services [***]*
"CONTRACT MINIMUMS" shall mean the minimum monthly payments by BPA to
Exult as referenced in Clause 23 of the Country Agreement and in
accordance with this Schedule C.
"CONTRACT MINIMUM YEAR" means each period of 12 months following the
Guaranteed Minimum Savings Date.
"CORPORATE OVERHEAD" shall mean Exult's general and administration
costs.
"DECREASES" means the items set out in Section 3.4.2.
"DUE DILIGENCE COSTS" shall mean the costs incurred by Exult in
accordance with Clause 4.6 of the Framework Agreement in carrying out
the Due Diligence Exercise in the applicable Country.
"EMBEDDED SERVICES" shall mean those HR functions to be retained or
retained as the case may be by BPA.
"EXULT" shall mean Exult, the Exult Participating Affiliate or the Exult
Supplier where appropriate
"EXULT ACTUAL COST" shall mean the sum of [***]*
"GUARANTEED MINIMUM SAVINGS" shall mean the reduction to the Category A
costs included in the Baseline calculated in accordance with Section
5.1.1 and Table C-5.1.1.
"GUARANTEED MINIMUM SAVINGS DATE" shall mean [***]*
"HR IT SERVICES" shall mean the costs for information technology
services (as defined in Schedule A)
"INCREASES" means the items listed in Section 3.4.2.
"INITIAL BASELINE" shall mean [***]*
"INITIAL BASE CHARGES" shall mean the monthly charges calculated in
accordance with Section 4.1 for [***]*
"INITIAL RESOURCE VOLUMES" shall mean, with respect to the applicable
Country, the initial estimated amount of resources utilised by BPA (such
as the number of training classes or domestic relocations) and/or the
number of Active Serviced Employees supported by BPA in the 12 month
period prior to the Country Commencement Date.
"KPI CREDIT" means the percentage subtracted from the applicable Exult
gain share portion.
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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"% OF KPI POOL" means the percentage used of the maximum Service Credits
per year.
"KPI PER EVENT CREDIT " means the percentage deducted for each missed
Service Level from the % of KPI Pool for a specific KPI.
"PASS THROUGH COSTS" shall mean those costs identified in the Country
Agreement [***],* including the cost of [***],* BPA charge-ins including
those relating to [***]*
"REDUCED RESOURCE CHARGES" or "RRCs" shall mean the incremental credits
payable to BPA for resource usage that is lower than the Resource
Volumes.
"RESOURCE UNITS" shall mean the units of measurement for the amount of
Resource Volumes used within each Process.
"RESOURCE VOLUMES" shall mean, with respect to the applicable Country,
the estimated amount of resources utilised by BPA (such as the number of
training courses, the number of attendees at training courses or
domestic relocations) and/or the number of Active Serviced Employees
required by BPA, annually from the Guaranteed Minimum Savings through
the term of the Country Agreement.
"RETURN ON COSTS" or "ROC" shall mean Exult's portion of gain share from
providing Services in a Country divided by the Exult Actual Cost for
[***]*.
"SERVICED EMPLOYEE" shall mean any BPA employee, former employee, or
contractor that is supported by the Services.
"TERM VESTED ANNUITANTS" means an individual, whom upon ceasing of
employment with BPA was less than age 55 and had five (5) or more years
of benefit accrual service under BPA's pension plan.
"TOTAL LABOUR RELATED COSTS" shall mean the costs incurred by BPA in
relation to HR employees or individual contractors including salaries
and wages, payroll benefits and BPA employee taxes, contractors fees,
pension, travel expenses, training, meetings and entertainment, office
space and utilities, office expenses supplies and dues, desktop and
communication services, relocation and expatriate expenses. Pension
costs are only included to the extent that BPA is at the relevant
Process Take On Date making contributions to the employees' pension
plans.
"TRANSFER/TRANSFORMATION COSTS" shall mean the costs set out in Section
6.
"WINDING UP ASSISTANCE COSTS" shall mean the following costs associated
with the transfer of the Services upon termination of the Country
Agreement to BPA or a third party:
[***]*
3 OVERVIEW
3.1 PRINCIPLES
The main principles underlying the charging mechanism are as
follows:
3.1.1 Subject to Sections 5.1.3 (ARCs/RRCs), 17 (Inflation)
and agreed Changes,
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Exult's charges shall not:
[***]*
3.1.2 Exult's charges shall be based upon BPA's [***]*, as
appropriate, as described in Sections 4.1 and 5 of this
Schedule C.
3.1.3 The Exult Actual Cost in any year following the
Guaranteed Minimum Savings Date [***]*, subject to the
following adjustments:
(i) ARCs/RRCs (see Section 5.1.3)
(ii) Inflation (see Section 17)
(iii) Charges for agreed Changes (see Section 5.1.9
and Schedule L)
(iv) Project Charges (see Section 5.1.9)
3.1.4 The Exult Actual Cost shall not [***]*
3.1.5 [***]*
3.1.6 During the [***]* the parties will work together to
ensure that all in-scope BPA employee costs are
identified so that the Initial Base Charges calculated
in accordance with Sections 4 and 5, [***]*
3.1.7 From the Guaranteed Minimum Savings Date, and subject to
agreed Changes, Force Majeure events, BPA performing its
responsibilities under the applicable Country Agreement
and the specific Process being taken on prior to the
Guaranteed Minimum Savings Date.Exult shall provide
Guaranteed Minimum Savings on the [***]* costs with
respect to those Processes which have been taken on by
the Guaranteed Minimum Savings Date and for subsequent
Processes when taken on.
3.1.8 It is Exult's intention to try to reduce the cost of
Third Party Contracts transferred to Exult [***]*
3.2 CATEGORIES OF COST
The charging mechanisms will be based on cost categories related
to the Services. [***]*
[***]* BPA shall receive Guaranteed Minimum Savings, shown in
Table C-5.1.1, from Exult on the [***]* costs to be determined
as part of Baseline Validation.
3.3 COUNTRY DUE DILIGENCE EXERCISE
The Initial Baseline will be determined during the Country Due
Diligence Exercise prior to signature of the relevant Country
Agreement. [***]* For Countries apart from the U.S. and U.K.,
Country Due Diligence Exercises shall determine whether the
Guaranteed Minimum Savings and Exult's Return can be achieved.
[***]* The impact of any Withholding Taxes
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shall also be included in Exult's Return as set out in Clause
2.10 of the Framework Agreement.
3.4 ESTABLISHING BASELINE COSTS
3.4.1 Client HR Costs
During the [***]*, BPA shall establish its total Client
HR Costs including HR IT Services. For Countries other
than the U.S. and U.K, the Client HR Costs shall be
established by BPA during each Due Diligence Exercise.
The Client HR Costs will be used to determine the actual
[***]* cost savings realised by BPA as the result of the
Process being taken on by Exult. [***]*, BPA will
establish the numbers of HR staff and designate each
staff member with the following categories:
- In-Scope employees.
- Embedded Services HR staff.
- Staff associated with the merger and
harmonisation of BP and Amoco.
- Staff whose status is still to be determined.
- Other staff associated with identified projects
In order to establish the Total Labour Related Costs no
HR personnel can be removed by BPA from the Client HR
Cost without first being designated within one of the
above five categories. Any dispute relating to the
classification of HR personnel shall be determined by an
Expert in accordance with Clause 24.2 of the Framework
Agreement (Dispute Resolution Procedure).
[***]*
For Countries other than the US and UK, the Client HR
Cost shall be established during the Country Due
Diligence Exercise and each member of staff designated
within the above four categories.
3.4.2 Adjustments to Client HR Costs
Once the Client HR Costs are established, BPA shall put
in place financial controls and tracking mechanisms to
allow BPA to track costs and for Exult to verify such
costs on a monthly basis. The Client HR Costs shall be
adjusted to take into account "Increases" or "Decreases"
as set out below:
A Increases
Increases in costs shall include the following
activities:
- An increase in compensation or other
Total Labour Related Costs.
- Temporary staff required to replace
staff included as Client HR
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Costs.
- Replacement (either temporary or
full-time) staff to fill vacant
positions for HR personnel initially
included as Client HR Costs who leave
BPA (or take a non-HR job within BPA)
and who do not transfer to Exult prior
to the applicable Process Take On Date.
- Additional HR resources to handle
expansions and/or changes to BPA's
business requirements and or activities.
- Anticipated adjustments agreed by
parties.
B Decreases
Decreases in costs shall include decreases not
caused by Exult taking on the Services:
- Savings in providing Embedded Services
resulting from non-Exult activities such
as using one HR advisor across more than
one business unit where two or more
advisors were used previously.
- Savings as a result of a reduction in
services provided by Embedded Services
staff such as the elimination of
Organisational Developmental services at
a particular business unit.
- Continuous improvement in the way
Embedded Services are provided such as
the restructuring of functions to
consolidate staff.
- Divestitures.
- Replacement of Embedded Services staff
with less expensive staff.
- Savings related to the harmonisation and
merger of BP and Amoco. Such savings
include, but are not limited to, the
transition to a single US payroll
system.
In the event of a dispute arising out of the
classification of a Decrease in cost as not
having been caused by Exult taking on the
Services, the matter shall be referred to an
Expert pursuant to Clause 24.2 of the Framework
Agreement (Dispute Resolution Procedure). Unless
the parties agree otherwise, all cost Decreases
not classified as Decreases not caused by Exult
taking on the Services shall form part of the
[***]* cost savings realised by BPA as the
result of Exult taking on the Process.
The remaining Client HR Costs [***]* shall be
considered to be the cost of providing Embedded
Services.
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3.4.3 Baseline Validation
Baseline Validation will commence once the final Process
Take On Date has occurred and prior to [***]* to
establish the actual Baseline to be used for the
remaining term of the Country Agreement. Baseline
Validation will establish the Baseline and resultant
Base Charge to be applied following the Guaranteed
Minimum Savings Date.
The Baseline Validation shall cover those items included
in the Due Diligence Exercise as well as other costs or
items the are identified subsequent to the Due Diligence
Exercise. Baseline Validation shall also include
validation of the remaining Client HR Costs including
the merger and harmonisation costs associated with BP
and Amoco. Exult shall have the option to carry out an
audit at its own cost on the Client HR Costs established
during Baseline Validation. Any disagreements about the
findings of this audit may be referred to an Expert
pursuant to Clause 24.2 of the Framework Agreement
(Dispute Resolution Procedure).
3.4.4 [***]* Cost Validation
(i) Principles relating to costs
The principles underlying the Exult Actual Cost
[***]* are:
(a) Exult will use technology to assist it
in providing the Guaranteed Minimum
Savings
(b) Exult intends to automate relevant
transactional processes and allow BPA
employee access through the
implementation of internet-enabled HR
support by using Client Service Centres
(including the integration of HR
transactional processing support),
knowledge and case management, workflow
and data warehousing technology;
(c) Exult's use of technology will continue
to evolve as opportunities to use
technology effectively are identified
during the term of the Country
Agreement;
(d) Exult shall not unreasonably be
prevented from using technological
innovations;
(e) as a result of Section (a) to (e) above,
[***]*
3.4.5 [***]* Charges
[***]*
3.4.6 [***]* Validation
The [***]* costs for BPA (which are based upon the
budget provided by BPA) and Exult's budgeted [***]*
costs shall be validated as part of the Baseline
Validation. To the extent that the merger and
harmonisation of BP and Amoco has not been
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completed by the completion date for the Baseline
Validation an estimate for the anticipated impact of any
remaining merger and harmonisation activity will be
agreed and included in the Baseline Validation and such
estimate will be subject to further validation on the
completion of the merger and harmonisation activity.
Both parties shall make reasonable efforts to validate
these actual and budgeted costs. This shall include,
where possible, the parties comparing individual cost
items on a like-for-like basis. BPA's [***]* costs will
need to be adjusted to match the changes in technology
used by Exult to deliver the Services in order to
achieve this like-for-like comparison.
If the parties disagree with this comparison of [***]*
costs, the matter shall be referred to an Expert
pursuant to Clause 24.2 of the Framework Agreement
(Dispute Resolution Procedure).
3.4.7 Resource Volumes
Prior to the Process Take On Date the Resource Volumes
for the relevant process shall also be established.
3.4.8 [***]* Costs
[***]* Costs shall also be validated as part of the
Baseline Validation. The [***]* Costs shall go through a
review process to establish an agreed cost projection
from the third month following the Country Commencement
Date until the end of month fourteen. [***]* Costs shall
be tracked by Exult and reconciled with BPA [***]*
following the Country Commencement Date.
4 CHARGING METHODOLOGY PRIOR TO THE GUARANTEED MINIMUM SAVINGS DATE
Prior to the Guaranteed Minimum Savings Date and following the first
Process Take On Date, charges from Exult shall be based on the Initial
Base Charges.
4.1 CALCULATION OF THE INITIAL BASE CHARGES
Prior to the signature of each Country Agreement, Exult shall
provide the Baseline Guarantee for each Process. BPA shall pay
to Exult following each Process Take On Date the Initial Base
Charges which shall be an amount equal to [***]*
During Baseline Validation, the parties will reconcile the
amounts invoiced in relation to each Process and the actual
[***]* cost savings realised by BPA relating to that Process
being taken on by Exult. If such actual costs are found to be:
(i) greater than the amounts invoiced by Exult, Exult shall
submit an invoice for the difference (actual [***]* cost
savings less the invoiced amount) .
(ii) less than the amounts invoiced by Exult, but greater
than the Baseline Guarantee, Exult shall issue BPA a
credit on the following month's invoice for the
difference (invoiced amount less the actual [***]* cost
savings).
(iii) less than the amount invoiced by Exult and the Baseline
Guarantee, Exult shall issue BPA a credit on the
following month's invoice for an amount equal to the
difference between the invoice amount and the Baseline
Guarantee.
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TABLE C-4.1
BASELINE GUARANTEE FOR THE US AND UK
IN USD
[***]*
Where the parties agree, the Baseline Guarantee for each Process may be
changed to reflect actual cost so long as the aggregate of all Processes
within the Baseline Guarantee for the U.S. and U.K. is equal to [***]*
If a Process is taken on prior to the completion of the Client HR Costs,
the Initial Base Charges shall be equal to the Baseline Guarantee and
reconciled at the end of the year for applicable costs exceeding the
Baseline Guarantee.
If a Process Take On Date is extended for more than 30 days, the parties
shall establish a panel with equal number of members from each party to
meet over a period of 30 days in order to decide the cause for such
delay. [***]*
Where the parties cannot agree which party caused a particular Process
Take On Date to be delayed, a payment or credit can still be agreed by
the panel although either or both parties may reserve the right to
review the cause for any such delays during Baseline Validation and to
refer any such disputes to the Informal Dispute Resolution Procedure
pursuant to Clause 24.1 of the Framework Agreement, and if the parties
are still unable to resolve such dispute, the matter shall be referred
to an Arbitrator pursuant to Clause 24.3 of the Framework Agreement.
5 CHARGING METHODOLOGY FOLLOWING THE GUARANTEED MINIMUM SAVINGS
From the Guaranteed Minimum Savings Date until the termination or expiry
of the Country Agreement, BPA shall pay to Exult the greater of the
Baseline Guarantee and the Baseline (both of which shall be subject to
Guaranteed Minimum Savings). The Baseline Guarantee and Baseline charges
shall be subject to Contract Minimums in each Country.
[***]*
BPA's actual usage/counts of the Resource Volumes shall be measured and
reported by Exult [***],* Exult shall calculate and apply the ARC/RRC
adjustments, Service Credits and gain sharing adjustments.
5.1 GUARANTEED MINIMUM SAVINGS CALCULATION
5.1.1 The Guaranteed Minimum Savings shall apply to the [***]*
charges in the Baseline in accordance with Table
C-5.1.1. The Guaranteed Minimum Savings for [***]* items
will be calculated [***]* during Baseline Validation.
GUARANTEED MINIMUM SAVINGS
TABLE C-5.1.1
[***]*
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For the Guaranteed Minimum Savings to apply in respect of a
Country, and provided that Exult has not delayed BPA, BPA must
give notice [***]* to Exult that it wishes to receive the
Services in that Country.
[***]*
5.1.2 Adjustments to Base Charge
(i) The Base Charge shall be adjusted during the
last month of each Contract Minimum Year to
determine:
[***]*
(ii) During the last month of each Contract Minimum
Year the Base Charge shall be adjusted prior to
the gain share calculation as follows:
(a) any increase or decrease in the Resource
Volumes and the IT Work Unit Volumes
that has occurred during the Contract
Minimum Year; and
(b) to reflect an increase or decrease in
the cost of providing any new services
or modifying the Services agreed in
accordance with the Change Control
Management process.
(iii) The Base Charge for the following Contract
Minimum Year shall be calculated by adjusting
the Base Charge as follows:
[***]*
5.1.3 ARCs/RRCs
ARCs will be used when the actual Resource Volumes in
the current year exceed the upper threshold for Resource
Volumes for the previous year. ARCs will be calculated
by [***]*
RRCs will be used when the actual Resource Unit in the
current year is less than the lower threshold for
Resource Volumes for the previous year. RRCs will be
calculated by [***]*
The ARC and RRC thresholds shall be established as part
of the Baseline Validation.
ARCs and RRCs will be reconciled and invoiced on an
annual basis. ARCs and RRCs unit rates will be subject
to inflation adjustments in accordance with Section 16.
The ARC unit rates shall be agreed between the parties
no later than the commencement of the Guaranteed Minimum
Savings Date and will be [***]* The RRC unit rates will
be agreed between the parties no later than the
commencement of the Guaranteed Minimum Savings Date and
will be [***]* For example, [***]*
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5.1.4 Resource Units
The Resource Units identified below are intended to
provide the proper measurement of usage for the Services
and allow for a reasonable means to gather data. The
Resource Units may be changed based on agreement between
the parties at any time during the term of the Country
Agreement.
[***]*
5.1.5 Charges Based on the Average Number of Active Serviced
Employees or Term Vested Annuitants and number of Active
Serviced Employees
Charges based on the average number of Active Serviced
Employees include the following functions:
[***]
Charges based on the average number of Active Serviced
Employees and Term Vested Annuitants shall include
Benefits.
The relevant employee database will be used to track
Active Serviced Employees and Term Vested Annuitants as
the master repository for Active Serviced Employee and
Term Vested Annuitants information. When an Active
Serviced Employee or Term Vested Annuitants is added or
removed, the relevant employee database will be updated
with this information. Charges based on the average
number of Active Serviced Employees and Term Vested
Annuitants will be derived from the weighted average
number of Active Serviced Employees supported in BPA.
Weighted average will be calculated by taking the number
of Active Serviced Employees and Term Vested Annuitants
(where applicable) for both the first and last day of
the month and dividing by two (2).
In addition to the Resource Volumes for Active Serviced
Employee, HR Information Services will have limitations
on the number of reports (as these requests will come
through HR Information Services in support of multiple
Processes). This will be dependent upon the level of
staffing. Reports shall be included in the IT Work Units
structure (as defined in Section 5.2.4 below) determined
during Baseline Validation.
In order to ensure that Exult can implement desired
Process improvements and gain sharing while still
providing flexibility in meeting BPA's needs, Payroll
will be subject to two additional measurements beyond
the Active Serviced Employee measurement. Manual cheques
will be subject to a surcharge of [***]* per cheque and
off-cycle Payroll runs shall be subject to an agreed
surcharge.
5.1.6 Service Charge Adjustments Based on the Average Number
of Active Serviced Employees and Term Vested Annuitants
If the weighted average actual number of Active Serviced
Employees or Term Vested Annuitants varies above the
Resource Volumes by [***]* then an adjustment to the
Base Charge shall be calculated. ARCs and RRCs shall be
based on the entire variance from the Resource Baseline
Volumes. Should the actual Active Serviced Employees and
Term Vested Annuitants (where
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applicable) vary from the Resource Volume by [***],* the
parties will agree upon an equitable adjustment to the
Base Charge.
5.1.7 Charges Based on Direct Usage
Charges based on the direct usage of each Process
include the following functions:
[***]*
5.1.8 Adjustments to the Charges Based on Direct Usage
Should the direct usage count vary from the Resource
Volumes by [***]*, then an adjustment to the Base Charge
shall be calculated. ARCs and RRCs adjustments shall be
based on the entire variance from the Resource Volumes.
If the parties agree [***]* is not the appropriate
threshold to trigger an ARC or RRC adjustment, the
threshold may change subject to agreement by both
parties. Should the actual usage vary from the Resource
Volume by [***]*, the parties will agree upon an
equitable adjustment to the Base Charge. For those
Processes based on number of standard reports, these
Processes will be grouped together for ARC and RRC
adjustments as they will not be identified by Process
when a request for a report is placed by BPA.
5.1.9 Project Charges
For each Project identified in Schedule H, the charges
for such Project will be agreed by the parties and set
out in the applicable Project Statement. Unless
otherwise agreed, Project Charges shall be based on
[***]* For services added that are not part of this
Country Agreement and that continue for the duration of
the Country Agreement, these services shall be handled
through Change Control Management.
5.1.10 Out-Of-Pocket Expenses
BPA will reimburse Exult for out-of-pocket expenses as
part of requests outside of Services. These
out-of-pocket are:
(i) Project related travel expenses approved by BPA.
(ii) Any other expenses approved by BPA.
5.2 [***]*
In addition to the charges shown in Section 5.2, other [***]*
items which Exult and BPA determine may be classified as [***]*
during the term of the Country Agreement through the Change
Control Management procedure.
5.2.1 [***]*
5.2.2 [***]*
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5.2.3 [***]*
5.2.4 Information Technology Work Units (IT Work Units)
Exult shall, in accordance with the IT Work Unit
methodology perform modifications, enhancements,
changes, and installations to comply with regulatory or
trade union requirements and changes as disclosed to
Exult by BPA. Exult shall support regulatory reviews,
audits, compliance assessments, and related data
gathering in a responsive time frame as required by
regulators. BPA acceptance testing and final approval
shall be required prior to implementation of such
regulatory compliance.
Exult shall, in accordance with the IT Work Unit
methodology, perform installation of upgrades and new
releases issued by the vendors of third party
applications software. Unless BPA directs otherwise,
Exult shall install and upgrade such software so as to
remain within one generation of the then-current
maintenance release. Exult shall notify BPA in writing
within a reasonable time prior to undertaking any such
upgrade or installation. Exceptions to this approach
shall be mutually agreed and shall be based on an
assessment of risk and value associated with
implementing the new release. Exult shall not upgrade
third party applications software if Exult notifies BPA
that such an upgrade shall have no value or an adverse
impact on BPA and, after receiving such notification,
BPA decides not to proceed with such upgrade.
Exult shall, in accordance with the IT Work Unit
methodology, perform small enhancements to the computer
applications. Exult shall perform small enhancement as
requested and priortized by BPA. Exult shall perform
small enhancements to the computer applications
portfolio.
5.2.5 IT Work Unit Volumes
Exult and BPA shall consider [***]* as the period to
develop the IT Work Unit algorithm and underlying
assumptions. During this period the natural rate/size
unit and the size requested metrics shall be collected.
The parties intend that the basis shall reflect the
quantity of regulatory changes, trade union contract
changes, upgrades and small enhancement work required to
be performed by Exult [***]* To the extent that any
review of the IT Work Unit calculation algorithm
generally determines that this intention is not being
effectuated, the algorithm (or other aspects of the
approach, as applicable) shall be adjusted as necessary.
The reviews in subsequent years shall use each preceding
year as the baseline.
The format for representing the volume of IT Work Units
is represented in the following table. This catalogue is
subject to mutually agreed upon adjustments resulting
from the IT Work Unit review process described above.
CATALOGUE OF BPA WORK TYPES
<TABLE>
---------------------------------------------------------------------------------
NATURAL NUMBER WORK UNIT / ANNUAL WORK
WORK TYPE SIZE UNIT REQUESTED SIZE UNIT UNITS
---------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Regulatory
---------------------------------------------------------------------------------
</TABLE>
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<TABLE>
<S> <C> <C> <C> <C>
---------------------------------------------------------------------------------
Changes (Small)
---------------------------------------------------------------------------------
Regulatory Changes
(Medium)
---------------------------------------------------------------------------------
Regulatory Changes
(Large)
---------------------------------------------------------------------------------
Union Contract
Changes
---------------------------------------------------------------------------------
Small Enhancements
---------------------------------------------------------------------------------
Upgrades
---------------------------------------------------------------------------------
YEAR 1 TOTAL
---------------------------------------------------------------------------------
</TABLE>
5.2.6 Definition of IT Work Unit Terms:
"WORK TYPE" is a means to provide for a categorisation
of the types of work that can be requested and is
included in the IT Work Unit approach (eg, regulatory
changes, small enhancements, upgrades).
"NATURAL SIZE UNIT" is a means to define the size unit
that best fits the work type that is discernible and
measurable and can be audited. An IT organisation
performs many different work types and each has its own
"natural" sizing measure (eg, lines of code, function
points, flat rate, Primitive Value).
"PRIMITIVE VALUE" or "PV" represents the throughput
necessary to complete the types of work in the BPA
catalogue.
"NUMBER REQUESTED" represents the total number for the
Work Type Natural Size Unit for the year. In a Work Type
where the Natural Size Unit is Primitive Value the
Number Requested represents the number of the Work Types
completed in a year.
"WORK UNIT/SIZE UNIT" represents the IT Work Units
computed for the Work Type.
"ANNUAL WORK UNITS" represents the total IT Work Units
performed by Work Type.
"IT WORK UNITS" represents the base standard for
measuring the work performed by Exult HRIT staff in
making specific HRIT application systems changes
calculated in accordance with the IT Work Unit algorithm
developed pursuant to Section 5.2.5.
5.3 [***]*
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[***]* Costs will be subject to an annual review between BPA and
Exult. The specific contracts will be identified and projections
for the subsequent 12 months will be made for each contract.
Both parties shall agree to the projected costs. [***]*
6 TRANSITION/TRANSFORMATION COSTS
Costs relating to the transfer of the Services from BPA to Exult
incurred by Exult after the relevant Country Commencement Date and prior
to the relevant Process Take On Date [***]*
7 CLIENT SERVICE CENTRE COSTS (CSC)
Client Service Centre costs are included in the [***]* charges as set
out below.
On an annual basis following the Guaranteed Minimum Savings Date through
the term of the applicable Country Agreement, the charges will be based
on [***]*
The Client Service Centre costs will include all staffing expenses,
facility related expenses, management expenses related directly to the
Client Service Centre, hardware and software expenses, lease expenses,
finance charges, amortisation and depreciation, supplies and third party
services related to the Service Centres. IT related costs that support
multiple customers shall be included as well in the aforementioned
categories. Client Service Centre costs will be allocated to the
appropriate [***]* Processes.
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TABLE C-7.1
CLIENT SERVICE CENTRE COSTS MAXIMUM ALLOCATION
IN USD
[***]*
8 AGGREGATION OF TRANSITION/TRANSFORMATION AND CLIENT SERVICE CENTRE COSTS
By agreement at the time not to be unreasonably withheld, with respect
to the maximum allowed costs for Transition/Transformation in Section 6
and Client Service Centres in Section 7, Exult shall be allowed to
[***]*
9 CORPORATE OVERHEAD/CENTRE OF EXCELLENCE/DUE DILIGENCE TREATMENT
Corporate Overhead costs will be recovered from available gain share
before gain share is distributed. Following the Guaranteed Minimum
Savings Date, Corporate Overhead for the U.S. and U.K. will be allocated
at the lesser of:
- [***]*
For the U.S. and U.K. Due Diligence, [***]*
Exult Centre of Excellence (COE) costs [***]* recovered from available
gain share before gain share is distributed. Following the Guaranteed
Minimum Savings Date, indirect COE for the U.S. and U.K. will be
allocated at the lesser of:
[***]*
The Corporate Overhead/COE/Due Diligence costs allocation methodologies
on actuals may be changed subject to agreement between the parties.
10 IT INVESTMENTS
IT Investments shall fall into two types. The first type shall consist
of those IT investments authorised by BPA. [***]* The second type shall
consist of those IT investments that are intended to be for the benefit
of multiple Exult clients. [***]*
If the second type of investment will result in the Exult Actual Cost
for [***]* exceeding the [***]* cost in the Baseline, Exult shall obtain
approval from BPA, such approval not to be unreasonably withheld, prior
to making such investment.
[***]*
11 GAIN SHARING
BPA and Exult shall participate in a gain sharing exercise for [***]*
Gain sharing can only apply to [***]* once Guaranteed Minimum Savings
have been realised. The Base Charge and Exult's actual costs for [***]*
shall be used in quantifying the total amount of gain sharing to be
allocated between BPA and Exult. Each charge Category will be handled
differently under this gain sharing
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arrangement. [***]*
11.1 GAIN SHARING METHOD BY CATEGORIES
To determine the applicable gain share, Exult's Actual Costs for
[***]* items will be subtracted from the applicable Base Charge
[***]* 12 months. Exult's, costs for Corporate Overhead,
Charge-Ins from BPA, COE and Amortisation of Due Diligence will
be subtracted from the amount available for gain share. The
remaining amount will be subject to gain share distribution.
Gain sharing [***]* will start from [***]* and at the end of
every 12-month period thereafter to determine the applicable
gain share.
[***]* Following the Guaranteed Minimum Savings Date, [***]*
share will be subject to gain share distribution.
The method for gain sharing calculation shall be as follows:
(i) If the Exult Actual Cost for [***]* is less than the
Base Charge for [***],* then those savings (Base Charge
minus Exult Actual Costs [***])* will be subject to
adjustments and subsequently the Gain Sharing
Distribution Matrix shown below in Tables C-11.2.1 and
C-11.2.2. The levels of distribution that determine the
proportion of gain share are shown as part of the
Distribution Matrices.
(ii) If the actual [***]* costs are less than the budgeted
[***]* costs (Budgeted [***]* cost - Actual [***]* cost)
then those savings shall be subject to the Gain Sharing
Distribution Matrix shown below in Tables C-11.2.1 and
C-11.2.2
11.2 GAIN SHARING DISTRIBUTION MATRIX
The Gain Sharing Distribution Matrix will be used to determine
the proportion of savings to be split between BPA and Exult
resulting from the calculation of the amount available for gain
sharing. [***]* The gain share will begin with the first level
of distribution and proceed to the next level until the amount
available for gain share has been fully distributed.
GAIN SHARING DISTRIBUTION MATRIX-NO SERVICE CREDITS TO BPA
[***]*
11.3 GAIN SHARING EXAMPLE
Table C-11.3 below is an example of the gain sharing calculation
amount and distribution.
[***]*
11.4 SERVICE CREDITS CALCULATION
KPIs are Service Levels that, when missed, are subject to
Service Credits. Service Credits for KPIs will be weighted in
accordance with Schedule B of this Agreement and will adjust the
gain sharing distribution between BPA and Exult. The Service
Credits shall be calculated on a Client Service Centre basis as
part of gain sharing and credited to the respective Countries
(as advised by BPA) on an annual basis.
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The formula for calculating the Service Credits for Exult's
failure to achieve any one of the seven KPIs is set out below.
The total amount determined from the service credit calculations
for all KPIs shall be subtracted from Exult's gain share portion
prior to Service Credits. The net result shall equal Exult's
gain share portion after Service Credits. [***]*
The calculation of Service Credits will be by KPI Process. Any
unutilised credits in the KPI Pool at the end of any year
following the Guaranteed Minimum Savings Date cannot be carried
forward to the succeeding year. [***]*
SERVICE CREDITS CALCULATION METHOD EXAMPLE
TABLE C-11.4
[***]*
12 CLASSIFICATION OF EXPENSE ITEMS SUBJECT TO MARGIN VERSUS PASS-THROUGH
12.1 EXULT ACTUAL COST
The following costs shall be subject to margin as part of gain
sharing:
[***]*
12.2 OTHER COSTS
The following costs shall not be included in the Exult Actual
Cost:
[***]*
13 THIRD PARTY REVENUE
Where the parties agree that third parties are permitted to market
services to BPA employees using Exult's Web-enabled HR services portal,
the [***]*
14 INVOICING
14.1 Invoices for Base Charge and the Initial Base Charges as
applicable will be submitted monthly in advance on the first day
of each month. All other charges including [***]* will be
invoiced in arrears on the first day of the subsequent month.
Invoices will provide details of each Base Charge and such
supporting information as BPA may reasonably require and will be
in the Country's local currency. For those Processes delivered
in a Client Service Centre not sited in the Country being
invoiced, Exult will convert the cost of those items not
invoiced in the local currency using a fixed exchange rate
established on each anniversary of the Country Commencement
Date. At the end of each year of the Agreement, the invoice
amounts will be recalculated using the actual month end exchange
rates for the period and a credit or invoice, as appropriate,
will be issued to BPA. In addition, at the end of the year, all
adjustments including ARCs and RRCs, gain sharing and Service
Credits will be made and invoiced or credited in the subsequent
month. BPA shall inform Exult how gain sharing and Service
Credits are to be distributed between Countries.
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14.2 The ARC and RRC adjustments, inflation adjustments, and BPA's
portion of gain share from the previous year will be used going
forward to calculate Base Charge for the following year subject
to end of year reconciliation in accordance with Section 5.1.2
14.3 Payments are due within [***]* of receipt of any invoice by BPA.
Interest for late payments will be charged at the rate of
[***].*
14.4 If as a result of any audit carried out in accordance with the
terms of a Country Agreement it is discovered that BPA has been
overcharged, Exult shall pay an amount equal to:
[***]*
15 TRANSFER OF ASSETS
As agreed between BPA and Exult, BPA's existing assets and management of
these assets may transfer to Exult as part of the Services that Exult
will provide to BPA. [***]*
16 CONTRACT MINIMUMS
16.1 Contract Minimums for each Contract Minimum Year shall be
established in accordance with Clause 17 of the Framework
Agreement.
16.2 The Contract Minimum for the initial Contract Minimum Year shall
be a sum equivalent to [***]*.
16.3 Within [***]* BPA may give Exult [***]* written notice of a
proposed reduction in the Contract Minimum to take account of
specified reductions in BPA's requirements for Services. These
reductions shall reflect material changes in BPA's business
operations or structure including those caused by Significant
Changes.
16.4 This Section 16 applies to situations which result in an actual
reduction in BPA's requirement for Services and, for the
avoidance of doubt, BPA may not assume responsibility internally
for services equivalent to the Services or appoint a third party
to provide services equivalent to the Services pursuant to the
terms of this Section 16.
16.5 [***]* prior to the end of each Contract Minimum Year, the
Regional Governance Panel shall meet to assess the impact,
including the impact on the Charges for the then current
Contract Minimum Year, of the reductions in BPA's requirements
for Services arising from the events identified in a notice
served in accordance with Section 16.3 above. As appropriate,
and subject always to Section 16.6 below, the Regional
Governance Panel shall agree a decrease in the Contract Minimum
for the succeeding Contract Minimum Year which is proportionate
with the actual reduction in Charges arising from the events.
16.6 [***]*
TABLE C-16.1
CONTRACT MINIMUMS EXAMPLE
[***]*
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17 INFLATION
All Base Charges shall be adjusted annually in arrears by a recognised
index in each Country for [***]*
For the USA, inflation will be measured by the Bureau of Labor and
Statistics (not seasonally adjusted) employment Cost Index (ECJ) for
total compensation, private industry workers, service producing
industries increases from the previous year.
The adjustment for inflation for [***]* charges and associated ARCs and
RRCs unit rates shall be subject to the percentage of Total Labour
Related Costs going to Exult as shown in Table C-5.1.1.
[***]*
Exult's Actual Cost for [***]* for allowing increases with respect to
cost increases greater than inflation, shall be set and measured at 90
days following the final Process Take On Date.
18 EARLY TERMINATION PAYMENT
18.1 Termination for convenience shall be calculated as:
- [***]*; and
- Winding Up Assistance Costs; and
- Remaining amortisation of Exult's Due Diligence Costs;
and
- the remaining book value for the Assets as follows:
[***]*; and
- Redeployment costs of staff and equipment (to remove
from BPA's sites) that have not been transferred to BPA;
and
- Remaining obligations for Third Party Contracts
including but not limited to outstanding loans and
financing costs related to such contracts as follows:
[***]*
18.2 Termination for Change of Control shall be calculated as:
- Winding Up Assistance Costs; and
- Remaining amortisation of Exult's Due Diligence Costs;
and
- The remaining book value for the Assets as follows:
[***]*; and
- Redeployment costs of staff and equipment (to remove
from BPA's sites) that have not been transferred to BPA;
and
- Remaining obligations for Third Party Contracts
including but not limited to outstanding loans and
financing costs related to such contracts as follows:
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<PAGE> 101
[***]*
18.3 Termination for Cause by BPA shall be calculated as follows:
- Winding Up Assistance Costs; and
- [***]*
18.4 Termination for a Key Country (U.S. or U.K.) - the payments for
the remaining Countries shall be calculated as follows:
- Winding Up Assistance Costs; and
- Remaining amortisation of Exult's Due Diligence Costs;
and
- The remaining book value for the Assets as follows:
[***]*; and
- Redeployment costs of staff and equipment (to remove
from BPA's sites) that have not been transferred to BPA;
and
- Remaining obligations for Third Party Contracts
including but not limited to outstanding loans and
financing costs related to such contracts as follows:
[***]*
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE D
THIRD PARTY CONTRACTS
<PAGE> 103
SCHEDULE D
THIRD PARTY CONTRACTS
This schedule sets forth the Third Party Contracts and designates whether such
contract is intended to be "Administered", "Transferred" or "Retained" by BPA.
This schedule shall be completed following the Commencement Date.
[***]*
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE E
ASSETS
<PAGE> 105
SCHEDULE E
ASSETS
This schedule sets forth the Client Assets which may be used by Exult to provide
the Services. This schedule shall be completed following the Country
Commencement Date.
[***]*
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE F
SYSTEMS
<PAGE> 107
SCHEDULE F
SYSTEMS
This schedule sets forth the Third Party Systems which may be used by Exult to
provide the Services. This schedule shall be completed following the Country
Commencement Date.
[***]*
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE G
TRANSITION PLAN
<PAGE> 109
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 INTRODUCTION......................................................................... 1
2 VALIDATION EXERCISE.................................................................. 1
3 DETAILED WORK PLAN................................................................... 1
4 TRANSITION APPROACH.................................................................. 1
5 PROCESS CHANGE MANAGEMENT AND COMMUNICATIONS......................................... 2
6 TRANSITION PLAN SET UP PHASE......................................................... 2
7 IN SITU PROCESS TAKE ON.............................................................. 2
8 LEVERAGED PROCESS TAKE ON............................................................ 3
9 US COUNTRY TRANSITION SCHEDULE....................................................... 5
</TABLE>
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SCHEDULE G
TRANSITION PLAN
1 INTRODUCTION
This Schedule sets forth the Country Transition plan for conducting the
Validation Exercise, the plan for the transition of the Services from
the Client to the Exult Supplier and the approach to transition that
shall be followed.
2 VALIDATION EXERCISE
The Validation Exercise for each Process shall be conducted following
the Commencement Date and conclude prior to the Process Take On Date.
The Validation Exercise shall consist of validation of the Baseline,
volumetrics, resource requirements, cost, Services, Third Party
Contracts and Service Levels. This data shall be verified and adjusted,
as agreed by both parties, for each Process prior to the relevant
Process Take On Date in accordance with the Country Transition Schedule.
In the event that the Country Representatives fail to reach agreement,
such failure shall be resolved in the informal dispute resolution
process as detailed in Clause 29.1 of the Country Agreement.
3 DETAILED WORK PLAN
The final form of the Transition Schedule and the Detailed Work Plan
will be developed and agreed between the parties, [***]*
In the event that the Country Representatives fail to reach agreement,
such failure shall be resolved in the informal dispute resolution
process as detailed in Clause 29.1 of the Country Agreement.
4 TRANSITION APPROACH
4.1 Two Path Transition Approach
The purpose of transition is to move the Services to a Leveraged
Operations delivery model as efficiently as possible, with the
minimum of disruption to BPA operations. The Client and Exult
Supplier have agreed to two distinct paths through the transition
Process. The goals of the two path approach are to allow the
Client and Exult Supplier the opportunity to manage the risk of
transition and, [***]*
4.2 Transition Path One
For those Processes (or discrete parts of Processes) that follow
path one through the transition process, Exult Supplier shall
first assume responsibility for these Processes in-situ, referred
to as "In-Situ Process Take On". Once Exult Supplier is
successfully providing these Processes in-situ, Exult Supplier
shall transform these Processes to Leveraged Operations.
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4.3 Transition Path Two
Processes in this category shall be transformed directly to
Leveraged Operations and, therefore, Exult Supplier shall not
assume operation responsibility for such Processes in-situ prior
to Transformation.
4.4 Path Selection
Exult Supplier and the Client shall agree to either path one or
path two for each Process based on an assessment of risk, the
degree of centralisation of the staff currently performing the
Processes, and the cyclical nature of the Processes. The
provisional allocation is set out in the Transition Schedule in
Section 9 of this Schedule.
5 PROCESS CHANGE MANAGEMENT AND COMMUNICATIONS
5.1 Process Change Management and Communications Approach
The establishment and maintenance of the process-change management
& communications infrastructure shall be managed through Exult
Supplier's project management office in concert with Client
Regional Project Leaders. The primary outcomes of these activities
shall be to:
[***]*
5.2 Process-Change Management and Communications Activities
For each Process that Exult Supplier shall take responsibility for
in-situ:
[***]*
6 TRANSITION PLAN SET UP PHASE
The set-up phase of the Transition Plan deals with the project
infrastructure necessary to support the successful completion of the
transition. This is the phase of the transition during which the Client
and Exult Supplier agree to the overall approach and schedule, the plan
to complete the work, and the staffing levels and commitments from both
organizations and the Detailed Work Plan. In addition, the Client and
Exult Supplier shall agree the process-change management program and
communications plan for the transition process. When the change
management actions are agreed, these are added to the details of the
Transition Schedule and Detailed Work Plan. Finally, the project
reporting and governance is agreed and put in place.
7 IN SITU PROCESS TAKE ON
The following steps shall be conducted prior to the Process Take On Date
for each Process.
7.1 Current Situation Assessment Phase
Exult Supplier shall collect data through a series of workshops,
structured interviews and field work, as well as reference to all
data collected during the contract due diligence
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phase. The scope of the data collection shall answer the following
questions:
- [***]*
Exult Supplier shall document the Processes to the level necessary
to clearly identify how Exult Supplier shall provide the Processes
in-situ.
7.2 Operational Plan
[***]*
7.3 Readiness Test
The Client and Exult Supplier shall agree to a specific set and
schedule of Readiness Tests to be satisfied prior to Exult
Supplier assuming responsibility for a Process. These tests shall
be specific to each Process and shall be designed to assure the
Client and Exult Supplier of the readiness of both parties to
transition the Process to Exult Supplier. Each Readiness Test plan
shall document the objective and measurable criteria to be tested,
the expected outcomes, the governance of the test, and the
results. Typical items that would appear in a Readiness Test
include:
[***]*
In the event that either party believes that there has been a
failure to complete a Readiness Test in all material respects, it
shall provide the other party with a written notice specifying the
grounds on which it believes the Readiness Test has been failed,
within [***]* of the completion of the Readiness Test. As soon as
reasonably practicable following the receipt of such notice, the
parties shall meet to discuss, and if possible, agree whether and
in what respects the Readiness Test has failed, and to agree a
plan to conduct a further Readiness Test.
7.4 Transfer of Responsibility
Exult Supplier shall assume responsibility for the Process on
successful completion of the Readiness Test. Once the Process has
transitioned to Exult Supplier, Exult Supplier shall measure its
performance to the Service Levels in accordance with Schedule B.
8 LEVERAGED PROCESS TAKE ON
8.1 Global Process Rationalisation Phase
This is the phase of the project where the Client and Exult
Supplier finalise the list of Processes that shall have a global
or cross-region approach and which Processes shall be specific to
the Country. Exult Supplier and the Client shall agree to grouping
of Processes, where appropriate, and Exult Supplier shall conduct
the overall design session for Process groups. The parties shall
agree to the timeline and sequencing of the
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Processes for transformation. The Client and Exult Supplier shall
finalise the plan to transform to Leveraged Operations and agree
to the staff resource levels in the plan.
8.2 Design
Design shall be conducted cross-region and by Process group where
applicable. Exult Supplier shall conduct Process design workshops
with the Client and shall design and agree to changes to the
Processes.
Exult Supplier shall document the new Process flows, the Service
Delivery Model to be used to support the new Process, and the
workforce requirements to support the new Process for both the
Client and Exult Supplier, and the parties shall agree to new
service levels based on the new Process.
8.3 Service Delivery Build
Exult Supplier shall develop and execute a plan to build the
delivery model for the newly designed Processes. The plan shall
identify:
[***]*
8.4 Readiness Test
The Client and Exult Supplier shall agree to a specific set and
schedule of Readiness Tests to be satisfied prior to the Client
migrating to a transformed Process. These tests shall be specific
to the Process and shall be designed to assure the Client and
Exult Supplier of the readiness of both parties. The test plan
shall document the objective and measurable criteria to be tested,
the expected outcomes, the governance of the test, and the
results. Typical items that would appear in a Readiness Test
include:
[***]*
At the request of the Client, Readiness Tests can be grouped with
the requirement that all grouped Processes pass the Readiness
Tests before Exult Supplier assumes responsibility for any one of
such Processes.
In the event that either party believes that there has been a
failure to complete a Readiness Test in all material respects, it
shall provide the other party with a written notice specifying the
grounds on which it believes the Readiness Test has been failed,
[***]* of the completion of the Readiness Test. As soon as
reasonably practicable following the receipt of such notice, the
parties shall meet to discuss, and if possible, agree whether and
in what respects the Readiness Test has failed, and to agree a
plan to conduct a further Readiness Test.
8.5 Transfer of Responsibility
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When the Readiness Test for a Process or Process group has been
completed, Exult Supplier shall commence delivering services using
the new Process or group of Processes. If applicable, the service
level measurement period shall commence for that Process or group
of Processes as defined in the Country Agreement, Schedule B,
Service Levels. On completion of the measurement period, Exult
Supplier shall document the Service Levels and measure its
performance to such Service Levels.
8.6 Post Implementation Review
Conduct post implementation review and document lessons learned
for incorporation in subsequent planning efforts. Implement any
required remediation.
9 US COUNTRY TRANSITION SCHEDULE
See attached Gant Chart
5
<PAGE> 115
UNITED STATES COUNTRY AGREEMENT
SCHEDULE H
PROJECTS
<PAGE> 116
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 PROJECTS INCLUDED AS AT COUNTRY COMMENCEMENT DATE.................................... 1
2 COUNTRY AGREEMENT PROCESS FOR AGREEING NEW PROJECTS AND CHANGES TO AGREED PROJECTS... 1
3 PRO FORMA ISSUES LIST RE PROPOSED PROJECTS........................................... 1
</TABLE>
<PAGE> 117
SCHEDULE H
PROJECTS
1 PROJECTS INCLUDED AS AT COUNTRY COMMENCEMENT DATE
As of the Commencement Date, Exult Supplier and the Client have
identified the following projects as being in-scope:
1.1 Peoplesoft and Payroll Integration Project - This project is in
progress. The primary objective is to assist in successfully
completing this project. Within [***]* of the Commencement Date of
the Framework Agreement, Exult Supplier and the Client shall agree
on an appropriate Project Statement; and
1.2 ARCO Integration Project - The ARCO Integration Project primary
objective will be to perform the activities and make the changes
necessary to integrate the ARCO employees and management into the
Services. Subject to regulatory approval of the acquisition of
ARCO by the Client, and [***]* of the Commencement Date or as
otherwise agreed, Exult Supplier and the Client shall agree to a
Project Statement for this project.
2 COUNTRY AGREEMENT PROCESS FOR AGREEING NEW PROJECTS AND CHANGES TO
AGREED PROJECTS
Client may at any time during the term of this Agreement propose to
Exult Supplier that it undertakes a new Project pursuant to the Change
Control Management process. Any such requests will be made and evaluated
in accordance with the Change Control Management process in Schedule L.
3 PRO FORMA ISSUES LIST RE PROPOSED PROJECTS
3.1 The terms applicable to a Project shall be set out in a Project
statement to be signed by both parties. Once signed a Project
statement will, unless agreed otherwise in writing by the parties,
form part of this Agreement.
3.2 Content of Project statement
o Scope of work
o Service Level Impact
o Impact Analysis including priority
o Deliverables [as applicable]
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o Acceptance criteria, timeframe & process [ as applicable]
o Project Timetable (including start and end dates, activity
duration and critical dependencies
o Responsibilities
o Staffing (implementation and ongoing)
o Assumptions
o Charges and Payment Terms
o Project Manager Contacts
o Other Terms and Conditions [to detail variations and/or
additions to the Country Agreement Clauses and/or Schedules
applicable in relation to the Project].
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE I
EMPLOYEES
<PAGE> 120
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 INTRODUCTION......................................................................... 1
2 KEY EMPLOYEES........................................................................ 1
3 EMPLOYEES TO BE TRANSFERRED FROM THE CLIENT TO EXULT SUPPLIER........................ 2
</TABLE>
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SCHEDULE I
EMPLOYEES
1 INTRODUCTION
This schedule sets forth the Key Employees and the employees to be
transferred from the Client to Exult Supplier in accordance with
Schedule J.
2 KEY EMPLOYEES
As of the Commencement Date each of the parties shall identify the
individuals for each of the following positions.
Key Employees for the Client:
o BPA Global Project Leader
o BPA Regional Project Leader for the UK/Europe
o BPA Regional Project Leader for North America
o Chemical Stream Lead
o Down Stream Lead
o Up Stream Lead
o Gas Stream Lead (To be added at a later date)
Key Employees for Exult Supplier:
o Exult Global Project Leader
o Exult Regional Project Leader for the UK/Europe
o Exult Regional Project Leader for North America
o UK/Europe Transition Lead
o North America Transition Lead
o IT Lead
For each of the Client and Exult Supplier the responsibilities for the
Key Employees shall include the following:
o Regional and Global Project Leaders: [***]*
o Stream Leads: [***]*
o Transition/Service Delivery Leads: [***]*; and
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o IT Lead: [***]*
Individuals identified as Key Employees will be confirmed in their
positions within 30 days of the Commencement Date of the Framework
Agreement. Each will serve in their positions for a minimum of [***]*
and up to [***]* unless otherwise agreed between the parties.
At anytime after [***]* one of the parties may request to reassign a Key
Employee. Reassignment may take place with [***]* and agreement between
the parties. The parties will make a reasonable effort to accommodate
and achieve the reassignment and the timing of the reassignment as
requested.
[***]*
3 EMPLOYEES TO BE TRANSFERRED FROM THE CLIENT TO EXULT SUPPLIER
The table below lists the Client employees that shall be transferred
from the Client to Exult Supplier in accordance with Schedule J. This
table shall be completed following the Country Commencement Date.
<TABLE>
<CAPTION>
NAME OF EMPLOYEE BPA STAFF NUMBER FULL/PART TIME
----------------------------- ------------------------ ----------------------------
<S> <C> <C>
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
</TABLE>
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE J
EMPLOYEE TRANSFER ARRANGEMENTS
<PAGE> 124
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 DEFINITIONS; RULES OF APPLICATION.................................................... 1
2 COLLECTIVE BARGAINING EMPLOYEES...................................................... 2
3 ASSIGNMENT OF EMPLOYEES.............................................................. 2
4 INDEMNITIES.......................................................................... 5
5 OFFER OF EMPLOYMENT.................................................................. 6
6 EMPLOYEE INFORMATION ON TERMINATION OR EXPIRATION.................................... 7
7 EMPLOYMENT PROVISIONS ON TERMINATION................................................. 7
</TABLE>
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SCHEDULE J
EMPLOYEE TRANSFER ARRANGEMENTS
1 DEFINITIONS; RULES OF APPLICATION
In this Schedule:
"ADDITIONAL ASSIGNED EMPLOYEES" means an employee of the Client or a BPA
Affiliate assigned to Exult Supplier pursuant to Section 3.10.
"AFFECTED EMPLOYEE" means any employee of the Client or an Appropriate
Affiliate employed wholly or mainly in providing one or more of the
Services immediately before the Commencement Date or who is employed
after the Commencement Date pursuant to Section 3.1.2 and would have
been an Affected Employee if such person had been employed immediately
before the Commencement Date.
"APPROPRIATE AFFILIATE" means, in relation to an Affected Employee, the
BPA Affiliate which employs that employee immediately prior to the
relevant In Situ Process Take On or Leveraged Process Take On, as
appropriate, each as defined in Section 4.2 of Schedule G.
"ASSIGNED EMPLOYEE" means an Affected Employee in the US who has been
placed on assignment by the Client or the Appropriate Affiliate to
perform Services under the direction and control of the Exult Supplier
at the time of an In Situ Process Take On.
"ASSIGNMENT" means the period of time during which an Assigned Employee
is assigned to perform Services under the general supervision and
control of Exult Supplier pursuant to Section 3.
"ASSIGNMENT DATE" means the date an Affected Employee becomes an
Assigned Employee in connection with the relevant In Situ Process Take
On under Section [4.2] of Schedule G.
"CURRENT EXULT EMPLOYEE" means an employee of Exult Supplier who is
[***]*
"EMPLOYEE OFFERED EMPLOYMENT" means an Affected Employee who is offered
employment with an Exult Supplier on or after the Commencement Date.
"EXULT EMPLOYMENT DATE" means the date of hire of a New Exult Employee.
"NEW EXULT EMPLOYEE" means an Affected Employee who accepts employment
with an Exult Supplier pursuant to Section 5.1 of this Schedule on or
after the date of the Commencement Date.
"REPRESENTED EMPLOYEE" means an Affected Employee who is represented by
a labor organization under the terms of a written collective bargaining
agreement with the Client or Appropriate Affiliate.
"STAFF COSTS" means any and all compensation, benefit costs, damages,
interest, legal costs, penalties, fines or other liabilities whatsoever,
arising from any claim by one or more Affected Employees, the Internal
Revenue Service and state and local taxing agencies with respect to or
resulting from any employment contract, employment relationship or
collective bargaining agreement or termination of such relationship with
an Affected Employee.
- --------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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"TERMINATION DATE" means 23.59 local time on the date when this
Agreement expires or terminates.
In this Schedule, any reference to an obligation or duty of an
Appropriate Affiliate shall be treated as an obligation by the Client to
undertake such obligation itself or cause the Appropriate Affiliate to
do so.
2 COLLECTIVE BARGAINING EMPLOYEES
Except for employees who may be represented by the Central States
Petroleum Union, no Affected Employee is a Represented Employee. The
Client or the Appropriate Affiliate shall have any and all duties and
obligations, imposed by terms of the collective bargaining agreement or
by law, to negotiate with the labor organization that represents the
Represented Employees with respect to the effects of the transactions
contemplated by this Agreement on the Represented Employees. The Client
or the Appropriate Affiliate shall indemnify and hold the Exult Supplier
harmless from all liability, cost and expense with respect to the
foregoing duties and obligations to Represented Employees and any
additional Staff Costs resulting from such negotiations.
3 ASSIGNMENT OF EMPLOYEES
3.1 RESPONSIBILITY OF THE CLIENT AND APPROPRIATE AFFILIATE.
3.1.1 As of the relevant In Situ Process Take On Date as set forth
in Section 4.2 of Schedule G, the Client and/or Appropriate
Affiliate will in accordance with an Affected Employee's
individual transition plan agreed to by Exult Supplier and
the Client or Appropriate Affiliate place on Assignment to
the appropriate Exult Supplier those Affected Employees with
respect to the Services to be managed by Exult Supplier In
Situ immediately prior to the In Situ Take On Date.
3.1.2 The Client shall not and shall procure that no Appropriate
Affiliate shall employ or engage further employees wholly or
mainly in providing one or more of the services similar to
the Services after the Process Take On Date for such
Services without consultation with Exult Supplier.
3.2 DURATION
An Assigned Employee's assignment to Exult Supplier will commence
on the relevant In Situ Process Take On Date and continue until
the earlier of (a) the period of the Assigned Employee's
Assignment ends in accordance with such Assigned Employee's
individual transition plan, (b) the Assigned Employee's assignment
is terminated in accordance with Section 3.6, (c) the Assigned
Employee becomes a New Exult Employee or (d) such other date
agreed between Exult Supplier and the Client .
3.3 TERMS AND CONDITIONS OF ASSIGNMENT
3.3.1 During the Assignment, the Assigned Employees will remain
employed by the Client or the Appropriate Affiliate and will
be assigned to Exult Supplier on the same terms and
conditions of employment as were in effect immediately prior
to the Assignment Date, as modified from time to time by the
Client or Appropriate Affiliate, provided that notice of
such modifications shall be provided to Exult Supplier in
sufficient time for Exult Supplier to comply with its
obligations in Section 3.3.5.
3.3.2 During the Assignment, the Assigned Employees will perform
the services under the general supervision and control of
the Exult Supplier.
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3.3.3 Prior to the commencement of any Assignment and in
sufficient time for Exult Supplier to comply with its
obligations under Sections 3.3 and 3.8 the Client or
Appropriate Affiliate shall deliver to Exult Supplier copies
of the terms and conditions of employment of the Assigned
Employees and its relevant non-discrimination,
non-harassment and health and safety obligations.
3.3.4 Subject to Section 3.3.1 and 3.3.3, Exult Supplier will
comply with the Assigned Employees' terms and conditions of
employment with the Client or Appropriate Affiliate.
3.3.5 Exult Supplier will maintain a record in a form specified by
the Client and/or the Appropriate Affiliate of each Assigned
Employee's absences and will notify the Client or the
Appropriate Affiliate of such absences and provide a copy of
such records to the Client or the Appropriate Affiliate at
its request.
3.4 EMPLOYEE RECORDS FOR ASSIGNED EMPLOYEES
3.4.1 As soon as reasonably practicable after the Commencement,
the Client and the Appropriate Affiliates, subject to any
restrictions imposed by law, will deliver to Exult Supplier
employment information containing the identity of, job
descriptions and skill qualifications of the Assigned
Employees, and such other employment information as Exult
Supplier shall reasonably request with respect to an
Assigned Employee and which the Client or Appropriate
Affiliate mutually agrees to provide.
3.4.2 Exult Supplier shall maintain comprehensive, accurate and up
to date employee records in a form to be specified by the
Client or Appropriate Affiliate in relation to the Assigned
Employees.
3.5 PAYMENT FOR SERVICES
3.5.1 As soon as practicable after the Commencement Date and in
any event prior to the first Assignment Date the Client
and/or each Appropriate Affiliate shall provide Exult
Supplier with details of the costs incurred by the
Appropriate Affiliate of employing Affected Employees.
3.5.2 Neither the Client nor the Appropriate Affiliate will
increase those costs other than in the ordinary course of
business.
3.5.3 The Client shall advise Exult Supplier of the costs incurred
by the Client or Appropriate Affiliates of employing the
Assigned Employees on a monthly basis, and such costs [***]*
3.6 EARLY TERMINATION
3.6.1 Either party may terminate any Assigned Employee's
Assignment immediately by giving written notice to the other
if:
(i) the Assigned Employee does or omits to do anything
(whether in connection with the Assignment or not)
which would allow the Client or the Appropriate
Affiliate to terminate his or her employment summarily;
or
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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(ii) the Assigned Employee discloses or misuses any
confidential information or material, is convicted of a
felony, or engages in conduct related to the Assigned
Employee's services for which criminal or civil
penalties may be sought .
3.6.2 Exult Supplier may terminate any Employee on Assignment's
Assignment at any time on giving two week's written notice
to the other party, provided that in this case only, Exult
Supplier's obligation to deduct from charges invoiced to the
Client the costs of employing such Assigned Employee on
Assignment incurred by the Client or Appropriate Affiliate,
shall not cease until the earlier of the end of the
Assignment period or the date on which the Assigned
Employee's employment with the Appropriate Affiliate ceases.
3.6.3 An Assigned Employee's Assignment will automatically
terminate on the termination of the Assigned Employee's
employment with the Client or Appropriate Affiliate.
3.7 DISCIPLINARY MATTERS AND EMPLOYEE COMPLAINTS
3.7.1 If a dispute arises between an Assigned Employee and Exult
Supplier as to the interpretation or application of any of
the Assigned Employee's terms and conditions of employment,
Exult will consult with the appropriate managers of the
Client or Appropriate Affiliate and will abide by their
decision. The Assignment shall not preclude an Assigned
Employee from utilizing any applicable grievance or
complaint procedure available to similarly situated
employees of the Client or BPA Affiliate.
3.7.2 If any disciplinary or grievance matter arises in relation
to any of the Assigned Employees during the Assignment,
Exult Supplier will notify the Client or the Appropriate
Affiliate as soon as reasonably possible. The Client or the
Appropriate Affiliate will deal with the matter in
accordance with its disciplinary or grievance procedure.
Exult Supplier will provide whatever assistance is
necessary.
3.8 NON-DISCRIMINATION, NON-HARASSMENT AND HEALTH AND SAFETY
Subject to Section 3.3.1 and 3.3.4, Exult Supplier will comply
with the Client's non-discrimination, non-harassment and health
and safety obligations in relation to the Assigned Employees,
provided that Assigned Employees shall comply with Exult
Supplier's health and safety rules with respect to services
performed on the Exult Supplier's premises. Exult Supplier will
co-operate with the Client or the Appropriate Affiliate in respect
of any action which it wishes to take in respect of the Employee
on Assignment in order to fulfil such obligations.
3.9 INTELLECTUAL PROPERTY
During the Assignment any invention, design, copyright or other
intellectual property made by any of the Assigned Employees,
[***]*
3.10 ADDITIONAL ASSIGNED EMPLOYEES
- --------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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3.10.1 The Client may assign, for a period to be mutually agreed by
the parties, which period shall be at least 12 months from
the Commencement Date. , Additional Assigned Employees to
Exult Supplier of up to one employee of its choice in Grade
20 or above or Brand G or above per 5,000 employees in
respect of whom Exult Supplier is providing Services to
perform the Services for at least 12 months.
3.10.2 Assignments under Section 3.10.1 shall be on the same terms
and conditions as those set out in Sections 3.1 through
3.10, provided, however, that Exult Supplier shall not be
required to pay the Client or Appropriate Affiliate for the
services of such Additional Assigned Employees and Sections
3.2, 3.5 and 3.6.2 shall not apply to such Additional
Assigned Employees.
4 INDEMNITIES
4.1 The Client and each Appropriate Affiliate will indemnify, keep
indemnified and reimburse Exult Supplier for any Staff Costs
incurred by Exult Supplier (other than Staff Costs which result
from an act or deliberate failure to act by Exult Supplier in its
dealing with an Affected Employee) with respect to an event
occurring before the Affected Employee becomes a New Exult
Employee irrespective of when such claim is made, or which relate
to, arise out of or are connected with any act or omission by the
Client or the Appropriate Affiliate, or which arise from any
claims by any Affected Employees pursuant to any employee benefit
plan or program of the Client or BPA Affiliate;
4.2 Subject to Section 4.1, Exult Supplier will indemnify the Client
and each Appropriate Affiliate and keep the Client and each
Appropriate Affiliate, indemnified against any Staff Costs which
relate to, arise out of or are connected with any act or
deliberate failure to act by Exult Supplier having its origin on
or after the commencement of an Assignment and which the Client or
Appropriate Affiliate incurs in relation to any contract of
employment, employment relationship or collective agreement
(except to the extent such cost relates to the Client's duty of
effects bargaining under Section 2) concerning one or more of the
Assigned Employees.
4.3 To the extent permitted by law, neither party shall bring any
claims against the other for any negligent acts or omissions of
Assigned Employees.
5 OFFER OF EMPLOYMENT
5.1 At any time after the Commencement Date, Exult Supplier may offer
to employ an Affected Employee on such terms and conditions as the
Exult Supplier shall determine.
5.2 As soon as reasonably practicable after the Commencement Date, the
Client and the Appropriate Affiliates, subject to any restrictions
imposed by law, will deliver to Exult Supplier employment
information containing the identity of, job descriptions and skill
qualifications of the Affected Employees, and such other
employment information as Exult Supplier shall reasonably request
with respect to an Affected Employee and which the Client or
Appropriate Affiliate mutually agrees to provide. As soon as
reasonable practicable after delivery to the Client or Appropriate
Affiliate of a written release agreement from an Affected
Employee, the Client or Appropriate Affiliate shall also deliver
to Exult Supplier such additional employment information the
release of which is authorized by such Affected Employee's release
agreement. The Client and Exult Supplier shall provide reasonable
cooperation with Exult Supplier's collection of employment
information for the Affected Employees, including the
establishment of the form of any release agreements and the
procedures for requesting Affected Employees to provide such
releases agreements.
5
<PAGE> 130
5.3 The Client or Appropriate Affiliate shall cause each New Exult
Employee to be fully vested in such Assigned Employees' accrued
benefits under the Client's or Appropriate Affiliates' retirement
and savings plans.
5.4 Exult Supplier shall permit each New Exult Employee to enroll in
Exult Supplier's benefit plans and programs under [***]*
5.4.1 [***]*
5.4.2 Exult Supplier will offer coverage under Exult Supplier's
health and welfare benefit plans to New Exult Employees and
their dependents in accordance with the terms of the Exult
Supplier's health and welfare benefit plans; [***]* The
Client or Appropriate Affiliate shall be responsible for
all health and welfare claims that are incurred by employees
prior to the date they become employees of Exult Supplier.
The Exult Supplier's health and welfare plans shall be
responsible for all health and welfare claims that are
incurred by employees after the effective date of their
coverage by the Exult Supplier's plan.
5.4.3 [***]* The Client or Appropriate Affiliate will be
responsible for all vacation benefits accrued by employees
up to the effective date of their employment by the Exult
Supplier. The Client or Appropriate Affiliate will pay out
all accrued but unused vacation pay to its employees who
accept employment with Exult Supplier according to the
Client or Appropriate Affiliate's practices. Exult Supplier
shall provide vacation according to Exult Supplier's
vacation policies, [***]* Except as specifically provided
for in Section 4.4, Exult Supplier shall not be required
to provide a New Exult Employee with credit under my benefit
plan or program or payroll practice for service with the
Client or the Appropriate Affiliate.
5.4.4 The Client or Appropriate Affiliate shall be responsible for
all workers' compensation claims of an Affected Employee
timely filed, either prior to or subsequent to the date an
Affected Employee becomes a New Exult Employee for instances
of injury or illness, arising from or incurred in the course
of employment, that occur prior to the date the Affected
Employee becomes a New Exult Employee. Exult Supplier shall
be responsible for all workers' compensation claims of a New
Exult Employee for instances of injury or illness, arising
from or incurred in the course of employment, that occur on
and after the date an individual becomes a New Exult
Employee.
5.5 The Client or Appropriate Affiliate shall provide COBRA health
care continuation coverage under the Client's or Appropriate
Affiliate's group health benefit plans (as amended from time to
time) to each qualified beneficiary under such plans. The Client
or Appropriate Affiliate shall not terminate its sponsorship of a
group health plan in connection with the transactions contemplated
by this Agreement and shall continue to maintain a group health
benefit plan and provide COBRA coverage for the maximum COBRA
coverage period applicable to each qualified beneficiary under the
Client or Appropriate Affiliate's group health plans who is, or
whose qualifying event occurred in connection with, an Affected
Employee.
5.6 The Client or the Appropriate Affiliate will be responsible for
compliance with all laws, rules, ordinances and regulations
respecting termination of any Affected Employees, including,
without limitation, the Worker Adjustment, Notification and
Training Act, 29 U.S.C. Section 2101 et. seq. ("WARN") and any
similar state or local laws. Exult Supplier will
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provide such reasonable cooperation as is requested by the Client
or the Appropriate Affiliate to comply with such laws, rules,
ordinances and regulations.
6 EMPLOYEE INFORMATION ON TERMINATION OR EXPIRATION
Two months before the expiration of this Agreement, or if this Agreement
has been terminated earlier for any reason within two weeks of being
requested to do so by the Client, Exult Supplier will provide to the
Client the following information in relation to all Current Exult
Employees who are employed exclusively in providing the Services:
6.1 the total number of the Current Exult Employees by name and
geographic location (including those on a leave of absence and who
have a statutory or contractual right to return to work);
6.2 details of all collective bargaining agreements and arrangements
entered into in relation to the Current Exult Employees who are
represented by a labor union with any collective bargaining group.
7 EMPLOYMENT PROVISIONS ON TERMINATION
On termination or expiration of this Agreement, the following provisions
will apply:
7.1 The Client, Appropriate Affiliate, any other BPA Affiliate, Exult
Supplier or a Successor Operator may, at its absolute discretion,
offer to employ one or more of the Current Exult Employees after
the Transfer Date. The Exult Supplier will not discourage a
Current Exult Employee from accepting such offer and the Exult
Supplier shall release any Current Exult Employee who accepts such
offer of employment from its employment obligations to the Exult
Supplier (other than confidentiality obligations).
7.2 The Client and Appropriate Affiliate shall not for a period of
[***]* solicit or induce any employee of an Exult Supplier other
than a Current Exult Employee to terminate his or her employment
with the Exult Supplier. The Client or Appropriate Affiliate shall
cause its agreement with a Successor Operator to provide that
Successor Operator will not solicit or induce any employee of an
Exult Supplier other than a Current Employee to terminate his or
her employment with the Exult Supplier.
- --------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
7
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE L
CHANGE CONTROL MANAGEMENT
<PAGE> 133
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 CHANGE REQUESTS...................................................................... 1
2 CLASSIFICATION OF THE CHANGE REQUEST................................................. 1
3 EVALUATION OF THE PROPOSED CHANGE.................................................... 2
4 IMPACT ANALYSIS...................................................................... 3
5 APPROVAL............................................................................. 4
6 REPORTING............................................................................ 4
</TABLE>
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SCHEDULE L
CHANGE CONTROL MANAGEMENT
This Schedule sets out the procedure to be followed for any Proposed Change to
the Framework Agreement or any Country Agreement.
1 CHANGE REQUESTS
1.1 Either party may request a Proposed Change by submitting a Change
Request in accordance with the following process.
1.2 The Change Request shall be divided into two (2) sections. Section
One shall contain the general information regarding the Proposed
Change and shall be completed by the Country Representative of the
submitting party. Section Two shall contain the impact analysis
for the Proposed Change, which shall be completed by the Exult
Supplier Country Representative.
1.3 In each Country, Change Requests shall be presented by the Country
Representative of the submitting party to the other party's
Country Representative or designee who shall acknowledge receipt
by signature of the Change Request.
1.4 Any Proposed Change which has a potential impact on more than one
Country shall have a Change Request completed for each impacted
Country.
2 CLASSIFICATION OF THE CHANGE REQUEST
The Exult Supplier Country Representative and the Client Country
Representative shall agree to the classification of the Change Request
as follows:
2.1 Where it is determined that the Proposed Change is an Operational
Change, the Proposed Change shall be evaluated as set out in
Section 3.1.
2.2 Where it is determined that the Proposed Change is a change to the
Client's Policies and Procedures, the proposed change shall be
evaluated as set out in Section 3.2.
2.3 Where it is determined that the Proposed Change is a Project, the
Proposed Change shall be evaluated as set out in Section 3.3.
2.4 Where it is determined that the Proposed Change is a change to the
terms and conditions of the Country Agreement or a change related
to the Schedules of the Country Agreement which is not related to
a specific Project or to a change to Client's Policies and
Procedures, the Proposed Change shall be evaluated as set out in
Section 3.4.
2.5 Where it is determined that the Proposed Change should not
proceed, the Change Request shall be rejected and returned to the
submitting party.
If the Exult Supplier's Country Representative and the Client's Country
Representative cannot agree to the classification of the Change Request,
then the Change Request shall be referred to the Regional Governance
Panel for classification.
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3 EVALUATION OF THE PROPOSED CHANGE
The Proposed Change shall be evaluated, by classification, as described
below:
3.1 Operational Changes
3.1.1 Operational Changes shall be implemented in accordance with
the operational change control procedures and approved
subject to Section 5 of this Schedule.
3.2 Changes to Client's Policies and Procedures
3.2.1 Exult Supplier shall perform the impact analysis as
described in Section 4.
3.2.2 The Exult Supplier Country Representative shall submit the
Proposed Change, including the Impact Analysis, to the
Client Country Representative.
3.2.3 Based on the results of the impact analysis, the Client
Country Representative shall, within a reasonable timeframe:
(i) approve the Proposed Change and proceed to its
implementation subject to Section 5 of this Schedule;
or
(ii) request Exult Supplier in writing to re-submit the
Proposed Change stating which items of information it
is dissatisfied with, in which case Exult Supplier
shall re-submit the Proposed Change within a reasonable
timeframe; or
(iii) reject the Change Request in which case the Agreement
shall continue un-amended.
3.3 Projects
3.3.1 Exult Supplier shall perform the impact analysis as
described in Section 4.
3.3.2 Exult Supplier shall prepare a Project Statement as set out
in Schedule H.
3.3.3 The Exult Supplier Country Representative shall submit the
Proposed Change, including the Project Statement, to the
Client Country Representative
3.3.4 Based on the results of the impact analysis, the Client
Country Representative shall, within a reasonable timeframe:
(i) approve the Proposed Change and the Project Statement
and proceed to its implementation subject to Section 5
of this Schedule; or
(ii) request in writing that Exult Supplier re-submit the
Proposed Change and Project Statement stating which
items of information it is dissatisfied with, and Exult
Supplier shall re-submit the Proposed Change and
Project Statement within a reasonable timeframe; or
(iii) reject the Change Request in which case Exult Supplier
will not implement the Project.
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3.4 Changes to the Agreement (as described in Section 2.4)
3.4.1 Exult Supplier shall perform the impact analysis as
described in Section 4.
3.4.2 The Exult Supplier Country Representative shall submit the
Proposed Change, including the impact analysis, to the
Client Country Representative for approval subject to
Section 5 of this Schedule.
4 IMPACT ANALYSIS
4.1 Upon determination of the classification of the Proposed Change,
Exult Supplier shall provide, at its expense, within [***]* or as
otherwise agreed, an estimate of the time and cost that Exult
Supplier proposes to charge to the Client to complete the impact
analysis. The Client shall provide Exult Supplier, within 10
business days or as otherwise agreed, a decision as to whether to
proceed with the impact analysis as estimated.
4.2 If the Client Country Representative determines that the Proposed
Change should not proceed, the Change Request shall be rejected
and returned to the submitting party.
4.3 If the Client Country Representative decides to proceed, Exult
Supplier shall, as soon as reasonably practicable and acting in
good faith, conduct an impact analysis to assess and evaluate the
impact of the Proposed Change having regard to all relevant
factors including the following:
[***]*
4.4 In the case of Proposed Changes relating to Projects, Exult
Supplier, in addition to the impact analysis shall, acting in good
faith, provide the Client with the following information:
4.4.1 whether Exult Supplier considers the Project to be
technically feasible, and, if so, the estimated number,
grade, qualification and experience of personnel required to
provide the Project;
4.4.2 the estimated number of days that would be required to be
spent by each such person in order to provide the Project;
4.4.3 the estimated cost and timetable for implementation of the
Project including the date of its completion;
4.4.4 the anticipated impact, if any, on other aspects of the
Services and operation of the Systems by the Client;
4.4.5 the terms and conditions on which Exult Supplier is willing
to provide the Project, which shall so far as reasonably
appropriate shall be consistent with the terms and
conditions on which the Services are provided under this
Agreement; and
4.4.6 any other information the Client may reasonably require in
relation to the Project.
[***]*
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
3
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5 APPROVAL
Subject to the delegated financial authority limits provided by the
relevant Client Global Commercial Contract Leader and Client Regional
Commercial Contract Leader, the following approval levels shall apply.
5.1 Change Requests that are classified as Operational Changes shall
be approved by the Client's Country Representative and Exult
Supplier's Country Representative or their designees except where
Operational Changes do not impact Client activities or costs, in
which case the Exult Country Representative or its designee may
approve the change.
5.2 Change Requests that are classified as changes to the Client's
Policies and Procedures shall be approved by the Client Country
Representative.
5.3 Change Requests that are classified as Projects shall be approved
by the Client's Country Representative.
5.4 Change Requests that are classified as changes to the terms and
conditions of the Country Agreement or as changes related to the
Schedules of the Country Agreement which are not related to a
specific Project or to a change to the Client's Policies and
Procedures, shall be approved by the Regional Governance Panel. In
the event that such changes have global implications, the Change
Request shall be approved by the Global Governance Panel.
Neither party shall be obliged to comply with any Proposed Changes
unless and until approval has been given in accordance with this Change
Control Management process and, pending approval, no Change shall be
made to the Services or to the Framework and Country Agreements.
6 REPORTING
A consolidated report of all Change Requests shall be presented by the
Exult Supplier Country Representative to the Regional Governance Panel
on a monthly basis. The Regional Governance Panel shall report Change
Requests on a quarterly basis to the Global Governance Panel.
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE M
APPROVED EXULT SUBCONTRACTORS
<PAGE> 139
SCHEDULE M
APPROVED EXULT SUBCONTRACTORS
This schedule sets forth those subcontractors that have been approved by BPA.
[***]*
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* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
1
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE O
BPA POLICIES AND CONTROLS
1
<PAGE> 141
SCHEDULE O
BPA POLICIES AND CONTROLS
1 PART 1
The following Controls have been submitted to Exult in writing and Exult
shall fulfil its obligation under this Agreement in accordance with such
Controls.
[***]*
2 PART 2
The following Controls shall be reviewed and evaluated by BPA and Exult
in accordance with this Agreement.
[***]*
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* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
<PAGE> 142
UNITED STATES COUNTRY AGREEMENT
SCHEDULE P
GLOBAL GOVERNANCE ARRANGEMENTS
<PAGE> 143
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1 INTRODUCTION....................................................................................................1
2 GLOBAL GOVERNANCE PANEL.........................................................................................1
3 REGIONAL GOVERNANCE PANEL.......................................................................................2
4 COUNTRY REPRESENTATIVES.........................................................................................3
5 EXECUTIVE STEERING COMMITTEE....................................................................................4
6 REGIONAL STEERING COMMITTEES....................................................................................5
7 CONTRACT ADMINISTRATION DOCUMENTS...............................................................................6
</TABLE>
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SCHEDULE P
GLOBAL GOVERNANCE ARRANGEMENTS
1 INTRODUCTION
For the purposes of this Schedule, Exult shall mean Exult Supplier where
appropriate; BPA shall mean the Client, where appropriate.
2 GLOBAL GOVERNANCE PANEL
2.1 As soon as reasonably practicable following the Commencement
Date a Global Governance Panel will be established by the
parties to focus primarily on global strategic issues. It is
agreed that the Global Governance Panel should not be involved
in day-to-day issues.
2.2 The Global Governance Panel will be comprised of 4 voting
members as follows:
2.2.1 one Global Project Leader from each of Exult and BPA
(who will also be members of the Executive Steering
Committee); and
2.2.2 one Global Commercial Contract Leader from each of Exult
and BPA.
2.3 The initial members of the Global Governance Panel are:
BPA Global Project Leader
Exult Global Project Leader
BPA Global Commercial Contract Leader
Exult Global Commercial Contract Leader
Each party shall wherever reasonably practicable give the other
3 months written notice in the event it wishes to change its
representatives on the Global Governance Panel.
2.4 The Global Governance Panel shall be chaired alternately by a
BPA representative and an Exult representative.
2.5 The Global Governance Panel will meet no less than quarterly,
and at other times as agreed between the parties. The meetings
will be arranged to synchronise with those of the Regional
Governance Panels and will take place approximately two weeks
after meetings of the Regional Governance Panels.
2.6 Voting will be on a unanimous basis and a full quorum will be
required for voting purposes.
2.7 The responsibilities of the Global Governance Panel will
include:
2.7.1 reviewing the overall performance of the parties'
respective roles and responsibilities under this
Agreement and of their respective Affiliates under the
Country Agreements;
2.7.2 reviewing significant recommendations and suggestions
made by the Executive Steering Committee relating to the
Services and/or this Agreement or any Country Agreement
and initiate appropriate actions;
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2.7.3 submitting quarterly performance review reports to the
Executive Steering Committee for its guidance and
recommendations;
2.7.4 when referred to it by any of the Regional Governance
Panels, considering and agreeing changes in accordance
with the Change Control Management procedure;
2.7.5 seeking to resolve any Dispute referred to it in
accordance with the Dispute Resolution Procedure.
2.8 The parties shall procure that the members of the Global
Governance Panel shall, at all times, act reasonably and in good
faith having due regard to the interests of all parties.
3 REGIONAL GOVERNANCE PANEL
3.1 As soon as reasonably practicable at the time of contracting the
first Country in a region a Regional Governance Panel will be
established by the parties for that Region to focus primarily on
regional strategic issues. It is agreed that the Regional
Governance Panels should not be involved in day-to-day issues.
3.2 Each Regional Governance Panel will be comprised of 4 voting
members as follows:
3.2.1 one Regional Project Leader from each of Exult and BPA;
and
3.2.2 one Regional Commercial Contract Leader from each of
Exult and BPA.
3.3 The Regional Governance Panel shall be chaired alternately by a
BPA representative and an Exult representative.
3.4 The Regional Governance Panel will meet monthly, and at other
times as agreed between the parties. The meetings will be
arranged to synchronise with those of the Global Governance
Panel as appropriate and will take place approximately two weeks
before the meetings of the Global Governance Panel.
3.5 Voting will be on a unanimous basis and a full quorum will be
required for voting purposes.
3.6 The responsibilities and authorities of the Regional Governance
Panel will be determined and delegated in each case by the
Global Governance Panel and may include matters within the
relevant Region such as:
3.6.1 agreeing an efficient and effective Due Diligence
Exercise in each relevant Country;
3.6.2 managing the internal interfaces with the Participating
Affiliates and the Exult Participating Affiliates in
relation to the Framework Agreement and the relevant
Country Agreements;
3.6.3 addressing, co-ordinating and prioritising with issues
affecting the provision of the Services to Participating
Affiliates under the Country Agreements as referred to
it by the Country Representatives;
3.6.4 reviewing the overall performance of the parties'
respective Affiliates under the relevant Country
Agreements;
3.6.5 reviewing significant recommendations and suggestions
made by Regional Steering Committee relating to the
Services and/or any relevant Country Agreements and
initiate appropriate actions;
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3.6.6 submitting quarterly performance review reports to the
Regional Steering Committee for its guidance and
recommendations;
3.6.7 submit quarterly performance review reports to the
Global Governance Panel.
3.6.8 managing Change Requests outside the authority of the
relevant Country Representative and otherwise in
accordance with the Change Control Management procedure;
3.6.9 seeking to resolve any Disputes referred to in
accordance with the Dispute Resolution Procedure;
3.6.10 referring matters outside its authority to the Global
Governance Panel;
3.6.11 identifying issues which may have an impact outside the
relevant Region and referring these to the Global
Governance Panel as required; and
3.6.12 monitoring and reviewing the ongoing status of Third
Party Contracts which are not Transferred to Exult
Supplier.
3.7 The parties shall procure that the members of the Regional
Governance Panel shall, at all times, act reasonably and in good
faith having due regard to the interests of all parties.
4 COUNTRY REPRESENTATIVES
4.1 As soon as reasonably practicable following a Country
Commencement Date, BPA and Exult shall procure that, the
relevant Affiliates each appoint a Country Representative in
respect of that Country.
4.2 The Country Representatives will have day-to-day responsibility
for managing the operation of the Country Agreement and
supervising the co-operation and other matters between the
parties.
4.3 The responsibilities and authorities of each Country
Representative will be determined and delegated in each case by
the relevant Regional Governance Panel and may include matters
such as:
4.3.1 reviewing the overall performance of the parties'
respective Affiliates under the relevant Country
Agreement;
4.3.2 interpretation of the Agreement;
4.3.3 ensuring efficient flow of documentation under the
Agreement;
4.3.4 handling of Disputes within the authority of the Country
Representative and referring others to the Regional
Governance Panel in accordance with the Dispute
Resolution Procedure;
4.3.5 handling of Change Requests within the authority of the
Country Representative and referring others to the
Regional Governance Panel in accordance with the Change
Control Procedure;
4.3.6 submitting issues concerning the relationship between
the parties to the Regional Steering Committee for its
guidance and recommendations;
4.3.7 submit [monthly/regular] performance review reports to
the Regional Governance Panel;
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4.3.8 generally dealing with any matter or issue arising out
of or in connection with the Country Agreement within
the delegated authority of, the Country Representative;
4.3.9 identifying and referring matters outside the Country
Representative authority to the Regional Governance
Panel; and
4.3.10 identifying issues which may have an impact outside the
relevant Country and referring these to the Regional
Governance Panel for their attention.
4.4 The parties shall procure that the Country Representatives
shall, at all times, act reasonably and in good faith having due
regard to the interests of all parties.
5 EXECUTIVE STEERING COMMITTEE
5.1 As soon as reasonably practicable following the Commencement
Date an Executive Steering Committee will be established by the
parties to focus primarily on global relationship issues. It is
agreed that the Executive Steering Committee should not be
involved in day-to-day issues.
The Executive Steering Committee will be comprised as follows:
For BPA:
5.1.1 the Executive Steering Committee shall be chaired by a
BPA Group representative;
5.1.2 one Global Project Leader from BPA (who will also be a
member of the Global Governance Panel);
5.1.3 four business stream representatives; and
5.1.4 one IT representative.
For Exult:
5.1.5 one Exult corporate executive representative;
5.1.6 one Global Project Leader who will also be a member of
the Global Governance Panel; and
5.1.7 IT/e-commerce/services representation.
Each party shall wherever reasonably practicable give the other
3 months written notice in the event it wishes to change its
representatives on the Global Governance Panel.
5.2 The Executive Steering Committee will meet quarterly, and at
other times as agreed between the parties.
5.3 The Executive Steering Committee shall be a non-voting body.
5.4 The responsibilities of the Executive Steering Committee will
include:
5.4.1 reviewing the global relationship issues arising out of
the Framework Agreement and the Country Agreements;
5.4.2 reviewing significant recommendations and suggestions
made by the Regional Steering Committee relating to
issues affecting the relationships between the parties
and relationships between the stakeholders;
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<PAGE> 148
5.4.3 reviewing performance and providing advice and guidance
to the Global Governance Panel for Performance
improvement and making recommendations directly to BPA
and Exult on issues affecting the relationships between
the parties and relationships between the stakeholders.
5.5 The parties shall procure that the members of the Executive
Steering Committee shall, at all times, act reasonably and in
good faith having due regard to the interests of all parties.
6 REGIONAL STEERING COMMITTEES
6.1 At the same time as a Regional Governance Panel is established a
Regional Steering Committee will be established by the parties
for that Region to focus primarily on issues effecting
relationships between the parties and between the stakeholders
in the relevant Region. It is agreed that the Regional Steering
Committees should not be involved in day-to-day issues.
6.2 The Regional Steering Committee will be comprised as follows:
6.2.1 one member of the relevant Regional Governance Panel
from each of Exult and BPA;
6.2.2 two other appropriate representatives from Exult such as
the IT manager, the Service Centre Manager or
representatives from equivalent roles; and
6.2.3 up to four other representatives from BPA.
6.3 The Regional Steering Committees shall be chaired by a BPA
representative.
6.4 The Regional Steering Committees will meet quarterly or
otherwise, at times as agreed between the parties and will be
synchronised to precede the Executive Steering Committee
meetings.
6.5 The Regional Steering Committees shall be non-voting bodies.
6.6 The responsibilities and authorities of the Regional Steering
Committees will be determined and delegated in each case by the
Executive Steering Committee and may include matters such as;
6.6.1 reviewing the Regional relationship issues arising out
of the Framework Agreement and of the relevant Country
Agreements;
6.6.2 reviewing significant recommendations and suggestions
made by the Country Representatives relating to issues
affecting the relationships between the parties and
relationships between the stakeholders in the relevant
Region;
6.6.3 reviewing performance and providing advice and guidance
to the Regional Governance Panel for performance
improvement and making recommendations directly to the
Executive Steering Committee on issues affecting the
relationships between the parties [and relationships
between the Stakeholders];
6.6.4 submitting quarterly reviews to the Executive Steering
Committee.
6.7 The parties shall procure that the members of the Regional
Steering Committees shall, at all times, act reasonably and in
good faith having due regard to the interests of all parties.
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7 CONTRACT ADMINISTRATION DOCUMENTS
7.1 All contract administration documents shall be in English unless
required otherwise by any law of a Country, in which case
contract administration documents shall be prepared in both
English and the language required by law of the relevant
Country.
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE Q
DATA PROTECTION
<PAGE> 151
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1 DEFINITIONS............................................................................................1
2 PROCESSOR'S OBLIGATIONS AND WARRANTIES.................................................................2
3 DATA EXPORT............................................................................................4
4 WARRANTY...............................................................................................5
5 BPA'S OBLIGATIONS......................................................................................5
</TABLE>
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SCHEDULE Q
DATA PROTECTION
PART I
DATA PROCESSING OBLIGATIONS
1 DEFINITIONS
For the purposes of this Schedule, the following terms shall have the
following meanings:
"AGREEMENT" means this Agreement and each Country Agreement;
"APPROPRIATE TECHNICAL AND ORGANISATIONAL MEASURES" means such necessary
measures that need to be taken in order to guarantee the security of the
personal data and to avoid unauthorised, accidental or unlawful
alteration, loss, disclosure, access to and processing of the personal
data, taking account of the state of technology and the cost of their
implementation, the nature of the personal data stored, and the risks
posed by the processing whether they arise from human action or from
physical or natural means. Specific regard shall be had to any relevant
guidance, if any, provided by the Authority in each Country;
"AUTHORITY" means the relevant data protection authority in the Country;
"AUTOMATED DECISION" means a decision which produces legal effects or
significantly affects a data subject and which is based solely on
automated processing of data intended to evaluate certain personal
aspects such as performance at work, creditworthiness, reliability and
conduct etc;
"BPA" means BPA and each BPA Participating Affiliate;
"CLIENT PERSONAL DATA" means any personal data Processed by Exult
Supplier for or on behalf of BPA in the context of the provision of the
Services;
"DATA SUBJECT" is one who can be identified, directly or indirectly, in
particular by reference to an identification number or to one or more
factors specific to his physical, physiological, mental, economic,
cultural or social identity from any personal data;
"DIRECTIVES" means the European Union Directive entitled "Directive
95/46/EC of the European Parliament and of the Council of 24 October
1995 on the protection of individuals with regard to the processing of
personal data and on the free movement of such data" and the European
Union Directive entitled "Directive 97/66/EC concerning the processing
of personal data and the protection of privacy in the telecommunications
sector";
"EXULT" means Exult and each Exult Participating Affiliate;
"IMPLEMENTING LEGISLATION" means the legislation and any guidance,
policy or recommendations providing by the Authority (if any) in the
Country which implements the Directives;
"PERSONAL DATA" means any information relating to an identified or
identifiable natural person. For the purposes of this definition, an
identifiable person is one who can be identified, directly or
indirectly, in particular by reference to an identification number or to
one or more factors specific to his physical, physiological, mental,
economic, cultural or social identity;
"PROCESS" or "PROCESSING" means any operation or set of operations which
is/are performed upon personal data, whether or not by automatic means,
including collection, recording, organisation, storage, adaptation or
alteration, retrieval, consultation, use, disclosure by
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transmission, dissemination or otherwise making available, alignment or
combination, blocking, erasure or destruction;
"PURPOSES" means the purposes for which BPA personal data is to be
Processed, as may be amended from time to time by the parties, and as
currently set out in Schedule A (Scope of Services);
"SENSITIVE DATA" means personal data revealing racial or ethnic origin,
political opinions, religious or philosophical beliefs, trade-union
membership, or health or sex life;
"THIRD COUNTRY" means any country outside the European Economic Area.
2 PROCESSOR'S OBLIGATIONS AND WARRANTIES
2.1 GENERAL OBLIGATIONS
Exult hereby agrees during the term of the Agreement:
2.1.1 to act only solely on the instructions of BPA and in so
doing to process BPA personal data on behalf of BPA
solely for the Purposes;
2.1.2 to process BPA personal data in accordance with the
Directives and Implementing Legislation if the personal
detail is subject to the Directives; and
2.1.3 to process BPA personal data in accordance with the
provisions of this Agreement.
2.2 SPECIFIC OBLIGATIONS
Without limiting the generality of Section 2.1, Exult shall;
2.2.1 REGISTRATION AND AUTHORITY
Ensure that it has the necessary legal authority for the
purpose of processing BPA personal data for the Purposes
in accordance with the terms of this Agreement;
2.2.2 SECURITY
Prior to any processing of BPA personal data:
(i) put in place appropriate technical and
organisational measures to protect BPA personal
data (including suitable measures to protect
Sensitive Data) against accidental or unlawful
destruction or accidental loss, alteration,
unauthorised disclosure or access and against
all other unlawful forms of processing;
(ii) put in place adequate security programmes and
procedures to ensure that unauthorised persons
will not have access to the equipment used to
process BPA personal data, and that any persons
it authorises to have access to BPA personal
data will respect and maintain the
confidentiality and security of BPA personal
data; and
(iii) have reviewed and to continue to review its
security programmes and procedures to ensure
that they are adequate, having regard to
industry good practice and the cost of their
implementation at that time; and
(iv) once processing has commenced in accordance with
this Agreement, if at any time Exult becomes
aware of any breach in security advise
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BPA forthwith of the nature and extent of the
breach and shall take all necessary remedial
action and shall indemnify BPA against all
costs, damages or other losses arising out of
such breach, except to the extent such loss
results from BPA failing to perform its
obligations in Section 5 below.
2.2.3 ASSISTANCE AND ENQUIRIES
(i) without limitation to the other provisions of
this Agreement, take all reasonable steps to
enable BPA to comply with its obligations under
the Directives and relevant Implementing
Legislation in relation to BPA personal data,
promptly upon being notified of such steps by
BPA;
(ii) upon receiving any request for information or
assistance in relation to BPA personal data,
from BPA, the Authority, other regulatory body
in which has jurisdiction or a data subject,
Exult will promptly provide all relevant
information to BPA or the Authority as requested
by BPA;
(iii) promptly appoint an individual (a "Data
Protection Officer") within its organisation
authorised to respond to any enquiries made
pursuant to this Section 2.2.3 or otherwise in
relation to this Agreement and with such other
roles, responsibilities and powers (if any) as
may be required by the laws implementing the
Directives in the jurisdiction of BPA and shall
promptly notify the details of this individual
to BPA.
2.2.4 ENFORCEMENT
Recognise and agree BPA employees may enforce against
Exult any of their rights as Data Subjects under the
Directives or Implementing Legislation in relation to
the processing by Exult of the BPA personal data;
2.2.5 DATA QUALITY
Subject to Section 2.1.1 above, to, where necessary,
maintain the accuracy of BPA personal data and keep it
up to date. Exult shall comply with all instructions
from BPA or any data subject to whom BPA personal data
relates to rectify, delete and update any BPA personal
data and, if so requested by BPA, shall notify in
writing BPA and/or the data subject as appropriate
within a reasonable time that it has done so.
2.2.6 DATA EXPORT
Not export from any Country within the European Economic
Area any BPA personal data to any Third Country without
BPA's prior written consent such consent not to be
unreasonably withheld or delayed provided that BPA has
given such consent in relation to the USA;
2.2.7 ACCESS
If the personal data is subject to the Directives,
provide the data subject with the same rights of access,
correction, blocking, suppression or deletion available
to such individual in the relevant Countries which are
subject to the Directives;
2.2.8 DISCLOSURE
(i) not to disclose, either free of charge or in
return for payment, not even for its
preservation, any BPA personal data to any other
legal or natural person other than where BPA has
given its prior written consent to such
disclosure or where there is a legal obligation
or there
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<PAGE> 155
is a regulatory obligation or where Exult is
responding to a request from the Authority or
other authorial regulatory body, in which case
BPA must, where this is permitted by law, be
informed where practicable prior to such
disclosure; and
(ii) where BPA has consented to a disclosure in
accordance with 2.2.6(i) above, BPA may require
Exult to procure any disclosee to whom BPA
personal data is disclosed pursuant to such
clause to enter into an agreement for the
protection of personal data in similar terms to
this Agreement.
2.2.9 RETENTION AND DESTRUCTION
Keep BPA personal data in such form as shall permit the
identification of data subjects for no longer than is
necessary for the Purposes of providing the Services or
as instructed by BPA;
2.2.10 AUDIT
Submit its facilities used to process personal data,
data files and documentation needed for processing for
auditing and/or certification by BPA (or other duly
qualified auditors of inspection authorities not
reasonably objected to by Exult and approved by BPA) on
reasonable notice and at reasonable times to ascertain
compliance with the obligations and warranties in this
Schedule; and
2.2.11 EMPLOYEE COMPLIANCE
Ensure the compliance of its employees from time to time
with the terms of this Schedule.
3 DATA EXPORT
3.1 If BPA consents to the export of BPA personal data in accordance
with Section 2.2.6 of this Schedule and if the personal data is
subject to the Directives it shall ensure that the party to whom
BPA personal data is exported shall:
3.1.1 process BPA personal data in accordance with any industry or
other codes of practice to which it subscribes and in accordance
with the data protection principles set out in the Directive,
including without limitation the principles in Article 6 of the
Directive relating to data quality and Article 17 of the
Directive relating to security;
3.1.2 provide the data subject with the same rights of access,
correction, blocking, suppression or deletion available to such
individual Countries in which the personal data is subject to
the Directives;
3.1.3 process BPA personal data purposes of and to the extent required
to provide the Services;
3.1.4 maintain the accuracy of the data and keep it up to date;
3.1.5 comply with all instructions from BPA to rectify, delete and
update any personal data and confirm to BPA within a reasonable
time that it has done so;
3.1.6 appoint, and identify to BPA and, if requested by BPA to the
Authority, an individual within its organisation authorised to
respond to enquiries from the Authority or a data subject
concerning its processing of his or her personal data;
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4 WARRANTY
Exult warrants that it will process BPA personal data only:
4.1 for the purposes of and to the extent required to provide the
Services;
4.2 to the extent they are applicable, in accordance with the
Directives and the provisions of the Implementing Legislation;
and
4.3 in accordance with the provisions of this Agreement.
5 BPA'S OBLIGATIONS
5.1 BPA warrants that:
5.1.1 it will obtain the written consent of all Data Subjects
whose personal data may be processed by Exult as part of
the Services under this Agreement;
5.1.2 it will indemnify and hold harmless Exult against all
costs, damages or other losses caused by any inaccuracy
in the personal data which BPA provides to Exult and
which results in Exult having any enforcement
proceedings taken by BPA employees and/or Authorities;
5.1.3 it shall ensure that it is permitted under its
registrations with the Authorities in all Countries to
transfer personal data to third party suppliers such as
Exult;
5.1.4 it will co-operate with Exult to ensure that all
personal data is accurate and that the Directives and
Implementing Legislation are complied with in the
applicable Countries.
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<PAGE> 157
UNITED STATES COUNTRY AGREEMENT
SCHEDULE R
BPA PARTICIPATING AFFILIATES
<PAGE> 158
SCHEDULE R
BPA PARTICIPATING AFFILIATES
This schedule sets forth the BPA Affiliates that shall receive the Services
under the applicable Country Agreement. This table shall be completed following
the Country Commencement Date.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
REGISTERED OFFICE OR
COUNTRY PARENT IF NOT PRINCIPAL OR PLACE OF
COMPANY THE CLIENT BUSINESS
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
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</TABLE>
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<PAGE> 159
UNITED STATES COUNTRY AGREEMENT
SCHEDULE T
PROCESS LINE POPULATION
<PAGE> 160
SCHEDULE T
PROCESS LINE POPULATION
This schedule sets forth the populations that shall receive the Services for
this County Agreement. The table below shall be completed prior to the Process
Take On Date for each Process. The Client shall provide both initial data and
monthly updates for this table until such time as the systems are available to
automatically report on this data.
PROCESS LINE POPULATION TABLE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- -----------------------------------------------------------------------------------------------------------------------------------
Organisation HR Labour Expat
Training Development Strategy Relations Admin HRIS Benefits
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
OIL (COUNTRY)
- -----------------------------------------------------------------------------------------------------------------------------------
Retail
- -----------------------------------------------------------------------------------------------------------------------------------
CI
- -----------------------------------------------------------------------------------------------------------------------------------
MAS
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- -----------------------------------------------------------------------------------------------------------------------------------
Under E/U Resourcing/
Compensation E/U Relations Compliance Admin Payroll Development Recruiting Severance
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
OIL (COUNTRY)
- -----------------------------------------------------------------------------------------------------------------------------------
Retail
- -----------------------------------------------------------------------------------------------------------------------------------
CI
- -----------------------------------------------------------------------------------------------------------------------------------
MAS
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------
BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- -----------------------------------------------------------------
Performance Domestic
Management Relocation HRIT
=================================================================
<S> <C> <C> <C> <C>
OIL (COUNTRY)
- -----------------------------------------------------------------
Retail
- -----------------------------------------------------------------
CI
- -----------------------------------------------------------------
MAS
- -----------------------------------------------------------------
</TABLE>
<PAGE> 161
<TABLE>
<CAPTION>
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BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
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Organisation HR Labour Expat
Training Development Strategy Relations Admin HRIS Benefits
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Corporate Functions
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Other
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(1)
----------
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(2)
----------
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OIL
(INTERNATIONAL)
- -----------------------------------------------------------------------------------------------------------------------------------
Air
- -----------------------------------------------------------------------------------------------------------------------------------
Marine
- -----------------------------------------------------------------------------------------------------------------------------------
Shipping
- -----------------------------------------------------------------------------------------------------------------------------------
Other
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(1)
----------
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(2)
----------
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<CAPTION>
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BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- -----------------------------------------------------------------------------------------------------------------------------------
Under E/U Resourcing/
Compensation E/U Relations Compliance Admin Payroll Development Recruiting Severance
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Corporate Functions
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Other
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(1)
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(2)
----------
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OIL
(INTERNATIONAL)
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Air
- -----------------------------------------------------------------------------------------------------------------------------------
Marine
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Shipping
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Other
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(1)
----------
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(2)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ----------------------------------------------------------------
BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- ----------------------------------------------------------------
Performance Domestic
Management Relocation HRIT
================================================================
<S> <C> <C> <C> <C>
Corporate Functions
- ----------------------------------------------------------------
Other
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(1)
----------
- ----------------------------------------------------------------
(2)
----------
- ----------------------------------------------------------------
OIL
(INTERNATIONAL)
- ----------------------------------------------------------------
Air
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Marine
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Shipping
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Other
- ----------------------------------------------------------------
(1)
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(2)
----------
- ----------------------------------------------------------------
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<TABLE>
<CAPTION>
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BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
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Organisation HR Labour Expat
Training Development Strategy Relations Admin HRIS Benefits
==================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
EXPLORATION
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(1)
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(2)
----------
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Corporate Functions
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Other
- ----------------------------------------------------------------------------------------------------------------------------------
(1)
----------
- ----------------------------------------------------------------------------------------------------------------------------------
(2)
----------
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CHEMICALS
- ----------------------------------------------------------------------------------------------------------------------------------
Business Units
- ----------------------------------------------------------------------------------------------------------------------------------
(1)
----------
- ----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- -----------------------------------------------------------------------------------------------------------------------------------
Under E/U Resourcing/
Compensation E/U Relations Compliance Admin Payroll Development Recruiting Severance
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
EXPLORATION
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(1)
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(2)
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Corporate Functions
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Other
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(1)
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(2)
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CHEMICALS
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Business Units
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(1)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ----------------------------------------------------------------
BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- ----------------------------------------------------------------
Performance Domestic
Management Relocation HRIT
================================================================
<S> <C> <C> <C> <C>
EXPLORATION
- ----------------------------------------------------------------
Business Units
- ----------------------------------------------------------------
(1)
----------
- ----------------------------------------------------------------
(2)
----------
- ----------------------------------------------------------------
Corporate Functions
- ----------------------------------------------------------------
Other
- ----------------------------------------------------------------
(1)
----------
- ----------------------------------------------------------------
(2)
----------
- ----------------------------------------------------------------
CHEMICALS
- ----------------------------------------------------------------
Business Units
- ----------------------------------------------------------------
(1)
----------
- ----------------------------------------------------------------
</TABLE>
<PAGE> 163
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- -----------------------------------------------------------------------------------------------------------------------------------
Organisation HR Labour Expat
Training Development Strategy Relations Admin HRIS Benefits
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
(2)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
Corporate Functions
- -----------------------------------------------------------------------------------------------------------------------------------
Other
- -----------------------------------------------------------------------------------------------------------------------------------
(1)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
(2)
----------
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SOLAR
- -----------------------------------------------------------------------------------------------------------------------------------
Business Units
- -----------------------------------------------------------------------------------------------------------------------------------
(1)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
(2)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
Corporate Functions
- -----------------------------------------------------------------------------------------------------------------------------------
Other
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- ----------------------------------------------------------------------------------------------------------
Under E/U Resourcing/
Compensation E/U Relations Compliance Admin Payroll Development Recruiting Severance
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(2)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
Corporate Functions
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Other
- -----------------------------------------------------------------------------------------------------------------------------------
(1)
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(2)
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SOLAR
- -----------------------------------------------------------------------------------------------------------------------------------
Business Units
- -----------------------------------------------------------------------------------------------------------------------------------
(1)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
(2)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
Corporate Functions
- -----------------------------------------------------------------------------------------------------------------------------------
Other
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------
BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- -----------------------------------------------------------------
Performance Domestic
Management Relocation HRIT
=================================================================
<S> <C> <C> <C> <C>
(2)
----------
- -----------------------------------------------------------------
Corporate Functions
- -----------------------------------------------------------------
Other
- -----------------------------------------------------------------
(1)
----------
- -----------------------------------------------------------------
(2)
----------
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SOLAR
- -----------------------------------------------------------------
Business Units
- -----------------------------------------------------------------
(1)
----------
- -----------------------------------------------------------------
(2)
----------
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Corporate Functions
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Other
- -----------------------------------------------------------------
</TABLE>
<PAGE> 164
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- -----------------------------------------------------------------------------------------------------------------------------------
Organisation HR Labour Expat
Training Development Strategy Relations Admin HRIS Benefits
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
(1)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
(2)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
GAS
- -----------------------------------------------------------------------------------------------------------------------------------
Business Units
- -----------------------------------------------------------------------------------------------------------------------------------
(1)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
Corporate Functions
- -----------------------------------------------------------------------------------------------------------------------------------
Other
- -----------------------------------------------------------------------------------------------------------------------------------
(1)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
(2)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
OTHER COUNTRY
UNITS
SUPPORTED
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- ------------------------------------------------------------------------------------------------------------------------------------
Under E/U Resourcing/
Compensation E/U Relations Compliance Admin Payroll Development Recruiting Severance
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(1)
----------
- ------------------------------------------------------------------------------------------------------------------------------------
(2)
----------
- ------------------------------------------------------------------------------------------------------------------------------------
GAS
- ------------------------------------------------------------------------------------------------------------------------------------
Business Units
- ------------------------------------------------------------------------------------------------------------------------------------
(1)
----------
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Corporate Functions
- ------------------------------------------------------------------------------------------------------------------------------------
Other
- ------------------------------------------------------------------------------------------------------------------------------------
(1)
----------
- ------------------------------------------------------------------------------------------------------------------------------------
(2)
----------
- ------------------------------------------------------------------------------------------------------------------------------------
OTHER COUNTRY
UNITS
SUPPORTED
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -------------------------------------------------------------------
BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- -------------------------------------------------------------------
Performance Domestic
Management Relocation HRIT
===================================================================
<S> <C> <C> <C> <C>
(1)
----------
- -------------------------------------------------------------------
(2)
----------
- -------------------------------------------------------------------
GAS
- -------------------------------------------------------------------
Business Units
- -------------------------------------------------------------------
(1)
----------
- -------------------------------------------------------------------
Corporate Functions
- -------------------------------------------------------------------
Other
- -------------------------------------------------------------------
(1)
----------
- -------------------------------------------------------------------
(2)
----------
- -------------------------------------------------------------------
OTHER COUNTRY
UNITS
SUPPORTED
- -------------------------------------------------------------------
</TABLE>
<PAGE> 165
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- -----------------------------------------------------------------------------------------------------------------------------------
Organisation HR Labour Expat
Training Development Strategy Relations Admin HRIS Benefits
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
(1)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
(2)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
OTHER
POPULATIONS
- -----------------------------------------------------------------------------------------------------------------------------------
(1) EXAMPLE-
ANNUITANTS
- -----------------------------------------------------------------------------------------------------------------------------------
(2)
----------
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- ------------------------------------------------------------------------------------------------------------------------------------
Under E/U Resourcing/
Compensation E/U Relations Compliance Admin Payroll Development Recruiting Severance
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(1)
----------
- ------------------------------------------------------------------------------------------------------------------------------------
(2)
----------
- ------------------------------------------------------------------------------------------------------------------------------------
OTHER
POPULATIONS
- ------------------------------------------------------------------------------------------------------------------------------------
(1) EXAMPLE-
ANNUITANTS
- ------------------------------------------------------------------------------------------------------------------------------------
(2)
----------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -------------------------------------------------------------------
BUSINESS
ENTITY/BUSINESS
UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
- -------------------------------------------------------------------
Performance Domestic
Management Relocation HRIT
===================================================================
<S> <C> <C> <C> <C>
(1)
----------
- -------------------------------------------------------------------
(2)
----------
- -------------------------------------------------------------------
OTHER
POPULATIONS
- -------------------------------------------------------------------
(1) EXAMPLE-
ANNUITANTS
- -------------------------------------------------------------------
(2)
----------
- -------------------------------------------------------------------
</TABLE>
<PAGE> 166
UNITED STATES COUNTRY AGREEMENT
SCHEDULE U
ESCROW AGREEMENT
<PAGE> 167
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1 DEFINITIONS..............................................................................................1
2 OWNER'S DUTIES AND WARRANTIES............................................................................2
3 LICENSEE'S RESPONSIBILITIES..............................................................................2
4 ESCROW AGENT DUTIES......................................................................................2
5 PAYMENT..................................................................................................3
6 RELEASE EVENTS...........................................................................................3
7 CONFIDENTIALITY..........................................................................................4
8 INTELLECTUAL PROPERTY RIGHTS.............................................................................4
9 VERIFICATION.............................................................................................4
10 ESCROW AGENT'S LIABILITY.................................................................................4
11 TERMINATION..............................................................................................5
12 GENERAL..................................................................................................5
</TABLE>
i
<PAGE> 168
SCHEDULE U
ESCROW AGREEMENT
BETWEEN:
(1) Exult, Inc. whose registered office is at 4 Park Plaza, Suite 350,
Irvine, California 92614 (the "Owner");
(2) BP Amoco plc whose registered office is at Britannic House, 1 Finsbury
Circus, London, EC2M 7BA (the "Licensee"); and
(3) NCC Escrow International Limited whose registered office is at Oxford
House, Oxford Road, Manchester, M1 7ED (the "Escrow Agent")
PRELIMINARY:
(A) The Licensee has been granted a license to use a software package
comprising computer programs.
(B) Certain technical information and documentation describing the software
package and other process flowcharts describing the way in which the
Owner provides certain services to the Owner and its affiliates, are the
confidential property of the Owner and are required for understanding,
maintaining and correcting the software package and the provision of the
services respectively.
(C) The Owner acknowledges that in certain circumstances the Licensee may
require possession of the technical information and documentation held
under this Agreement.
(D) Each of the parties to this Agreement acknowledges that the
considerations for their respective undertakings given under it are the
undertakings given under it by each of the other parties.
IT IS AGREED THAT:
1 DEFINITIONS
In this Agreement the following terms shall have the following meanings:
1.1 "FULL VERIFICATION SERVICE" means those bespoke tests agreed
between the Licensee and Escrow Agent for the verification of
the Material;
1.2 "INTELLECTUAL PROPERTY RIGHTS" means copyright, trade secret,
patent, and all other rights of a similar nature;
1.3 "SERVICES AGREEMENT" means the agreement pursuant to which the
Owner grants a licence to the Licensee for the Package;
1.4 "MATERIAL" means the source code of the Package comprising the
latest technical information and documentation described in
Schedules 1 and 2;
1.5 "PACKAGE" means the software package licensed to the Licensee
under the Services Agreement; and
1.6 "STANDARD VERIFICATION SERVICE" means those tests detailed in
the Standard Verification Service published by Escrow Agent from
time to time.
1
<PAGE> 169
2 OWNER'S DUTIES AND WARRANTIES
2.1 The Owner shall:
2.1.1 deliver a copy of the Material to Escrow Agent within 30
days of the date of this Agreement;
2.1.2 at all times ensure that the Material as delivered to
Escrow Agent is capable of being used to generate the
latest version of the Package issued to the Licensee and
shall deliver further copies of the Material as and when
necessary;
2.1.3 deliver to Escrow Agent a replacement copy of the
Material within 12 months of the last delivery;
2.1.4 deliver a replacement copy of the Material within 14
days of receipt of a notice served upon it by Escrow
Agent under the provisions of Section 4.1.5; and
2.1.5 deliver with each deposit of the Material the
information detailed in Schedule 2.
2.2 The Owner warrants that:
2.2.1 it owns the Intellectual Property Rights in the Material
and has authority to enter into this Agreement; and
2.2.2 the Material lodged under Section 2.1 shall contain all
information in human readable form and on suitable media
to enable a reasonably skilled programmer or analyst to
understand, maintain and correct the Package and to
enable a suitably skilled person to understand and
maintain the provision of services under the Services
Agreement without the assistance of any other person.
3 LICENSEE'S RESPONSIBILITIES
It shall be the responsibility of the Licensee to notify Escrow Agent of
any change to the Package that necessitates a replacement deposit of the
Material.
4 ESCROW AGENT DUTIES
4.1 Escrow Agent shall:
4.1.1 hold the Material in a safe and secure environment;
4.1.2 inform the Owner and the Licensee of the receipt of any
copy of the Material;
4.1.3 in accordance with the terms of Section 9 perform those
tests that form part of its Standard Verification
Service form time to time;
4.1.4 at all times retain a copy of the latest verified
deposit of the Material; and
4.1.5 notify the Owner if it becomes aware at any time during
the term of this Agreement that the copy of the Material
held by it has been lost, damaged or destroyed.
4.2 Escrow Agent shall not be responsible for procuring the delivery
of the Material in the event of failure by the Owner to do so.
2
<PAGE> 170
5 PAYMENT
Escrow Agent's fees are payable in accordance with Schedule 4.
6 RELEASE EVENTS
6.1 Subject to the provisions of Sections 6.2 and 6.3, Escrow Agent
will release the Material to a duly authorised officer of the
Licensee if any of the following events occur:
6.1.1 the Owner enters into any composition or arrangement
with its creditors or (being a company) enters into
liquidation whether compulsory or voluntary (other than
for the purposes of solvency reconstruction or
amalgamation) or has a receiver or administrative
receiver appointed over all or any party off its assets
or undertaking or a petition is presented for an
Administration Order or (being an individual or
partnership) becomes bankrupt, or an event occurs within
the jurisdiction of the country in which the Owner is
situated which has a similar effect to any of the above
events in the United Kingdom; or
6.1.2 the Owner ceases to trade; or
6.1.3 the Owner assigns copyright in the Material and the
assignee fails within 60 days of such assignment to
offer the Licensee substantially similar protection to
that provided by this Agreement without significantly
increasing the cost to the Licensee; or
6.1.4 the Owner has defaulted in any obligation to provide the
Material under the Services Agreement and has failed to
remedy such default notified by the Licensee to the
Owner.
6.2 The Licensee must notify Escrow Agent of the event(s) specified
in Section 6.1 by delivering to Escrow Agent a declaration (the
"Declaration") made by an officer of the Licensee attesting that
such event has occurred exhibiting:
6.2.1 such documentation in support of the Declaration as
Escrow Agent shall reasonably require;
6.2.2 a copy of the Services Agreement;
6.2.3 a signed confidentiality undertaking as detailed in
Schedule 3
then Escrow Agent will release the Source Code to the Licensee
upon receipt of the release fee stated in Schedule 3.
6.3 Upon receipt of a Declaration from the Licensee claiming a
release event under Section 6.1.4 then Escrow Agent will release
the Material to the Licensee upon receipt of the release fee
stated in Schedule 4.
6.4 Where there is any dispute as to the occurrence of any of the
events set out in Section 6 or the fulfilment of any obligations
detailed therein, such dispute will be referred at the request
of either the Owner or the Licensee to the dispute resolution
procedure set out in the Services Agreement.
3
<PAGE> 171
7 CONFIDENTIALITY
7.1 The Material shall remain the confidential property of the Owner
and in the event that Escrow Agent provides a copy of the
Material to the Licensee, the Licensee shall be permitted to use
the Material only in accordance with a confidentiality
undertaking in the form contained in Schedule 3 of this
Agreement.
7.2 Escrow Agent agrees to maintain all information and/or
documentation coming into its possession or to its knowledge
under this Agreement in strictest confidence and secrecy. Escrow
Agent further agrees not to make use of such information and/or
documentation other than for the purposes of this Agreement and
will not disclose or release it other than in accordance with
the terms of this Agreement.
7.3 Termination of this Agreement will not relieve Escrow Agent or
its employees or the Licensee or its employees from the
obligations of confidentiality contained in this Section 7.
8 INTELLECTUAL PROPERTY RIGHTS
The release of the Material to the Licensee will not act as an
assignment of any Intellectual Property Rights that the Owner possesses
in the Material.
9 VERIFICATION
9.1 Subject to the provisions of Sections 9.2 and 9.3, Escrow Agent
shall bear no obligation or responsibility to any person, firm,
company or entity whatsoever to determine the existence,
relevance, completeness, accuracy, effectiveness or any other
aspect of the Material.
9.2 Upon the Material being lodged with Escrow Agent, Escrow Agent
shall perform those tests in accordance with its Standard
Verification Service and shall provide a copy of the test report
to the parties to this Agreement.
9.3 The Licensee shall be entitled to require that Escrow Agent
carries out a Full Verification. Any reasonable charges and
expenses incurred by Escrow Agent in carrying out the Full
Verification will be paid by the Licensee save that if in the
opinion of the expert appointed by the Managing Director of
Escrow Agent, the Material is substantially defective in content
any such reasonable charges and expenses will be paid by the
Owner.
10 ESCROW AGENT'S LIABILITY
10.1 Escrow Agent shall not be liable for loss caused to the Owner or
the Licensee either jointly or severally except for loss or
damage to the Material to the extent that such loss or damage is
caused by the negligent acts or omissions of Escrow Agent, its
employees, agents or sub-contractors and in such event Escrow
Agent's total liability in respect of all claims arising under
or by virtue of this Agreement shall not (except in the case of
claims for personal injury or death) exceed the sum of
(pound)500,000.
10.2 Escrow Agent shall in no circumstances be liable to the Owner or
the Licensee for indirect or consequential loss of any nature
whatsoever whether for loss of profit, loss of business or
otherwise.
10.3 Escrow Agent shall be protected in acting upon any written
request, waiver, consent, receipt or other document furnished to
it pursuant to this Agreement, not only in assuming its due
execution and the validity and effectiveness of its provisions
but also as to the
4
<PAGE> 172
truth and acceptability of any information contained in it,
which Escrow Agent in good faith believes to be genuine and what
it purports to be.
11 TERMINATION
11.1 Escrow Agent may terminate this Agreement after failure by the
Owner or the Licensee to comply with a 30 day written notice
from Escrow Agent to pay any outstanding fee. If the failure to
pay is on the part of the Owner, the Licensee shall be given the
option of paying such fee itself. Such amount will be
recoverable by the Licensee direct from the Owner.
11.2 Escrow Agent may terminate this Agreement by giving 60 days
written notice to the Owner and the Licensee. In that event the
Owner and the Licensee shall appoint a mutually acceptable new
custodian on terms similar to those contained in this Agreement.
11.3 If a new custodian is not appointed within 30 days of delivery
of any notice issued by Escrow Agent in accordance with the
provisions of Section 11.2, the Owner or the Licensee shall be
entitled to request the President for the time being of the
British Computer Society to appoint a suitable new custodian
upon such terms and conditions as he shall require. Such
appointment shall be final and binding on all parties.
11.4 The Licensee may terminate this Agreement at any time by giving
written notice to the Owner and Escrow Agent.
11.5 The Owner may only terminate this Agreement with the written
request of the Licensee.
11.6 This Agreement shall terminate upon release of the Material to
the Licensee in accordance with Section 6.
11.7 Upon termination under the provisions of Sections 11.2, 11.4,
11.5 or 11.6, Escrow Agent will deliver the Material to the
Owner. IF Escrow Agent is unable to trace the Owner, Escrow
Agent will destroy the Material.
11.8 Upon termination under the provisions o Section 11.1 the
Material will be available for collection by the Owner from
Escrow Agent for 30 days from the date of termination. After
such 30 day period Escrow Agent will destroy the Material.
11.9 Escrow Agent may forthwith terminate this Agreement and destroy
the Material if it is unable to trace the Owner having used all
reasonable endeavours to do so.
12 GENERAL
12.1 This Agreement shall be governed by and construed in accordance
with the laws of England and Wales.
12.2 This Agreement represents the whole agreement relating to the
escrow arrangements between the parties for the Package and
supersedes all prior arrangements, negotiations and
undertakings.
12.3 All notices to be given to the parties under this Agreement
shall be deemed to have been duly given or made when delivered
personally or 7 days after posting or if sent by facsimile, 12
hours after despatch to the party to which such notice is
required to be given or made under this Agreement address to the
principal place of business or for companies based in the UK,
the registered office.
5
<PAGE> 173
SCHEDULE 1
MATERIAL: TECHNICAL INFORMATION
The source code of the Package known as [ ]
1
<PAGE> 174
SCHEDULE 2
MATERIAL: TECHNICAL INFORMATION
The Material shall be supplied with details of the following:
1. Details of the deposit; full name and version details, number of
media items, media type and density, file or archive format,
list or retrieval commands, archive hardware and operating
system details.
2. Name and functionality of each module/application of the
Material.
3. Names and versions of development tools etc.
4. Documentation describing the procedures for
building/compiling/executing/using the software (technical
notes, user guides).
5. Hardcopy directory listings of the contents of the media.
6. Name and contact details of employee(s) with knowledge of how to
maintain and support the Material.
1
<PAGE> 175
SCHEDULE 3
CONFIDENTIALITY UNDERTAKING
This undertaking is given on release of the Material pursuant to an Escrow Agent
dated [date] between:
(1) ("the Owner");
(2) ("the Licensee"); and
(3) Escrow Agent
1. Definitions contained in the Escrow Agent will apply to this
undertaking.
2. In consideration of Escrow Agent delivering the Materials to the
Licensee, the Licensee undertakes with the Owner and Escrow Agent.
2.1 to use the Material only for the purpose of understanding,
maintaining, developing, enhancing and correcting the Package
exclusively on behalf of the Licensee;
2.2 not to use the Material for any other purpose nor disclose it to
any person save such of its employees or contractors who need to
know the same in order to understand, maintain, develop, enhance
and correct the Package exclusively on behalf of the Licensee;
2.3 to hold all media containing the Material in a safe and secure
environment when not in use; and
2.4 forthwith to destroy the same should the Licensee cease to be
entitled to use the Package.
1
<PAGE> 176
SCHEDULE 4
ESCROW AGENT'S FEES (STL)
1. Initial Fee
2. Annual Fee
(payable on completion of this Agreement and on each anniversary
thereafter)
1. Update Fee
(per update after the first 4 updates per annum)
1. Storage Fee
(per annum, per cubic foot payable if the source exceeds 1 cubic foot)
1. Release Fee
(plus Escrow Agent's reasonable expenses)
(i) All fees are subject to VAT where applicable(1)
(ii) All fees are reviewed by Escrow Agent from time to time
- ---------------------
(1) Only applicable to countries within the EU.
1
<PAGE> 177
Signed on behalf of Exult, Inc.
Name:
------------------------------------
Position:
--------------------------------
(Authorised Signatory)
Signed on behalf of BP Amoco plc
Name:
------------------------------------
Position:
--------------------------------
(Authorised Signatory)
Signed on behalf of Escrow Agent
Name:
------------------------------------
Position:
--------------------------------
(Authorised Signatory)
1
<PAGE> 178
UNITED STATES COUNTRY AGREEMENT
SCHEDULE W
MATTERS TO BE TAKEN INTO ACCOUNT WHEN CONSIDERING CHANGES TO AGREEMENT OR ANY
SCHEDULE TO REFLECT ANY SPECIAL SERVICES PROVIDED BY EXULT SUPPLIER
<PAGE> 179
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1 SERVICES TO BE PERFORMED...........................................................................................1
2 SERVICE STANDARDS..................................................................................................1
3 COMPLIANCE AND LIABILITY...........................................................................................2
4 AUDIT RIGHTS.......................................................................................................2
</TABLE>
i
<PAGE> 180
SCHEDULE W
MATTERS TO BE TAKEN INTO ACCOUNT WHEN CONSIDERING CHANGES TO AGREEMENT OR ANY
SCHEDULE TO REFLECT ANY SPECIAL SERVICES PROVIDED BY EXULT SUPPLIER
1 SERVICES TO BE PERFORMED
In respect of Special Services relating to any Client or Participating
Affiliate employee benefit plan within the United States of America
("Benefit Plan"), this Agreement will be amended to provide:
1.1 that the Client and any of its Affiliates sponsoring any Benefit
Plan covered by this Agreement expressly acknowledge that Exult
Supplier and each Exult Participating Affiliate is not the
"administrator" or "plan administrator" as defined in Section
3(16)(a) of ERISA and Section 414(g) of the Code, respectively,
nor is Exult Supplier a "fiduciary" within the meaning of ERISA
Section 3(21), and the Client and Participating Affiliates shall
not request or otherwise require Exult Supplier or any Exult
Participating Affiliate to act as such with respect to any
Benefit Plan. Exult Supplier shall not exercise any
discretionary authority or discretionary control respecting
management of any Benefit Plan or management or disposition of
any Benefit Plan assets. Exult Supplier or any Exult
Participating Affiliate shall not render investment advice for a
fee or other compensation, direct or indirect, with respect to
any monies or other property of any Benefit Plan, nor does Exult
Supplier or any Exult Participating Affiliate have any authority
or responsibility to do so. Exult Supplier has no discretionary
authority or discretionary responsibility in the administration
of the Benefit Plans; and
1.2 a warranty from the Client to Exult Supplier that its nominated
employees have, and shall at all times have, the requisite
authority to transmit information, directions and instructions
on behalf of Client and Participating Affiliates, each "plan
administrator" (as defined in Section 3(16)(A) of ERISA and
Section 414(g) of the Code) and, if applicable, each "fiduciary"
(as defined in Section 3(21) of ERISA) of each separate Benefit
Plan.
2 SERVICE STANDARDS
2.1 Subject to paragraph 2.4, Special Services are to be performed
in accordance with professional standards applicable in
compliance with BPA Controls, and with industry level standards
for vendors providing employee benefit plan administration
services.
2.2 Exult Supplier will cause Exult Personnel engaged in carrying
out Special Services to comply with such BPA Controls, standards
and procedures referred to in paragraph 2.1.
2.3 Exult Supplier and Client will develop mutually acceptable
written performance standards for Special Services to measure
performance levels for the delivery thereof to reflect the
matters referred to in paragraphs 2.1 and 2.2 above. Exult
Supplier's actual performance will be reviewed in quarterly
meetings of the Regional Governance Panel in order (i) to
discuss performance and performance standards; and (ii) problem
solve any issues that have arisen in the delivery of the Special
Services; and (iii) discuss any proposed improvements in
delivery of the Special Service.
2.4 Exult Supplier's performance of Special Services with respect to
each Benefit Plan shall be in accordance with and subject to the
documents, policies, interpretations, directives, rules,
practices and procedures for such administration (the "Client
Benefit Plan Procedures") provided in writing to Exult Supplier
by the Client. In the event Exult Supplier shall have any
questions relating to the application of the Client Benefit Plan
Procedures to a particular set of facts, or if a participant or
beneficiary of a Benefit Plan notifies Exult Supplier of his or
her objection to Exult Supplier's interpretation or application
of the Client
1
<PAGE> 181
Benefit Plan procedures, then Exult Supplier shall notify the
Client Contract Representative in writing of such questions or
objections The Client Contract Representative shall have the
responsibility to promptly provide answers to any such questions
or objections and Exult Supplier shall be entitled to rely upon
such answers and to follow any directions communicated by the
Client Contract Representative. The Client authorises Exult
Supplier to release employment-related confidential data and
information to health care providers or other third party
vendors of Client or Participating Affiliates as are designated
by Client or Participating Affiliates from time to time.
2.5 To reflect the matters referred to in paragraphs 2.1 to 2.4, the
Client's agreement to the provision by Exult Supplier of any
Special Services may necessitate amendment to provisions in this
Agreement including those relating to "Benchmarking", "Service
Performance Reports", "KPIs", "Key Incident Reporting",
"Satisfaction Surveys" and "Continuous Improvement".
3 COMPLIANCE AND LIABILITY
3.1 Subject to paragraphs 3.2 and 3.3, the Client and the
Participating Affiliates shall be solely responsible for (a) the
preparation, approval and submission of all Benefit Plans and
related amendments for Internal Revenue Service determination,
(b) each Benefit Plan's compliance with state and federal law
(including applicable provisions of the Code and ERISA and
regulations promulgated thereunder) and all other applicable
laws and regulations and (c) all measures required under state
and federal law (including applicable provisions of the Code and
ERISA and regulations promulgated thereunder) and all other
applicable laws and regulations, to assure, the qualification
and compliance of the Benefit Plans with such laws. Exult
Supplier shall be under no duty to question terms of the Benefit
Plans and the measures taken by the Client.
3.2 Notwithstanding paragraph 3.1, the Client may (as a condition of
agreeing to the Exult Supplier carrying out any Special
Services) in respect of Special Services generally, and those
relating to Benefit Plans specifically, require Exult Supplier
to provide inter alia increased levels of insurance cover under
Clause 22 of the Framework Agreement, provided that the cost of
such insurance shall be a Pass Through Cost.
4 AUDIT RIGHTS
With respect to Special Services, the Client's right of audit under
Clause 12 of this Agreement may be modified to allow:
(a) a right for Client's designated representative to inspect books
and records relating to the Client Service Centre operations and
Benefit Plan data during normal business hours at any time or
times as may be requested by the Client by prior written notice
to Exult Supplier; and
(b) an audit on a quarterly basis or more frequently if upon
reasonable grounds the Client requests the same of the Exult
Supplier by prior written notice.
2
<PAGE> 1
EXHIBIT 10.10
Dated 7 December 1999
BP INTERNATIONAL LIMITED
and
EXULT LIMITED
UK COUNTRY AGREEMENT
LINKLATERS
One Silk Street
London EC2Y 8HQ
Tel: (44-171) 456 2000
Ref: JPC/CXC
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TABLE OF CONTENTS
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CONTENTS PAGE
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1 Definitions and Interpretation.....................................................2
2 Term...............................................................................2
3 Services...........................................................................3
4 Exclusivity........................................................................7
5 Client Obligations including BPA Responsibilities..................................7
6 Transfer Arrangements..............................................................8
7 Third Party HR Contracts..........................................................10
8 Front End Consents................................................................13
9 Change Control Management Process.................................................14
10 Charges, Invoicing and Payment....................................................14
11 Taxes.............................................................................14
12 Audit.............................................................................16
13 Key Personnel.....................................................................18
14 Termination.......................................................................18
15 Suspension of a Process...........................................................20
16 Winding Up Assistance.............................................................21
17 Financial Consequences of Termination.............................................22
18 Transfer Arrangements on Termination..............................................25
19 Intellectual Property Rights......................................................27
20 Confidentiality...................................................................29
21 Data Protection and Security......................................................30
22 Contract and Service Management...................................................31
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<TABLE>
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23 Contract Minimums.................................................................33
24 Warranties........................................................................34
25 Limitation on Liability...........................................................35
26 Indemnities and Defence of Claims.................................................37
27 Insurance.........................................................................42
28 Recovery of Damage Awards.........................................................42
29 Dispute Resolution................................................................44
30 Force Majeure.....................................................................46
31 Assignment........................................................................46
32 Subcontracting....................................................................47
33 Participating Affiliates..........................................................48
34 General Terms.....................................................................48
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PARTIES
THIS AGREEMENT is made on 7th December, 1999
BETWEEN:
(1) BP International Limited, a company incorporated under the laws of
England and Wales, whose principal office is at Britannic House, 1
Finsbury Circus, London EC2M 7BA ("CLIENT"); and
(2) Exult Limited, a company incorporated under the laws of England and
Wales whose principal office is at Regis House, 45 King William Street,
London, EC4R 9AN ("Exult Supplier").
WHEREAS:
(A) By an agreement (the "Framework Agreement") dated 7 December, 1999
between BPA Amoco p.l.c. ("BPA") a company incorporated under the laws
of England, and Exult, Inc. ("Exult"), a company incorporated under the
laws of the State of Delaware, a framework was agreed to enable Exult
and its Affiliates to provide certain human resource management services
to BPA and certain of its Affiliates.
(B) The purpose of this Agreement is to set out the terms on which Exult
Supplier is to supply the Services to the Client in the United Kingdom.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 The definitions applying to this Agreement are set out in
Schedule Z (Definitions).
1.2 A reference to any statute, enactment, order, regulation or
other similar instrument shall be construed as a reference to
the statute, enactment, order, regulation or instrument as
amended by any subsequent statute, enactment, order, regulation
or instrument or as contained in any subsequent re-enactment
thereof.
1.3 Headings are included in this Agreement for ease of reference
only and shall not affect the interpretation or construction of
this Agreement.
1.4 References to Clauses and Schedules are, unless otherwise
provided, references to clauses and schedules in or to this
Agreement.
1.5 References to the words "include(s)" or "including" shall be
construed without limitation to the generality of the preceding
words.
2 TERM
This Agreement shall take effect on the Commencement Date and, unless
the Client provides
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notice under Clause 14.4 (Termination on Notice after the Initial
Period) that it wishes to terminate the Agreement on notice after the
Initial Period, the Agreement shall continue thereafter subject to the
other provisions of Clause 14 (Termination).
3 SERVICES
3.1 The Services
3.1.1 Exult Supplier shall provide the Services to the Client
and the Participating Affiliates in accordance with the
Transition Plan, the Service Levels, the Controls, Good
Industry Practice and otherwise in accordance with the
terms and conditions of this Agreement.
3.1.2 Exult Supplier shall supply sufficient and appropriately
qualified and skilled Employees and Subcontractors to
provide the Services to the Client.
3.1.3 Exult Supplier shall be responsible for the management
and technical supervision of the performance of the
Services by Employees and Subcontractors under this
Agreement.
3.1.4 Except as otherwise provided in this Agreement, Exult
Supplier shall be responsible for ensuring it has all
the assets required to provide the Services.
3.1.5 In performing the Services Exult Supplier shall use
reasonable endeavours to perform its duties in such
manner and at such times so that no act, omission or
default of the Exult Supplier shall, to its knowledge,
constitute, cause or contribute to any breach by BPA,
the Client or any of the Participating Affiliates of any
contract, including, but not limited to, the Third Party
Contracts binding upon BPA, the Client or the
Participating Affiliates relating to the Client
Premises, the Client Assets or, the provision of the
Services.
3.2 CONTROLS
3.2.1 For the avoidance of doubt, the Client shall be
responsible for establishing and maintaining BPA
Controls, including, but not limited to, management
overview and determination of BPA Controls relating to
human resource management policies and practices. Exult
Supplier shall have no responsibility for the
establishment and maintenance of BPA Controls, but shall
comply with BPA Controls in accordance with the terms of
this Agreement .
3.2.2 As at the Commencement Date, the BPA Controls listed in
Part 1 of Schedule O, BPA Controls, have been provided
to Exult Supplier in writing and the parties have agreed
that Exult Supplier shall comply with such agreed BPA
Controls when fulfilling its obligations under this
Agreement.
3.2.3 During the 6 month period following the Commencement
Date, the parties shall work together in good faith to
review and evaluate the BPA Controls listed in
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Part 2 of Schedule O. Such review will involve an
assessment of the applicability of such BPA Controls to
the performance of Exult Supplier's obligations under
this Agreement and the impact, if any, of Exult's
compliance with such BPA Controls in terms of the scope
of Services, Service Levels, Charges or any other aspect
of this Agreement.
3.2.4 It is the intention of the parties that through the
review process referenced in Clause 3.2.3, the BPA
Controls listed in Part 2 of Schedule O will be agreed
between the parties and included within Part 1 of
Schedule O and Exult Supplier's performance of its
obligations under this Agreement shall be subject to
compliance with such additional agreed BPA Controls.
3.2.5 In the event that the parties are unable to reach
agreement within [***]* of the review as to the
inclusion of any BPA Controls pursuant to Clause 3.2.4
then at the end of such [***]* period, those BPA
Controls shall be deemed to have been included in Part 1
and the Change Control Management process shall be
applied to implement such BPA Controls.
3.2.6 In addition to the provisions in Clauses 3.2.4 and 3.2.5
for inclusion of BPA Controls into this Agreement, the
parties shall procure the Regional Governance Panel to
review the BPA Controls periodically during the term of
this Agreement and to use reasonable endeavours to agree
and include:
(i) any improvements and updates to BPA Controls;
and
(ii) any additional BPA Controls established or
determined by the Client in relation to human
resource management or to its business
generally.
3.2.7 In the event that the parties are unable to reach
agreement as to the inclusion of any BPA Controls
pursuant to Clause 3.2.6 within [***]* of the review,
those BPA Controls shall be deemed to have been included
in Part 1 and the Change Control Management process
shall be applied to implement such BPA Controls.
3.2.8 Within [***]* following the Commencement Date and
consistent with the Process Take On Dates as set out in
the Country Transition Plan, Exult Supplier will develop
a Quality Control Document. The Quality Control Document
shall thereafter be reviewed periodically by the
Regional Governance Panel with a view to agreeing and
incorporating any improvements and updates thereto.
3.2.9 Any alleged or suspected violation of the BPA Controls
by any Employees in the performance of this Agreement
shall be promptly reported by the party with knowledge
of the alleged or suspected violation to the other
party. Exult Supplier shall permit the Client to conduct
an investigation into the matter and shall co-operate
with any investigation into such matter conducted by the
Client
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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and shall take whatever Exult Supplier deems to be the
appropriate corrective action with respect to any such
violation by the Exult Personnel.
3.3 NON-PERFORMANCE AGAINST KPI'S
3.3.1 Exult Supplier's performance of the Services shall be
measured against Service Levels, including the KPIs.
3.3.2 If at any time after the applicable date determined in
accordance with Schedule B (Service Levels), there is a
KPI Failure, Exult Supplier shall credit the Client with
the applicable Service Credit in accordance with the
procedure set out in Schedule C (Charges and Invoicing)
and the Client may at its option seek any other remedy
set forth in this Agreement, provided that:
(i) the amount of such Service Credit shall be taken
into account when assessing any Award made to
the Client pursuant to any other remedy in
relation to the default resulting in the KPI
Failure; and
(ii) the Client shall provide Exult Supplier with
notice that it intends to pursue such
alternative remedy within [***]* of recovery of
the relevant Service Credit from Exult Supplier
in accordance with Schedule C (Charges and
Invoicing).
3.4 PROJECTS
The Client may from time to time request Exult Supplier by
written notice to undertake a Project in accordance with the
Change Control Management process and the procedures set out in
Schedule H (Projects). Projects included within the scope of
this Agreement at the Commencement Date, if any, are set out in
Schedule H. Unless otherwise agreed, Projects will be charged at
the Standard Rates.
3.5 DISASTER RECOVERY
3.5.1 In respect of each Process, Exult Supplier shall, from
the relevant Process Take On Date use and comply with
the existing BPA Disaster Recovery Plan (except to the
extent that Client has not provided Exult Supplier with
a copy of the existing BPA Disaster Recovery Plan) and
shall within [***]* of the Commencement Date develop and
implement an Exult Supplier Disaster Recovery Plan
appropriate to the provision of the Services. BPA makes
no representation that the BPA Disaster Recovery Plan is
adequate for these purposes and, therefore, Exult
Supplier shall have no liability for its failure to
reinstate any of the Services to the extent that it has
complied with such plan. The Exult Supplier Disaster
Recovery Plan shall cover critical personnel,
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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operations, Systems and processing at facilities used in
the provision of the Services. Exult Supplier shall
maintain the Exult Supplier Disaster Recovery Plan and
shall conduct annual tests to ensure its effectiveness.
Exult Supplier shall consult with the Client in the
preparation and development of the Exult Supplier
Disaster Recovery Plan and the Regional Governance Panel
shall use its reasonable endeavours to agree any
improvements to it. In the event that such agreement is
not reached within [***]* of the proposal being made the
improvement will be deemed to be adopted and will be
implemented in accordance with the Change Control
Management process.
3.5.2 As part of the consultation process described in Clause
3.5.1, Exult Supplier shall provide the Client with
copies of the Exult Supplier Disaster Recovery Plan,
including any updates to such plan which are developed
by Exult Supplier.
3.6 COMPATIBILITY OF IT SYSTEMS
It is the intention of the parties that the Systems and IT
infrastructure, including the Exult IT Domain, Exult Systems and
Future Systems, to be developed to support the provision of the
Services shall be compatible with BPA's IT infrastructure and
systems architecture existing at the Commencement Date (the
"Existing IT Domain"). The parties will co-operate in good faith
to ensure that this can be achieved so that the Leveraged
Operations can be implemented with the minimum of disruption to
the Existing IT Domain, provided that if either party considers
that a change to the Existing IT Domain is necessary in order to
allow the provision of the Services to the Service Levels and
achieve Leveraged Operations then such change shall be
implemented by way of the Change Control Management process.
3.7 VALIDATION EXERCISE
3.7.1 Following the Commencement Date, Exult Supplier and the
Client will work in co-operation to complete the
Validation Exercise in accordance with Schedule G.
3.7.2 The costs of the Validation Exercise shall be dealt with
in accordance with Schedule C.
3.8 PROCESS DESCRIPTIONS
3.8.1 Exult Supplier shall maintain in an electronic format
(where possible) updated system documentation and
procedures providing a clear description of the Service
Delivery Model once the Services are delivered (the
"Process Descriptions").
3.8.2 Exult Supplier shall provide the Client with access to
such Process Descriptions as reasonably requested by the
Client.
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4 EXCLUSIVITY
The parties acknowledge that Exult Supplier will have an exclusive right
to offer to provide Services and Underlying Technology to the Client in
United Kingdom save that the Client has the right to obtain human
resources services (including the Services) directly from itself, from
BPA, from a BPA Affiliate or from a third party in respect of:
4.1 [***]*
4.2 services received by the Client under Third Party Contracts
which are not Transferred to Exult Supplier pursuant to Clause 7
(Third Party HR Contracts);
4.3 services received by the Client under Sensitive Third Party
Contracts pursuant to Clause 7 (Third Party HR Contracts);
4.4 [***]*
4.5 [***]*
4.6 any Affected Process in relation to which the Client has
terminated this Agreement pursuant to Clause 15.5.1 (Suspension
of a Process).
5 CLIENT OBLIGATIONS INCLUDING BPA RESPONSIBILITIES
5.1 The Client shall perform its obligations under this Agreement,
including, but not limited to, the BPA Responsibilities, in
accordance with this Agreement.
5.2 The Client shall arrange for the giving of timely approvals,
management input, information and management review of issues as
and when they are requested by Exult Supplier. The Client will
provide Exult Supplier and its Employees and Subcontractors full
and timely access to all staff relevant to the provision of the
Services to the extent reasonably needed by Exult Supplier to
make decisions in relation to, or to perform the Services. In
the event that such access is not provided, Exult's Country
Representative will advise the Client's Country Representative.
5.3 The Client shall be responsible for establishing and maintaining
its management policies and strategies, including, but not
limited to, policies relating to the Client's human resources
function. Exult Supplier shall have no responsibility for the
establishment or maintenance of such policies.
5.4 Exult Supplier shall not be liable for any delay or failure on
its part to provide all or any of the Services or failure to
perform its other obligations under this Agreement to the extent
that this results from:
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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5.4.1 a failure by the Client to meet any of the Client's
obligations under this Agreement, including, but not
limited to, BPA Responsibilities;
5.4.2 errors, omissions or inadequacies in data, information
or instructions provided by the Client which Exult
Supplier relies on to provide the Services, but only to
the extent that Exult Supplier ought not to have been
aware of any such errors, omissions or inadequacies;
5.4.3 the negligent acts or negligent omissions of the Client
in connection with this Agreement; or
5.4.4 the Client preventing Exult Supplier from implementing
the agreed Exult Service Delivery Model by failing to
fulfil its obligations in respect of such implementation
as set out in this Agreement or as otherwise agreed
between the parties.
5.5 Exult Supplier shall notify the Client on becoming aware of the
occurrence of any of the circumstances in Clause 5.4.1 to Clause
5.4.4 that may cause a delay or failure and shall use reasonable
endeavours to continue to provide the Services. To the extent
that either party believes consequential changes to Services,
Charges, Service Levels or any other obligations arising under
the Agreement are necessary as a result of the Client's failure
to meet its obligations, the matter shall be referred to the
Regional Governance Panel which shall determine the changes, if
any, that should be implemented in accordance with the Change
Control Management process. If the Regional Governance Panel is
unable to resolve this issue the matter shall be referred to an
Arbitrator appointed pursuant to Clause 29.3 (Dispute
Resolution).
6 TRANSFER ARRANGEMENTS
6.1 CLIENT PREMISES
6.1.1 The Client shall use its reasonable endeavours to make
available, or to procure that there is made available,
should Exult Supplier so reasonably request, Client
Premises to enable Exult Supplier to perform the
Services.
6.1.2 Exult Supplier shall occupy the Client Premises made
available to Exult Supplier in accordance with terms and
conditions of this Agreement and other terms which are
appropriate for those Client Premises as agreed between
the parties.
6.1.3 Any charges charged by the Client to Exult Supplier for
the use of Client Premises shall be charged back to the
Client as Pass Through Costs. Any reasonable costs
incurred by Exult Supplier in vacating Client Premises
and in establishing alternative premises shall be
charged to the Client as Pass Through Costs.
6.2 CLIENT ASSETS
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6.2.1 Without prejudice to Clause 19 (Intellectual Property),
the Client shall use its reasonable endeavours to
transfer, license, lease or otherwise make available, to
the extent it has the power to do so, the Client Assets
(as agreed between the parties pursuant to the Due
Diligence Exercise and/or Validation Exercise) to enable
Exult Supplier to perform the Services.
6.2.2 Exult Supplier shall use Client Assets in accordance
with terms and conditions which are appropriate for
those Client Assets as agreed by the parties.
6.2.3 Any Charges charged by the Client to Exult Supplier for
the use of Client Assets shall be charged back to the
Client as Pass Through Costs.
6.3 EXULT SYSTEMS
6.3.1 Licences in respect of Exult Systems shall be dealt with
in accordance with Clause 19.
6.3.2 Subject to Clause 6.3.3 and Clause 19.6 (Licences of
Exult Supplier Intellectual Property on Termination),
the licences granted under Clause 6.3.1 shall be royalty
free.
6.3.3 Where the Exult Systems or Future Systems include
software or other material licensed from a third party
for which such third party generally charges a royalty
to licensees, Exult Supplier reserves the right to
charge the Client such royalty in respect of such
software or materials. Any such royalty will be
equivalent to the royalty sum Exult Supplier pays to the
third party in respect of the licence. Any such royalty
charged to the Client shall be charged as a Pass Through
Cost.
6.3.4 Subject to Clause 6.3.5, Exult Supplier and the Client
agree to be bound by the terms of the Escrow Agreement
in respect of source code materials relating to the
Exult Systems and Future Systems other than standard
commercially available Third Party Systems, and Exult
Supplier agrees to update where possible the relevant
source code materials held in escrow, in accordance with
the Escrow Agreement.
6.3.5 In respect of those Systems to which Clause 6.3.4
applies and which are licensed to Exult Supplier from a
third party, Exult Supplier shall before using such
Systems in the provision of the Services take reasonable
steps to:
(i) obtain the source code materials relating to
such Systems and place such materials in escrow
in accordance with Clause 6.3.4;
(ii) if this is not reasonably practicable, procure
that the source code materials be made available
to the Client, including in an escrow account on
substantially the same terms to those contained
in Clause 6.3.4;
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If (i) and (ii) are not reasonably practicable, the
parties shall discuss and agree on alternative
arrangements to obtain appropriate rights of access to
the source code materials.
6.3.6 The parties agree that the Escrow Agreement referred to
in Clause 6.3.4 shall be entered into with NCC Escrow
International Limited ("NCC") and that the Escrow
Agreement should be based on the standard model Single
Licensee (UK), amended to reflect the parties
requirements pursuant to fulfilling the respective
obligations under this and the other Country Agreements.
The parties intend the form of the agreement should be
substantially similar to that contained in Schedule U
and that if it is not possible to obtain such agreement
with NCC, the parties shall agree on a suitable
alternative escrow agent.
6.3.7 Any costs associated with Exult Supplier's compliance
with Clauses 6.3.4, 6.3.5 and 6.3.6 shall be charged to
the Client as a Pass Through Cost.
6.4 MISCELLANEOUS PROVISIONS RELATING TO THIRD PARTY CONTRACTS
6.4.1 The Client shall procure, so far as is reasonably
practicable and subject to the provisions of Clause 8
(Front End Consents), that Exult Supplier shall be
entitled to the benefit, subject to the burden, of the
Client's or BPA's interest in Third Party Contracts
other than Third Party HR Contracts which shall be dealt
with in accordance with Clause 7.
6.4.2 All charges and expenses arising from the Third Party
Contracts transferred to Exult Supplier (including Third
Party HR Contracts) (to the extent that the same relate
to the Services) shall, subject to Clause 8 (Front End
Consents), be equitably apportioned between the Client
and Exult Supplier as at the date of the Transfer.
7 THIRD PARTY HR CONTRACTS
7.1 THIRD PARTY HR CONTRACTS
Those contracts identified during the Due Diligence Exercise as
potential Third Party HR Contracts are set out in Schedule D.
The parties acknowledge that more potential Third Party HR
Contracts may be identified during the term of the Agreement in
which case such Third Party HR Contracts shall be added to
Schedule D and be subject to the provisions of this Clause 7. It
is the intention of the parties that, subject to the other
provisions of this Clause, where practicable the responsibility
for the provision of the services provided under Third Party HR
Contracts should be Transferred to Exult Supplier either by
termination of such Third Party HR Contracts or by an assignment
or novation of such Third Party HR Contracts to Exult Supplier,
and in any event upon the expiry of such Third Party HR
Contracts. However, the parties recognise that this may not be
practicable in all circumstances and have agreed that the
following procedure shall apply to Third Party HR Contracts.
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7.2 THIRD PARTY CONTRACTS IN SCOPE
7.2.1 As soon as practicable after any potential Third Party
HR Contracts are identified, the Regional Governance
Panel:
(i) shall consider and agree whether each such
contract falls within the scope of Services and
is therefore a Third Party HR Contract; and
(ii) [***]*
7.2.2 Any disagreement between the parties in relation to
Clause 7.2.1(i) shall be if possible resolved in
accordance with the provisions of Clause 7.8.
7.2.3 [***]*
7.2.4 Any Third Party HR Contract categorised by the Client as
a Sensitive Third Party Contract shall be retained
within Schedule D and dealt with in accordance with the
following provisions of this Clause 7.
7.3 TRANSFER OF THIRD PARTY HR CONTRACTS
7.3.1 On the expiry of any Third Party HR Contract other than
a Sensitive Third Party Contract (which shall be dealt
with under Clause 7.6), Exult shall take on
responsibility for the provision of the Services
equivalent to the services previously provided under
such Third Party HR Contract, and the provisions of
Clause 7.3.4, Clause 7.3.5 and Clause 7.7 will apply
thereto.
7.3.2 [***]*
7.3.3 In the event of failure to agree pursuant to Clause
7.3.2, the matter shall be referred to and if possible
resolved in accordance with the provisions of Clause
7.8.
7.3.4 If the parties agree pursuant to Clause 7.3.2 or if it
is resolved pursuant to Clause 7.3.3 that the Third
Party HR Contract should be Transferred to Exult
Supplier or if the services previously provided by such
Third Party HR Contract are Transferred to Exult
Supplier pursuant to Clause 7.3.1 then:
(i) the parties shall agree on which category of
cost (being either Category A, B or C) the Third
Party HR Contract should be allocated to in
accordance with Schedule C and shall agree a
suitable Contract Transfer Plan; and
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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(ii) shall ensure that the Third Party HR Contract is
Transferred to Exult Supplier in accordance with
such Contract Transfer Plan in the most
practical and efficient manner and with the
minimum of disruption to the Client, the
Participating Affiliates and to the provision of
the Services.
7.3.5 Where the parties fail to agree whether a Third Party HR
Contract should be Transferred to Exult Supplier under
Clause 7.3.2 to Clause 7.3.5 inclusive, and Services
equivalent to the services previously provided by such
Third Party HR Contract are not Transferred to Exult
Supplier pursuant to Clause 7.3.1, such Third Party HR
Contract shall be retained by the Client until its
expiry or earlier termination and on the occurrence of
either event the provisions of Clause 7.3.1 shall apply.
7.4 ADMINISTRATION OF THIRD PARTY HR CONTRACTS
Where the parties agree pursuant to Clause 7.3.2 or Clause 7.3.3
that a Third Party HR Contract should be administered by Exult
Supplier the parties shall agree a suitable Contract Transfer
Plan and shall ensure that Exult Supplier takes over
administration of the Third Party HR Contract in accordance with
Clause 7.3.1 and such Contract Transfer Plan, in the most
practicable and efficient manner and with the minimum of
disruption to the Client, BPA, the Participating Affiliates and
to the provision of the Services. The Contract Transfer Plan
shall include the scope of Exult Suppliers' responsibilities
relating to its administration role together with the Client's
role and responsibilities.
7.5 MONITORING AND REVIEW OF THIRD PARTY HR CONTRACTS
In the event that a Third Party HR Contract is not Transferred
to Exult Supplier or administered by Exult Supplier, the
parties, through the Regional Governance Panel, shall continue
to monitor the Third Party HR Contract and work towards
integrating Exult Supplier into the relationship with the third
party with a view to Transferring the Third Party HR Contract or
its administration to Exult Supplier when the parties agree it
is appropriate to do so.
7.6 SENSITIVE THIRD PARTY CONTRACTS
7.6.1 [***]*
7.6.2 In the case of Sensitive Third Party Contracts
Transferred by assignment or novation to Exult Supplier
pursuant to Clause 7.3.1 to Clause 7.3.5 inclusive,
Exult Supplier shall:
(i) not terminate any such Sensitive Third Party
Contract without the prior written consent of
the Client; and
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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(ii) not enter into a new contract with a third party
in relation to Services provided under any such
Sensitive Third Party Contract without the prior
written consent of the Client.
7.7 USE OF CHANGE CONTROL
Any changes to this Agreement, including the relevant Schedules
which are required as a result of the Transfer, termination or
expiry of any Third Party Contract or required as a result of
Exult Supplier assuming or ceasing administration
responsibilities in relation to any Third Party Contract, shall
be dealt with in accordance with the Change Control Management
process.
7.8 FAILURE TO REACH AGREEMENT
If the parties fail to reach agreement pursuant to Clause 7.2 to
Clause 7.5 inclusive, the matter shall be referred to the
Regional Governance Panel in accordance with Clause 29.1.2
(Dispute Resolution) and thereafter, if possible, resolved in
accordance with the provisions of Clause 29.1.3, provided that
the matter shall not be referred to an Expert or an Arbitrator
in the event the BPA Vice President Group HR and Exult Chief
Executive Officer have not been able to resolve the matter.
8 FRONT END CONSENTS
8.1 Where the consent of any third party is required to provide to
Exult Supplier the benefit of the arrangements under which the
Client holds or uses any of the Client Assets, Third Party
Systems or Third Party Contracts or such a consent is otherwise
required to enable Exult Supplier to perform the Services in the
manner contemplated by this Agreement, the Client shall use
reasonable endeavours, to procure that such consent is granted
or at the Client's option procure suitable alternative rights or
services are provided to Exult Supplier to enable it to perform
the Services. Exult Supplier shall use reasonable endeavours to
cooperate in obtaining such consents or obtaining suitable
alternative rights, including where necessary entering into new
agreements or agreeing to comply with the terms of the relevant
existing agreements. The use of reasonable endeavours shall not
include the payment of any monies by any party, but where
consent can only be obtained in return for the payment of an
additional sum, the parties shall consider paying such sum if it
appears the most cost effective way of proceeding. Any such
payment shall be charged as a Pass Through Cost.
8.2 Subject to Clause 8.1, if Exult Supplier does not have the right
to use the Client Assets, Third Party Systems, or the benefit of
the Third Party Contracts or any suitable alternative, Exult
Supplier shall not be liable for any failure to provide that
part of the Services to the extent that such failure results
from the lack of such right or benefit, provided that Exult
Supplier shall use reasonable endeavours to minimise the extent
of such failure.
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9 CHANGE CONTROL MANAGEMENT PROCESS
Any changes to this Agreement shall be dealt with in accordance with the
Change Control Management process set out in Schedule L.
10 CHARGES, INVOICING AND PAYMENT
10.1 The Client shall pay the Charges to Exult Supplier in accordance
with the provisions of this Agreement, including Schedule C. The
Client shall pay all Charges invoiced by Exult Supplier
regardless of, and without prejudice to, whether it disputes all
or any of such invoice.
10.2 Exult Supplier shall, on the Client's request, provide copies of
all relevant accounts and records on which the calculations are
based to demonstrate that the amounts invoiced have been
properly calculated in accordance with the methodology set out
in Schedule C and such other information as the Client may
reasonably require to enable the Client to assess the legitimacy
of the Charges made pursuant to the provisions of Schedule C.
10.3 The Client shall have the right to conduct an audit pursuant to
Clause 12 (Audit) to verify the amount paid to Exult Supplier
under Clause 10.1 and if the Audit reveals that any over payment
has been made, the provisions of Section 14 of Schedule C
(Charges and Invoicing) shall apply.
11 TAXES
11.1 RESPONSIBILITY FOR TAXES
11.1.1 Each party shall be solely responsible for all Taxes
which shall be properly and lawfully assessed or imposed
on it by any competent legal or fiscal authority in
connection with the carrying out of or receiving of the
Services or otherwise under this Agreement.
11.1.2 Exult Supplier shall retain all necessary and reasonable
Tax information and documents as shall enable Exult
Supplier to comply with its obligations under Clause
11.1.1 for such a period as may be required in the
relevant jurisdiction, and in any event not to be a
period of less than 6 years.
11.1.3 Exult Supplier shall be liable for all income Taxes
which shall be properly and lawfully assessed or imposed
on Exult Supplier by any competent authority in
connection with the carrying out of the Services under
this Agreement. Exult Supplier acknowledges that the
Client is not and shall not become liable to any taxes
referred to in this Clause 11.1.3.
11.1.4 Each party shall indemnify and keep indemnified the
other against all liabilities incurred by the other as a
consequence of its breach of any of the obligations
under Clause 11.1.1 and (in the case of Exult Supplier)
under Clauses 11.1.2 and 11.1.3.
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11.2 GROSSING UP FOR SALES TAXES
11.2.1 Notwithstanding the provisions of Clause 11.1, all sums
due to Exult Supplier under this Agreement are exclusive
of any VAT, sales and use tax, and any other similar
taxes which apply or may from time to time be
introduced, which shall be charged thereon in accordance
with the relevant regulations in force at the time of
making the taxable supply, and shall be paid by [***]*
11.2.2 Where required by the relevant fiscal regulations,
invoices shall show the relevant currency and any
conversion of the VAT, sales and use tax, or other
similar taxes, into any currency required to be shown in
accordance with the relevant fiscal regulations of the
Country, or Countries concerned.
11.2.3 Exult Supplier shall (if required by the relevant fiscal
regulations of the Country concerned) in respect of this
Agreement be duly registered in the jurisdiction where
the Services are performed for the purposes of VAT or
other similar sales taxes where such registration is
required.
11.2.4 Exult Supplier shall indemnify the Client in respect of
any penalties and/or interest charges imposed by a
competent tax authority on the Client arising out of
error or omission by Exult Supplier in relation to VAT
or other similar sales taxes, provided that the Client
notifies Exult Supplier within 30 calendar days of such
penalties and/or interest charges being brought to the
Client's attention by the competent tax authority.
11.2.5 WITHHOLDING TAXES
(i) If the Client is properly and lawfully required
by any competent legal or fiscal authority in
the Country to withhold or deduct Withholding
Tax on any amounts payable under this Agreement
to Exult Supplier it shall cooperate reasonably
with Exult Supplier, including by forwarding the
relevant withholding or deducting certificate or
certificates as soon as reasonably practicable
to Exult Supplier in respect of such withholding
or deduction so that Exult Supplier is able to
seek to recover from the relevant competent
legal or fiscal authority the amount so withheld
or deducted.
(ii) Exult Supplier shall use reasonable endeavours
to mitigate the effect of any Withholding Tax
imposed on any payment under this Agreement by
seeking to reduce the rate of Withholding Tax by
credit, off-set, deduction, repayment or
otherwise, or by eliminating such Withholding
Tax by making use of any applicable double
taxation treaties or similar provisions.
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(iii) If the Client withholds or deducts Withholding
Tax in accordance with Clause 11.2.5(i) and
Exult Supplier is unable to mitigate the effect
of any Withholding Tax as set out in Clause
11.2.5(ii), the Client and Exult Supplier shall
agree an additional amount ("Additional Amount")
of cost to be included in Exult Return and ROC.
Such Additional Amount may be any amount
(including zero) agreed as reasonable by Exult
Supplier and the Client on a case by case basis
(taking account, inter alia, Exult Supplier's
overall Tax position in the Country or, if
different, in its Country of Tax residence) but
shall not exceed such additional amount as will
result in receipt by Exult Supplier of more than
the full sum payable under this Agreement.
(iv) If there is any dispute in relation to any
matter under this Clause 11.2.5, the matter
shall be referred to an Expert appointed
pursuant to Clause 29.2 (Dispute Resolution).
The costs of such Expert shall be borne equally
by the parties.
12 AUDIT
12.1 The Client shall have the right at all reasonable times (in
accordance with Clause 12.2) and on reasonable notice to audit
(which for the avoidance of doubt includes inspection) Exult
Systems, procedures, supporting documentation, financial and
other books and records to the extent that they relate to the
provision of the Services as shall be necessary in the
reasonable opinion of the Client, to verify:
12.1.1 that the methodology in Schedule C has been correctly
applied in determining the Charges to be allocated to
the Client;
12.1.2 that the actual level of performance of the Services is
the same as the level of performance reported to the
Client;
12.1.3 that Exult Supplier has adequate Internal Controls in
place;
12.1.4 that the costs incurred and charged by Exult Supplier in
connection with the Winding Up Plan, the General Winding
Up Plan and the Validation Exercise are accurate;
12.1.5 that the amount claimed by Exult Supplier in respect of
any Early Termination Payment is in accordance with
Clause 17.2 (Termination for Convenience Payment); and
12.1.6 Exult Supplier's compliance with any other obligation
under this Agreement.
12.2 The audits referred to in Clause 12.1 may be carried out by the
Client or its authorised
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representatives (the "AUDITOR"), including BPA, and may be
undertaken [***]* at such time as the Client, reasonably
requests or more frequently in exceptional circumstances as
determined by the Regional Governance Panel. The Client, shall
use reasonable endeavours to conduct any such audits in a manner
which will result in the minimum of inconvenience to Exult
Supplier including, but not limited to, conducting such audit in
conjunction with Exult Supplier's own internal and/or external
audits where practicable.
12.3 Where the Client exercises its rights under Clause 12.1, and
where the Auditor has access to any Exult Confidential
Information or third party confidential information, the Auditor
shall enter into a separate confidentiality agreement with
respect to that confidential information with Exult Supplier
and/or, at Exult Supplier's election, with the third party prior
to such exercise by the Client. No Auditor shall be selected
without the prior written consent of Exult Supplier as to the
identity of the Auditor, such consent not to be unreasonably
withheld or delayed.
12.4 Exult Supplier shall provide the Auditor reasonable access to
Employees, Subcontractors, documents, records and systems
relating to the provision of the Services and shall provide the
Auditor with routine assistance in connection with the audits.
The Auditor shall have the right to copy and retain copies of
any relevant records solely for the purposes of conducting the
audit and subject to the applicable confidentiality obligations.
12.5 Any amounts agreed as a result of the audit to have been
incorrectly charged by Exult Supplier shall be adjusted in the
next regular payment by the Client in accordance with Schedule C
(Charges and Invoicing).
12.6 In the event that there is any Dispute relating to any report
produced pursuant to any audit carried out under the provisions
of Clause 12.1, the matter shall be referred to an Expert
appointed pursuant to Clause 29.2 (Dispute Resolution). [***]*
12.7 Exult Supplier shall use reasonable endeavours to seek to obtain
for the Client the right to audit on terms equivalent to those
contained in this Clause 12 the relevant documents, records and
Systems of Exult, Exult Affiliates and any Subcontractors.
12.8 Exult Supplier and the Client shall each [***]* with respect to
any audits carried out pursuant to this Clause 12.
12.9 Exult Supplier shall make available all books of account and
records held on behalf of the Client and relating to the
provision of the Services by Exult Supplier to the internal and
external auditors of the Client for the purposes of performing
any statutory or regulatory audit in relation to the Client.
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12.10 The audit rights contained in this Clause 12 shall survive the
termination or expiry of this Agreement for a period of [***]*
from the date of such expiry or termination.
13 KEY PERSONNEL
13.1 Exult Supplier shall ensure, to the extent that it is within its
reasonable control, that the Key Employees are actively involved
in supplying the Services for the minimum period specified in
Schedule I (Employees) in relation to each Key Employee and
shall not replace any Key Employees with another person during
that period unless the parties agree that the relevant Key
Employees need no longer be actively involved in the provision
of the Services.
13.2 The Client shall, to the extent that it is within its reasonable
control, ensure that the BPA Key Employees are actively involved
in fulfilling the Client's obligations under this Agreement for
the minimum period's specified in Schedule I (Employees) in
relation to each BPA Key Employee. The Client shall not replace
any BPA Key Employees with another person during that period
unless the parties agree that the relevant BPA Key Employees no
longer needs to be actively involved in the performance of this
Agreement.
14 TERMINATION
14.1 TERMINATION ON WINDING UP OR DEFAULT
Either the Client or Exult Supplier may at any time by notice in
writing terminate this Agreement as from, subject to Clause
14.7, the date of giving such notice to terminate if:
14.1.1 in the case of the Client, Exult Supplier or in the case
of Exult Supplier, the Client passes a resolution or the
court makes an order that it be wound up otherwise than
for the purposes of a reconstruction or amalgamation, or
a receiver manager or administrator on behalf of a
creditor is appointed in respect of the other party's
business, or circumstances arise which would entitle a
creditor to request that a court appoint a receiver,
manager or administrator or which would entitle the
court otherwise than for the purpose of a bona fide
reconstruction or amalgamation to make a winding-up
order, or the other party is unable to pay its debts
within the meaning of Section 123 of the UK Insolvency
Act 1986 or its relevant foreign jurisdiction;
14.1.2 in the case of the Client, Exult Supplier or in the case
of Exult Supplier, the Client, is in Default and the
party in Default fails to remedy or compensate for the
Default [***]* of a written notice from the other party
specifying the Default and requiring its remedy; or
14.1.3 in the case of the Client if there are:
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(i) [***]*
(ii) [***]*
14.2 TERMINATION FOR CONVENIENCE
The Client may, subject to Clause 17.2 (Termination for
Convenience Payment), terminate this Agreement by giving Exult
Supplier [***]* prior written notice, such notice not to take
effect [***]* where no Winding Up Plan is implemented or on such
later date as is determined in accordance with Clause 14.7.
14.3 TERMINATION ON TERMINATION OF FRAMEWORK AGREEMENT
This Agreement shall, subject to Clause 14.7, terminate upon the
termination or expiry of the Framework Agreement.
14.4 TERMINATION ON NOTICE AFTER THE INITIAL PERIOD
The Client may terminate this Agreement by giving [***]* notice
to Exult Supplier such notice to take effect, subject to Clause
14.7, on the expiry of the Initial Period.
14.5 TERMINATION FOR FORCE MAJEURE
If an event of Force Majeure arises which cannot be readily
resolved and continues for a period of 6 months which materially
prevents or hinders the performance of material obligations
under this Agreement in relation to one or more Processes then
either party may at any time by notice terminate this Agreement
in relation to the Process or Processes affected by the Force
Majeure event as from, subject to Clause 14.7, the date of
giving such notice. In the event of a partial termination of
this Agreement in accordance with this Clause 14.5, the
provisions of this Agreement relating to termination for Force
Majeure and the consequences of termination, including Winding
Up Assistance shall apply (but only to the extent of the Process
or Processes affected by the Force Majeure event).
14.6 TERMINATION FOR CHANGE OF CONTROL
The Client may at any time by notice terminate this Agreement as
from, subject to Clause 14.7, the date of giving such notice if
there is a Change of Control of Exult Supplier, provided that
such notice is given [***]* of Exult Supplier notifying the
Client of such Change of Control.
14.7 EXTENSION OF TERM FOR WINDING UP PLAN
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Any date for the termination of this Agreement provided in this
Clause 14 shall be subject to any extension agreed or determined
by the parties pursuant to the Winding Up Plan.
14.8 NOTIFICATION TO REGIONAL REPRESENTATIVES
The Client or Exult Supplier, as the case may be, will wherever
practicable inform the Regional Representatives in writing
[***]* prior to giving notice under Clause 14.1 or 14.2,
provided that failure to give such notice shall not affect the
Client's or Exult Supplier's right to terminate the Agreement.
14.9 PRESERVATION OF RIGHTS OF ACTION
Any termination or expiry of this Agreement shall, subject to
Clause 34.12 (Legal Proceedings), be without prejudice to and
shall not affect any right of action or remedy which shall have
accrued or shall thereafter accrue under the terms of this
Agreement.
15 SUSPENSION OF A PROCESS
15.1 [***]*
15.2 [***]*
15.3 [***]*
15.4 As soon as it can be demonstrated to the reasonable satisfaction
of the Regional Governance Panel that the Default has been
remedied and a plan has been agreed between the parties for
reinstatement of the Affected Process, the Client will by notice
terminate the suspension and reinstate Exult Supplier's
provision of the Affected Process.
15.5 If, at the end of the suspension period, it has not been
demonstrated to the reasonable satisfaction of the Regional
Governance Panel that the Default has been remedied the Client
shall either:-
15.5.1 serve written notice on Exult Supplier to terminate this
Agreement in relation to the Affected Process with
immediate effect; or
15.5.2 reinstate Exult Supplier's provision of the Affected
Process in accordance with an agreed plan for
reinstatement and resume the payment of Charges relating
to the Affected Process.
15.6 In the event that Exult Supplier's provision of the Affected
Process is reinstated in accordance with Clauses 15.4 and
15.5.2, Exult Supplier shall only be responsible for meeting
Service Levels, including KPIs, applicable to the Affected
Process once Exult
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Supplier has resumed the provision of the Affected Process for a
period in excess of [***]*
15.7 In the event of a partial termination of this Agreement in
accordance with Clause 15.5.1, the provisions of this Agreement
relating to termination for Default and consequences of
termination, including Winding Up Assistance shall apply (but
only to the extent of the Affected Process), and [***]*
(Exclusivity) of this Agreement with respect to the Affected
Process.
15.8 In the event of suspension pursuant to Clause 15.2, Exult
Supplier shall offer to grant or to procure the grant of a
licence in the terms set out in Clause 19.6 and shall give the
Client, BPA and its Affiliates and its contractors such access
to and use of the Client Assets, Exult Proprietary Systems and
Future Systems and any other resources then being used to
provide the Affected Process as the Client may reasonably
require in order to provide for itself or procure the Affected
Process through a third party in accordance with Clause 15.2;
provided that in exercising its rights, the Client shall seek to
minimise the disruption to Exult Supplier's other business. In
this Clause 15.8, any contractor employed by the Client during
the suspension period shall be deemed to be a Successor Operator
for the purposes of the application of Clause 19.6. Any licence
and/or access rights granted pursuant to this Clause 15.8 shall
apply solely for the suspension period.
15.9 The remedies of the Client under this Clause 15 may be exercised
in respect of any one or more Defaults of this Agreement by
Exult Supplier.
16 WINDING UP ASSISTANCE
16.1 [***]* prior to the Framework Expiry Date or on notice of
termination of this Agreement at the request of BPA:
16.1.1 the parties will promptly meet and develop and agree the
Winding Up Plan to provide an orderly transitioning of
the Services provided under the Agreement to the
Successor Operator(s), including, but not limited to,
the orderly transitioning of support and maintenance in
respect of Exult Systems and Future Systems; and
16.1.2 Exult Supplier shall co-operate fully with the Client,
BPA and the Participating Affiliates to implement the
Winding Up Plan, to minimise the cost and disruption of
termination to the Client, BPA and the Participating
Affiliates and to facilitate the orderly transitioning
of the Services from Exult Supplier to Successor
Operator in accordance with the provisions of this
Agreement.
16.2 The Winding Up Plan is to cover the period up to [***]* from the
earlier of (i) the Expiry Date; and (ii) the date of giving
notice of termination of this Agreement.
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16.3 In the event that the parties fail to agree the Winding Up Plan
within [***]* of first meeting in accordance with Clause 16.1,
the matter shall be referred to the informal Dispute Resolution
Procedure pursuant to Clause 29.1, and, if necessary, to an
Expert in accordance with Clause 29.2. The costs of such Expert
shall be borne equally by the parties.
16.4 Exult Supplier shall provide all assistance reasonably required
by the BPA Regional Project Leader or the Client for, or in
connection with, the Winding Up Plan and/or to ensure an orderly
migration of the obligations of Exult Supplier (including the
provision of the Services) to a Successor Operator for the
period of the Winding Up Plan.
16.5 Exult Supplier shall develop a Service Delivery Description and
shall deliver it to the BPA Regional Representatives and the
Client as soon as reasonably practical after first meeting to
develop and agree the Winding Up Plan. It will include
up-to-date process flowcharts and any other documentation
reasonably necessary to provide the BPA Regional Representatives
and the Client with a clear understanding of how the Services
are delivered and to enable the Client or Successor Operator to
take over the provision of the Services and to maintain and
develop the Service Delivery Model.
16.6 BPA and the Client shall have the right, through their employees
and/or Successor Operator, if applicable, to interface with
Exult Supplier, Employees and Subcontractors to gain such an
understanding of and familiarity with the systems documentation
and processes used in providing the Services to enable their
employees or a Successor Operator to provide services equivalent
to the Services.
16.7 In the event of a termination pursuant to Clause 14.3
(Termination of the Framework Agreement), the Winding Up Plan
will be subject to and determined by the General Winding Up
Plan.
16.8 The parties shall continue to perform their obligations in
accordance with this Agreement during the period of the Winding
Up Plan except as expressly provided in the Winding Up Plan,
provided, however, that the obligations set forth in the
following Clauses shall not apply during the period of the
Winding Up Plan: Clauses 4, 7, 13 and 22.
17 FINANCIAL CONSEQUENCES OF TERMINATION
17.1 WINDING UP ASSISTANCE
17.1.1 The Client shall bear it's own costs and the reasonable
charges and expenses of Exult Supplier (which shall be
based on the Standard Rates) incurred in connection with
the Winding Up Assistance, including the preparation and
production of the Service Delivery Description, provided
that, for the avoidance of doubt, this will not prevent
the Client from seeking to recover damages in respect of
any loss it suffers pursuant to any termination of this
Agreement (i)
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as a result of Exult Supplier's Default, pursuant to
Clause 14.1; or (ii) pursuant to Clause 14.3 on the
termination of the Framework Agreement as a result of
Exult's Default.
17.1.2 Exult Supplier shall invoice in respect of charges and
expenses due pursuant to Clause 17.1.1 on a monthly
basis and such invoices shall be paid within 30 days of
receipt of an invoice in respect of such costs.
17.2 TERMINATION FOR CONVENIENCE PAYMENT
17.2.1 In the event of the termination of this Agreement by the
Client pursuant to Clause 14.2 (Termination for
Convenience), the Client shall pay to Exult Supplier the
Early Termination Payment [***]* of an invoice together
with copies of all relevant accounts and records on
which the calculations are based to demonstrate that the
amount has been properly calculated in accordance with
the methodology in Schedule C.
17.2.2 The Client shall have the right to conduct an audit
pursuant to Clause 12 (Audit) to verify the amount paid
to Exult Supplier under Clause 17.2.1 and if the audit
reveals that any over payment has been made, the
provisions of Section 14 of Schedule C shall apply.
17.2.3 Notwithstanding Clauses 17.2.1 and 17.2.2, if the Client
reasonably disputes the amount claimed by Exult Supplier
under Clause 17.2.1, then the dispute will be referred
to the informal Dispute Resolution Procedure in
accordance with Clause 29.1 and in the event the parties
fail to agree the Dispute shall be referred to an Expert
for resolution, such Expert to be appointed in
accordance with Clause 29.2.
17.3 THIRD PARTY CONTRACTS
17.3.1 GENERAL
Notwithstanding the other provisions of this Clause
17.3, on the termination of this Agreement for any
reason, any financial consequences arising or flowing
from any Exult Third Party Contracts or the termination
of any such Exult Third Party Contracts:
(i) the duration of which Exult Supplier has agreed
to extend beyond the Expiry Date; and
(ii) the terms and conditions of which have not been
approved in writing by the BPA Regional
Representative prior to the entering into or
extension of such Exult Third Party Contracts,
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shall, subject to Clauses 17.3.5 and 17.3.6, be borne in
their entirety by Exult Supplier.
17.3.2 TERMINATION FOR EXULT SUPPLIER'S DEFAULT
On the termination of this Agreement by the Client
pursuant to Clause 14.1 (Termination on Winding Up or
Default), any financial consequences arising or flowing
from any Exult Third Party Contracts or the termination
of any such Exult Third Party Contracts shall, subject
to Clause 17.3.4 (Mitigation), be borne in their
entirety by Exult Supplier.
17.3.3 TERMINATION FOR ANY OTHER REASON
On the termination of this Agreement for any reason
other than by the Client pursuant to Clause 14.1
(Termination on Winding Up or Default) any financial
consequences arising or flowing from any Exult Third
Party Contracts or the termination of any such Exult
Third Party Contract shall, subject to Clause 17.3.4
(Mitigation) and Clause 17.3.5, be borne in their
entirety by the Client.
17.3.4 MITIGATION
The parties each agree to take reasonable steps to
mitigate costs arising on termination of this Agreement,
and agree that where either party is able to make use of
the Exult Third Party Contracts, in whole or in part,
for itself, its Affiliates or another client, it shall
use reasonable endeavours to do so and the other party's
obligation in relation to any Exult Third Party
Contracts shall extend only to that element of cost of
the Exult Third Party Contracts which remains unused.
17.3.5 Exult Supplier further agrees that for a period of
[***]* from the date of termination of this Agreement
if, subsequent to being reimbursed by the Client under
this Clause 17, Exult or an Exult Affiliate or their
clients use the whole or part of the Exult Third Party
Contract for which Exult Supplier has been previously
reimbursed by the Client, Exult Supplier shall refund to
the Client such portion of the reimbursement which
represents the use by Exult, Exult Affiliate or their
clients of such Exult Third Party Contract.
17.3.6 EMPLOYEES
The termination costs associated with Employees shall be
dealt with in accordance with Schedule J (Employee
Transfer Arrangements).
17.4 ASSETS
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On termination or expiration of this Agreement, the Client shall
have the option and in certain circumstances the obligation to
purchase Exult Assets at the written down book value as set out
in Clause 18.2 (Transfer Arrangements on Termination - Exult
Assets).
18 TRANSFER ARRANGEMENTS ON TERMINATION
18.1 CLIENT PREMISES
Exult Supplier shall vacate any Client Premises on or before the
termination or expiry of this Agreement, provided that Client
Premises or rights to Client Premises transferred to Exult
Supplier pursuant to Clause 6.1 shall, on termination or expiry
of this Agreement, be dealt with in accordance with Clause 18.2.
18.2 EXULT ASSETS
18.2.1 On the termination of this Agreement for all other
reasons than by the Client pursuant to Clause 14.1
(Termination on Winding Up or Default). Exult Supplier
shall offer to sell to the Client or its nominee and the
Client shall or shall cause its nominee to, subject to
Clause 18.2.3, purchase the Exult Assets at the written
down book value as at termination or expiry.
18.2.2 On the termination of this Agreement by the Client
pursuant to Clause 14.1 (Termination on Winding Up or
Default), Exult Supplier shall offer to sell to the
Client or its nominee the Exult Assets (at the written
down book value as at termination or expiry), but the
Client shall not be obliged to purchase such Exult
Assets.
18.2.3 The parties agree to take reasonable steps to mitigate
costs arising from or in connection with the Exult
Assets on termination or expiry of this Agreement and
the parties agree that where a party is able to make use
of an Exult Asset for itself, its Affiliates or another
client it shall use reasonable endeavours to do so at
the request of the other party.
18.2.4 Exult Supplier further agrees, at the Client's cost, to
co-operate in the relocation of any Exult Assets to be
purchased by the Client pursuant to this Clause,
provided that for the avoidance of doubt this will not
prevent the Client from seeking to recover damages in
respect of any loss it suffers pursuant to any
termination of this Agreement as a result of Exult
Supplier's Default.
18.2.5 On expiry of this Agreement Exult Supplier shall offer
to transfer ownership of any fully amortised Exult
Assets to the Client at no cost.
18.3 SYSTEMS
On the termination or expiry of this Agreement for any reason:
18.3.1 LICENCES
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All licences and all other rights to any Systems shall
be dealt with in accordance with Clause 19.
18.3.2 ESCROW
Exult Supplier shall, on Client's written request,
provide the Client with a copy of any source code
materials held in escrow pursuant to Clause 6.3.4.
18.3.3 RETURN OF CLIENT SYSTEMS AND MATERIALS
As soon as reasonably practicable following the
termination or expiry of this Agreement, Exult Supplier
shall return to the Client all Client Systems, Materials
and Client Information subject to the Exult Supplier
having the right to retain a copy of such Client
Systems, Materials and Client Information for compliance
with applicable laws, professional standards or quality
assurance purposes.
18.4 THIRD PARTY CONTRACTS
On the termination or expiry of this Agreement, the parties
shall, subject to Clause 17.3 (Third Party Contracts) and at the
Client's option and request, use reasonable endeavours to
transfer or assign all, or in the case of Exult Third Party
Contracts which are not used solely to provide the Services to
the Client, the relevant parts of, Exult Third Party Contracts
entered into by Exult Supplier to provide the Services to the
Client, BPA, a Participating Affiliate or a Successor Operator,
as the Client may direct.
18.5 EMPLOYEES
The transfer of Employees on termination or expiry shall be
dealt with in accordance with Schedule J (Employee Transfer
Arrangements).
18.6 BACK END CONSENTS
Where the consent of any third party is required to enable Exult
Supplier to provide the Client or Successor Operator, with the
benefit of the arrangements under which Exult Supplier holds or
uses any Exult Assets, Third Party Systems or Third Party
Contracts or such a consent is otherwise required to enable the
Client, or Successor Operator to take over the provision of the
Services from Exult Supplier in the manner contemplated by this
Agreement, Exult Supplier shall use reasonable endeavours, to
procure that such consent is granted or at Exult Supplier's
option, procure suitable alternative rights or services are
provided to the Client or Successor Operator to enable it to
perform the Services. The Client shall use reasonable endeavours
to co-operate in obtaining such consents or obtaining suitable
alternative rights, including where necessary entering into new
agreements or agreeing to comply with the terms of the relevant
existing agreements. The use of reasonable endeavours shall not
include the payment of any monies by any party, but where
consent can only be obtained in return for the payment of an
additional sum, the parties shall consider paying such sum if it
appears the most cost effective way of proceeding. Any such
payment shall be charged as a Pass Through Cost.
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19 INTELLECTUAL PROPERTY RIGHTS
19.1 CLIENT INTELLECTUAL PROPERTY
All Intellectual Property Rights subsisting in or relation to
Client Assets, Client Information, Client Systems, Materials and
the BPA Service Delivery Model (collectively, the "Client
Intellectual Property") shall (as between the parties) belong to
and be vested in BPA or the relevant BPA Affiliate or their
respective licensors as appropriate.
19.2 EXULT SUPPLIER INTELLECTUAL PROPERTY
All Intellectual Property Rights subsisting in or relation to
Exult Systems, Future Systems, Work Product, and the Exult
Service Delivery Model (collectively, the "Exult Supplier
Intellectual Property") shall (as between the parties) belong to
and be vested in Exult Supplier, Exult Participating Affiliates
or their respective licensors as appropriate.
19.3 LICENCE OF CLIENT INTELLECTUAL PROPERTY
The Client hereby grants to Exult Supplier (or, in the case of
Client Intellectual Property licensed to the Client, to the
extent that such grant is not within its power, shall use
reasonable endeavours to procure the grant to Exult Supplier of)
a worldwide, non-exclusive, unlimited user, royalty free licence
to use and the right to sublicence to subcontractors, the Client
Intellectual Property solely for the purposes of providing the
Services to the Client under this Agreement.
19.4 LICENCE OF EXULT SUPPLIER INTELLECTUAL PROPERTY
Exult Supplier hereby grants to the Client (or, in the case of
Exult Supplier Intellectual Property licensed to Exult Supplier
by third parties to the extent that such grant is not within its
power, shall use reasonable endeavours, to procure the grant to
the Client of) a worldwide non-exclusive, unlimited user
licence, together with a right to sub-license to third parties,
to use the Exult Supplier Intellectual Property or any physical
material created as a result of the use of the same in
connection with the supply of the Services to the extent
necessary to enable the Client to receive the benefit of the
Services.
19.5 LICENCES OF CLIENT INTELLECTUAL PROPERTY ON TERMINATION
On expiration or termination of this Agreement for any reason,
the licences granted pursuant to Clause 19.3 shall automatically
terminate.
19.6 LICENCES OF EXULT SUPPLIER INTELLECTUAL PROPERTY ON TERMINATION
On expiration or termination of this Agreement for any reason,
Exult Supplier shall offer to, and at the Client's option, grant
to the Client or Successor Operator (or, in the case of Exult
Supplier Intellectual Property licensed to Exult Supplier from a
third party, use reasonable endeavours for the provision of
services substantially similar to the Services under similar
economic arrangements ) to procure the grant to the Client, BPA
and the
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BPA Affiliates or Successor Operator of) a worldwide, perpetual,
irrevocable, non-exclusive, unlimited user licence (which shall
be at the lesser of the standard market rates and the lowest
royalty Exult Supplier charges to other licensees for similar
licences for the provision of services substantially similar to
the Services provided under similar economic arrangements to
use, modify and enhance any Exult Supplier Intellectual Property
used for the provision of the Services in the [***]* immediately
before the termination or expiry of this Agreement, with a right
to grant sub-licences to Successor Operators, subject to Exult
Supplier's prior consent to the identity of such Successor
Operator for the purpose of being a sub-licensee of such Exult
Supplier Intellectual Property and the terms of such
sub-licence, such consent not to be unreasonably withheld or
delayed. Such licence shall be for use solely in connection with
the provision of services comparable to the Services for the
Client and Participating Affiliates.
19.7 ROYALTIES
In the event that Exult Supplier exploits by way of assignment,
license or otherwise, any Exult Supplier Intellectual Property
which has been developed by way of a Project under this
Agreement and such development was funded by the Client, then
Exult Supplier shall pay to the Client royalties in respect of
the benefits received from such exploitation. The royalty
payable in each case shall be determined as part of the
implementation of the Project pursuant to Schedule L and
Schedule H.
19.8 CLIENT'S RIGHT TO USE SYSTEMS ON TERMINATION
In order to ensure that Exult Supplier is able to fulfil its
obligations to provide the licence under Clause 19.6, where a
System is to be developed specifically for the Client by Exult
Supplier using the services of a third party ("Developed
System") Exult Supplier shall before using such Developed System
in the provision of the Services:
19.8.1 take reasonable steps to obtain ownership rights in the
Developed System including obtaining any necessary
assignment of such rights from third parties; or
19.8.2 if Clause 19.8.1 is not reasonably practicable, take all
steps to procure a licence for itself substantially in
the form set out in Clause 19.6 for such Developed
Systems; and
19.8.3 to the extent the steps described in Clauses 19.8.1 and
19.8.2 are not reasonably practicable, discuss and agree
with Client alternative arrangements to ensure Client
can continue to use the Developed System on termination
or expiry of this Agreement.
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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20 CONFIDENTIALITY
20.1 All Confidential Information communicated in connection with the
negotiation, preparation and performance of this Agreement was
and shall be received in confidence, used only for the purposes,
and within the duration, of this Agreement, and shall be
protected in the same manner as the party receiving such
Confidential Information protects its own Confidential
Information, but in any event in not less than a reasonable
manner, except for Confidential Information which:
20.1.1 is or becomes generally available to the public other
than as a result of a breach of this Clause 20;
20.1.2 is acquired from a third party who owes no obligation of
confidence to the disclosing party in respect of the
Confidential Information;
20.1.3 is independently developed by the receiving party
without the use of the disclosing party's Confidential
Information;
20.1.4 the receiving party is required by law to disclose;
20.1.5 is already known by the receiving party at the time of
its receipt (as evidenced by its written records); or
20.1.6 is agreed by the Client and Exult Supplier from time to
time to be excluded.
Provided always that:
20.1.7 the onus shall be on the party disclosing the
information pursuant to Clauses 20.1.1 to 20.1.6 to
prove through the use of documentary evidence that the
information fell within one of Clauses 20.1.1 to 20.1.6
otherwise than through unauthorised disclosure by that
party; and
20.1.8 if either party (the "disclosing party") is required to
make a disclosure in accordance with Clause 20.1.4, it
will, if it is not prohibited by law from doing so,
provide the other party with prompt notice of any such
requirement or request to disclose any such Confidential
Information so that the non disclosing party may seek an
appropriate order. The disclosing party shall provide
the other party with all necessary assistance in any
action taken by the other party to obtain an appropriate
order including an order providing that the information
does not have to be disclosed, an appropriate protection
order or other reliable assurance that confidential
treatment will be accorded the information that the
disclosing party is required to disclose.
20.2 Any party disclosing any Confidential Information to any agent
or subcontractor shall obtain or have obtained from the
authorised agent or subcontractor a signed confidentially
undertaking which the party disclosing reasonably believes
offers adequate protection in relation to the matters contained
in Clause 20.1. The parties agree that no
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Confidential Information will be disclosed after the expiry or
termination of this Agreement unless such Confidential
Information comes within one of the exceptions in Clauses 20.1.1
to 20.1.6.
20.3 Upon the expiration or termination of this Agreement, all
Confidential Information made available by one party to the
other pursuant to this Agreement, including any copies thereof,
shall be either returned to the disclosing party or destroyed
pursuant to the request of such disclosing party. The Client and
Exult Supplier may retain, however, subject to the terms of this
Clause 20 and Clause 19 (Intellectual Property Rights), copies
of the Confidential Information required for, in the case of
Exult Supplier compliance with applicable laws, professional
standards or quality assurance purposes, and in the case of BPA
their continuing operations or internal business purposes.
20.4 The obligations of each party in relation to Confidential
Information contained in this Clause 20 shall survive the
termination or expiry of this Agreement indefinitely.
20.5 Each party shall procure that its employees, subcontractors,
agents and Affiliates comply with this Clause 20 and shall, at
the request of the other party provide appropriate assurance of
such compliance and for the avoidance of doubt, Clause 12
(Audit) shall apply to such obligation.
21 DATA PROTECTION AND SECURITY
21.1 Each party shall and shall procure that its Affiliates comply in
all respects with the data processing obligations contained in
Schedule Q and with all relevant laws relating to the holding,
processing and protection of data.
21.2 Exult Supplier shall maintain the integrity of all Client
Information and keep such information logically separate from
any information and/or data relating to third parties and shall
procure that such information shall not be disclosed to any
third party. Such information shall be used solely for the
purposes of providing the Services and Exult Supplier shall
procure that no third party shall obtain access to such
information at any time other than its authorised Employees and
Subcontractors and other third parties with the Client's prior
consent.
21.3 If Exult Supplier becomes aware that it has received Client
Information which is not required to provide the Services, Exult
Supplier shall promptly inform the Client and return such
information to the Client on request without keeping copies of
the same.
21.4 Client Information shall remain the property of BPA or the
respective BPA Affiliates, as the case may be. Exult Supplier
shall provide BPA and/or the Participating Affiliates, as the
case may be, with a copy of any part of the Client Information
that BPA and/or the Participating Affiliates may, from time to
time, reasonably demand.
21.5 Exult Supplier shall and shall procure that its Employees and
Subcontractors shall develop, document and implement and at all
times maintain reasonable safeguards against the theft,
destruction, loss, wrongful use, disclosure, corruption or
alteration of
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Client Information in the possession or within the control or
responsibility of Exult Supplier, which safeguards are subject
to the Client's review and audit and which are at levels no less
rigorous than the safeguards maintained by the Client
immediately prior to the Commencement Date as such levels are
established by each Due Diligence Exercise or as otherwise
agreed by the Client and Exult Regional Project Leaders.
21.6 Exult Supplier shall use reasonable endeavours to prevent
computer viruses from being introduced by the Employees and
Subcontractors onto or into any of the IT and communications
equipment used by Client, the Participating Affiliates and their
respective employees, agents or contractors.
22 CONTRACT AND SERVICE MANAGEMENT
22.1 MANAGEMENT OF SERVICES
The Client and the Exult Supplier will manage their
relationship, including the provision of the Services, in
accordance with the Global Governance Arrangements set out in
Schedule P.
22.2 [***]*
22.2.1 [***]*
22.2.2 [***]*
22.2.3 [***]*
22.2.4 [***]*
22.2.5 [***]*
22.3 SERVICE PERFORMANCE REPORTS
Service Performance Reports will be prepared by the Exult
Country Representative and shall include information, as
applicable, on the RSLs, KPIs, KPI Failures, Key Incidents and
the procedures followed in relation to them and shall set out
the measures required to reduce the likelihood of a recurrence
of the relevant KPI Failure and/or Key Incidents.
Service Performance Reports shall be issued by Exult Supplier:
(i) monthly to the BPA Country Representative to cover
information relating to the previous month; and
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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(ii) each calendar quarter to the Regional Governance Panel
to cover information relating to the previous calendar
quarter.
22.4 KEY INCIDENT REPORTING
22.4.1 The Country Representatives shall report all Key
Incidents promptly to the Regional Governance Panel.
22.4.2 The purpose of reporting Key Incidents is to:
(i) bring incidents quickly to the attention of
Exult Supplier's and the Client's management;
and
(ii) highlight areas of control weakness, initiate
procedures reviews and generate action to remedy
control weaknesses identified
22.4.3 The reporting of Key Incidents does not replace or
supersede, but shall be in addition to, the normal
reporting (including the provision of Service
Performance Reports under Clause 22.3) and updating of
appropriate management of routine work incidents.
22.5 SATISFACTION SURVEYS
22.5.1 Exult Supplier shall prepare customer satisfaction
surveys and management satisfaction surveys on a
frequency and basis to be agreed by the Regional
Governance Panel.
22.5.2 Customer satisfaction surveys and management
satisfaction surveys shall be submitted to the Regional
Governance Panel by the Country Representatives and the
results of such surveys shall be summarised in the
relevant Service Performance Report.
22.6 CONTINUOUS IMPROVEMENT
22.6.1 Exult Supplier recognises that it has an obligation
under this Agreement to maintain continuous improvement
in the Service Delivery Model used in the provision of
the Services on an ongoing basis in order to establish
and maintain a position as a market leader and to
continue efficient and effective use of developing
processes and technologies.
22.6.2 In addition to the benchmarking exercises referred to in
Clause 22.2, Exult Supplier shall report to the Client
on an annual basis its strategy plans to achieve
continuous improvement referred to in Clause 22.6.1.
22.6.3 To the extent that the parties agree particular Projects
are appropriate to maintain continuous improvement,
these shall be dealt with under Change Control
Management process, provided that the parties recognise
Exult
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Supplier should only bear an equitable proportion of the
costs of any developments which will be used by Exult
Supplier in the provision of services to other clients,
including those clients which Exult Supplier provides
services to from the Client Service Centre.
23 CONTRACT MINIMUMS
23.1 Contract Minimums for each Contract Minimum Year shall be
established in accordance with this Clause 23.
23.2 The Contract Minimum for:
23.2.1 [***]*
23.2.2 [***]*
23.3 Prior the commencement of each calendar quarter in each Contract
Minimum Year, the Client may give Exult Supplier [***]* of a
proposed reduction in the Contract Minimums to take account of
reductions in the Client's requirements for Services.
23.4 This Clause 23 applies to situations which result in an actual
reduction in the Client's requirement for Services and, for the
avoidance of doubt, the Client may not assume responsibility
internally for services equivalent to the Services or appoint a
third party to provide services equivalent to the Services
pursuant to the terms of this Clause 23.
23.5 [***]* prior to the end of each Contract Minimum Year, the
Regional Governance Panel shall meet to assess the impact,
including the impact on the Charges for the then current
Contract Minimum Year, of the reductions in the Client's
requirements for Services notified in accordance with Clause
23.3 above. Subject to Clause 23.6, the Regional Governance
Panel shall agree a decrease in the Contract Minimum for the
succeeding Contract Minimum Year which is proportionate with the
actual reduction in Charges arising from the events and in the
event that the Regional Governance Panel cannot agree on the
amount of the decrease the matter shall be referred to an Expert
to be appointed in accordance with Clause 29.2.
23.6 In no event shall a Contract Minimums be reduced by more than
[***]*
23.7 In the event that the impact of reductions in the Client's
requirements for Services as reviewed under Clause 23.5 is or
would be to reduce the Contract Minimum for the succeeding
Contract Minimum Year [***]* the matter will be referred by
either party to the Regional Governance Panel under Clause 18 of
the Framework Agreement (Contract Minimums) to reassess the
impact of such reduction across the relevant CSC Group.
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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The decision of the Regional Governance Panel (or Expert
determination as the case may be) made pursuant to Clause 18 of
the Framework Agreement shall be implemented hereunder.
24 WARRANTIES
24.1 Exult Supplier hereby represents and warrants to the Client
that:
24.1.1 INCORPORATION AND EXISTENCE It is duly constituted,
organised and validly existing under its laws of
incorporation.
24.1.2 POWER AND AUTHORITY It has the legal right and full
power and authority to execute and deliver, and to
exercise its rights and perform its obligations under,
this Agreement and all the documents which are to be
executed by it as envisaged by this Agreement.
24.1.3 CORPORATE ACTION All corporate action required by it to
authorise the execution and delivery of, and to exercise
its rights and perform its obligations under this
Agreement and all other documents which are to be
executed by it as envisaged by this Agreement has been
or will be taken.
24.1.4 ASSURANCE Nothing contained in this Agreement will:
(i) result in a breach of any provision of its
constitutional documents; or
(ii) result in a breach of any agreement, licence or
other instrument, order, judgment or decree of
any Court, governmental agency or regulatory
body to which it is bound.
24.2 YEAR 2000 AND EMU COMPLIANCE
24.2.1 Subject to Clause 24.2.2, Exult Supplier makes no
warranties in respect of Year 2000 or EMU Compliance in
respect of Services or Projects or other activities
carried out under this Agreement and the Client or BPA
and the BPA Affiliates shall be solely responsible for
its and their Year 2000 and EMU Compliance.
24.2.2 Exult Supplier warrants that Future Systems and Exult
Proprietary Systems are Year 2000 Compliant and EMU
Compliant and that it has used and shall continue to use
reasonable endeavours to ensure that other Exult Systems
are Year 2000 Compliant and EMU Compliant, including
wherever practicable obtaining appropriate warranties
from the third party providers and providing the Client
with the benefit of such warranties.
24.2.3 Exult shall not be in breach of the warranties in Clause
24.2.2 to the extent that any failure of the Exult
Proprietary Systems and Future Systems to be Year 2000
Compliant or EMU Compliant is caused by data, interfaces
with third party systems including BPA Systems, other
than Exult Systems and software, in
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each case, which are not Year 2000 Compliant or EMU
Compliant.
24.3 The Client hereby represents and warrants to Exult Supplier
that:
24.3.1 INCORPORATION AND EXISTENCE It is duly incorporated,
organised and validly existing under its law of
incorporation.
24.3.2 POWER AND AUTHORITY It has the legal right and full
power and authority to execute and deliver, and to
exercise its rights and perform its obligations under
this Agreement and all the documents which are to be
executed by it as envisaged by this Agreement.
24.3.3 CORPORATE ACTION All corporate action required by it to
authorise the execution and delivery of, and to exercise
its rights and perform its obligations under this
Agreement and all other documents which are to be
executed by it as envisaged by this Agreement has been
or will be taken.
24.3.4 ASSURANCE Nothing contained in this Agreement will:
(i) result in a breach of any provision of its
constitutional documents; or
(ii) result in a breach of any agreement, licence or
other instrument, order, judgment or decree of
any Court, governmental agency or regulatory
body to which it is bound.
24.4 Each of the Client and Exult Supplier undertakes to perform its
obligations under this Agreement in compliance with all
applicable laws, enactments, orders and regulations.
24.5 Except as expressly stated in this Agreement, all warranties and
conditions, whether express or implied by statue, common law or
otherwise are hereby excluded to the extent permitted by law.
25 LIMITATION ON LIABILITY
25.1 Neither party shall limit or exclude its liability to the other
in respect of (i) death or personal injury caused by its
negligence or the negligence of its employees acting in the
course of their employment; (ii) for any fraudulent
misrepresentation, including fraudulent pre-contractual
misrepresentation made by a party on which the other party can
be shown to have relied when entering into this Agreement; and
(iii) any other liability which by law cannot be excluded.
25.2 Subject to Clauses 25.1, 25.3 and 25.4 each party's liability to
the other under this Agreement in respect of a claim arising out
of this Agreement shall be limited to an amount equal to [***]*.
Where an event which gives rise to a claim occurs during the
initial
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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16 months of this Agreement each party's liability to the other
shall be limited to [***]* established in accordance with the
provisions of Schedule C, (Charges and Invoicing).
25.3 Each party's aggregate liability to the other during the term of
this Agreement for all claims arising out of this Agreement
shall be limited to an amount equal to [***]*. For the purposes
of calculating the Charges under this Clause 25.3, [***]* that
the limitation in this Clause 25.3 at any time shall not require
the repayment of sums paid or payable in respect of claims in
any earlier period.
25.4 Each party's liability to the other for all claims arising under
this Agreement in respect of any Project shall, unless agreed
otherwise agreed in accordance with the procedure set out in
Schedule H, (Projects), be limited to [***]*.
25.5 Subject to Clause 25.7, neither party shall be liable to the
other for any consequential or indirect loss or damage suffered
by the other party in connection with this Agreement.
25.6 Neither party shall be liable to the other for loss of profits,
loss of revenue, loss of goodwill or loss or failure to make any
anticipated savings.
25.7 In respect of the Client, the Client's re-establishment costs,
and in respect of Exult Supplier, the categories of cost
identified in Schedule C in relation to termination, such costs
are not considered consequential or indirect loss.
25.8 The limitations set out in Clauses 25.2 to 25.7 shall not apply
with respect to:
(i) Indemnities (including those set forth in Schedule J);
(ii) Payment under Letter of Credit (as described in Clause
22 of the Framework Agreement);
(iii) Payment under designated insurance policies (as
described in the Clause 22 of the Framework Agreement);
(iv) Client's obligation to pay, including with respect to
Early Termination Charges;
(v) Liabilities arising from the breach of the
confidentiality provisions under this Agreement;
(vi) Payment of Charges and Service Credits.
25.9 Subject to Clauses 34.12 (Legal Proceedings) and 34.13
(Equitable Remedies) the parties recognise that damages are the
only remedy available under this Agreement and, to the extent
permissible by law, the limits under this Clause are the
absolute limit of each party's liability arising under or in
connection with this Agreement. All other liability is expressly
excluded.
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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25.10 LIMITATIONS ON PARTICIPATING AFFILIATES' CLAIMS
25.10.1 The following represents the limit of all claims or
actions that may be made pursuant to this Agreement
relative to Participating Affiliates:
(i) subject to the terms of this Clause 25.10, the
Client shall have the right to bring actions
against Exult Supplier in respect of such
Participating Affiliates for Losses suffered by
the Participating Affiliates in respect of the
Services or this Agreement;
(ii) the Client shall wherever reasonably practicable
consolidate actions against Exult Supplier for
Losses suffered by Participating Affiliates in
respect of each alleged default; and
(iii) the Participating Affiliates' Losses shall be
deemed the direct Losses of the Client, but all
such Losses shall be subject to the exclusions
and limitations set out in this Agreement.
25.10.2 The Client shall procure that:
(i) the Participating Affiliate will not make any
claim or be a party to any claim or other action
against Exult Supplier, Exult or an Exult
Affiliate or their employees, offices or
directors arising from or in connection with
this Agreement; and
(ii) the Participating Affiliate will direct all
communications regarding this Agreement through
and to the Client and not to Exult Supplier.
25.10.3 The Client is fully responsible for the performance of
all its obligations under this Agreement with respect to
the Services provided to such Participating Affiliates.
25.10.4 Nothing in Clause 25.10.1, 25.10.2 or Clause 25.10.3
relieves the Client of its obligations or expands Exult
Supplier's obligations under this Agreement.
26 INDEMNITIES AND DEFENCE OF CLAIMS
26.1 INDEMNIFICATION BY EXULT SUPPLIER
Subject to Clause 26.5, Exult Supplier shall indemnify and keep
indemnified the Client, BPA, the Participating Affiliates and
its and their respective officers, directors, employees, agents,
successors and assigns (each, an "Indemnified BPA Party") from
and against any and all Losses arising in connection with this
Agreement from any of the following:
26.1.1 a claim by a BPA Third Party arising from the death or
illness of or personal injury to any BPA Third Party or
from any damage to any real or tangible personal
property of any BPA Third Party arising directly from
and to the extent
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of the negligent act or omission of Exult Supplier, an
Exult Participating Affiliate or its and their
respective employees, officers, agents or
subcontractors;
26.1.2 a claim by a BPA Third Party arising from the death or
illness of or personal injury to any employee of Exult
Supplier or of an, Exult Participating Affiliate or to
any employee of their respective agents, or
subcontractors or arising from any damage to any real or
tangible personal property of any employee of Exult
Supplier or of, an Exult Participating Affiliate or of
any employee of their respective agents, or
subcontractors, in each case, notwithstanding that such
claim arose from the negligence of an Indemnified BPA
Party;
26.1.3 a claim by a third party other than a BPA Affiliate to a
Third Party Contract where such claim arises in
connection with a breach of Exult Supplier's or Exult
Participating Affiliate's obligations under or relating
to such Third Party Contract assumed by Exult Supplier
or the relevant Exult Participating Affiliate pursuant
to obtaining consents in respect of such Third Party
Contract to enable Exult Supplier or the relevant Exult
Participating Affiliate to provide the Services; and
26.1.4 a claim by a BPA Third Party arising from and directly
connected with the breach of any law, rule, regulation
or order, where such breach arises directly from the
negligent act or omission of Exult Supplier, an Exult
Participating Affiliate or its and their respective
employees, officers, agents or subcontractors.
26.2 INDEMNIFICATION BY BPA
Subject to Clause 26.5, the Client shall indemnify and keep
indemnified Exult Supplier, the Exult Participating Affiliates
and its and their respective officers, directors, employees,
agents, successors and assigns (each, an "Indemnified Exult
Party") from and against any and all Losses arising in
connection with this Agreement from any of the following:
26.2.1 a claim by an Exult Third Party arising from the death
or illness of or personal injury to any Exult Third
Party or from any damage to any real or tangible
personal property of any Exult Third Party arising
directly from and to the extent of the negligent act or
omission of the Client, a Participating Affiliate or its
and their respective employees, officers, agents, or
subcontractors;
26.2.2 a claim by an Exult Third Party arising from the death
or illness of or personal injury to any employee of the
Client, or of a Participating Affiliate or to any
employee of their respective agents or subcontractors or
arising from any damage to any real or tangible personal
property of any employee of the Client or of, a
Participating Affiliate or of any employee of their
respective agents or subcontractors, in each case,
notwithstanding that such claim arose from the
negligence of an Indemnified Exult Party;
26.2.3 a claim by a third party other than an Exult Affiliate
to an Exult Third Party
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Contract where such claim arises in connection with a
breach of the Client's or Participating Affiliate's
obligations under or relating to such Exult Third Party
Contract assumed by the Client or the relevant
Participating Affiliate pursuant to obtaining consents
in respect of such Exult Third Party Contract obtained
on the termination or expiry of the relevant Country
Agreement;
26.2.4 a claim by an Exult Third Party arising from and
directly connected with the breach of any law, rule,
regulation or order, where such breach arises directly
from the negligent act or omission of the Client, a
Participating Affiliate or its and their respective
employees; and
26.2.5 a claim by an Exult Third Party where such Exult Third
Party:
(i) is an employee or former employee of the Client
or of a BPA Affiliate to the extent such claim
relates to the period such employee or former
employee was employed by the Client or a BPA
Affiliate (except to the extent that such claim
is covered by the indemnity provisions set forth
in Schedule J of this Agreement);
(ii) is a beneficiary under any Client or BPA
Affiliate employee related benefits plans,
programmes or schemes to the extent that such
claim relates to such plans, programmes or
schemes; or
(iii) has a fiduciary role or responsibility in
relation to any the Client or BPA Affiliate's
employee related benefit plans, programmes or
schemes to the extent such claim relates to such
role or responsibility,
in each case, except to the extent that such claim
results from the negligence of Exult Supplier, an Exult
Participating Affiliate, or its or their respective
employees, officers, agents or subcontractors.
26.3 INDEMNIFICATION BY EXULT SUPPLIER WITH RESPECT TO INTELLECTUAL
PROPERTY
26.3.1 Subject to Clause 26.5, Exult Supplier shall indemnify
and keep indemnified the Client, its Affiliates and
their respective officers, directors, employees and
agents, from and against all reasonable costs and
expenses (including the amount of any damages awarded by
a court of competent jurisdiction) which the Client may
incur as a result of defending or settling any claim by
a third party that the Client's use or possession of any
of the Exult Proprietary Systems is unauthorised or
infringes the Intellectual Property rights of any third
party.
26.3.2 In the event of any such claim being made, the Client
shall notify the Exult Regional Representative as soon
as practicable upon becoming aware of the same and,
subject to being indemnified, at the request of Exult
Supplier, grant Exult Supplier sole conduct of the claim
and provide to Exult Supplier all reasonable assistance
in the conduct of the claim, provided that in conducting
the claim Exult Supplier shall minimise the disruption
to the business of BPA
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and the Participating Affiliates, including the use of
the Exult Supplier Intellectual Property, as the case
may be.
26.3.3 No liability shall exist under this Clause 26.3 to the
extent that any such claim arises solely from:
(i) the use by the Client and/or the Participating
Affiliates of the relevant Exult Systems, Future
Systems or Work Product for purposes not
connected with the provision of the Services or
services equivalent to the Services in the
Country in which those Services are being
provided or as otherwise authorised;
(ii) any modification of the relevant Exult Systems,
Future Systems or Work Product by or on behalf
of the Client and/or the Participating
Affiliates to which Exult Supplier or the third
party, as the case may be, has not given its
consent; or
(iii) use of the relevant Exult Systems, Future
Systems or Work Product in connection with
materials or data supplied by the Client.
26.3.4 In the event that the Client's use or possession of any
part of the Exult Systems, the Future Systems or Work
Product is held to be unauthorised or to infringe any
third party Intellectual Property rights, then Exult
Supplier shall at its own expense and at the Client's
option:
(i) obtain for the Client a licence or such other
right to continue to use that System or Work
Product or part thereof; or
(ii) replace or modify such part so as to avoid or
rectify the unauthorised use or infringement
without significant interruption or degradation
in performance of that System or the Services,
provided that the Client shall provide Exult Supplier
with all reasonable assistance (at the cost of Exult
Supplier) to enable Exult Supplier to so do.
26.4 INDEMNIFICATION OF EXULT IN RELATION TO INTELLECTUAL PROPERTY
26.4.1 Subject to Clause 26.5, the Client shall indemnify and
keep indemnified Exult Supplier from and against all
reasonable costs and expenses (including the amount of
any damages awarded by a court of competent
jurisdiction) which Exult Supplier may incur as a result
of defending or settling any claim by a third party that
Exult Supplier's use of any of the Client Systems which
has been authorised by the Client is unauthorised or
infringes the Intellectual Property rights of any third
party.
26.4.2 In the event of any such claim being made, Exult shall
notify the BPA Regional Representative as soon as
practicable upon becoming aware of the claim and,
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subject to being indemnified at the request of the
Client, grant BPA or the Client sole conduct of the
claim and provide to the Client all reasonable
assistance in the conduct of the claim.
26.4.3 No liability shall exist under Clause 26.4 to the extent
that any such claim arises from:
(i) the use by Exult Supplier of the relevant Client
System for purposes not connected with the
provision of the Services in the Country in
which the Services are provided; or
(ii) any modification of the Client System by or on
behalf of Exult Supplier to which the Client has
not given its consent.
26.4.4 In the event that Exult Supplier's use of any part of
the Client Systems is held to be unauthorised or to
infringe any Intellectual Property rights relating
thereto, then the Client shall at its own expense:
(i) obtain for Exult Supplier a licence or such
other right to continue to use that System; or
(ii) replace or modify such part so as to avoid or
rectify the unauthorised use or infringement,
provided that Exult Supplier shall provide the Client
with all reasonable assistance to enable the Client to
so do.
26.5 DEFENCE OF CLAIMS
26.5.1 Each party will defend and procure the relevant
Affiliate to defend any claim brought or threatened
against the other party to the extent that such claim is
or may be subject to the indemnity contained in Clauses
26.1, 26.2, 26.3 and 26.4 (the party providing such
defence, the "Indemnifying Party" and the party entitled
to such defence, the "Indemnified Party"). The
Indemnifying Party will bear the expense of such defence
and pay any damages and legal fees finally awarded by a
court of competent jurisdiction which are attributable
to such claim.
26.5.2 The Indemnified Party shall notify the Indemnifying
Party of any claim under Clauses 26.1, 26.2, 26.3 and
26.4 within 30 days (or such shorter period as may be
required to respond to a third party claim) after
receipt of notice. The Indemnifying Party required to
indemnify the Indemnified Party under this Agreement
shall have no obligation for any claim under this Clause
26.5 to the extent that the defence of such claim is
prejudiced by such failure if:
(i) the Indemnified Party fails to notify the
Indemnifying Party of such claim as provided
above;
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(ii) the Indemnified Party fails to tender control of
the defence of such claim to the Indemnifying
Party; or
(iii) the Indemnified Party fails to provide the
Indemnifying Party with all reasonable
cooperation in the defence of such claim (the
cost thereof to be borne by the Indemnifying
Party).
26.5.3 The Indemnifying Party shall have no obligation for any
claim under this Agreement if the Indemnified Party
makes any admission or settlement regarding such claim
without the prior written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld
or delayed. Notwithstanding the foregoing sentence, the
Indemnifying Party may settle any claim involving only
the payment of money by the Indemnifying Party.
26.5.4 The Indemnified Party shall have the right (but not the
obligation) to participate in such defence or settlement
(and in the case of any proposed settlement of a claim
which does not involve only the payment of money, the
Indemnifying Party shall obtain the prior written
consent of the Indemnified Party to such settlement,
such consent not to be unreasonably withheld or
delayed), in which event the Indemnified Party shall pay
its attorneys' fees associated with such participation.
26.5.5 In conducting the defence of the claim the Indemnifying
Party shall liaise with the Indemnified Party and keep
the Indemnified Party informed as to the progress of the
action and shall take into account the requirements and
requests of the Indemnified Party and in particular
shall not make any public statement relating to the
action without the Indemnified Party's prior written
consent and shall not do anything which could
potentially adversely prejudice the reputation or
goodwill of the Indemnified Party or its Affiliates.
26.6 SURVIVAL OF RIGHTS
All indemnities, and exclusions and limitations of liability
contained in this Clause 26 and elsewhere in this Agreement
shall remain binding on the parties hereto, notwithstanding the
expiry or termination of this Agreement.
27 INSURANCE
Exult Supplier shall inform the Client immediately in the event that it
becomes aware that insurance cover as required under Clause 22 of the
Framework Agreement is not in place and in such event shall itself
obtain the appropriate insurance to the extent that this relates to this
Agreement.
28 RECOVERY OF DAMAGE AWARDS
28.1 In the event that the parties cannot agree as to whether there
is a default or as to the amount to be paid to either party in
connection with any default by the other party under
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this Agreement, the matter shall be resolved pursuant to the
Dispute Resolution Procedure in accordance with Clause 29.3.
28.2 In the event that it is agreed, or determined pursuant to Clause
28.1, that Exult Supplier is liable to pay an Award to the
Client, the mechanism for recovering such Award shall be as
follows:
28.2.1 Exult Supplier shall first seek to recover the Award
under any relevant insurance policy maintained by Exult
pursuant to Clause 22 of the Framework Agreement
(Insurance) and pay the Award recovered to the Client;
28.2.2 if the Award is not paid to the Client pursuant to
Clause 28.2.1 within 30 days of it being agreed or
determined that an Award is payable, the Client (or BPA
acting on its behalf) shall be entitled to seek to
recover the Award directly under the indemnity to
principal provision contained in any relevant insurance
policy maintained by Exult in accordance with Clause 22
of the Framework Agreement (Insurance).
28.2.3 If the Award is not paid pursuant to Clause 28.2.1 or
Clause 28.2.2, the Client shall provide Exult Supplier
with [***]* notice within which Exult Supplier shall pay
the Award to the Client.
28.2.4 Subject to the provisions of Clause 23 of the Framework
Agreement (Letter of Credit), if the Award is not paid
pursuant to Clauses 28.2.1, 28.2.2 or 28.2.3 within the
expiry of the [***]* notice period in Clause 28.2.2,
then BPA shall have the right, but not the obligation to
make a demand under the Letter of Credit.
28.2.5 Exult Supplier shall not be entitled to seek to recover
under any insurance policy maintained pursuant to Clause
22 of the Framework Agreement (Insurance) in order to
satisfy any indemnity claim or obligation or to seek to
recover any Award made in connection with indemnity
provisions other than claims, obligations or Awards made
in connection with Clauses 26.1.1 and 26.1.2.
28.3 In respect of an Award or other indemnity claim or obligation
that the Client is liable to pay to Exult Supplier, the Client
shall not be entitled to seek to recover under any insurance
policy maintained pursuant to Clause 22 of the Framework
Agreement (Insurance) in order to satisfy any indemnity claim or
obligation or to recover any Award made in connection with
indemnity provisions other than claims, obligations or Awards
made in connection with Clauses 26.2.1 and 26.2.2.
- ----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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29 DISPUTE RESOLUTION
29.1 INFORMAL DISPUTE RESOLUTION
Prior to the initiation of dispute resolution procedures
pursuant to Clause 29.2 and 29.3, the parties shall attempt to
resolve any Dispute informally, as follows:
29.1.1 Upon the request of either Country Representative, in
the case of a Dispute which has not been resolved, or
cannot be resolved by the Country Representatives within
[***]* that Dispute shall be referred to the Regional
Governance Panel.
29.1.2 If the Regional Governance Panel is unable to resolve
the Dispute within [***]* after it is submitted to the
Regional Governance Panel, then the Dispute will be
referred to the Global Governance Panel. The Global
Governance Panel shall use its best efforts to resolve
such Dispute.
29.1.3 If the Global Governance Panel is unable to resolve the
Dispute within [***]* after it is submitted to the
Global Governance Panel (or such later time as may be
agreed by the Global Governance Panel), then the Dispute
shall be referred to the Exult Chief Executive Officer
and the BPA Vice President Group HR.
29.1.4 If the BPA Vice President Group HR and the Exult Chief
Executive Officer have not been able to resolve the
Dispute within [***]* of the matter having been referred
to them (or such later date as they may agree), the
Dispute shall be referred to Expert Decision or
Arbitration (as the case may be) in accordance with the
provisions of this Agreement.
29.1.5 During the course of any discussions in accordance with
this Clause 29, all reasonable requests made by one
party to the other for information will be honoured in
order that the parties may be fully advised of each
other's position. Any Confidential Information disclosed
will be treated by the recipient in accordance with
Clause 20 (Confidentiality).
29.1.6 Unless the Agreement specifies otherwise, all Disputes
shall be referred to the informal Dispute Resolution
Procedure and thereafter to Arbitration pursuant to
Clause 29.3.
29.1.7 Only the informal Dispute Resolution Procedures set out
in Clause 29.1 can apply where the parties fail to agree
to carry out a new or Project or project or to make a
substantial or material change to the Agreement or any
Service or any provision specified in the Agreement as
being an agreement to agree.
29.2 EXPERT DECISION
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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29.2.1 Where a Dispute is designated in this Agreement as
appropriate for Expert Decision it shall be referred for
determination to an Expert nominated either jointly by
the parties, or failing agreement between them within
the time stated in this Agreement or, where no time is
stated, within 10 working days, on the application of
the Client or Exult Supplier, to:
(i) the Institute of Electrical Engineers for any
issue involving software, hardware, or systems;
(ii) the Institute of Chartered Accountants for
England and Wales for any issue involving
finance, accounting and tax; and
(iii) the Institute of Personnel and Development
Management for any issue involving human
resources polices and practices that cannot be
referred to an appropriate Expert under Clause
29.2.1(i) and (ii).
29.2.2 The parties agree:
(i) to supply the Expert with the assistance,
documents and information he/she requires for
the purpose of his/her determination;
(ii) that in all cases, the terms of appointment of
the Expert shall include a requirement on the
Expert to give his/her determination with 21
days or such other period as may be agreed, to
hold professional indemnity insurance for both
then and for 3 years following the date of
his/her determination and to establish his/her
own reasonable procedures to enable him to give
his determination; and
(iii) that in considering any issue relating to the
KPIs the Expert shall take into account the
performance levels of service achieved by the
Client.
29.2.3 The Expert's Decision is final and binding on the
parties in the absence of negligence, manifest error or
bad faith. The Expert acts as an expert and not an
arbitrator and the Expert's Decision is not a
quasi-judicial procedure. Save as provided elsewhere in
this Agreement, each party shall bear its own costs and
the costs of the Expert shall be borne equally between
the parties.
29.3 ARBITRATION
29.3.1 Subject to any other terms of this Agreement, if any
Dispute, which is designed as a Dispute to be referred
to Arbitration, arising in connection with this
Agreement cannot be resolved in accordance with the
provisions of Clause 29.1 it shall be referred to
arbitration at the written request of any party under
the Rules of the International Chamber of Commerce,
which rules are deemed to be incorporated by reference
into this Clause 29.3.
29.3.2 The parties agree that:
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(i) the number of arbitrators shall be three;
(ii) the place of the arbitration shall be London;
(iii) the language to be used in the arbitration
proceedings shall be English; and
(iv) the ruling of the arbitrators on the Dispute
shall be final and binding.
30 FORCE MAJEURE
30.1 Subject to Clause 30.2, neither party shall be liable to the
other for any Loss of any kind whatsoever, including but not
limited to any damages, whether directly or indirectly caused to
or incurred by the other party to the extent such Loss arises by
reason of any failure or delay in the performance of its
obligations hereunder which is due to Force Majeure.
30.2 The party claiming to be prevented or delayed in the performance
of any of its obligations under this Agreement by reason of
Force Majeure shall use reasonable endeavours to continue to
perform its obligations under this Agreement without being
obliged to incur any significant additional cost to bring the
Force Majeure to a close or to find a solution by which the
Agreement may be performed despite the continuance of the Force
Majeure circumstances.
30.3 If either party shall become aware of circumstances of Force
Majeure which give rise to or which are likely to give rise to
any such failure or delay on its part, it shall forthwith notify
the other by the most expeditious method then available and
shall inform the other of the period which it is estimated that
such failure or delay may continue. If Force Majeure continues
for seven days or longer the Global Governance Panel shall be
notified by the party affected by such Force Majeure and
requested to decide upon a course of action.
30.4 It is agreed that any failure by a party to perform or any delay
by a party in performing its obligations under this Agreement
which results from any failure or delay in the performance of
its obligations by any person, firm or company with which such
party shall have entered into any contract, supply arrangement
or sub-contract or otherwise shall be regarded as a failure or
delay due to Force Majeure only in the event that such person,
firm or company shall itself be prevented from or delayed in
complying with its obligations under such contract, supply
arrangement or sub-contract or otherwise as a result of
circumstances which would be Force Majeure for the purposes of
this Agreement.
31 ASSIGNMENT
31.1 Exult Supplier shall not be entitled to and shall not assign,
novate or otherwise transfer this Agreement, in whole or in
part, without the Client's prior written consent.
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31.2 The Client shall not be entitled to assign, novate or transfer
this Agreement or any part of it without Exult Supplier's prior
written consent save that the Client may assign, novate or
otherwise transfer this Agreement in whole or in part to a BPA
Affiliate, provided that if at any time following such transfer,
assignment or novation the relevant entity ceases to be a BPA
Affiliate the Client shall procure that such entity shall
re-transfer, re-assign or re-novate this Agreement, or the
relevant part of it, to the Client or another BPA Affiliate at
that time.
32 SUBCONTRACTING
32.1 Exult Supplier may employ subcontractors which are Exult
Affiliates and may, subject to the other provisions of this
Clause 32, employ other subcontractors in the provision of any
part of the Services. Subcontractors listed in Schedule M are
approved for the purposes of Clause 32.2.
32.2 Exult Supplier shall not employ subcontractors without the BPA
Regional Commercial Contract Leader's prior written approval
(such approval not to be unreasonably withheld or delayed):
32.2.1 on any occasion where the value of a proposed individual
subcontract is in excess of [***]* per annum; or
32.2.2 where the subcontracted work relates to a Sensitive
Third Party Contract.
32.3 Exult Supplier shall promptly notify the BPA Regional Commercial
Contract Leader if at any time the total value of the
subcontracted work in any twelve month period would be [***]*
32.4 Exult Supplier shall ensure that the Subcontractors are
appropriately skilled and qualified.
32.5 Exult Supplier shall remain liable to the Client in respect of
any such Services provided by Subcontractors.
32.6 Data protection and confidentiality provisions equivalent to
those contained in this Agreement shall be included in any
agreement with Subcontractors entered into by Exult Supplier
pursuant to this Clause 32, provided that in respect of
Subcontractors which are parties to Third Party Contracts which
are assigned or novated to Exult Supplier, Exult Supplier shall
use reasonable endeavours to comply with its obligations under
this Clause relating to such Subcontractors and shall inform the
Client where it has not been possible to fulfil such obligation.
32.7 For the purposes of this Clause 32, Subcontractors shall not
include contract staff whether hired on an individual basis or
through an agency where Exult Supplier
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* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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exercises direction and control over the work of such contract
staff. The BPA Regional Commercial Contract Leader's consent is
not required in relation to Exult Supplier hiring such contract
staff.
32.8 Exult Supplier's use in the ordinary course of business of third
party services or products that are not dedicated solely to the
provision of the Services and that are not material to the
performance of the Services and which do not result in a
material change in the way Exult Supplier conducts its business
will not be subject to the provisions of this Clause 32. If the
Client expresses any concern to Exult Supplier about any such
third party services or products, Exult Supplier shall discuss
such concerns with the Client and work in good faith to resolve
the Client's concerns on a mutually acceptable basis.
32.9 It is understood that no approval given under this Clause 32
shall generate contractual relations between the Client or any
of its Affiliates and any Subcontractor except as expressly
contemplated by this Clause 32.
33 PARTICIPATING AFFILIATES
33.1 Exult Supplier acknowledges that the Client has concluded this
Agreement for the benefit of the Client and the Participating
Affiliates.
33.2 At the request of the Client, Exult Supplier shall at the
Client's expense execute all deeds or other documents required
to enable any Loss incurred or sustained by any Participating
Affiliate recovered pursuant to Clause 25.10 (Limitations on
Participating Affiliates' Claims).
34 GENERAL TERMS
34.1 PUBLICITY
34.1.1 Except with the prior written consent of the other party
each party shall not and shall procure that its
Affiliates shall not make any press or other public
announcements relating to this Agreement, the Framework
Agreement or any other Country Agreement, or disclose
any information relating to the commercial or other
terms of this Agreement, the Framework Agreement or any
other Country Agreement.
34.1.2 It is the intention of the parties that immediately
following the Commencement Date, they will jointly
develop and agree a press release relating to their
relationship under this Agreement and the Framework
Agreement.
34.2 NOTICES
Wherever under this Agreement a party is required or permitted
to give notice to the other party, such notice shall be in
writing and shall be delivered personally, sent by fax, (as
appropriate) recognised express courier service or certified,
registered, or first class mail. Any such notice shall be deemed
given when actually received when so delivered
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personally, by fax or express courier, or if mailed, on the 5th
day after its mailing, postage prepaid to the recipient party
addressed as follows:
In the case of the Client:
Country Representative
Britannic House
1 Finsbury Square
London
EC2M 7BA
BPA Regional Representative
Britannic House
1 Finsbury Square
London
EC2M 7BA
In the case of Exult Supplier:
Exult Country Representative
4 Park Plaza
Suite 350
Irvine
California 92614
Fax: (949) 250 8086
with a copy (which shall not constitute effective notice) to:
Legal Department
4 Park Plaza
Suite 350
Irvine
California 92614
Fax: (949) 250 8086
Any party may change its address for notices upon giving 10
days' prior notice of the change to the other parties in the
manner provided in this Clause 34.2.
34.3 LIMITATION ON RECRUITING
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34.3.1 Subject as hereinafter provided in this Clause 34.3,
each of the Client or Exult Supplier shall not during
the term of this Agreement or within six months of its
termination or expiry employ and/or solicit directly or
indirectly any employees of the other party who have
been involved in providing the Services or are otherwise
connected with this Agreement.
34.3.2 Clause 34.3.1 will not restrict the Client or Exult
Supplier from employing employees of the other party:
(i) who apply unsolicited in response to a general
advertising or other general recruitment
campaign;
(ii) which the party who employed the relevant
employee has agreed in writing may be so
employed; or
(iii) as contemplated in Schedule J of this Agreement.
34.4 WAIVER
34.4.1 Subject to Clause 34.12 (Legal Proceedings) no delay or
omission by either party to exercise any right or power
shall impair such right or power or be construed as a
waiver.
34.4.2 A waiver by either of the parties of any covenants to be
performed by the other party or of any breach shall not
be construed to be a waiver of any succeeding breach or
of any other covenant.
34.4.3 No waiver of any of the provisions of this Agreement
shall be effective unless it is expressly stated to be a
waiver and communicated to the other party in writing in
accordance with the provisions of Clause 34.2 (Notices).
34.5 AMENDMENTS
The terms and conditions of this Agreement shall not be varied
or amended, except by a written instrument executed by or on
behalf of each of the parties in accordance with the Change
Control Management process.
34.6 SEVERABILITY
If any provision of this Agreement is held to be invalid,
unenforceable or void, such decision shall not have the effect
of invalidating or voiding the remainder of this Agreement, and
the parties agree that they shall immediately commence in good
faith negotiations to seek to remedy such invalidity,
unenforceability or illegality.
34.7 COSTS
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Except as expressly otherwise provided for in this Agreement,
each party shall bear its own costs and expenses incurred in
connection with the negotiation and preparation of this
Agreement.
34.8 ENTIRE AGREEMENT
This Agreement shall constitute the entire agreement between the
parties with respect to the subject matter hereof and (to the
extent permissible by law) supersedes all prior representations,
writings, negotiations or understandings with respect thereto
provided that neither party is attempting to exclude any
liability for fraudulent statements including pre-contractual
misrepresentations on which the other party can be shown to have
relied.
34.9 CONFLICT AND INCONSISTENCIES
34.9.1 In the event and to the extent only of any conflict
between the Clauses and the Schedules, the Clauses shall
prevail.
34.9.2 In the event of any inconsistencies between the English
language version of this Agreement and any contract
administration documents prepared in connection
therewith and any translation of such agreements or
documents, the English language version shall prevail.
In the event of any inconsistencies between any
obligations of the parties set out in this Agreement and
the corresponding obligations in any Framework
Agreement, the corresponding obligations in this
Agreement shall prevail.
34.10 SURVIVAL
The terms and conditions of this Agreement which are expressly
or by implication intended to survive its termination or expiry
shall so survive and continue to bind the parties.
34.11 COUNTERPARTS
This Agreement may be executed in two or more counterparts or by
fax, each of which shall be deemed to be an original, but all of
which together shall constitute one agreement binding on all
parties, notwithstanding that all parties are not signatories to
the original or the same counterpart or fax copy.
34.12 LEGAL PROCEEDINGS
Any legal proceedings in relation to this Agreement must be
commenced by the relevant party within 2 years of the
termination or expiry of this Agreement.
34.13 EQUITABLE REMEDIES
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The parties agree that damages shall be the only remedy
available in respect of each parties' liability arising under
this Agreement provided that the parties shall be free to seek
equitable remedies (including injunctive relief) in respect of
breaches of confidentiality and matters relating to the
infringement of Intellectual Property Rights.
34.14 INDEPENDENT CONTRACTOR
In providing Services to the Client under this Agreement, Exult
Supplier is acting only as an independent contractor.
Notwithstanding any provision of this Agreement to the contrary,
this Agreement establishes and shall only be construed as
establishing a contract between unrelated business entities for
the provision and purchase of certain services and does not and
shall not be deemed to create a partnership, joint venture,
agency (except as expressly provided in this Agreement) or any
other type of joint relationship.
34.15 RESPONSIBILITY FOR EMPLOYEES
Employees shall be employees of Exult Supplier or the relevant
Exult Participating Affiliates as appropriate and under no
circumstances other than as provided in Schedule J (Employee
Transfer Arrangements) are Employees to be considered employees
of the Client or any BPA Affiliate. Exult Supplier or the
relevant Exult Participating Affiliate shall have the sole
responsibility for supervision and control of the Employees and
for payment of their entire compensation, including salary,
Withholding Taxes and social security taxes, workers
compensation, employee and disability benefits and the like and
shall be responsible for all employer obligations under all
applicable laws.
34.16 RESTRICTIVE TRADE PRACTICES
Notwithstanding any other provision of this Agreement, no
provision of this Agreement which is of such a nature as to make
this Agreement liable to registration under the Restrictive
Trade Practices Act 1976 shall take effect until the day after
that on which particulars thereof have been duly furnished to
the Director General of Fair Trading pursuant to the said Act.
For the purposes of this Clause 34.16, the expression "this
Agreement" shall include any agreement forming part of the same
arrangement.
34.17 GOVERNING LAW
This Agreement shall be governed and construed in accordance
with the laws of England and Wales.
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In witness whereof this Agreement has been executed the day and year first
written above.
SIGNED BY
---------------------------------
for and on behalf of the Client
in the presence of:
- ---------------------------------
SIGNED BY
---------------------------------
for and on behalf of Exult Supplier
in the presence of:
- ---------------------------------
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INDEX TO SCHEDULES
Schedule A Scope of Services (indicative)
Schedule B Service Levels (indicative)
Schedule C Charges and Invoicing
Schedule D Third Party Contracts
Schedule E Assets
Schedule F Systems
Schedule G Part I Country Transition Plan
Part II Validation Exercise
Schedule H Projects/Projects
Schedule I Part I Key Employees
Part II BPA Key Employees
Schedule J Employee Transfer Arrangements
Schedule L Change Control Management
Schedule M Approved Exult Sub-contractors
Schedule O BPA Business Policies and Controls
Schedule P Global Governance Arrangements
Schedule Q Data Protection
Schedule R BPA Participating Affiliates
Schedule T Process Line Population
Schedule U Escrow Agreement
Schedule Z Definitions
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SCHEDULE Z
DEFINITIONS
1 DEFINITIONS
"ACTIVE SERVICED EMPLOYEE" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"ADDITIONAL AMOUNT" has the meaning ascribed to it in Clause 11.2.5(iii)
(Withholding Taxes);
"ADDITIONAL RESOURCE CHARGES" has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
"AFFECTED PROCESS" has the meaning ascribed to it in Clause 15
(Suspension of a Process);
"AFFILIATE" means in relation to Client a Client Affiliate and in
relation to Exult Supplier an Exult Affiliate;
"AGREEMENT" means the Clauses of and Schedules to this Agreement or any
revised version agreed between the parties in accordance with the terms
of this Agreement;
"ANNUAL WORK UNITS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"ARBITRATOR" or "ARBITRATION" has the meaning ascribed to it in Clause
29.3 (Dispute Resolution);
"AUDITOR" has the meaning ascribed to it in Clause 12.2 (Audit);
"AWARD" means the amount awarded to a party by an Arbitrator pursuant to
Clause 29.3 (Dispute Resolution);
"BASE CHARGE" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"BASELINE" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"BPA AFFILIATE" means any company which is from time to time directly or
indirectly controlled by BPA and for this purpose:
(i) a company is directly controlled by another company beneficially
owning shares carrying the majority of votes at a general
meeting of shareholders (or its equivalent) of the first
mentioned company;
(ii) a particular company is indirectly controlled by a company if a
series of companies can be specified, beginning with that
company and ending with the particular company, so related that
each company in the series is directly controlled by one or more
of the companies earlier in the series; and
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(iii) a company does not include any joint venture whether
incorporated or unincorporated.
"BPA COUNTRY REPRESENTATIVE" means any individual appointed by BPA
pursuant to the Agreement to be a Country Representative in respect of
this Agreement;
"BPA IT POLICY" means the document, describing the policies to be
adopted by the Exult and the Exult Affiliates in relation to the use of
Systems in connection with the provision of the Services, set out in
Schedule O, Part 1 (BPA Policies and Controls);
"BPA KEY EMPLOYEES" means the BPA personnel identified by name and
position in Part II of Schedule I to this Agreement (Employees).
"BPA REGIONAL REPRESENTATIVE" means an individual appointed by Client
pursuant to the Framework Agreement;
"BPA RESPONSIBILITIES" means those actions described in Schedule A which
need to be performed by the Client in order for Exult Supplier to be
able to provide the Services;
"BPA THIRD PARTY" means a third party other than BPA, a BPA Affiliate
and its and their respective agents, subcontractors, officers, directors
and employers;
"CHANGE" means a change to this Agreement or the Framework Agreement
agreed in accordance with the Change Control Management process;
"CHANGE OF CONTROL" shall be deemed to have occurred in relation to any
company ("THE COMPANY") if any Relevant Entity, together with any
Relevant Entity Affiliates:
(i) becomes interested (and, for the avoidance of doubt, was not
previously so interested), directly or indirectly, in more than
50 per cent of the shares of the Company or of the voting rights
attached thereto, including through an initial public offering
of more than 50 per cent of the share capital of the Company; or
(ii) acquires the right to appoint or remove a majority of the board
of directors of the Company
references to a Relevant Entity being "interested" in shares shall mean
interested in those shares for the purposes of Part VI of the Companies
Act 1985.
for the purposes of this definition only "RELEVANT ENTITY AFFILIATE"
means, in relation to any Relevant Entity, any other which is in Control
of, is Controlled by or is under common Control with such Relevant
Entity, "CONTROL" of a person shall mean:
(i) the right, whether direct or indirect, to vote 50 per cent or
more of the securities having the power to elect directors of
such person; or
(ii) the power, whether direct or indirect, to direct the management
or policies of such person.
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"CHANGE CONTROL MANAGEMENT" means the procedure by which changes may be
made to the Agreement pursuant to Clause 9 (Change Control Management
Process) and as further set out in Schedule L (Change Control
Management);
"CHANGE REQUEST" means a request for a Change made in accordance with
the Change Control Management process;
"CHARGES" means the charges payable by the Client in respect of the
Services calculated in accordance with Schedule C (Charges and
Invoicing);
"CLIENT ASSETS" means the goods and other assets which are owned or used
by BPA, a BPA Affiliate or the Client solely to provide the services
equivalent to the Services immediately before the Commencement Date,
including, but not limited to, Client Systems and Third Party Systems
and facilities whether or not the subject of Third Party Contracts and
as identified in Schedule E (Assets), in each case which are required to
be used by Exult Supplier to provide the Services;
"CLIENT INFORMATION" means the information provided by the Client which
comes into the possession of Exult Supplier or the Exult Affiliates or
their subcontractors pursuant to this Agreement, or created under or
arising out of data and records of the Client, BPA or BPA Affiliates
pursuant to this Agreement;"CLIENT INTELLECTUAL PROPERTY" has the
meaning ascribed to it in Clause 19.1 (Intellectual Property Rights);
"CLIENT PREMISES" means any premises of Client Affiliates in the United
Kingdom which the Client or Client Affiliates use to provide services
equivalent to the Services immediately prior to the applicable Country
Commencement Date;
"CLIENT SERVICE CENTRE" means each of the remote service centres to be
established by Exult Supplier;
"CLIENT SYSTEMS" means Systems (or part thereof) in which the
Intellectual Property is owned by either Client or Client Affiliates and
to be used in whole or in part in the provision of the Services as
identified in this Agreement;
"COMMENCEMENT DATE" means the date of execution of this Agreement by
both of the parties to this Agreement;
"CONFIDENTIAL INFORMATION" means all information obtained from the other
party which by its nature should be treated as confidential information
or is marked as such which may come into its possession or into the
possession of its employees, agents or subcontractors as a result of or
in connection with this Agreement and any and all information which may
be derived from such information;
"CONTRACT MINIMUM(s)" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"CONTRACT MINIMUM YEAR" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
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"CONTRACT TRANSFER PLAN" means the plan to be developed and agreed by
the Exult Supplier and the Client relating to the Transfer of a Third
Party Contract to Exult Supplier or the assumption by Exult Supplier of
an administration role in relation to a Third Party Contract;
"CONTROLS" means those business practices (including computer security
provisions, procedures to protect Confidential Information and
procedures to ensure compliance with obligations to third parties in
connection with Exult Supplier's provision of the Services hereunder),
controls, Client policies, quality standards and human resource,
financial and accounting controls necessary for the provision and
receipt of the Services in accordance with this Agreement including:
(i) the Client Business Standards and Policy Document;
(ii) the Client Policy on the Business Conduct and Code of Business
Ethics;
(iii) the Client Disaster Recovery Plan; and
(iv) the BPA IT Policy.
which have been provided or will be provided from time to time to Exult
Supplier in writing and as listed in Schedule O (BPA Policies and
Controls);
"CORPORATE OVERHEAD" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"COUNTRIES" means the Countries in which Client requires Exult Supplier
to procure the provision of services such as the Services pursuant to
the Framework Agreement and "COUNTRY" means any one of them;
"COUNTRY AGREEMENT" means an agreement, substantially in the form set
out in Schedule N of the Framework Agreement, except as varied by or as
necessary to accommodate the relevant applicable laws of each Country or
as agreed by Client and Exult, to be entered into pursuant to the
Framework Agreement by a Participating Affiliate and Exult Participating
Affiliate in relation to the provision of Services to that Participating
Affiliate and any other Client Affiliates and/or Affiliates specified
therein;
"COUNTRY REPRESENTATIVES" means the representatives appointed by each of
the Client and Exult Supplier pursuant to, and having the
responsibilities referred to in Clause 22 (Contract and Service
Management) and "COUNTRY REPRESENTATIVE" means any one of them;
"COUNTRY TRANSITION PLAN" means the plan for the assumption of the
provision of the Service by the Exult Supplier set out in Schedule G
(Transition Plan);
"DECREASES" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"DEFAULT" means any material breach, or series of related or unrelated
persistent breaches which when taken together constitute a material
breach of its material obligations under this Agreement by either party;
"DEVELOPED SYSTEMS" has the meaning ascribed in Clause 19.8.1
(Intellectual Property Rights);
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"DISPUTE" means any dispute, controversy or claim arising under this
Agreement ;
"DISPUTE RESOLUTION PROCEDURE" means the procedure which the parties
agree should be used to resolve Disputes as set out in Clause 29
(Dispute Resolution);
"DUE DILIGENCE COSTS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"DUE DILIGENCE EXERCISE" means the exercise carried out in relation to
each Country in accordance with Clause 4 (Due Diligence) of the
Framework Agreement which includes the production of the Due Diligence
Reports;
"EARLY TERMINATION PAYMENT" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
Exult"EMBEDDED SERVICES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"EMPLOYEE" means any employee of Exult Supplier employed from time to
time wholly or mainly for the purposes of performing Exult Supplier's
obligations under this Agreement;
"EMU COMPLIANCE" means that all financial and accounting software,
screen layouts and hardware, conform with the applicable conversion and
rounding requirements set out in the European Council Regulation 1103/97
and with the use of the euro as a dual and single currency but only to
the extent necessary to meet the business requirements of Client and
Participating Affiliates and where Exult Supplier has been given
reasonable notice of such business requirements;
"ESCROW AGREEMENT" means the agreement substantially in the form of that
contained in Schedule U (Escrow Agreement);
"EUROPE" means countries presently forming the European Union (Austria,
Belgium, Denmark, Finland, Continental France (including Corsica),
Germany, Greece, Ireland, Italy, Luxembourg, The Netherlands, Portugal,
Spain, Sweden and the United Kingdom) together with those territories or
countries presently known as Albania, Andorra, The Azores, Belorussia,
Bosnia, Bulgaria, The Canary Islands, Ceuta, The Channel Islands,
Croatia, Cyprus, The Czech Republic, Estonia, Gibraltar, Hungary,
Iceland, Isle of Man, Latvia, Liechtenstein, Lithuania, Macedonia,
Maderia, Malta, Melilla, Moldavia, Monaco, Norway, Poland, Romania, the
Russian Federation to the west of the Urals, San Marino, The Slovak
Republic, Slovenia, Switzerland, Turkey, Ukraine, Vatican City and The
Yugoslav Republic including such other countries as may be notified to
Exult Supplier in writing from time to time;
"EXISTING IT DOMAIN" means the IT infrastructure and systems
architecture existing at the Commencement Date;
"EXPERT'S DECISION" means the decision of the Expert pursuant to the
procedure described in Clause 29.2 (Dispute Resolution);
"EXPERT" has the meaning ascribed to it in Clause 29.2 (Dispute
Resolution);
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"EXPIRY DATE" means the end of the Initial Period unless and until no
notice to terminate is given within the time limit specified in Clause
14.4 (Termination on Notice after the Initial Period) at which time the
Expiry Date shall mean the Framework Expiry Date;
"EXULT ACTUAL COST" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"EXULT AFFILIATE" means any company which is for the time being directly
or indirectly controlled by Exult Supplier and for this purpose:
(i) a company is directly controlled by another company beneficially
owning shares carrying the majority of votes at a general
meeting of shareholders (or its equivalent) of the first
mentioned company; and
(ii) a particular company is indirectly controlled by a company if a
series of companies can be specified, beginning with that
company and ending with the particular company, so related that
each company in the series is directly controlled by one or more
of the companies earlier in the series;
"EXULT ASSETS" means the goods and other assets which are owned by Exult
Supplier, Exult or an Exult Affiliate and acquired and used solely to
provide the Services immediately before the termination or expiry of
this Agreement, including Systems owned by Exult Supplier but excluding
any assets licensed or leased to Exult Supplier, Exult or Exult
Affiliate by way of a Third Party Contract;
"EXULT PROPRIETARY SYSTEMS" means Exult's Systems in which the
Intellectual Property is owned by Exult or Exult Supplier;
"EXULT REGIONAL REPRESENTATIVES" means the individuals appointed by
Exult Supplier pursuant to, the Framework Agreement;
"EXULT SUPPLIER DISASTER RECOVERY PLAN means the plan to be agreed
between the parties which sets out the procedures to be adopted by Exult
Supplier and the Exult Participating Affiliates in the event that any
Systems used in the provision of the Services, or any data relating to
the Services, is damaged or becomes unavailable for any reason;
"EXULT SUPPLIER INTELLECTUAL PROPERTY" has the meaning ascribed to it in
Clause 19.2 (Intellectual Property Rights);
"EXULT SYSTEMS" means Systems used in the provision of the Services in
which Exult or Exult Supplier owns the Intellectual Property or has been
granted a licence to use the Intellectual Property, excluding Future
Systems and Client Systems;
"EXULT THIRD PARTY" means a third party other than Exult, an Exult
Affiliate and its and their respective agents, subcontractors, officers,
directors and employees;
"EXULT THIRD PARTY CONTRACT" means any contracts, including subcontracts
and licences, but excluding contracts relating to employment, entered
into by, assigned to or novated to Exult,
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Exult Supplier or an Exult Supplier Participating Affiliate the benefit
of which relates to, or which are used in whole or in part for,
providing the Services;
"FAILED READINESS TEST" means a failure to complete all material
elements of a Readiness Test.
"FORCE MAJEURE" means any cause affecting the performance of the
obligations under this Agreement by a party arising from acts, events,
omissions, happenings or non-happenings beyond its reasonable control
including (but without limiting the generality thereof) governmental
regulations arising after the Commencement Date, civil and/or political
unrest, fire, flood, or any disaster or an industrial dispute (other
than those relating to Exult's employees) but shall not include lack of
funds or events caused by the party seeking to rely on the Force Majeure
event or by any third party employed or engaged by the party seeking to
rely on the Force Majeure event (except where and to the extent that
such third party is also affected by a Force Majeure event) and provided
that in determining what is in the reasonable control of Exult Supplier,
full account shall be taken of the existence of the Exult Supplier
Disaster Recovery Plan;
"FULL SERVICE DATE" means 00.01 a.m. on the date (which is the end of
the Transition Period) on which Exult Supplier is required to provide
all of the Services to the Client pursuant to the Country Transition
Plan.
"FUTURE SYSTEMS" means Systems created by Exult Supplier or its
Affiliates, or which Exult Supplier or its Affiliates procure to be
created, in fulfilling obligations under this Agreement, during the term
of this Agreement and provided to the Client or used in the provision of
the Services;
"FRAMEWORK COMMENCEMENT DATE" means the date defined as Commencement
Date in the Framework Agreement;
"FRAMEWORK EXPIRY DATE" means the date 7 years from the *Framework
Commencement Date or in the event the Framework Agreement is extended by
agreement between the parties, the date which is then stated as being
the Expiry Date of the Framework Agreement;
"GENERAL WINDING UP PLAN" means the plan for co-ordinating the orderly
assumption of the provisions of the Services by the Successor Operator
to be produced pursuant to the Framework Agreement;
"GLOBAL GOVERNANCE PANEL" means the body to be established in accordance
with the Framework Agreement;
"GOOD INDUSTRY PRACTICE" means in relation to any undertaking and any
circumstances, the exercise of the degree of skill, care, prudence and
foresight which would be expected from a reasonably skilled and
experienced person engaged in the same type of undertaking under the
same or similar circumstances;
"GUARANTEED MINIMUM SAVINGS" has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
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"GUARANTEED MINIMUM SAVINGS DATE" has the meaning ascribed to it in
Schedule C (Charges and Invoicing);
"HR IT SERVICES" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"INCREASES" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"INDEMNIFIED PARTY" has the meaning ascribed to it in Clause 26.5.1
(Defence of Claims);
"INDEMNIFYING PARTY" has the meaning ascribed to it in Clause 26.5.1
(Defence of Claims);
"INDEPENDENT BUSINESS" means any business unit within a Country
designated by Client executive committee from time to time to operate at
arm's length because (i) it is pending decision regarding a possible
disposal of the business unit; or (ii) the business unit operates under
conditions materially distinct from those applying to the Services as
evidenced by non participation in all or some of the other Client main
stream support services in that Country;
"IN-SITU PROCESS TAKE ON DATE" means 00:01AM on the day on which Exult
Supplier assumes responsibility for a Process in-situ;
"INITIAL BASELINE" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"INITIAL BASE CHARGES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"INITIAL PERIOD" means the period of 5 years from the Commencement Date;
"INITIAL RESOURCE VOLUMES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"INTELLECTUAL PROPERTY" means patents, trade marks, service marks,
copyrights, topography rights, rights to extract information from
databases, design rights, trade secrets and rights of confidence and all
rights or forms of protection of a similar nature or having equivalent
or similar effect to any of them which may subsist anywhere in the
world, whether or not any of them are registered and including
applications for registration of any of them;
"INTERNAL CONTROLS" means such controls as would be reasonably required
in accordance to Good Industry Practice;
"KEY EMPLOYEES" means those Employees to be identified pursuant to
Section 2, Schedule I (Employees) to this Agreement;
"KEY INCIDENT" means an incident (whether or not a KPI failure) which
would have an impact either real or perceived on the operational
performance, finances or reputation of Client or the Client Affiliates
or Exult's or the Exult Affiliates' performance, finances or reputation;
"KPI CREDIT" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"KPI FAILURE" means any failure by the Exult Supplier to achieve a KPI;
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"KPI FAILURE PERIOD" means the period of time during which there has
been a KPI Failure;
"KPIs" means the key performance indicators set out in the Service
Levels in Schedule B (Service Levels) and "KPI" means any one of them;
"% OF KPI POOL" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"KPI PER EVENT CREDIT" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"LEVERAGED OPERATIONS" means the result of Exult Supplier's
transformation of the Services to Exult Supplier's Service Delivery
Model intended to improve the quality of HR services provided to the
Client and achieve the Guaranteed Minimum Savings.
"LEVERAGED PROCESS TAKE ON DATE" means 00:01AM local time on the day on
which Exult Supplier assumes responsibility for a Process in Leveraged
Operations;
"LOSSES" means all losses, liabilities, costs (including reasonable
legal costs), charges, expenses, actions, procedures, claims, demands
and damages (including the amount of damages awarded by an arbitrator
pursuant to Clause 29.3) (Dispute Resolution);
"MATERIALS" means all materials, including without limitation, magnetic
tapes, documents, designs, drawings, manuals, specifications,
flowcharts, and all stationery and other consumables as are, at the
applicable Country Commencement Date, in use by Client, the Client or
their Affiliates for the provision of the services equivalent to the
Services to the Client;
"NON-TRANSFERRABLE THIRD PARTY CONTRACT" means a Third Party Contract
other than a Transferable Third Party Contract;
"NORTH AMERICA" means United States of America, Canada, and Trinidad and
Tobago;
"OPERATIONAL CHANGE" means a change to any Process which affects the
procedures, scheduled operations activities, output and/or functioning
of the Service Delivery Model, but which is not determined to be a
Project, and does not require an adjustment to the Agreement;
"PARTICIPATING AFFILIATES" means the Client Affiliates, in addition to
the Client, which will receive the Services from the Exult Supplier
Participating Affiliates under this Agreement and "Participating
Affiliate" mean any one of them;
"PASS THROUGH COSTS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"PROCESS" means one of the 17 processes identified in Section II of
Schedule A (Scope of Services);
"PROCESS TAKE ON DATE" means 00.01am local time on the day on which
Exult Supplier assume responsibility for the delivery of the applicable
Process pursuant to the Country Transition Plan.
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"PROJECT" means a discrete piece of work which is not a Service, is not
included in the Baseline, is limited in duration, has specific
deliverables, has identifiable start and end dates, is agreed through
the Change Control Management process, and is subject to an Process
Charge as defined in Schedule C;
"PROPOSED CHANGE" means a change requested through a Change Request,
pending approval;
"QUALITY CONTROL DOCUMENT" means the summary document to be prepared by
Exult Supplier in accordance with Clause 3.2.8 (Controls) which sets out
the basis on which Exult Supplier will apply the Controls to the
provision of the Services;
"READINESS TEST" means the test agreed between the parties to establish
the readiness of both the Client and Exult Supplier to transition a
Process to Exult Supplier as described in Sections 7 and 8 of Schedule G
(Transition Plan).
"REDUCED RESOURCE CHARGES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"REGION" shall mean each of North America, Europe and the Rest of the
World;
"REGIONAL REPRESENTATIVES" means the BPA Regional Representative and the
Exult Regional Representative;]
"RELEVANT ENTITY" means a person who in the reasonable opinion of Client
either:
(i) is a competitor of the Client, Client or a Participating
Affiliate primarily engaged in the business of distribution and
production of oil and petrochemicals;
(ii) whose (i) financial substance and (ii) credit rating are weaker
in any material respect than those of the Company; or
(iii) may, through its control of the Company, have any adverse effect
on the reputation of Client or any member of the BP Group;
"RESOURCE UNITS" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"RESOURCE VOLUMES" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"REST OF THE WORLD" means [countries in which Client or the Client
Affiliates have operations other than Europe and North America;
"RETURN ON COSTS" or "R.O.C." has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
"SALES TAXES" means any federal, national, state, local, sales, use,
excise, utility, gross receipts, value added taxes, other similar
tax-related charges and surcharges levied by any authorised tax
authority, agency or government department;
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"SENSITIVE SERVICES" means those services in the nature of the Services
which are considered by the Client, Client or Client Affiliates to be of
a sensitive nature in that they represent a significant risk to the
reputation or ongoing business of the Client, Client or Client
Affiliates or if the nature of the services are such that they could, in
the Client's, Client's or Client Affiliate's view, potentially expose
the Client, Client or Client Affiliate to particular legal liability,
including those relating to administration benefit plans subject to the
US Employee Retirement Income Security Act 1974 as amended and are
retained and provided internally by the Client, Client or any Client
Affiliates;
"SENSITIVE THIRD PARTY CONTRACTS" means those Third Party Contracts and
Exult Supplier Third Party Contracts which are considered by the Client
to be of a sensitive nature in that they represent a significant risk to
the reputation or ongoing business of the Client, Client or the
Participating Affiliates, or if the nature of the services provided
under the contracts are such that they could, in the Client's view,
potentially expose the Client, Client or the Participating Affiliate to
particular liability;
"SERVICE CREDIT" means an amount payable by Exult Supplier to the Client
in respect of a KPI Failure;;
"SERVICE DELIVERY DESCRIPTION" means the documentation to be prepared by
Exult Supplier and/or Exult Supplier in accordance with Clause 16.5
(Winding Up Assistance);
"SERVICE DELIVERY MODEL" means the method by which the Services, or in
the case of Client, the services equivalent to the Services, are
delivered.
"SERVICE LEVEL" means the level to which the Services are to be provided
to the Client as set out in Schedule B (Service Levels);
"SERVICE PERFORMANCE REPORTS" means the reports to be produced by the
Exult Supplier Country Representative in accordance with Clause 22.3
(Service Performance Reports);
"SERVICED EMPLOYEE" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"SERVICES" means the human resource management and related services
processes described in Schedule A (Scope of Services) as may be amended
from time to time in accordance with the Change Control Management
process.;
"STANDARD RATES" means the rate to be charged by Exult Supplier to the
Client for the provision of Projects as determined in accordance with
Schedule C (Charges and Invoicing);
"SUBCONTRACTOR" means any subcontractor of Exult Supplier engaged from
time to time in accordance with Clause 32 (Subcontracting) for the
purposes of performing any part of Exult Supplier's obligations under
this Agreement;
"SUCCESSOR OPERATOR" means the entity (which may include Client or any
Client Affiliates) succeeding Exult Supplier in the provision or
operation of all or any of the Services;
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"SYSTEMS" means computer programs, databases, the tangible media on
which they are recorded, and their supporting documentation, including
input and output format, program listings, narrative descriptions,
source code, object code, algorithms, logic and development tools,
operating instructions and user manuals;
"TAXES" means all federal, state, local or foreign income tax, duty,
charge, and any penalty or interest thereon and any of the costs and
charges whatsoever assessed or imposed by any competent legal or fiscal
authority in relation thereto, including Withholding Tax, but excluding
value added or other similar sales or use taxes;
"TERM VESTED ANNUITANTS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"THIRD PARTY CONTRACTS" means any contracts, including licences, but
excluding contracts relating to employment, entered into by Client, or
any Client Affiliates the benefit of which relates to, or which are used
in whole or in part for providing services equivalent to the Services
immediately prior to the Commencement Date as identified in Schedule D
(Third Party Contracts);
"THIRD PARTY HR CONTRACT" means a Third Party Contract pursuant to which
a third party provides the Client with services equivalent to the
Services;
"THIRD PARTY SYSTEMS" means any Systems in which the Intellectual
Property is owned by a third party which Client, or any Client Affiliate
has been granted a licence to use and which are required to be used by
Exult Supplier to provide the Services as identified in Schedule F
(Systems);
"TOTAL LABOUR RELATED COSTS" has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
"TRANSFER" and "TRANSFERRED" in respect to a Third Party Contract or
Sensitive Third Party Contract refers to the transfer of such contract
by assignment or novation as well as to, upon termination or expiry of
such Third Party Contract, the taking over by Exult Supplier of the
services provided thereunder as Services under the relevant Country
Agreement;
"TRANSFER/TRANSFORMATION COSTS" has the meaning ascribed to it in
Schedule C (Charges and Invoicing);
"TRANSFERABLE THIRD PARTY CONTRACTS" means Third Party Contracts which
are identified during the Due Diligence Exercise or the Validation
Exercise or thereafter as being capable of being either terminated or
assigned to Exult Supplier at short notice and without incurring any
penalty; "VALIDATION EXERCISE" means the exercise to be carried out in
accordance with Part 2 of Schedule G (Transition Plan);
"TRANSITION PERIOD" means the period between the Commencement Date and
the Full Service Date;
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"TRANSITION SCHEDULE" means the time line for the transition of all
Processes for a Country to Exult Supplier (in-situ and/or Leveraged
Operations) as defined in Section 9 of Schedule G (Transition Plan).
"TRIGGER EVENT" means an event which will enable Client to obtain
delivery of the relevant source code materials under the terms of the
Escrow Agreement;
"UNDERLYING TECHNOLOGY" means the Exult Supplier IT Domain dedicated to
supporting the provision of the Services.
"VALIDATION EXERCISE" means the exercise for each applicable Country
consisting of the validation of the Baseline, volumetrics, resource
requirements, costs, Services, Third Party Contracts and Service Levels,
conducted within 60 days following the Country Commencement Date;
"WINDING UP ASSISTANCE" means the assistance to be given by Exult
Supplier to the Client as contained in a Winding Up Plan;
"WINDING UP ASSISTANCE COSTS" has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
"WINDING UP PLAN" means the winding up plan to be developed in
accordance with the provisions of Clause 16 (Winding Up Assistance) to
provide for the orderly transitioning of the Services to the Successor
Operator on termination or expiry of the Agreement; and
"WITHHOLDING TAXES" means any Taxes required to be withheld or deducted
by the competent legal or fiscal authorities in the Country of the tax
residence of the Client or any sum payable by the Client to Exult
Supplier for the Charges under this Agreement.
"WORK PRODUCT" means any works, including documents or reports whether
or not in electronic form produced for delivery to the Client as part of
the Services and/or fulfilling the obligations of Exult Supplier under
this Agreement including the Service Delivery Description but excluding
Future Systems and the Exult Supplier Systems.
"YEAR 2000 COMPLIANT" means that all software, systems and hardware
comply with the British Standards Institute requirements set out in DISC
PD 2000-1 "A Definition of Year 2000 Conformity Requirements".
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE A
SCOPE OF SERVICES
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TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1 INTRODUCTION.........................................................................1
2 EXULT SERVICES.......................................................................1
A Training......................................................................1
B Organisation Development......................................................2
C HR Strategy...................................................................2
D Labour Relations..............................................................2
E Expatriate Relocation and Administration......................................3
F HR Information Services ("HRIS") (Employee Records)..........................3
G Benefits......................................................................3
H Compensation..................................................................3
I Employee Relations............................................................4
J Compliance....................................................................4
K Vendor Administration.........................................................4
L Payroll.......................................................................4
M Employee Development..........................................................5
N Resourcing/Recruiting.........................................................5
O Severance.....................................................................5
P Performance Management........................................................5
Q Domestic Relocation Administration............................................6
R HR Information Technology ("HRIT")............................................6
</TABLE>
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SCHEDULE A
SCOPE OF SERVICES
1 INTRODUCTION
This Section describes certain duties, obligations and responsibilities
of Exult and of BPA in performing the Services.
Except where specifically set out in the applicable Country Transition
Plan, from the Commencement Date, Exult shall provide each process
included in the Services [***]*
For the purposes of this Schedule, Exult shall mean Exult Supplier where
appropriate; BPA shall mean the Client where appropriate.
2 EXULT SERVICES
Exult and BPA will perform the services as defined in this Schedule A.
For responsibilities where there is no quantification of the service to
be provided, Exult and BPA will provide the function [***]*. Schedule T
identifies the BPA population, by Process, that shall receive the
Services identified in this Schedule.
The detailed scope is to be agreed before the applicable Process Take On
Date. Exult shall assume responsibility for each of the Processes set
out in this Schedule on the applicable Process Take On Date. For the
table included in each of the sections below, the following legend
applies:
<TABLE>
<CAPTION>
Table Legend
<S> <C>
X Performs Responsibility
A Approves
</TABLE>
The parties recognise that there are third party agreements yet to be
evaluated that may be identified as Sensitive Third Party Agreements.
The current representation of process activities and responsibilities in
Schedule C of this Agreement reflects the intention of the parties in
the absence of Sensitive Third Party Agreements. Specific adjustment to
the responsibilities of BPA and Exult in any Process area affected by
Sensitive Third Party Agreements and/or Sensitive Services will be made
prior to the Process Take On Date to address the legal and operational
risks associated with the provision of Services by Exult, BPA and the
third parties associated with the above, for the period of time these
remain sensitive.
A TRAINING
Training as a process includes training needs assessment,
course/materials development, logistics co-ordination, conduct
of training and training leader selection, training
effectiveness assessment and post training follow-up. Delivery
of training
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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materials includes traditional classroom, self-study,
computer-aided training and third party training delivery
mechanisms.
[***]*.
[***]*
B ORGANISATION DEVELOPMENT
Organisation development focuses on organisation design and
ensuring organisation effectiveness. These activities include
business and new venture organisation consulting, managing
organisational improvement efforts and overseeing organisation
consulting supplied by third parties. Assessment of existing and
proposed organisation models and reorganisations will also be
major activities in the area
[***]*.
[***]*
C HR STRATEGY
HR strategy develops the long-term HR strategy for BPA and
ensures the linkages to organisational goals and business
objectives. In addition, HR strategy directs the development of
the HR function and maintains ties to outside entities thereby
introducing new HR concepts into BPA
[***]*.
[***]*
D LABOUR RELATIONS
Labour relations promotes/maintains effective relationships
between BPA and its employees. Relationship management, for
example, with any BPA works councils, trade unions, collective
bargaining units, employee forums and all BPA employees includes
negotiations, problem/issue management, and interfacing with
regulatory entities on behalf of BPA
[***]*.
[***]*
E EXPATRIATE RELOCATION AND ADMINISTRATION
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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Expatriate relocation and administration establishes expatriate
policies, manages the special needs of the expatriate
population, and assesses the many expatriate related
problems/issues. Other responsibilities include tax activities,
spouse and dependent programs, relocation assistance, and salary
equalisation. Repatriation of employees is also in the scope of
this function.
[***]*.
[***]*
F HR INFORMATION SERVICES ("HRIS") (EMPLOYEE RECORDS)
HR information services (employee records) responsibilities
include all activities necessary to capture, track, modify and
report employee related electronic and physical data. HRIS data
includes data on active employees, inactive employees such as
terminated, term vested, deceased, and annuitants, and
appropriate non-employee populations.
[***]*.
[***]*
G BENEFITS
Benefits includes benefits strategy development, benefits plan
design and administration, and communications of benefit
programs to BPA employees. The function determines the
appropriate competitive level and mix of benefits for BPA,
including health and welfare plans, defined contribution plans,
and defined benefit plans.
[***]*.
[***]*
H COMPENSATION
Compensation is the development of compensation plans and
strategies for BPA. The function ensures and administers the
various compensation programs that range from basic pay,
executive compensation, variable pay programs and other
business-needs based pay schemes. Additionally, the function
determines the appropriate competitive level and mix of base
pay, short-term incentives and long term incentives.
[***]*.
[***]*
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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I EMPLOYEE RELATIONS
Employee relations performs activities needed to keep a
productive and committed workforce in place. Assuring a healthy
work environment includes activities such as goal setting,
diversity programs, employee complaint resolution, employee
coaching/counselling and communicating workplace issues to
interested groups of employees.
[***]*.
[***]*
J COMPLIANCE
Compliance is the management of BPA's legal requirements and
internal business policies across all HR processes.
[***]*.
[***]*
K VENDOR ADMINISTRATION
Vendor administration is the process by which third party
providers of HR or other related services to BPA are
administered by Exult to ensure acceptable quality and price.
Vendor selection, performance monitoring, service negotiation
and vendor certification are all critical efforts. The
administration of third party costs and allocation of these
costs to the appropriate business entities are also included
here.
[***]*.
[***]*
L PAYROLL
Payroll processes include the collection of time and attendance
data, management of employee earning and deductions, calculation
of gross and net pay, and processing employee payments.
Additionally, the payroll function will compute and file payroll
related taxes, manage mandated deductions and perform the
accounting transactions necessary to accumulate labour expenses
at the detailed level including all general ledger interfaces.
[***]*.
[***]*
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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M EMPLOYEE DEVELOPMENT
Employee development identifies employee development needs and
ensures that these development needs are planned with the
employee and the supervisor. Development tool construction,
managing the execution of development, tracking employee
development plans, and succession planning are all included.
[***]*.
[***]*
N RESOURCING/RECRUITING
Resourcing/recruiting includes setting resourcing strategy,
conducting workforce planning and performing the hiring process,
which includes candidate pool solicitation, assessment,
negotiation and orientation activities. Vendor administration,
logistics and assessment of resourcing strategies are also
included.
[***]*.
[***]*
O SEVERANCE
Severance responsibilities include development of successful
programs/policies to transition employees from BPA, policy
definition, program development, impact modelling and program
administration, selection of third party vendors for
outplacement, and managing the cost of severance programs.
[***]*.
[***]*
P PERFORMANCE MANAGEMENT
Performance management sets performance goal structures for BPA
and develops the tools needed to assess employee/group
performance against these goals. Management of the performance
review process and reporting on the process outcomes are also
responsibilities.
[***]*.
[***]*
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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Q DOMESTIC RELOCATION ADMINISTRATION
Domestic relocation administration oversees the work involved in
moving employees from one geographical location to another.
Policy development, cost tracking, employee education and
communication, third party administration and issue resolution
all reside in this area.
[***]*.
[***]*
R HR INFORMATION TECHNOLOGY ("HRIT")
"BPA IT Domain" shall mean the data processing infrastructure,
servers, data communications equipment, local area networks,
desktop equipment and support, common office environment, and
wide area network facilities operated and maintained by BPA
and/or operated and maintained by third parties under Third
Party Contracts managed by BPA.
[***]*.
[***]*
- -----------------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE B
SERVICE LEVELS
<PAGE> 79
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 INTRODUCTION.........................................................................1
2 PRINCIPLES GOVERNING SERVICE LEVELS..................................................1
3 PROCESS..............................................................................1
4 SERVICE CREDITS......................................................................4
</TABLE>
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SCHEDULE B
SERVICE LEVELS
1 INTRODUCTION
This Schedule defines the principles and parameters governing the
Service Levels which shall be measured. This Schedule also describes how
these Service Levels shall be established.
There are two types of Service Levels that shall be defined, measured
and reported for each Country Agreement:
1.1 Key Performance Indicators ("KPIs"):
(i) KPI Surveys - these measure the satisfaction of BPA
employees and management with the Services that are
provided by Exult ;
(ii) KPI Service Levels - Service Levels that must be met to
avoid a significant financial or Service impact to BPA;
1.2 Reporting Service Levels ("RSLs") - these measure Exult's
performance of the Services using a range of quantitative and
qualitative Service Levels.
Each Country Transition Plan shall define the process by which
the Services shall be transitioned from the BPA Service Delivery
Model to the Exult Service Delivery Model. The impact of the
transition to the Leveraged Operations shall be assessed and any
changes to Service Levels, including KPIs, shall be agreed in
accordance with Schedule L, Change Management.
The process for initially establishing these Service is
described in Section 3, Process.
2 PRINCIPLES GOVERNING SERVICE LEVELS
Principles governing Service Levels are documented in the Framework
Agreement, Schedule B, Service Levels.
3 PROCESS
Following the Commencement Date of each Country Agreement and before the
Process Take On Date, the parties shall determine and agree the Service
Levels that shall be included in Schedule B, Service Levels, of the
Country Agreement. In addition, the appropriate measurement tools and
reporting process for each Service Level shall be identified.
The timeframe to determine the Service Levels, the measurement tools and
the reporting process shall be documented in the applicable Country
Transition Plan.
3.1 KPI Surveys
3.1.1 An agreed upon Service Level metric shall be determined
and implemented in accordance with the Country
Transition Plan.
3.1.2 Surveys shall then be conducted and measured against the
KPI Survey metric and reported in accordance with the
Service Performance Report obligation under the Country
Agreement.
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3.1.3 [***]*
[***]*
3.2 KPI Service Levels
3.2.1 With respect to the KPI Service Levels for Payroll and
HRIT, as identified in each applicable Country
Agreement, the parties shall agree on the applicable KPI
Service Level metric prior to the Process Take On Date.
Exult shall report on its performance of the Services in
accordance with such KPI Service Level thereafter.
3.2.2 With respect to the remaining KPI Service Levels, the
parties shall agree on the applicable provisional KPI
Service Level metric prior to the Process Take On Date.
Exult shall measure and report its performance of the
Services in accordance with such provisional KPI Service
Levels for an agreed period of time, [***]* in order to
determine the appropriate KPI Service Level metric.
After such period, the parties shall agree on the
applicable KPI Service Level metric and Exult shall
report on its performance of the services in accordance
with such Service Level thereafter.
3.2.3 KPI Service Level Table
KPI Process Weighting for KPI Service Levels shall be
determined by the Client and identified within the
Country Agreement. [***]* Each KPI [***]* shall be
assigned a value of [***]*
[***]*
To the extent that a KPI Service Level is not achieved due to
any non-performance of or any other defect in any systems,
hardware or other technical infrastructure, other than those
systems, hardware or other technical infrastructure supplied or
controlled by Exult under this Agreement, Exult Supplier shall
have no liability for such failure to achieve the KPI Service
Levels.
3.4 Reporting Service Levels
The following table of RSLs is illustrative of those that will
be adopted in each Country. The intention is to adopt a limited
number of meaningful RSLs to reflect key aspects of each
Process. The parties recognise that the illustrative RSLs set
out below will need to be amended by agreement before the
Process Take On Date for each Process to reflect the greater
understanding of each Process that will be developed during the
Validation Exercise (and on an ongoing basis through the life of
the Agreement as the Service Delivery Model is enhanced).
The parties agree that the RSLs should wherever practicable and
appropriate be based on (i) information that is currently
reported on at the Process Take On Date; or (ii) information
which can b generated from the normal operation of the Service
Delivery
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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Model and Systems without the need for extra development or
modification to the Systems or Service Delivery Model. Any
proposals for additional RSLs beyond the numerical limits set
out above or for RSLs which do not fit into the category set out
in the paragraph below shall be subject to Change Control
Management and the Parties recognise that an appropriate
equitable adjustment may be necessary to implement such RSLs. As
noted in Section 3.4 below, the parties shall review Service
Level metrics and shall determine and agree, through the Change
Control Management process, revised Service Level metrics to
reflect the benefits of Leveraged Operations. Agreed changes to
RSLs resulting from this review will be implemented at Exult
Supplier's expense.
The number of RSLs shall me limited to a [***]* for each Country
and wherever practicable and appropriate RSLs shall be
standardised for like Processes in each Country. Although it is
recognised that because requirements will vary between Countries
and that there will sometimes be a need for different RSLs to be
applied on a Country by Country basis, the intention is that the
total number of active RSLs shall be no greater that 50 on a
global basis at any one time.
3.4.1 Once the measurement tools and the reporting process
have been determined, the RSLs shall be measured and
reported on an ongoing basis.
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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3.4.2 [***]*
[***]*
3.5 Annual Service Levels Review
3.5.1 [***]* Processes being transformed to Leveraged
Operations, the Regional Governance Panel shall review
Service Level metrics and shall determine and agree,
through the Change Control Management process, revised
Service Level metrics to reflect the benefits of
Leveraged Operations.
3.5.2 These Service Levels shall be reviewed and revised,
through the Change Control Management process on an
annual basis thereafter.
4 SERVICE CREDITS
4.1 KPI Surveys and KPI Service Levels shall be subject to Service
Credits as set out in Schedule C.
4.2 Provisional KPI Service Levels and RSLs shall not be subject to
Service Credits.
4.3 A failure by the Exult Participating Affiliate to meet a KPI set
forth in the applicable Country Agreement shall entitle the BPA
Participating Affiliate to at its option (1) recover a service
credit as set forth in Schedule C and/or (2) seek any other
remedy set forth in the applicable Country Agreement.
- ----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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UNITED KINGDOM AGREEMENT
SCHEDULE C
CHARGES AND INVOICING
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TABLE OF CONTENTS
<TABLE>
<S> <C>
1 INTRODUCTION.........................................................................1
2 DEFINITIONS..........................................................................1
3 OVERVIEW.............................................................................3
4 CHARGING METHODOLOGY PRIOR TO THE GUARANTEED MINIMUM SAVINGS DATE....................8
5 CHARGING METHODOLOGY FOLLOWING THE GUARANTEED MINIMUM SAVINGS........................9
6 TRANSITION/TRANSFORMATION COSTS.....................................................14
7 CLIENT SERVICE CENTRE COSTS (CSC)...................................................15
8 AGGREGATION OF TRANSITION/TRANSFORMATION AND CLIENT SERVICE CENTRE COSTS............15
9 CORPORATE OVERHEAD/CENTRE OF EXCELLENCE/DUE DILIGENCE TREATMENT.....................15
10 IT INVESTMENTS......................................................................15
11 GAIN SHARING........................................................................16
12 CLASSIFICATION OF EXPENSE ITEMS SUBJECT TO MARGIN VERSUS PASS-THROUGH...............19
13 THIRD PARTY REVENUE.................................................................19
14 INVOICING...........................................................................19
15 TRANSFER OF ASSETS..................................................................20
16 CONTRACT MINIMUMS...................................................................20
17 INFLATION...........................................................................22
18 EARLY TERMINATION PAYMENT...........................................................22
</TABLE>
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SCHEDULE C
CHARGES AND INVOICING
1 INTRODUCTION
This Schedule describes the methodology for determining the charges to
be paid by BPA to Exult for the performance by Exult of its obligations
under this Agreement as well as the associated processes for invoicing
BPA for such charges.
2 DEFINITIONS
Any capitalised terms that are not defined in this Schedule shall have
the meanings assigned to them in the Agreement. The following terms
shall have the meanings set out below:
"ACTIVE SERVICED EMPLOYEE" shall mean any Serviced Employee who is
currently employed during the period when the Services are measured.
"ADDITIONAL RESOURCE CHARGES" or "ARCs" shall mean the incremental
charges payable by BPA, in addition to the Base Charge for resource
usage that exceeds the Resource Volumes.
"ANNUAL WORK UNITS" represents the annual total IT Work Units performed
by Work Type.
"BPA" shall mean BPA or the Client where appropriate
"BASE CHARGE" shall mean Exult's annual charge divided by 12 and
invoiced monthly for the period commencing [***]* from the Baseline
Validation and recalculated [***]*.
"BASELINE" shall mean the adjusted Initial Baseline as determined by
Baseline Validation.
"BASELINE GUARANTEE" means the minimum Initial Baseline and Baseline
related to each Process taken on by Exult prior to the Guaranteed
Minimum Savings Date as set out in Section 4.1. The Baseline
Guarantee is [***]*.
"BASELINE VALIDATION" shall mean validation of the Initial Baseline
to be completed by [***]*.
"BENEFITS" shall mean those benefits set out in Schedule A.
"CENTRE OF EXCELLENCE COSTS OR COE COSTS" shall mean the actual costs
related to the organisation within Exult identified as such which
include the Exult subject matter experts and support staff. Functions
staff will perform shall include:
(i) Supporting complex inquiries and problem resolutions on calls to
the Client Service Centre; or
(ii) Assisting with the management of third party vendors in defining
service levels and monitoring performance; or
(iii) Assisting in the implementation of policy modifications and
changes that come from BPA ; or
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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(iv) Defining the continuous improvement and best practice trends per
Process that are requirements of the Country Agreement
"CHANGE REQUEST CHARGES" shall mean the charges relating to the
implementation of Changes authorised by BPA in accordance with Schedule L.
"CLIENT HR COSTS" shall mean the Total Labour Related Costs required by
BPA to provide the Embedded Services and HR services [***]*.
"CONTRACT MINIMUMS" shall mean the minimum monthly payments by BPA to
Exult as referenced in Clause 23 of the Country Agreement and in
accordance with this Schedule C.
"CONTRACT MINIMUM YEAR" means each period of 12 months following the
Guaranteed Minimum Savings Date.
"CORPORATE OVERHEAD" shall mean Exult's general and administration costs.
"DECREASES" means the items set out in Section 3.4.2.
"DUE DILIGENCE COSTS" shall mean the costs incurred by Exult in accordance
with Clause 4.6 of the Framework Agreement in carrying out the Due
Diligence Exercise in the applicable Country.
"EMBEDDED SERVICES" shall mean those HR functions to be retained or
retained as the case may be by BPA.
"EXULT" shall mean Exult, the Exult Participating Affiliate or the Exult
Supplier where appropriate
"EXULT ACTUAL COST" shall mean the sum of [***]*.
"GUARANTEED MINIMUM SAVINGS" shall mean the reduction to the Category A
costs included in the Baseline calculated in accordance with Section 5.1.1
and Table C-5.1.1.
"GUARANTEED MINIMUM SAVINGS DATE" shall mean [***]*.
"HR IT SERVICES" shall mean the costs for information technology services
(as defined in Schedule A)
"INCREASES" means the items listed in Section 3.4.2.
"INITIAL BASELINE" shall mean [***]*.
"INITIAL BASE CHARGES" shall mean the monthly charges calculated in
accordance with Section 4.1 for [***]*.
"INITIAL RESOURCE VOLUMES" shall mean, with respect to the applicable
Country, the initial estimated amount of resources utilised by BPA (such
as the number of training classes or domestic relocations) and/or the
number of Active Serviced Employees supported by BPA in the 12 month
period prior to the Country Commencement Date.
"KPI CREDIT" means the percentage subtracted from the applicable Exult
gain share portion.
- --------
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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"% OF KPI POOL" means the percentage used of the maximum Service Credits
per year.
"KPI PER EVENT CREDIT " means the percentage deducted for each missed
Service Level from the % of KPI Pool for a specific KPI.
"PASS THROUGH COSTS" shall mean those costs identified in the Country
Agreement [***]* including the cost of [***]* BPA charge-ins including
those relating to [***]*.
"REDUCED RESOURCE CHARGES" or "RRCs" shall mean the incremental credits
payable to BPA for resource usage that is lower than the Resource Volumes.
"RESOURCE UNITS" shall mean the units of measurement for the amount of
Resource Volumes used within each Process.
"RESOURCE VOLUMES" shall mean, with respect to the applicable Country, the
estimated amount of resources utilised by BPA (such as the number of
training courses, the number of attendees at training courses or domestic
relocations) and/or the number of Active Serviced Employees required by
BPA, annually from the Guaranteed Minimum Savings through the term of the
Country Agreement.
"RETURN ON COSTS" or "ROC" shall mean Exult's portion of gain share from
providing Services in a Country divided by the Exult Actual Cost for
[***]*
"SERVICED EMPLOYEE" shall mean any BPA employee, former employee, or
contractor that is supported by the Services.
"TOTAL LABOUR RELATED COSTS" shall mean the costs incurred by BPA in
relation to HR employees or individual contractors including salaries and
wages, payroll benefits and BPA employee taxes, contractors fees, pension,
travel expenses, training, meetings and entertainment, office space and
utilities, office expenses supplies and dues, desktop and communication
services, relocation and expatriate expenses. Pension costs are only
included to the extent that BPA is at the relevant Process Take On Date
making contributions to the employees' pension plans.
"TRANSFER/TRANSFORMATION COSTS" shall mean the costs set out in Section 6.
"WINDING UP ASSISTANCE COSTS" shall mean the following costs associated
with the transfer of the Services upon termination of the Country
Agreement to BPA or a third party:
[***]*
3 OVERVIEW
3.1 PRINCIPLES
The main principles underlying the charging mechanism are as
follows:
3.1.1 Subject to Sections 5.1.3 (ARCs/RRCs), 17 (Inflation) and
agreed Changes, Exult's charges shall not:
[***]*
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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3.1.2 Exult's charges shall be based upon BPA's [***]* as
appropriate, as described in Sections 4.1 and 5 of this
Schedule C.
3.1.3 The Exult Actual Cost in any year following the Guaranteed
Minimum Savings Date [***]* subject to the following
adjustments:
(i) ARCs/RRCs (see Section 5.1.3)
(ii) Inflation (see Section 17)
(iii) Charges for agreed Changes (see Section 5.1.9 and
Schedule L)
(iv) Project Charges (see Section 5.1.9)
3.1.4 The Exult Actual Cost shall not [***]*.
3.1.5 [***]*
3.1.6 During the [***]* the parties will work together to ensure
that all in-scope BPA employee costs are identified so
that the Initial Base Charges calculated in accordance
with Sections 4 and 5, are [***]*
3.1.7 From the Guaranteed Minimum Savings Date, and subject to
agreed Changes, Force Majeure events, BPA performing its
responsibilities under the applicable Country Agreement
and the specific Process being taken on prior to the
Guaranteed Minimum Savings Date.Exult shall provide
Guaranteed Minimum Savings on the [***]* costs with
respect to those Processes which have been taken on by the
Guaranteed Minimum Savings Date and for subsequent
Processes when taken on.
3.1.8 It is Exult's intention to try to reduce the cost of
Third Party Contracts transferred to Exult [***]*
3.2 CATEGORIES OF COST
The charging mechanisms will be based on cost
categories related to the Services. [***]*
[***]* BPA shall receive Guaranteed Minimum Savings, shown in
Table C-5.1.1, from Exult on the [***]* costs to be determined
as part of Baseline Validation.
3.3 COUNTRY DUE DILIGENCE EXERCISE
The Initial Baseline will be determined during the Country Due
Diligence Exercise prior to signature of the relevant Country
Agreement. [***]* For Countries apart from the U.S. and U.K.,
Country Due Diligence Exercises shall determine whether the
Guaranteed Minimum Savings and Exult's Return can be achieved.
[***]* The impact of any Withholding Taxes shall also be included
in Exult's Return as set out in Clause 2.10 of the Framework
Agreement.
3.4 ESTABLISHING BASELINE COSTS
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3.4.1 Client HR Costs
During the [***]*, BPA shall establish its total Client HR
Costs including HR IT Services. For Countries other than
the U.S. and U.K, the Client HR Costs shall be established
by BPA during each Due Diligence Exercise. The Client HR
Costs will be used to determine the actual [***]* cost
savings realised by BPA as the result of the Process being
taken on by Exult. [***]*, BPA will establish the numbers
of HR staff and designate each staff member with the
following categories:
o In-Scope employees.
o Embedded Services HR staff.
o Staff associated with the merger and harmonisation
of BP and Amoco.
o Staff whose status is still to be determined.
o Other staff associated with identified projects
In order to establish the Total Labour Related Costs no HR
personnel can be removed by BPA from the Client HR Cost
without first being designated within one of the above
five categories. Any dispute relating to the
classification of HR personnel shall be determined by an
Expert in accordance with Clause 24.2 of the Framework
Agreement (Dispute Resolution Procedure).
[***]*
For Countries other than the US and UK, the Client HR Cost
shall be established during the Country Due Diligence
Exercise and each member of staff designated within the
above four categories.
3.4.2 Adjustments to Client HR Costs
Once the Client HR Costs are established, BPA shall put in
place financial controls and tracking mechanisms to allow
BPA to track costs and for Exult to verify such costs on a
monthly basis. The Client HR Costs shall be adjusted to
take into account "Increases" or "Decreases" as set out
below:
A Increases
Increases in costs shall include the following
activities:
o An increase in compensation or other Total
Labour Related Costs.
o Temporary staff required to replace staff
included as Client HR Costs.
o Replacement (either temporary or
full-time) staff to fill vacant positions
for HR personnel initially included as
Client HR Costs
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o who leave BPA (or take a non-HR job within
BPA) and who do not transfer to Exult prior
to the applicable Process Take On Date.
o Additional HR resources to handle expansions
and/or changes to BPA's business
requirements and or activities.
o Anticipated adjustments agreed by parties.
B Decreases
Decreases in costs shall include decreases not
caused by Exult taking on the Services:
o Savings in providing Embedded Services
resulting from non-Exult activities such as
using one HR advisor across more than one
business unit where two or more advisors
were used previously.
o Savings as a result of a reduction in
services provided by Embedded Services staff
such as the elimination of Organisational
Developmental services at a particular
business unit.
o Continuous improvement in the way Embedded
Services are provided such as the
restructuring of functions to consolidate
staff.
o Divestitures.
o Replacement of Embedded Services staff with
less expensive staff.
o Savings related to the harmonisation and
merger of BP and Amoco. Such savings
include, but are not limited to, for
example, the transition to a single payroll
system for the merged company in the
Country.
In the event of a dispute arising out of the
classification of a Decrease in cost as not having
been caused by Exult taking on the Services, the
matter shall be referred to an Expert pursuant to
Clause 24.2 of the Framework Agreement (Dispute
Resolution Procedure). Unless the parties agree
otherwise, all cost Decreases not classified as
Decreases not caused by Exult taking on the
Services shall form part of the [***]* and [***]*
cost savings realised by BPA as the result of Exult
taking on the Process.
The remaining Client HR Costs [***]* shall be
considered to be the cost of providing Embedded
Services.
3.4.3 Baseline Validation
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Baseline Validation will commence once the final Process
Take On Date has occurred and prior to [***]* to establish
the actual Baseline to be used for the remaining term of
the Country Agreement. Baseline Validation will establish
the Baseline and resultant Base Charge to be applied
following the Guaranteed Minimum Savings Date.
The Baseline Validation shall cover those items included
in the Due Diligence Exercise as well as other costs or
items the are identified subsequent to the Due Diligence
Exercise. Baseline Validation shall also include
validation of the remaining Client HR Costs including the
merger and harmonisation costs associated with BP and
Amoco. Exult shall have the option to carry out an audit
at its own cost on the Client HR Costs established during
Baseline Validation. Any disagreements about the findings
of this audit may be referred to an Expert pursuant to
Clause 24.2 of the Framework Agreement (Dispute Resolution
Procedure).
3.4.4 [***]* Cost Validation
(i) Principles relating to costs
The principles underlying the Exult Actual Cost
for [***]*
(a) Exult will use technology to assist it in
providing the Guaranteed Minimum Savings
(b) Exult intends to automate relevant
transactional processes and allow BPA
employee access through the implementation
of internet-enabled HR support by using
Client Service Centres (including the
integration of HR transactional processing
support), knowledge and case management,
workflow and data warehousing technology;
(c) Exult's use of technology will continue to
evolve as opportunities to use technology
effectively are identified during the term
of the Country Agreement;
(d) Exult shall not unreasonably be prevented
from using technological innovations;
(e) as a result of Section (a) to (e) above,
[***]*
3.4.5 [***]* Charges
[***]*
3.4.6 [***]* Validation
The [***]* costs for BPA (which are based upon the budget
provided by BPA) and Exult's budgeted [***]* costs shall
be validated as part of the Baseline Validation. To the
extent that the merger and harmonisation of BP and Amoco
has not been completed by the completion date for the
Baseline Validation an estimate for the anticipated impact
of any remaining merger and harmonisation activity will be
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agreed and included in the Baseline Validation and such
estimate will be subject to further validation on the
completion of the merger and harmonisation activity. Both
parties shall make reasonable efforts to validate these
actual and budgeted costs. This shall include, where
possible, the parties comparing individual cost items on a
like-for-like basis. BPA's [***]* costs will need to be
adjusted to match the changes in technology used by Exult
to deliver the Services in order to achieve this
like-for-like comparison.
If the parties disagree with this comparison of [***]*
costs, the matter shall be referred to an Expert pursuant
to Clause 24.2 of the Framework Agreement (Dispute
Resolution Procedure).
3.4.7 Resource Volumes
Prior to the Process Take On Date the Resource Volumes for
the relevant process shall also be established.
3.4.8 [***]* Costs
[***]* Costs shall also be validated as part of the
Baseline Validation. The [***]* Costs shall go through a
review process to establish an agreed cost projection from
the third month following the Country Commencement Date
until the end of month fourteen. [***]* Costs shall be
tracked by Exult and reconciled with BPA [***]* month
following the Country Commencement Date.
4 CHARGING METHODOLOGY PRIOR TO THE GUARANTEED MINIMUM SAVINGS DATE
Prior to the Guaranteed Minimum Savings Date and following the first
Process Take On Date, charges from Exult shall be based on the Initial
Base Charges.
4.1 CALCULATION OF THE INITIAL BASE CHARGES
Prior to the signature of each Country Agreement, Exult shall
provide the Baseline Guarantee for each Process. BPA shall pay to
Exult following each Process Take On Date the Initial Base
Charges which shall be an amount equal to the [***]*
[***]*
During Baseline Validation, the parties will reconcile the
amounts invoiced in relation to each Process and the actual
[***]* and [***]* cost savings realised by BPA relating to that
Process being taken on by Exult. If such actual costs are found
to be:
(i) greater than the amounts invoiced by Exult, Exult shall
submit an invoice for the difference (actual [***]* and
[***]* cost savings less the invoiced amount) .
(ii) less than the amounts invoiced by Exult, but greater than
the Baseline Guarantee, Exult shall issue BPA a credit on
the following month's invoice for the difference (invoiced
amount less the actual [***]* and [***]* cost savings).
(iii) less than the amount invoiced by Exult and the Baseline
Guarantee, Exult shall issue BPA a credit on the following
month's invoice for an amount equal to the
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difference between the invoice amount and the Baseline
Guarantee.
TABLE C-4.1
BASELINE GUARANTEE FOR THE US AND UK
IN USD
[***]*
Where the parties agree, the Baseline Guarantee for each Process may
be changed to reflect actual cost so long as the aggregate of all
Processes within the Baseline Guarantee for the U.S. and U.K. is
equal to the [***]*
If a Process is taken on prior to the completion of the Client HR Costs,
the Initial Base Charges shall be equal to the Baseline Guarantee and
reconciled at the end of the year for applicable costs exceeding the
Baseline Guarantee.
If a Process Take On Date is extended for more than 30 days, the parties
shall establish a panel with equal number of members from each party to
meet over a period of 30 days in order to decide the cause for such
delay. [***]*
Where the parties cannot agree which party caused a particular Process
Take On Date to be delayed, a payment or credit can still be agreed by
the panel although either or both parties may reserve the right to
review the cause for any such delays during Baseline Validation and to
refer any such disputes to the Informal Dispute Resolution Procedure
pursuant to Clause 24.1 of the Framework Agreement, and if the parties
are still unable to resolve such dispute, the matter shall be referred
to an Arbitrator pursuant to Clause 24.3 of the Framework Agreement.
5 CHARGING METHODOLOGY FOLLOWING THE GUARANTEED MINIMUM SAVINGS
From the Guaranteed Minimum Savings Date until the termination or expiry
of the Country Agreement, BPA shall pay to Exult the greater of the
Baseline Guarantee and the Baseline (both of which shall be subject to
Guaranteed Minimum Savings). The Baseline Guarantee and Baseline charges
shall be subject to Contract Minimums in each Country.
[***]*
BPA's actual usage/counts of the Resource Volumes shall be measured and
reported by Exult [***]*, Exult shall calculate and apply the ARC/RRC
adjustments, Service Credits and gain sharing adjustments.
5.1 GUARANTEED MINIMUM SAVINGS CALCULATION
5.1.1 The Guaranteed Minimum Savings shall apply to the [***]*
charges in the Baseline in accordance with Table C-5.1.1.
The Guaranteed Minimum Savings for [***]* items will be
calculated [***]* during Baseline Validation.
GUARANTEED MINIMUM SAVINGS
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TABLE C-5.1.1
[***]*
For the Guaranteed Minimum Savings to apply in respect of a
Country, and provided that Exult has not delayed BPA, BPA must
give notice [***]* to Exult that it wishes to receive the
Services in that Country.
[***]*
5.1.2 Adjustments to Base Charge
(i) The Base Charge shall be adjusted during the last
month of each Contract Minimum Year to determine:
[***]*
(ii) During the last month of each Contract Minimum Year
the Base Charge shall be adjusted prior to the gain
share calculation as follows:
(a) any increase or decrease in the Resource
Volumes and the IT Work Unit Volumes that
has occurred during the Contract Minimum
Year; and
(b) to reflect an increase or decrease in the
cost of providing any new services or
modifying the Services agreed in accordance
with the Change Control Management process.
(iii) The Base Charge for the following Contract Minimum
Year shall be calculated by adjusting the Base
Charge as follows:
[***]*
5.1.3 ARCs/RRCs
ARCs will be used when the actual Resource Volumes in the
current year exceed the upper threshold for Resource
Volumes for the previous year.
ARCs will be calculated by [***]*
RRCs will be used when the actual Resource Unit in the
current year is less than the lower threshold for Resource
Volumes for the previous year. RRCs will be calculated by
[***]*
The ARC and RRC thresholds shall be established as part of
the Baseline Validation.
ARCs and RRCs will be reconciled and invoiced on an annual
basis. ARCs and RRCs unit rates will be subject to
inflation adjustments in accordance with Section 16.
The ARC unit rates shall be agreed between the parties no
later than the commencement of the Guaranteed Minimum
Savings Date and will be [***]* The RRC unit rates will be
agreed between the parties no later than the commencement
of the Guaranteed Minimum Savings Date and will be [***]*
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5.1.4 Resource Units
The Resource Units identified below are intended to
provide the proper measurement of usage for the Services
and allow for a reasonable means to gather data. The
Resource Units may be changed based on agreement between
the parties at any time during the term of the Country
Agreement.
[***]*
5.1.5 Charges Based on the Average Number of Active Serviced
Employees
Charges based on the average number of Active Serviced
Employees include the following functions:
[***]*
The relevant employee database will be used to track
Active Serviced Employees as the master repository for
Active Serviced Employee information. When an Active
Serviced Employee is added or removed, the relevant
employee database will be updated with this information.
Charges based on the average number of Active Serviced
Employees will be derived from the weighted average number
of Active Serviced Employees supported in BPA. Weighted
average will be calculated by taking the number of Active
Serviced Employees for both the first and last day of the
month and dividing by two (2).
In addition to the Resource Volumes for Active Serviced
Employee, HR Information Services will have limitations on
the number of reports (as these requests will come through
HR Information Services in support of multiple Processes).
This will be dependent upon the level of staffing. Reports
shall be included in the IT Work Units structure (as
defined in Section 5.2.4 below) determined during Baseline
Validation.
In order to ensure that Exult can implement desired
Process improvements and gain sharing while still
providing flexibility in meeting BPA's needs, Payroll will
be subject to two additional measurements beyond the
Active Serviced Employee measurement. Manual cheques will
be subject to a surcharge of [***]* per cheque and
off-cycle Payroll runs shall be subject to an agreed
surcharge.
5.1.6 Service Charge Adjustments Based on the Average Number of
Active Serviced Employees
If the weighted average actual number of Active Serviced
Employees varies above the Resource Volumes by [***]* then
an adjustment to the Base Charge shall be calculated. ARCs
and RRCs shall be based on the entire variance from the
Resource Baseline Volumes. Should the actual Active
Serviced Employees vary from the Resource Volume by [***]*
the parties will agree upon an equitable adjustment to the
Base Charge.
5.1.7 Charges Based on Direct Usage
Charges based on the direct usage of each Process include
the following functions:
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[***]*
5.1.8 Adjustments to the Charges Based on Direct Usage
Should the direct usage count vary from the Resource
Volumes [***]*, then an adjustment to the Base Charge
shall be calculated. ARCs and RRCs adjustments shall be
based on the entire variance from the Resource Volumes. If
the parties agree that [***]* is not the appropriate
threshold to trigger an ARC or RRC adjustment, the
threshold may change subject to agreement by both parties.
Should the actual usage vary from the Resource Volume
[***]*, the parties will agree upon an equitable
adjustment to the Base Charge. For those Processes based
on number of standard reports, these Processes will be
grouped together for ARC and RRC adjustments as they will
not be identified by Process when a request for a report
is placed by BPA.
5.1.9 Project Charges
For each Project identified in Schedule H, the charges for
such Project will be agreed by the parties and set out in
the applicable Project Statement. Unless otherwise agreed,
Project Charges shall be based on [***]* For services
added that are not part of this Country Agreement and that
continue for the duration of the Country Agreement, these
services shall be handled through Change Control
Management.
5.1.10 Out-Of-Pocket Expenses
BPA will reimburse Exult for out-of-pocket expenses as
part of requests outside of Services. These out-of-pocket
are:
(i) Project related travel expenses approved by BPA.
(ii) Any other expenses approved by BPA.
5.2 [***]*
In addition to the charges shown in Section 5.2, other [***]*
items which Exult and BPA determine may be classified as [***]*
during the term of the Country Agreement through the Change
Control Management procedure.
5.2.1 [***]*
5.2.2 [***]*
5.2.3 [***]*
5.2.4 Information Technology Work Units (IT Work Units)
Exult shall, in accordance with the IT Work Unit
methodology perform modifications, enhancements, changes,
and installations to comply with regulatory or trade union
requirements and changes as disclosed to Exult by BPA.
Exult shall support regulatory reviews, audits, compliance
assessments,
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and related data gathering in a responsive time frame as
required by regulators. BPA acceptance testing and final
approval shall be required prior to implementation of such
regulatory compliance.
Exult shall, in accordance with the IT Work Unit
methodology, perform installation of upgrades and new
releases issued by the vendors of third party applications
software. Unless BPA directs otherwise, Exult shall
install and upgrade such software so as to remain within
one generation of the then-current maintenance release.
Exult shall notify BPA in writing within a reasonable time
prior to undertaking any such upgrade or installation.
Exceptions to this approach shall be mutually agreed and
shall be based on an assessment of risk and value
associated with implementing the new release. Exult shall
not upgrade third party applications software if Exult
notifies BPA that such an upgrade shall have no value or
an adverse impact on BPA and, after receiving such
notification, BPA decides not to proceed with such
upgrade.
Exult shall, in accordance with the IT Work Unit
methodology, perform small enhancements to the computer
applications. Exult shall perform small enhancement as
requested and priortized by BPA. Exult shall perform small
enhancements to the computer applications portfolio.
5.2.5 IT Work Unit Volumes
Exult and BPA shall consider [***]* as the period to
develop the IT Work Unit algorithm and underlying
assumptions. During this period the natural rate/size unit
and the size requested metrics shall be collected. The
parties intend that the basis shall reflect the quantity
of regulatory changes, trade union contract changes,
upgrades and small enhancement work required to be
performed by Exult [***]* To the extent that any review of
the IT Work Unit calculation algorithm generally
determines that this intention is not being effectuated,
the algorithm (or other aspects of the approach, as
applicable) shall be adjusted as necessary. The reviews in
subsequent years shall use each preceding year as the
baseline.
The format for representing the volume of IT Work Units is
represented in the following table. This catalogue is
subject to mutually agreed upon adjustments resulting from
the IT Work Unit review process described above.
CATALOGUE OF BPA WORK TYPES
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------
WORK TYPE NATURAL NUMBER WORK UNIT / ANNUAL WORK
SIZE UNIT REQUESTED SIZE UNIT UNITS
-------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Regulatory
-------------------------------------------------------------------------------
Changes (Small)
-------------------------------------------------------------------------------
Regulatory Changes
(Medium)
-------------------------------------------------------------------------------
Regulatory Changes
(Large)
-------------------------------------------------------------------------------
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
-------------------------------------------------------------------------------
Union Contract
Changes
-------------------------------------------------------------------------------
Small Enhancements
-------------------------------------------------------------------------------
Upgrades
-------------------------------------------------------------------------------
YEAR 1 TOTAL
-------------------------------------------------------------------------------
</TABLE>
5.2.6 Definition of IT Work Unit Terms:
"WORK TYPE" is a means to provide for a categorisation of
the types of work that can be requested and is included in
the IT Work Unit approach (eg, regulatory changes, small
enhancements, upgrades).
"NATURAL SIZE UNIT" is a means to define the size unit
that best fits the work type that is discernible and
measurable and can be audited. An IT organisation performs
many different work types and each has its own "natural"
sizing measure (eg, lines of code, function points, flat
rate, Primitive Value).
"PRIMITIVE VALUE" or "PV" represents the throughput
necessary to complete the types of work in the BPA
catalogue.
"NUMBER REQUESTED" represents the total number for the
Work Type Natural Size Unit for the year. In a Work Type
where the Natural Size Unit is Primitive Value the Number
Requested represents the number of the Work Types
completed in a year.
"WORK UNIT/SIZE UNIT" represents the IT Work Units
computed for the Work Type.
"ANNUAL WORK UNITS" represents the total IT Work Units
performed by Work Type.
"IT WORK UNITS" represents the base standard for measuring
the work performed by Exult HRIT staff in making specific
HRIT application systems changes calculated in accordance
with the IT Work Unit algorithm developed pursuant to
Section 5.2.5.
5.3 [***]*
[***]* Costs will be subject to an annual review between BPA and
Exult. The specific contracts will be identified and projections
for the subsequent 12 months will be made for each contract. Both
parties shall agree to the projected costs. [***]*
6 TRANSITION/TRANSFORMATION COSTS
Costs relating to the transfer of the Services from BPA to Exult
incurred by Exult after the relevant Country Commencement Date and
prior to the relevant Process Take On Date [***]*
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7 Client Service Centre Costs (CSC)
Client Service Centre costs are included in the [***]* charges as set
out below.
On an annual basis following the Guaranteed Minimum Savings Date through
the term of the applicable Country Agreement, the charges will be based
on [***]*
The Client Service Centre costs will include all staffing expenses,
facility related expenses, management expenses related directly to the
Client Service Centre, hardware and software expenses, lease expenses,
finance charges, amortisation and depreciation, supplies and third party
services related to the Service Centres. IT related costs that support
multiple customers shall be included as well in the aforementioned
categories. Client Service Centre costs will be allocated to the
appropriate [***]* Processes.
Table C-7.1
CLIENT SERVICE CENTRE COSTS MAXIMUM ALLOCATION
In USD
[***]*
8 AGGREGATION OF TRANSITION/TRANSFORMATION AND CLIENT SERVICE CENTRE COSTS
By agreement at the time not to be unreasonably withheld, with respect
to the maximum allowed costs for Transition/Transformation in Section 6
and Client Service Centres in Section 7, Exult shall be allowed to
[***]*
9 CORPORATE OVERHEAD/CENTRE OF EXCELLENCE/DUE DILIGENCE TREATMENT
Corporate Overhead costs will be recovered from available gain share
before gain share is distributed. Following the Guaranteed Minimum
Savings Date, Corporate Overhead for the U.S. and U.K. will be
allocated at the lesser of:
[***]*
For the U.S. and U.K. Due Diligence, [***]*
Exult Centre of Excellence (COE) costs [***]*
[***]*
The Corporate Overhead/COE/Due Diligence costs allocation methodologies
on actuals may be changed subject to agreement between the parties.
10 IT INVESTMENTS
IT Investments shall fall into two types. The first type shall consist
of those IT investments authorised by BPA. [***]* The second type shall
consist of those IT investments that are intended
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to be for the benefit of multiple Exult clients. [***]*
If the second type of investment will result in the Exult Actual Cost
for [***]* exceeding the [***]* cost in the Baseline, Exult shall obtain
approval from BPA, such approval not to be unreasonably withheld, prior
to making such investment.
[***]*
11 GAIN SHARING
BPA and Exult shall participate in a gain sharing exercise for [***]*
and [***]* items. Gain sharing can only apply to [***]* once Guaranteed
Minimum Savings have been realised. The Base Charge and Exult's actual
costs for [***]* and [***]* shall be used in quantifying the total
amount of gain sharing to be allocated between BPA and Exult. Each
charge Category will be handled differently under this gain sharing
arrangement. [***]*
11.1 GAIN SHARING METHOD BY CATEGORIES
To determine the applicable gain share, Exult's Actual Costs for
[***]* and [***]* items will be subtracted from the applicable
Base Charge for the preceding 12 months. Exult's, costs for
Corporate Overhead, Charge-Ins from BPA, COE and Amortisation of
Due Diligence will be subtracted from the amount available for
gain share. The remaining amount will be subject to gain share
distribution. Gain sharing for [***]* will start from [***]* and
at the end of every 12-month period thereafter to determine the
applicable gain share.
[***]* Following the Guaranteed Minimum Savings Date, [***]* gain
share will be subject to gain share distribution.
The method for gain sharing calculation shall be as follows:
(i) If the Exult Actual Cost for [***]* and [***]* is less
than the Base Charge for [***]* items, then those savings
(Base Charge minus Exult Actual Costs for [***]* and
[***]*) will be subject to adjustments and subsequently
the Gain Sharing Distribution Matrix shown below in Tables
C-11.2.1 and C-11.2.2. The levels of distribution that
determine the proportion of gain share are shown as part
of the Distribution Matrices.
(ii) If the actual [***]* costs are less than the budgeted
[***]* costs (Budgeted [***]* cost - Actual [***]* cost)
then those savings shall be subject to the Gain Sharing
Distribution Matrix shown below in Tables C-11.2.1 and
C-11.2.2
11.2 GAIN SHARING DISTRIBUTION MATRIX
The Gain Sharing Distribution Matrix will be used to determine
the proportion of savings to be split between BPA and Exult
resulting from the calculation of the amount available for gain
sharing. [***]* The gain share will begin with the first level of
distribution and proceed to the next level until the amount
available for gain share has been fully distributed.
GAIN SHARING DISTRIBUTION MATRIX-NO SERVICE CREDITS TO BPA
TABLE C-11.2.1
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[***]*
11.3 GAIN SHARING EXAMPLE
Table C-11.3 below is an example of the gain sharing calculation
amount and distribution.
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[***]*
11.4 SERVICE CREDITS CALCULATION
KPIs are Service Levels that, when missed, are subject to Service
Credits. Service Credits for KPIs will be weighted in accordance
with Schedule B of this Agreement and will adjust the gain
sharing distribution between BPA and Exult. The Service Credits
shall be calculated on a Client Service Centre basis as part of
gain sharing and credited to the respective Countries (as advised
by BPA) on an annual basis.
The formula for calculating the Service Credits for Exult's
failure to achieve any one of the seven KPIs is set out below.
The total amount determined from the service credit calculations
for all KPIs shall be subtracted from Exult's gain share portion
prior to Service Credits. The net result shall equal Exult's gain
share portion after Service Credits. [***]*
The calculation of Service Credits will be by KPI Process. Any
unutilised credits in the KPI Pool at the end of any year
following the Guaranteed Minimum Savings Date cannot be carried
forward to the succeeding year. [***]*
SERVICE CREDITS CALCULATION METHOD EXAMPLE
TABLE C-11.4
[***]*
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12 CLASSIFICATION OF EXPENSE ITEMS SUBJECT TO MARGIN VERSUS PASS-THROUGH
12.1 EXULT ACTUAL COST
The following costs shall be subject to margin as part of gain
sharing:
TABLE C-12.1
[***]*
12.2 OTHER COSTS
The following costs shall not be included in the Exult Actual
Cost:
TABLE C-12.2
[***]*
13 THIRD PARTY REVENUE
Where the parties agree that third parties are permitted to market
services to BPA employees using Exult's Web-enabled HR services portal,
[***]*
14 INVOICING
14.1 Invoices for Base Charge and the Initial Base Charges as
applicable will be submitted monthly in advance on the first day
of each month. All other charges including [***]* will be
invoiced in arrears on the first day of the subsequent month.
Invoices will provide details of each Base Charge and such
supporting information as BPA may reasonably require and will be
in the Country's local currency. For those Processes delivered in
a Client Service Centre not sited in the Country being invoiced,
Exult will convert the cost of those items not invoiced in the
local currency using a fixed exchange rate established on each
anniversary of the Country Commencement Date. At the end of each
year of the Agreement, the invoice amounts will be recalculated
using the actual month end exchange rates for the period and a
credit or invoice, as appropriate, will be issued to BPA. In
addition, at the end of the year, all adjustments including ARCs
and RRCs, gain sharing and Service Credits will be made and
invoiced or credited in the subsequent month. BPA shall inform
Exult how gain sharing and Service Credits are to be distributed
between Countries.
14.2 The ARC and RRC adjustments, inflation adjustments, and BPA's
portion of gain share from the previous year will be used going
forward to calculate Base Charge for the following year subject
to end of year reconciliation in accordance with Section 5.1.2
14.3 Payments are due within [***]* of receipt of any invoice by BPA.
Interest for late payments will be charged at the rate of [***]*
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14.4 If as a result of any audit carried out in accordance with the
terms of a Country Agreement it is discovered that BPA has been
overcharged, Exult shall pay an amount equal to:
[***]*
15 TRANSFER OF ASSETS
As agreed between BPA and Exult, BPA's existing assets and management of
these assets may transfer to Exult as part of the Services that Exult
will provide to BPA. [***]*
16 CONTRACT MINIMUMS
16.1 Contract Minimums for each Contract Minimum Year shall be
established in accordance with Clause 18 of the Framework
Agreement.
16.2 The Contract Minimum for the initial Contract Minimum Year shall
be a sum equivalent to [***]*
16.3 Within [***]*, BPA may give Exult [***]* written notice of a
proposed reduction in the Contract Minimum to take account of
specified reductions in BPA's requirements for Services. These
reductions shall reflect material changes in BPA's business
operations or structure including those caused by Significant
Changes.
16.4 This Section 16 applies to situations which result in an actual
reduction in BPA's requirement for Services and, for the
avoidance of doubt, BPA may not assume responsibility internally
for services equivalent to the Services or appoint a third party
to provide services equivalent to the Services pursuant to the
terms of this Section 16.
16.5 [***]* prior to the end of each Contract Minimum Year, the
Regional Governance Panel shall meet to assess the impact,
including the impact on the Charges for the then current Contract
Minimum Year, of the reductions in BPA's requirements for
Services arising from the events identified in a notice served in
accordance with Section 16.3 above. As appropriate, and subject
always to Section 16.6 below, the Regional Governance Panel shall
agree a decrease in the Contract Minimum for the succeeding
Contract Minimum Year which is proportionate with the actual
reduction in Charges arising from the events.
16.6 [***]*
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TABLE C-16.1
CONTRACT MINIMUMS EXAMPLE
[***]*
1
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17 INFLATION
All Base Charges shall be adjusted annually in arrears by a recognised
index in each Country for [***]*
For the UK, inflation will be measured by the index of Average Earnings
shall be used for all non-IT staff and the New Earnings Survey (software
and consultancy) for IT staff.
The adjustment for inflation for [***]* and [***]* charges and
associated ARCs and RRCs unit rates shall be subject to the percentage
of Total Labour Related Costs going to Exult as shown in Table C-5.1.1.
[***]*
Exult's Actual Cost for [***]* and [***]* for allowing increases with
respect to cost increases greater than inflation, shall be set and
measured at 90 days following the final Process Take On Date.
18 EARLY TERMINATION PAYMENT
18.1 Termination for convenience shall be calculated as:
[***]*
O Winding Up Assistance Costs; and
O Remaining amortisation of Exult's Due Diligence Costs; and
O the remaining book value for the Assets as follows:
O [***]*
O Redeployment costs of staff and equipment (to remove from
BPA's sites) that have not been transferred to BPA; and
O Remaining obligations for Third Party Contracts including
but not limited to outstanding loans and financing costs
related to such contracts as follows:
[***]*
18.2 Termination for Change of Control shall be calculated as:
O Winding Up Assistance Costs; and
O Remaining amortisation of Exult's Due Diligence Costs; and
O The remaining book value for the Assets as follows:
O [***]*
O Redeployment costs of staff and equipment (to remove from
BPA's sites) that
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have not been transferred to BPA; and
O Remaining obligations for Third Party Contracts including
but not limited to outstanding loans and financing costs
related to such contracts as follows:
[***]*
18.3 Termination for Cause by BPA shall be calculated as follows:
O Winding Up Assistance Costs; and
O [***]*
18.4 Termination for a Key Country (U.S. or U.K.) - the payments for
the remaining Countries shall be calculated as follows:
O Winding Up Assistance Costs; and
O Remaining amortisation of Exult's Due Diligence Costs; and
O The remaining book value for the Assets as follows:
[***]*
O Redeployment costs of staff and equipment (to remove from
BPA's sites) that have not been transferred to BPA; and
O Remaining obligations for Third Party Contracts including
but not limited to outstanding loans and financing costs
related to such contracts as follows:
[***]*
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE D
THIRD PARTY CONTRACTS
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SCHEDULE D
THIRD PARTY CONTRACTS
This schedule sets forth the Third Party Contracts and designates whether such
contract is intended to be "Administered", "Transferred" or "Retained" by BPA.
This schedule shall be completed following the Commencement Date.
A. THIRD PARTY CONTRACTS
[***]*
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE E
ASSETS
<PAGE> 112
SCHEDULE E
ASSETS
This schedule sets forth the Client Assets which may be used by Exult to
provide the services. This schedule shall be completed following the Country
Commencement Date.
[***]*
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE F
SYSTEMS
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SCHEDULE F
SYSTEMS
This schedule sets forth the Third Party Systems which may be used by Exult to
provide the Services. This schedule shall be completed following the Country
Commencement Date.
[***]*
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE G
TRANSITION PLAN
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TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1 INTRODUCTION..................................................................1
2 VALIDATION EXERCISE...........................................................1
3 DETAILED WORK PLAN............................................................1
4 TRANSITION APPROACH...........................................................1
5 PROCESS CHANGE MANAGEMENT AND COMMUNICATIONS..................................2
6 TRANSITION PLAN SET UP PHASE..................................................3
7 IN SITU PROCESS TAKE ON.......................................................3
8 LEVERAGED PROCESS TAKE ON.....................................................4
9 UK COUNTRY TRANSITION SCHEDULE................................................6
</TABLE>
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SCHEDULE G
TRANSITION PLAN
1 INTRODUCTION
This Schedule sets forth the Country Transition plan for conducting the
Validation Exercise, the plan for the transition of the Services from
the Client to the Exult Supplier and the approach to transition that
shall be followed.
2 VALIDATION EXERCISE
The Validation Exercise for each Process shall be conducted following
the Commencement Date and conclude prior to the Process Take On Date.
The Validation Exercise shall consist of validation of the Baseline,
volumetrics, resource requirements, cost, Services, Third Party
Contracts and Service Levels. This data shall be verified and adjusted,
as agreed by both parties, for each Process prior to the relevant
Process Take On Date in accordance with the Country Transition Schedule.
In the event that the Country Representatives fail to reach agreement,
such failure shall be resolved in the informal dispute resolution
process as detailed in Clause 29.1 of the Country Agreement.
3 DETAILED WORK PLAN
The final form of the Transition Schedule and the Detailed Work Plan
will be developed and agreed between the parties, [***]*.
In the event that the Country Representatives fail to reach agreement,
such failure shall be resolved in the informal dispute resolution
process as detailed in Clause 29.1 of the Country Agreement.
4 TRANSITION APPROACH
4.1 Two Path Transition Approach.
The purpose of transition is to move the Services to a Leveraged
Operations delivery model as efficiently as possible, with the
minimum of disruption to BPA operations. The Client and Exult
Supplier have agreed to two distinct paths through the
transition Process. The goals of the two path approach are to
allow the Client and Exult Supplier the opportunity to manage
the risk of transition [***]*
4.2 Transition Path One
For those Processes (or discrete parts of Processes) that follow
path one through the transition process, Exult Supplier shall
first assume responsibility for these Processes in-situ,
referred to as "In-Situ Process Take On". Once Exult Supplier is
successfully providing these Processes in-situ, Exult Supplier
shall transform these Processes to Leveraged Operations.
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4.3 Transition Path Two
Processes in this category shall be transformed directly to
Leveraged Operations and, therefore, Exult Supplier shall not
assume operation responsibility for such Processes in-situ prior
to Transformation.
4.4 Path Selection
Exult Supplier and the Client shall agree to either path one or
path two for each Process based on an assessment of risk, the
degree of centralisation of the staff currently performing the
Processes, and the cyclical nature of the Processes. The
provisional allocation is set out in the Transition Schedule in
Section 9 of this Schedule.
5 PROCESS CHANGE MANAGEMENT AND COMMUNICATIONS
5.1 Process Change Management and Communications Approach
The establishment and maintenance of the process-change
management & communications infrastructure shall be managed
through Exult Supplier's project management office in concert
with Client Regional Project Leaders. The primary outcomes of
these activities shall be to:
a) [***]*
b) [***]*
c) [***]*
d) [***]*
e) [***]*
5.2 Process-Change Management and Communications Activities
For each Process that Exult Supplier shall take responsibility
for in-situ:
a) [***]*
b) [***]*
c) [***]*
d) [***]*
[***]*
e) [***]*
f) [***]*
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g) [***]*
h) [***]*
i) [***]*
j) [***]*
6 TRANSITION PLAN SET UP PHASE
The set-up phase of the Transition Plan deals with the project
infrastructure necessary to support the successful completion of the
transition. This is the phase of the transition during which the Client
and Exult Supplier agree to the overall approach and schedule, the plan
to complete the work, and the staffing levels and commitments from both
organizations and the Detailed Work Plan. In addition, the Client and
Exult Supplier shall agree the process-change management program and
communications plan for the transition process. When the change
management actions are agreed, these are added to the details of the
Transition Schedule and Detailed Work Plan. Finally, the project
reporting and governance is agreed and put in place.
7 IN SITU PROCESS TAKE ON
The following steps shall be conducted prior to the Process Take On Date
for each Process.
7.1 Current Situation Assessment Phase
Exult Supplier shall collect data through a series of workshops,
structured interviews and field work, as well as reference to all
data collected during the contract due diligence phase. The scope
of the data collection shall answer the following questions:
[***]*
Exult Supplier shall document the Processes to the level
necessary to clearly identify how Exult Supplier shall provide
the Processes in-situ.
7.2 Operational Plan
[***]*
a) [***]*
b) [***]*
c) [***]*
d) [***]*
e) [***]*
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f) [***]*
g) [***]*
h) [***]*
i) [***]*
7.3 Readiness Test
The Client and Exult Supplier shall agree to a specific set and
schedule of Readiness Tests to be satisfied prior to Exult
Supplier assuming responsibility for a Process. These tests
shall be specific to each Process and shall be designed to
assure the Client and Exult Supplier of the readiness of both
parties to transition the Process to Exult Supplier. Each
Readiness Test plan shall document the objective and measurable
criteria to be tested, the expected outcomes, the governance of
the test, and the results. Typical items that would appear in a
Readiness Test include:
[***]*
In the event that either party believes that there has been a
failure to complete a Readiness Test in all material respects,
it shall provide the other party with a written notice
specifying the grounds on which it believes the Readiness Test
has been failed, within [***]* of the completion of the
Readiness Test. As soon as reasonably practicable following the
receipt of such notice, the parties shall meet to discuss, and
if possible, agree whether and in what respects the Readiness
Test has failed, and to agree a plan to conduct a further
Readiness Test.
7.4 Transfer of Responsibility
Exult Supplier shall assume responsibility for the Process on
successful completion of the Readiness Test. Once the Process
has transitioned to Exult Supplier, Exult Supplier shall measure
its performance to the Service Levels in accordance with
Schedule B.
8 LEVERAGED PROCESS TAKE ON
8.1 Global Process Rationalisation Phase
This is the phase of the project where the Client and Exult
Supplier finalise the list of Processes that shall have a global
or cross-region approach and which Processes shall be specific
to the Country. Exult Supplier and the Client shall agree to
grouping of Processes, where appropriate, and Exult Supplier
shall conduct the overall design session for Process groups. The
parties shall agree to the timeline and sequencing of the
Processes for transformation. The Client and Exult Supplier
shall finalise the plan to transform to Leveraged Operations and
agree to the staff resource levels in the plan.
8.2 Design
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Design shall be conducted cross-region and by Process group
where applicable. Exult Supplier shall conduct Process design
workshops with the Client and shall design and agree to changes
to the Processes.
Exult Supplier shall document the new Process flows, the Service
Delivery Model to be used to support the new Process, and the
workforce requirements to support the new Process for both the
Client and Exult Supplier, and the parties shall agree to new
service levels based on the new Process.
8.3 Service Delivery Build
Exult Supplier shall develop and execute a plan to build the
delivery model for the newly designed Processes. The plan shall
identify:
[***]*
8.4 Readiness Test
The Client and Exult Supplier shall agree to a specific set and
schedule of Readiness Tests to be satisfied prior to the Client
migrating to a transformed Process. These tests shall be
specific to the Process and shall be designed to assure the
Client and Exult Supplier of the readiness of both parties. The
test plan shall document the objective and measurable criteria
to be tested, the expected outcomes, the governance of the test,
and the results. Typical items that would appear in a Readiness
Test include:
[***]*
At the request of the Client, Readiness Tests can be grouped
with the requirement that all grouped Processes pass the
Readiness Tests before Exult Supplier assumes responsibility for
any one of such Processes.
In the event that either party believes that there has been a
failure to complete a Readiness Test in all material respects,
it shall provide the other party with a written notice
specifying the grounds on which it believes the Readiness Test
has been failed, within [***]* of the completion of the
Readiness Test. As soon as reasonably practicable following the
receipt of such notice, the parties shall meet to discuss, and
if possible, agree whether and in what respects the Readiness
Test has failed, and to agree a plan to conduct a further
Readiness Test.
8.5 Transfer of Responsibility
When the Readiness Test for a Process or Process group has been
completed, Exult Supplier shall commence delivering services
using the new Process or group of Processes. If applicable, the
service level measurement period shall commence for that Process
or group of Processes as defined in the Country Agreement,
Schedule B, Service Levels. On completion of the measurement
period, Exult Supplier shall document the Service Levels and
measure its performance to such Service Levels.
8.6 Post Implementation Review
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Conduct post implementation review and document lessons learned
for incorporation in subsequent planning efforts. Implement any
required remediation.
9 UK COUNTRY TRANSITION SCHEDULE
See attached Gant Chart
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE H
PROJECTS
<PAGE> 124
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. PROJECTS INCLUDED AS AT COUNTRY COMMENCEMENT DATE....................................1
2. COUNTRY AGREEMENT PROCESS FOR AGREEING NEW PROJECTS AND
CHANGES TO AGREED PROJECTS...........................................................1
3. PRO FORMA ISSUES LIST RE PROPOSED PROJECTS...........................................1
</TABLE>
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SCHEDULE H
PROJECTS
1 PROJECTS INCLUDED AS AT COUNTRY COMMENCEMENT DATE
As of the Commencement Date, Exult Supplier and the Client have
identified the following projects as being in-scope:
1.1 Peoplesoft and Payroll Integration Project - This project is in
progress. The primary objective is to assist in successfully
completing this project. Within [***]* of the Commencement Date
of the Framework Agreement, Exult Supplier and the Client shall
agree on an appropriate Project Statement; and
1.2 ARCO Integration Project - The ARCO Integration Project primary
objective will be to perform the activities and make the changes
necessary to integrate the ARCO employees and management into
the Services. Subject to regulatory approval of the acquisition
of ARCO by the Client, and within [***]* of the Commencement
Date or as otherwise agreed, Exult Supplier and the Client shall
agree to a Project Statement for this project.
2 COUNTRY AGREEMENT PROCESS FOR AGREEING NEW PROJECTS AND CHANGES TO
AGREED PROJECTS
Client may at any time during the term of this Agreement propose to
Exult Supplier that it undertakes a new Project pursuant to the Change
Control Management process. Any such requests will be made and evaluated
in accordance with the Change Control Management process in Schedule L.
3 PRO FORMA ISSUES LIST RE PROPOSED PROJECTS
3.1 The terms applicable to a Project shall be set out in a Project
statement to be signed by both parties. Once signed a Project
statement will, unless agreed otherwise in writing by the
parties, form part of this Agreement.
3.2 Content of Project statement
- Scope of work
- Service Level Impact
- Impact Analysis including priority
- Deliverables [as applicable]
- Acceptance criteria, timeframe & process [as applicable]
- Project Timetable (including start and end dates,
activity duration and critical dependencies
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- Responsibilities
- Staffing (implementation and ongoing)
- Assumptions
- Charges and Payment Terms
- Project Manager Contacts
- Other Terms and Conditions [to detail variations and/or
additions to the Country Agreement Clauses and/or
Schedules applicable in relation to the Project].
2
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE I
EMPLOYEES
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TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1 INTRODUCTION.........................................................................1
2 KEY EMPLOYEES........................................................................1
3 EMPLOYEES TO BE TRANSFERRED FROM THE CLIENT TO EXULT SUPPLIER........................2
</TABLE>
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SCHEDULE I
EMPLOYEES
1 INTRODUCTION
This schedule sets forth the Key Employees and the employees to be transferred
from the Client to Exult Supplier in accordance with Schedule J.
2 KEY EMPLOYEES
As of the Commencement Date each of the parties shall identify the
individuals for each of the following positions.
Key Employees for the Client:
- BPA Global Project Leader
- BPA Regional Project Leader for the UK/Europe
- BPA Regional Project Leader for North America
- Chemical Stream Lead
- Down Stream Lead
- Up Stream Lead
- Gas Stream Lead (To be added at a later date)
Key Employees for Exult Supplier:
- Exult Global Project Leader
- Exult Regional Project Leader for the UK/Europe
- Exult Regional Project Leader for North America
- UK/Europe Transition Lead
- North America Transition Lead
- IT Lead
For each of the Client and Exult Supplier the responsibilities for the
Key Employees shall include the following:
- Regional and Global Project Leaders: [***]*
- Stream Leads: [***]*
- Transition/Service Delivery Leads: [***]*
- IT Lead: [***]*
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Individuals identified as Key Employees will be confirmed in their
positions within 30 days of the Commencement Date of the Framework
Agreement. Each will serve in their positions for a minimum of [***]*
and up to [***]* unless otherwise agreed between the parties.
At anytime after [***]* one of the parties may request to reassign a Key
Employee. Reassignment may take place with a minimum of 4 weeks notice
and agreement between the parties. The parties will make a reasonable
effort to accommodate and achieve the reassignment and the timing of the
reassignment as requested.
[***]*
3 EMPLOYEES TO BE TRANSFERRED FROM THE CLIENT TO EXULT SUPPLIER
The table below lists the Client employees that shall be transferred
from the Client to Exult Supplier in accordance with Schedule J. This
table shall be completed following the Country Commencement Date.
<TABLE>
<CAPTION>
NAME OF EMPLOYEE BPA STAFF NUMBER FULL/PART TIME
<S> <C> <C>
</TABLE>
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE J
EMPLOYEE TRANSFER ARRANGEMENTS
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TABLE OF CONTENTS
<TABLE>
<S> <C>
1 DEFINITIONS..........................................................................1
2 TRANSFER PROVISIONS..................................................................2
3 INDEMNITIES..........................................................................3
4 EMPLOYEE RECORDS.....................................................................3
5 TRANSITION AND SEVERANCE PAYMENTS....................................................4
6 OFFER OF EMPLOYMENT..................................................................5
7 PENSIONS.............................................................................5
8 ASSIGNMENT...........................................................................5
9 SECONDMENT...........................................................................8
10 EMPLOYEE INFORMATION.................................................................8
11 EMPLOYMENT PROVISIONS ON TERMINATION.................................................9
</TABLE>
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SCHEDULE J
EMPLOYEE TRANSFER ARRANGEMENTS
1 DEFINITIONS
In this Schedule:
"AFFECTED EMPLOYEE " means any employee employed wholly or mainly in
providing one or more of the services similar to the Services in the UK
immediately before the Commencement Date or who would have been so
employed had his employment not been terminated for a reason connected
with this Agreement;
"APPROPRIATE AFFILIATE" means any BPA Affiliate which employs an
Affected, Assigned or Relevant Employee immediately before either his
Transition Date or any termination of his employment with that BPA
Affiliate;
"ASSIGNED EMPLOYEE" means an Affected Employee who has, before the first
Transition Date occurring in relation to the part of the Services in
which the Affected Employee is employed, notified the Appropriate
Affiliate in writing that he objects to transfer to the employment of
Exult Supplier pursuant to the Transfer Provisions, but who agrees to be
seconded to Exult Supplier.
"RELEVANT EMPLOYEE" means an Affected Employee employed by the Client or
Appropriate Affiliate immediately before the first Transition Date
occurring in relation to the part of the Services in which the Affected
Employee is employed but excludes any Assigned Employee;
"RELEVANT EMPLOYER" means the employer of a Returning Employee;
"RETURNING EMPLOYEES" means an employee employed wholly or mainly in
providing one or more of the Services immediately before the Transfer
Date;
"SEVERANCE PAYMENT" means a sum [***]*
"STAFF COSTS" means any and all compensation, damages, interest,
reasonable legal costs, penalties, fines or other liabilities
whatsoever, arising from any claim by one or more Affected Employees,
the Inland Revenue or Customs and Excise in relation to any employment
contract, employment relationship or collective agreement including
without limitation any claim for a Severance Payment or Transition
Payment and any other claim whatsoever in contract or tort or under the
Employment Rights Act 1996, the Equal Pay Act 1970, the Equal Pay
(Amendment) Regulations 1983, the Sex Discrimination Act 1975, the Race
Discrimination Act 1976, the Disability Discrimination Act 1995, the
Trade Union and Labour Relations (Consolidation) Act 1992, the Working
Time Regulations 1998, the Human Rights Act 1998, the Transfer
Provisions and any provision of the Treaty of Rome or other provision of
EC Law,
"TRANSFER DATE" means 23.59 local time on the date when this Agreement
expires or terminates;
"TRANSFER PROVISIONS" means the Transfer of Undertakings (Protection of
Employment) Regulation 1981, as amended;
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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"TRANSFEREE" means the Client and/or the Successor Operator;
"TRANSFERRED EMPLOYEE" means a Relevant Employee who transfers to the
employment of Exult Supplier on the relevant Transition Date pursuant to
Section 2.1 of this Schedule and pursuant to an individual transition
plan to be documented and agreed between Exult Supplier and the
Appropriate Affiliate;
"TRANSITION DATE" means the date on which an Affected Employee becomes
an employee of Exult Supplier pursuant to an individual transition plan
to be agreed and documented between Exult Supplier and the Appropriate
Affiliate;
"TRANSITION PAYMENT" means [***]*
"TRANSITION PAYMENT DATE" means the date which is six months after
Transition Date.
2 TRANSFER PROVISIONS
2.1 It is the Parties' intention that the Transfer Provisions apply
to the outsourcing of each part of the Services at the point at
which Exult Supplier assumes responsibility for providing the
part of the Services concerned and that shall be the "time of
transfer" under the Transfer Provisions and also that the
contract of employment or the employment relationship of each
Relevant Employee shall have effect on and from the Transition
Date as if originally made between the Relevant Employee and
Exult Supplier save insofar as that contract or relationship
relates to any occupational pension scheme where the Transfer
Provisions exclude any such scheme from their scope.
2.2 The Client shall, and shall procure that the Appropriate
Affiliate shall, be responsible for all wages, salaries,
emoluments, taxation and national insurance contributions
payable in the ordinary course of business in respect of the
Relevant Employees and will discharge all such obligations in
respect of the Relevant Employees up to the Transition Date.
Subject to Sections 3.3 and 5.6 Exult Supplier shall be
responsible for and will discharge all such obligations in
respect of the Transferred Employees thereafter.
2.3 In accordance with its obligations under the Transfer
Provisions, Exult Supplier shall provide the Client in writing
with such information and at such time as will enable each
Appropriate Affiliate to carry out its obligations to inform and
consult under the Transfer Provisions.
2.4 The Client shall, and shall procure that the Appropriate
Affiliates shall, provide information to, and consult with, the
appropriate representatives (as defined in the Transfer
Provisions) of the Affected Employees in accordance with its
obligations under the Transfer Provisions.
2.5 The Client shall not and shall procure that no Appropriate
Affiliate shall employ or engage further employees wholly or
mainly in providing one or more of the services similar to the
Services after the Commencement Date without consultation with
Exult Supplier.
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* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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3 INDEMNITIES
3.1 Subject to Sections 2.2 and 8.5.3, the Client will, and will
procure that each Appropriate Affiliate will, indemnify, keep
indemnified and reimburse Exult Supplier against any Staff Costs
(other than any Staff Costs resulting from an act or deliberate
failure to act by Exult Supplier in its dealings with an
Affected Employee) incurred by Exult Supplier relating to the
period before the relevant Transition Date, irrespective of when
such claim is made, and any Staff Costs incurred by Exult
Supplier which arise out of or are connected with any act or
omission by the Appropriate Affiliate having its origin before
the relevant Transition Date.
3.2 Subject to Sections 3.1 and 5 Exult Supplier will indemnify the
Client and keep the Client indemnified, for itself and as
trustee for each Appropriate Affiliate, against:
3.2.1 any Staff Costs which relate to, arise out of or are
connected with any act or omission by Exult Supplier
having its origin on or after the relevant Transition
Date and which the Appropriate Affiliate incurs pursuant
to the Transfer Provisions; and
3.2.2 any Staff Costs which relate to or arise out of any act
or omission by Exult Supplier prior to the relevant
Transition Date which the Appropriate Affiliate incurs
by virtue of Regulation 5(5) of the Transfer Provisions
and/or Article 4(2) of Council Directive 77/187 EEC.
3.3 The Client will reimburse Exult Supplier (or where applicable,
the Exult Supplier will reimburse the Client) in respect of
accrued (or used) holiday pay entitlements and accrued holiday
entitlements and/or loans of the Relevant Employees as at the
relevant Transition Date against invoices in accordance with the
arrangements set out in Schedule C.
3.4 To the extent permitted by law, neither party shall bring any
claims against the other for any negligent acts or omissions of
Assigned Employees.
4 EMPLOYEE RECORDS
4.1 As soon as reasonably practicable after the relevant Transition
Date, the Client shall procure that the Appropriate Affiliates,
subject to any restrictions imposed by law, will:
4.1.1 deliver to Exult Supplier copies of all personnel and
other records (excluding health records) relating to the
employment by the Client or Appropriate Affiliate of any
Transferred Employee to Exult Supplier or, where such
records are held in any electronic or electromagnetic
form (including databases stored on computer tapes or
discs), paper copies of those records; and
4.1.2 deliver to Exult Supplier's medical officer or other
medically qualified doctor notified by Exult Supplier to
the Client copies of all records, documents and
information connected directly or indirectly with the
health of such Transferred Employees.
4.2 Exult Supplier shall maintain comprehensive, accurate and up to
date employee records in relation to the Employees.
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5 TRANSITION AND SEVERANCE PAYMENTS
5.1 A Transferred Employee will receive a Transition Payment from
Exult Supplier provided that he is employed by Exult Supplier on
the Transition Payment Date. Subject to Section 5.2 Transition
Payments will be paid via payroll [***]*
5.2 A Transferred Employee who, by reason of redundancy, is not
employed by Exult Supplier on the Transition Payment Date shall
receive a Transition Payment from Exult Supplier [***]* Such
employee will also receive a Severance Payment from Exult
Supplier, [***]*
5.3 A Transferred Employee whose contract of employment is
terminated by Exult Supplier on or after the Transition Payment
Date by reason of redundancy, will receive a Severance Payment
from Exult Supplier, the [***]*
5.4 An Assigned Employee will receive a Transition Payment from
Exult Supplier in the month in which the Transition Payment Date
occurs, provided he remains seconded to Exult Supplier for the
period of the Assignment and is offered and accepts a job with
Exult Supplier at the end of the Assignment and is employed by
Exult Supplier on the Transition Payment Date.
5.5 An Assigned Employee will receive a Severance Payment, [***]*
5.5.1 from Exult Supplier if during or at the end of the
Assignment he is offered and accepts employment with
Exult Supplier and his contract of employment with Exult
Supplier is subsequently terminated by Exult Supplier by
reason of redundancy provided always that he has not
previously received a Severance Payment from the Client
or Appropriate Affiliate in respect of the same period
of service; or
5.5.2 from the Appropriate Affiliate if before the end of the
Assignment his employment is terminated by the
Appropriate Affiliate by reason of redundancy and he has
not unreasonably refused an offer of a suitable
alternative job with a BPA Affiliate; or
5.5.3 from the Appropriate Affiliate provided he remains
seconded to Exult Supplier for the period of the
Assignment and at the end of the Assignment is either
not offered a job by Exult Supplier or is offered but
does not accept a job with Exult Supplier and in either
case has not unreasonably refused an offer of a suitable
alternative job with a BPA Affiliate.
5.6 The Client will, and will procure that each Appropriate
Affiliate will, indemnify, keep indemnified, and reimburse Exult
Supplier, within [***]* of a request to do so or earlier if the
payment arrangements in Schedule C permit and on production of
documents endorsing the amount of the payment incurred, in
respect of any claim by an Affected Employee in relation to a
Severance or Transition Payment [***]*
5.7 Exult Supplier and the Client or Appropriate Affiliate will
agree appropriate communications to Affected Employees in
connection with this Agreement.
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* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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6 OFFER OF EMPLOYMENT
During or on termination of an Assignment, Exult Supplier may offer to
employ an Assigned Employee. Such offer shall be in writing and will be
to employ an Assigned Employee on the same contractual terms upon which
he was employed at the date of the Offer (save in so far as those terms
relate to an occupational pension scheme) and Exult Supplier shall treat
such employee's continuous period of service with the Appropriate
Affiliate as continuous with Exult Supplier (the "OFFER").
7 PENSIONS
7.1 The Client shall, and shall procure that each Appropriate
Affiliate shall, perform and discharge its or their obligations
in relation to any occupational pension scheme of the Client or
Appropriate Affiliate and of which any Affected Employee is a
member, including without limitation its or their obligations to
make employer's contributions and to ensure that the
consequences of the cessation of any such Affected Employee's
employment shall be administered in accordance with the rules of
such scheme and shall indemnify Exult and keep Exult against any
losses, costs (including reasonable legal costs), penalties,
fines or other expenditure incurred by Exult as a result of the
Client or Appropriate Affiliate failing so to discharge.
7.2 The parties will within [***]* of the Commencement Date of the
Agreement agree(by a side letter) in respect of any proposed
Transferred Employee and employees who accept employment with
Exult Supplier pursuant to Section 6:
7.2.1 [***]*
7.2.2 [***]*
7.2.3 [***]*
8 ASSIGNMENT
The Client and/or the Appropriate Affiliate will second its or their
Assigned Employees to Exult Supplier on the following terms.
8.1 DURATION
Subject to Section 8.6 the Client and/or Appropriate Affiliate
will second the Assigned Employees to Exult Supplier to perform
the Services [***]* or such other period agreed between Exult
Supplier, the Client and the Assigned Employee (the
"ASSIGNMENT").
8.2 CONTINUING EMPLOYMENT BY THE CLIENT/APPROPRIATE AFFILIATE
8.2.1 During the Assignment the Assigned Employees will remain
employed by the Client or the Appropriate Affiliate and
will be assigned to Exult Supplier on their terms
immediately prior to the start of the Assignment as
amended from time to
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* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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time provided always that such amendments shall be
notified to Exult Supplier in good time for Exult
Supplier to comply with its obligations in Section 8.4.
8.2.2 During the term of the Assignment, Assigned Employees
will observe their terms of employment as if Exult
Supplier were the actual employer in all respects other
than matters relating to the termination of the Assigned
Employee's employment by the Client or Appropriate
Affiliate.
8.2.3 The Client will reimburse Exult Supplier (or where
applicable, Exult Supplier will reimburse the Client) in
respect of accrued (or used) holiday pay entitlements
and accrued holiday pay entitlements of the Assigned
Employees as at the relevant transfer date.
8.3 DUTIES OF THE CLIENT OR AN APPROPRIATE AFFILIATE
8.3.1 The Client or the Appropriate Affiliate will pay the
Assigned Employees' salary and provide all contractual
and other benefits during the Assignment.
8.3.2 The Client or the Appropriate Affiliate will be
responsible for making appropriate tax and national
insurance deductions from the Assigned Employees'
remuneration.
8.3.3 The Client or Appropriate Affiliate shall be responsible
for confirming the arrangements set out in Section 8 in
writing to the Assigned Employee.
8.3.4 Prior to the commencement of any Assignment and in good
time for Exult Supplier to comply with its obligations
under Section 8.4 the Client or Appropriate Affiliate
shall deliver to Exult Supplier copies of the terms of
employment of any Assigned Employee.
8.4 DUTIES OF EXULT SUPPLIER
8.4.1 Subject to Section 8.7 Exult Supplier will observe the
Assigned Employees' terms of employment as if it were
the actual employer in all respects other than in
matters relating to the termination of the Assigned
Employee's employment with the Client or Appropriate
Affiliate.
8.4.2 Exult Supplier will maintain a record of each Assigned
Employee's sickness absence and will notify the Client
or the Appropriate Affiliate of such absence and provide
a copy of such records to the Client or the Appropriate
Affiliate at its request.
8.5 PAYMENT FOR SERVICES
8.5.1 As soon as practicable after the Commencement Date and
in any event prior to the commencement of the first
Assignment occurring in relation to the part of the
Services in which an Assigned Employee works, the Client
shall and shall procure that any Appropriate Affiliate
shall provide Exult Supplier with details of the costs
incurred by the Appropriate Affiliate of employing
Assigned Employees on a monthly basis.
8.5.2 The Client shall not and shall procure that no
Appropriate Affiliate shall increase those costs other
than in the ordinary course of business.
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8.5.3 The Client shall advise Exult Supplier of the costs
incurred by the Appropriate Affiliates of employing the
Assigned Employees on a monthly basis, [***]*
8.6 EARLY TERMINATION
8.6.1 Either party may terminate any Assigned Employee's
Assignment immediately by giving written notice to the
other if:
(i) the Assigned Employee does or omits to do
anything (whether in connection with the
Assignment or not) which would allow the Client
or the Appropriate Affiliate to terminate his
employment summarily; or
(ii) the Assigned Employee is guilty of dishonesty or
is convicted of an offence (other than a
motoring offence which does not result in
imprisonment) whether in connection with the
Assignment or not.
8.6.2 Exult Supplier may terminate any Assigned Employee's
Assignment at any time on giving two week's written
notice to the Appropriate Affiliate, provided that in
this case only Exult Supplier's obligation to deduct
from charges invoiced to the Client the costs of
employing such an Assigned Employee incurred by an
Appropriate Affiliate, shall not cease until the earlier
of the end of the Assignment period or the date on which
the Assigned Employee's employment with the Appropriate
Affiliate ceases.
8.6.3 An Assignment will automatically terminate on the
termination of the Assigned Employee's employment with
the Appropriate Affiliate.
8.7 DISCIPLINARY MATTERS
If any disciplinary or grievance matter arises in relation to
any of the Assigned Employees during the Assignment, Exult
Supplier will notify the Client or the Appropriate Affiliate as
soon as possible. The Client or the Appropriate Affiliate will
deal with the matter in accordance with its disciplinary or
grievance procedure. Exult Supplier will provide whatever
assistance is necessary.
8.8 HEALTH AND SAFETY
Exult Supplier will comply with its health and safety
obligations in relation to the Assigned Employees. Exult
Supplier will co-operate with the Client or the Appropriate
Affiliate in respect of any action which it wishes to take in
respect of the Assigned Employee in order to fulfil such
obligations.
8.9 INTELLECTUAL PROPERTY
During the Assignment any invention, design, copyright or other
intellectual property made by any of the Assigned Employees,
[***]*
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* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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9 SECONDMENT
9.1 In addition to the Assigned Employees, the Client may second to
Exult Supplier one employee of its choice in [***]* or above
(the "SECONDED EMPLOYEE") per 5000 employees in respect of whom
Exult Supplier is providing Services to perform the Services
[***]* (the "SECONDMENT").
9.2 The Secondment shall be on the terms set out in Section 8 other
than sub Sections 8.1, 8.5, and 8.6.2 substituting Seconded
Employee for Assigned Employee in that section and references to
Appropriate Affiliate being understood to be references to the
employer of the Seconded Employee. For the avoidance of doubt
Exult Supplier shall not be required to pay the Appropriate
Affiliate for the services of the Seconded Employee.
10 EMPLOYEE INFORMATION
Two months before the expiry of this Agreement, or if this Agreement has
been terminated earlier for any reason within two weeks of being
requested to do so by the Client, Exult Supplier will provide (and will
procure any other employer will provide) to the Client the following
information in relation to all employees who are employed wholly or
mainly in providing the Services ("CURRENT EMPLOYEES"):
10.1 the total number of the Current Employees (including those on
maternity leave or other long-term leave of absence and who have
a statutory or contractual right to return to work);
10.2 the name, sex, date of commencement of employment, period of
continuous employment, notice period, location, salary and other
contractual or non-contractual benefits including any bonus
entitlement, grade and age of each Current Employee;
10.3 the complete terms of the contract of employment for each
Current Employee entitled to a salary at a rate in excess of
[***]*
10.4 a copy of each proforma contract of employment and other
contractual documentation for employees entitled to a salary at
a rate of [***]* or less and the complete terms of the contracts
of employment of any Current Employee not employed under a
proforma contract of employment;
10.5 details of dismissals or terminations of employment within the
previous 12 months of any person who during that period was
involved in the provision of the Services; and
10.6 details of all agreements and arrangements entered into in
relation to the Current Employees with any trade union or
association of trade unions, works council, staff association or
other similar organisation or body of employees.
11 EMPLOYMENT PROVISIONS ON TERMINATION
11.1 On termination or expiry of this Agreement it is the intention
of the parties that the Transfer Provisions will apply. If the
Transfer Provisions have effect the following provisions shall
apply in connection with such transfer:
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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11.1.1 the contract of employment of each Returning Employee
(save insofar as that contract relates to any
occupational pension scheme where the Transfer
Provisions exclude any such scheme from their scope)
shall be transferred to the Transferee with effect from
the Transfer Date which shall be the `time of transfer'
under the Transfer Provisions;
11.1.2 Exult Supplier shall, and shall procure that each
Relevant Employer shall, perform and discharge its or
their obligations in respect of all the Returning
Employees for its or their own account up to and
including the Transfer Date including, without
limitation, discharging all wages, salaries and
emoluments of the Returning Employees or employer's
contributions to any relevant occupational pension
scheme and all other costs and expenses related to their
employment (including, without limitation, any taxation,
national insurance contributions, accrued holiday pay,
accrued bonus, commission or other sums payable in
respect of service prior to the Transfer Date) and shall
indemnify the Transferee and keep the Transferee
indemnified against any Staff Costs (substituting
Returning Employees for Affected Employees in that
definition and indemnified subject to Sections 5 and
3.1) which the Transferee incurs arising from Exult
Supplier's or the Relevant Employer's failure so to
discharge; the Client or Appropriate Affiliate shall and
shall procure that the Successor Operator shall
discharge all responsibilities and obligations in
respect of the Returning Employees thereafter;
11.1.3 Exult Supplier shall, and shall procure that each
Relevant Employer, shall indemnify the Transferee and
keep the Transferee indemnified against all Staff Costs
(substituting Returning Employees for Affected Employees
in that definition and subject to Sections 5 and 3.1)
which relate to or arise out of any act or omission by
Exult Supplier or a Relevant Employer or any other event
or occurrence prior to the Transfer Date and which the
Transferee incurs in relation to any contract of
employment, employment relationship or collective
agreement concerning one or more of the Returning
Employees pursuant to the Transfer Provisions;
11.1.4 The Client will and will procure that the Appropriate
Affiliate or Successor Operator will indemnify and keep
Exult Supplier indemnified against :
(i) any Staff Costs (substituting Returning
Employees for Affected Employees in that
definition and subject to Sections 5 and 3.1)
which relate to or arise out of any act or
omission by the Client, Appropriate Affiliate or
Successor Operator, having its origin on or
after the Transfer Date and which Exult Supplier
incurs pursuant to the Transfer Provisions; and
(ii) any Staff Costs (substituting Returning
Employees for Affected Employees in that
definition) which relate to or arise out of any
act or omission by the Client, Appropriate
Affiliate or Successor Operator prior to the
Transfer Date which Exult Supplier incurs by
virtue of Regulation 5(5) of the Transfer
Provisions and/or Article 4(2) of Council
Directive 77/187 EEC.
11.1.5 Exult Supplier shall, and shall procure that each
Relevant Employer, shall indemnify the Transferee and
keep the Transferee indemnified against all Staff Costs
(substituting Returning Employees for Affected Employees
in that definition and subject to Sections 5 and 3.1)
which relate to or arise out of any dismissal
(including, without limitation, constructive dismissal)
by Exult Supplier or a Relevant Employer of any employee
(not being a Returning Employee) which the Transferee
incurs pursuant to the Transfer Provisions.
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11.2 If the contract of employment of an employee transfers to the
Transferee pursuant to the Transfer Provisions on a date other
than the Transfer Date (but after the date of this Agreement)
the provisions of Sections 10 and 11.1 above shall apply with
the substitution of the date of actual transfer for the Transfer
Date and references to the termination or expiry of the
Agreement and the definitions used in those sections shall be
amended by the same substitution. In respect of Section 10,
Exult Supplier will supply the information listed in that
section within a reasonable period (being no more than 10
working days, of a request for it from the Client).
11.3 If in the Client's reasonable opinion the Transfer Provisions
will not apply to transfer the contract of employment of a
Returning Employee on the Transfer Date, the Client or a
Successor Operator may, at its absolute discretion, offer to
employ one or more of the Returning Employees after the Transfer
Date. The Relevant Employer will not discourage Returning
Employees from accepting such an offer.
11.4 In respect of each Returning Employee who transfers to the
Transferee pursuant to Section 11.1.1 above, the Exult Supplier
shall, and shall procure that each Relevant Employer shall,
provide such employee's employment records and medical records
to the Successor Operator in accordance with the terms of
Section 4 with the necessary changes.
11.5 In Section 11 the undertakings and indemnities given by Exult
Supplier or procured by Exult Supplier to be given by a Relevant
Employer to the Transferee shall be given to the Client for
itself and as trustee for the Successor Operator.
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE L
CHANGE CONTROL MANAGEMENT
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TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1 CHANGE REQUESTS.................................................. 1
2 CLASSIFICATION OF THE CHANGE REQUEST............................. 1
3 EVALUATION OF THE PROPOSED CHANGE................................ 1
4 IMPACT ANALYSIS.................................................. 3
5 APPROVAL......................................................... 4
6 REPORTING........................................................ 4
</TABLE>
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SCHEDULE L
CHANGE CONTROL MANAGEMENT
This Schedule sets out the procedure to be followed for any Proposed Change to
the Framework Agreement or any Country Agreement.
1 CHANGE REQUESTS
1.1 Either party may request a Proposed Change by submitting a Change
Request in accordance with the following process.
1.2 The Change Request shall be divided into two (2) sections.
Section One shall contain the general information regarding the
Proposed Change and shall be completed by the Country
Representative of the submitting party. Section Two shall contain
the impact analysis for the Proposed Change, which shall be
completed by the Exult Supplier Country Representative.
1.3 In each Country, Change Requests shall be presented by the
Country Representative of the submitting party to the other
party's Country Representative or designee who shall acknowledge
receipt by signature of the Change Request.
1.4 Any Proposed Change which has a potential impact on more than one
Country shall have a Change Request completed for each impacted
Country.
2 CLASSIFICATION OF THE CHANGE REQUEST
The Exult Supplier Country Representative and the Client Country
Representative shall agree to the classification of the Change Request
as follows:
2.1 Where it is determined that the Proposed Change is an Operational
Change, the Proposed Change shall be evaluated as set out in
Section 3.1.
2.2 Where it is determined that the Proposed Change is a change to
the Client's Policies and Procedures, the proposed change shall
be evaluated as set out in Section 3.2.
2.3 Where it is determined that the Proposed Change is a Project, the
Proposed Change shall be evaluated as set out in Section 3.3
2.4 Where it is determined that the Proposed Change is a change to
the terms and conditions of the Country Agreement or a change
related to the Schedules of the Country Agreement which is not
related to a specific Project or to a change to Client's Policies
and Procedures, the Proposed Change shall be evaluated as set out
in Section 3.4.
2.5 Where it is determined that the Proposed Change should not
proceed, the Change Request shall be rejected and returned to the
submitting party.
If the Exult Supplier's Country Representative and the Client's Country
Representative cannot agree to the classification of the Change Request,
then the Change Request shall be referred to the Regional Governance
Panel for classification.
3 EVALUATION OF THE PROPOSED CHANGE
The Proposed Change shall be evaluated, by classification, as described
below:
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3.1 Operational Changes
3.1.1 Operational Changes shall be implemented in accordance
with the operational change control procedures and
approved subject to Section 5 of this Schedule.
3.2 Changes to Client's Policies and Procedures
3.2.1 Exult Supplier shall perform the impact analysis as
described in Section 4.
3.2.2 The Exult Supplier Country Representative shall submit the
Proposed Change, including the Impact Analysis, to the
Client Country Representative.
3.2.3 Based on the results of the impact analysis, the Client
Country Representative shall, within a reasonable
timeframe:
(i) approve the Proposed Change and proceed to its
implementation subject to Section 5 of this
Schedule; or
(ii) request Exult Supplier in writing to re-submit the
Proposed Change stating which items of information
it is dissatisfied with, in which case Exult
Supplier shall re-submit the Proposed Change within
a reasonable timeframe; or
(iii) reject the Change Request in which case the
Agreement shall continue un-amended.
3.3 Projects
3.3.1 Exult Supplier shall perform the impact analysis as
described in Section 4.
3.3.2 Exult Supplier shall prepare a Project Statement as set
out in Schedule H.
3.3.3 The Exult Supplier Country Representative shall submit
the Proposed Change, including the Project Statement, to
the Client Country Representative
3.3.4 Based on the results of the impact analysis, the Client
Country Representative shall, within a reasonable
timeframe:
(i) approve the Proposed Change and the Project
Statement and proceed to its implementation subject
to Section 5 of this Schedule; or
(ii) request in writing that Exult Supplier re-submit
the Proposed Change and Project Statement stating
which items of information it is dissatisfied with,
and Exult Supplier shall re-submit the Proposed
Change and Project Statement within a reasonable
timeframe; or
(iii) reject the Change Request in which case Exult
Supplier will not implement the Project.
3.4 Changes to the Agreement (as described in Section 2.4)
3.4.1 Exult Supplier shall perform the impact analysis as
described in Section 4.
3.4.2 The Exult Supplier Country Representative shall submit the
Proposed Change, including the impact analysis, to the
Client Country Representative for approval
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subject to Section 5 of this Schedule.
4 IMPACT ANALYSIS
4.1 Upon determination of the classification of the Proposed Change,
Exult Supplier shall provide, at its expense, within [***]* or as
otherwise agreed, an estimate of the time and cost that Exult
Supplier proposes to charge to the Client to complete the impact
analysis. The Client shall provide Exult Supplier, within 10
business days or as otherwise agreed, a decision as to whether to
proceed with the impact analysis as estimated.
4.2 If the Client Country Representative determines that the Proposed
Change should not proceed, the Change Request shall be rejected
and returned to the submitting party.
4.3 If the Client Country Representative decides to proceed, Exult
Supplier shall, as soon as reasonably practicable and acting in
good faith, conduct an impact analysis to assess and evaluate the
impact of the Proposed Change having regard to all relevant
factors including the following:
[***]*
4.4 In the case of Proposed Changes relating to Projects, Exult
Supplier, in addition to the impact analysis shall, acting in
good faith, provide the Client with the following information:
4.4.1 whether Exult Supplier considers the Project to be
technically feasible, and, if so, the estimated number,
grade, qualification and experience of personnel required
to provide the Project;
4.4.2 the estimated number of days that would be required to be
spent by each such person in order to provide the Project;
4.4.3 the estimated cost and timetable for implementation of the
Project including the date of its completion;
- --------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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4.4.4 the anticipated impact, if any, on other aspects of the
Services and operation of the Systems by the Client;
4.4.5 the terms and conditions on which Exult Supplier is
willing to provide the Project, which shall so far as
reasonably appropriate shall be consistent with the terms
and conditions on which the Services are provided under
this Agreement; and
4.4.6 any other information the Client may reasonably require in
relation to the Project.
Exult Supplier shall, in good faith, endeavour to complete the impact
analysis and propose fair a price to the Client for the implementation
of the Proposed Change. In the event that Exult Supplier chooses not to
quote a price for the Proposed Change, the Client may submit the request
to another supplier.
5 APPROVAL
Subject to the delegated financial authority limits provided by the
relevant Client Global Commercial Contract Leader and Client Regional
Commercial Contract Leader, the following approval levels shall apply.
5.1 Change Requests that are classified as Operational Changes shall
be approved by the Client's Country Representative and Exult
Supplier's Country Representative or their designees except where
Operational Changes do not impact Client activities or costs, in
which case the Exult Country Representative or its designee may
approve the change.
5.2 Change Requests that are classified as changes to the Client's
Policies and Procedures shall be approved by the Client Country
Representative.
5.3 Change Requests that are classified as Projects shall be approved
by the Client's Country Representative.
5.4 Change Requests that are classified as changes to the terms and
conditions of the Country Agreement or as changes related to the
Schedules of the Country Agreement which are not related to a
specific Project or to a change to the Client's Policies and
Procedures, shall be approved by the Regional Governance Panel.
In the event that such changes have global implications, the
Change Request shall be approved by the Global Governance Panel.
Neither party shall be obliged to comply with any Proposed Changes
unless and until approval has been given in accordance with this Change
Control Management process and, pending approval, no Change shall be
made to the Services or to the Framework and Country Agreements.
6 REPORTING
A consolidated report of all Change Requests shall be presented by the
Exult Supplier Country Representative to the Regional Governance Panel
on a monthly basis. The Regional Governance Panel shall report Change
Requests on a quarterly basis to the Global Governance Panel.
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE M
APPROVED EXULT SUBCONTRACTORS
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SCHEDULE M
APPROVED EXULT SUBCONTRACTORS
This schedule sets forth those subcontractors that have been approved by BPA.
[***]*
- --------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE O
BPA POLICIES AND CONTROLS
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SCHEDULE O
BPA POLICIES AND CONTROLS
1 PART 1
The following Controls have been submitted to Exult in writing and Exult
shall fulfil its obligation under this Agreement in accordance with such
Controls.
[***]*
2 PART 2
The following Controls shall be reviewed and evaluated by BPA and Exult
in accordance with this Agreement.
[***]*
- --------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE P
GLOBAL GOVERNANCE ARRANGEMENTS
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TABLE OF CONTENTS
<TABLE>
<S> <C>
1 INTRODUCTION.............................................. 1
2 GLOBAL GOVERNANCE PANEL................................... 1
3 REGIONAL GOVERNANCE PANEL................................. 2
4 COUNTRY REPRESENTATIVES................................... 3
5 EXECUTIVE STEERING COMMITTEE.............................. 4
6 REGIONAL STEERING COMMITTEES.............................. 5
7 CONTRACT ADMINISTRATION DOCUMENTS......................... 6
</TABLE>
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SCHEDULE P
GLOBAL GOVERNANCE ARRANGEMENTS
1 INTRODUCTION
For the purposes of this Schedule, Exult shall mean Exult Supplier where
appropriate; BPA shall mean the Client, where appropriate.
2 GLOBAL GOVERNANCE PANEL
2.1 As soon as reasonably practicable following the Commencement
Date a Global Governance Panel will be established by the
parties to focus primarily on global strategic issues. It is
agreed that the Global Governance Panel should not be involved
in day-to-day issues.
2.2 The Global Governance Panel will be comprised of 4 voting
members as follows:
2.2.1 one Global Project Leader from each of Exult and BPA
(who will also be members of the Executive Steering
Committee); and
2.2.2 one Global Commercial Contract Leader from each of Exult
and BPA.
2.3 The initial members of the Global Governance Panel are:
BPA Global Project Leader
Exult Global Project Leader
BPA Global Commercial Contract Leader
Exult Global Commercial Contract Leader
Each party shall wherever reasonably practicable give the other
3 months written notice in the event it wishes to change its
representatives on the Global Governance Panel.
2.4 The Global Governance Panel shall be chaired alternately by a
BPA representative and an Exult representative.
2.5 The Global Governance Panel will meet no less than quarterly,
and at other times as agreed between the parties. The meetings
will be arranged to synchronise with those of the Regional
Governance Panels and will take place approximately two weeks
after meetings of the Regional Governance Panels.
2.6 Voting will be on a unanimous basis and a full quorum will be
required for voting purposes.
2.7 The responsibilities of the Global Governance Panel will
include:
2.7.1 reviewing the overall performance of the parties'
respective roles and responsibilities under this
Agreement and of their respective Affiliates under the
Country Agreements;
2.7.2 reviewing significant recommendations and suggestions
made by the Executive Steering Committee relating to the
Services and/or this Agreement or any Country Agreement
and initiate appropriate actions;
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2.7.3 submitting quarterly performance review reports to the
Executive Steering Committee for its guidance and
recommendations;
2.7.4 when referred to it by any of the Regional Governance
Panels, considering and agreeing changes in accordance
with the Change Control Management procedure;
2.7.5 seeking to resolve any Dispute referred to it in
accordance with the Dispute Resolution Procedure.
2.8 The parties shall procure that the members of the Global
Governance Panel shall, at all times, act reasonably and in good
faith having due regard to the interests of all parties.
3 REGIONAL GOVERNANCE PANEL
3.1 As soon as reasonably practicable at the time of contracting the
first Country in a region a Regional Governance Panel will be
established by the parties for that Region to focus primarily on
regional strategic issues. It is agreed that the Regional
Governance Panels should not be involved in day-to-day issues.
3.2 Each Regional Governance Panel will be comprised of 4 voting
members as follows:
3.2.1 one Regional Project Leader from each of Exult and BPA;
and
3.2.2 one Regional Commercial Contract Leader from each of
Exult and BPA.
3.3 The Regional Governance Panel shall be chaired alternately by a
BPA representative and an Exult representative.
3.4 The Regional Governance Panel will meet monthly, and at other
times as agreed between the parties. The meetings will be
arranged to synchronise with those of the Global Governance
Panel as appropriate and will take place approximately two weeks
before the meetings of the Global Governance Panel.
3.5 Voting will be on a unanimous basis and a full quorum will be
required for voting purposes.
3.6 The responsibilities and authorities of the Regional Governance
Panel will be determined and delegated in each case by the
Global Governance Panel and may include matters within the
relevant Region such as:
3.6.1 agreeing an efficient and effective Due Diligence
Exercise in each relevant Country;
3.6.2 managing the internal interfaces with the Participating
Affiliates and the Exult Participating Affiliates in
relation to the Framework Agreement and the relevant
Country Agreements;
3.6.3 addressing, co-ordinating and prioritising with issues
affecting the provision of the Services to Participating
Affiliates under the Country Agreements as referred to
it by the Country Representatives;
3.6.4 reviewing the overall performance of the parties'
respective Affiliates under the relevant Country
Agreements;
3.6.5 reviewing significant recommendations and suggestions
made by Regional Steering Committee relating to the
Services and/or any relevant Country Agreements and
initiate appropriate actions;
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3.6.6 submitting quarterly performance review reports to the
Regional Steering Committee for its guidance and
recommendations;
3.6.7 submit quarterly performance review reports to the
Global Governance Panel.
3.6.8 managing Change Requests outside the authority of the
relevant Country Representative and otherwise in
accordance with the Change Control Management procedure;
3.6.9 seeking to resolve any Disputes referred to in
accordance with the Dispute Resolution Procedure;
3.6.10 referring matters outside its authority to the Global
Governance Panel;
3.6.11 identifying issues which may have an impact outside the
relevant Region and referring these to the Global
Governance Panel as required; and
3.6.12 monitoring and reviewing the ongoing status of Third
Party Contracts which are not Transferred to Exult
Supplier.
3.7 The parties shall procure that the members of the Regional
Governance Panel shall, at all times, act reasonably and in good
faith having due regard to the interests of all parties.
4 COUNTRY REPRESENTATIVES
4.1 As soon as reasonably practicable following a Country
Commencement Date, BPA and Exult shall procure that, the
relevant Affiliates each appoint a Country Representative in
respect of that Country.
4.2 The Country Representatives will have day-to-day responsibility
for managing the operation of the Country Agreement and
supervising the co-operation and other matters between the
parties.
4.2.1 The responsibilities and authorities of each Country
Representative will be determined and delegated in each
case by the relevant Regional Governance Panel and may
include matters such as:
4.2.2 reviewing the overall performance of the parties'
respective Affiliates under the relevant Country
Agreement;
4.2.3 interpretation of the Agreement;
4.2.4 ensuring efficient flow of documentation under the
Agreement;
4.2.5 handling of Disputes within the authority of the Country
Representative and referring others to the Regional
Governance Panel in accordance with the Dispute
Resolution Procedure;
4.2.6 handling of Change Requests within the authority of the
Country Representative and referring others to the
Regional Governance Panel in accordance with the Change
Control Procedure;
4.2.7 submitting issues concerning the relationship between
the parties to the Regional Steering Committee for its
guidance and recommendations;
4.2.8 submit [monthly/regular] performance review reports to
the Regional Governance Panel;
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4.2.9 generally dealing with any matter or issue arising out
of or in connection with the Country Agreement within
the delegated authority of, the Country Representative;
4.2.10 identifying and referring matters outside the Country
Representative authority to the Regional Governance
Panel; and
4.2.11 identifying issues which may have an impact outside the
relevant Country and referring these to the Regional
Governance Panel for their attention.
4.3 The parties shall procure that the Country Representatives
shall, at all times, act reasonably and in good faith having due
regard to the interests of all parties.
5 EXECUTIVE STEERING COMMITTEE
5.1 As soon as reasonably practicable following the Commencement
Date an Executive Steering Committee will be established by the
parties to focus primarily on global relationship issues. It is
agreed that the Executive Steering Committee should not be
involved in day-to-day issues.
The Executive Steering Committee will be comprised as follows:
For BPA:
5.1.1 the Executive Steering Committee shall be chaired by a
BPA Group representative;
5.1.2 one Global Project Leader from BPA (who will also be a
member of the Global Governance Panel);
5.1.3 four business stream representatives; and
5.1.4 one IT representative.
For Exult:
5.1.5 one Exult corporate executive representative;
5.1.6 one Global Project Leader who will also be a member of
the Global Governance Panel; and
5.1.7 IT/e-commerce/services representation.
Each party shall wherever reasonably practicable give the other
3 months written notice in the event it wishes to change its
representatives on the Global Governance Panel.
5.2 The Executive Steering Committee will meet quarterly, and at
other times as agreed between the parties.
5.3 The Executive Steering Committee shall be a non-voting body.
5.4 The responsibilities of the Executive Steering Committee will
include:
5.4.1 reviewing the global relationship issues arising out of
the Framework Agreement and the Country Agreements;
5.4.2 reviewing significant recommendations and suggestions
made by the Regional Steering Committee relating to
issues affecting the relationships between the parties
and relationships between the stakeholders;
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5.4.3 reviewing performance and providing advice and guidance
to the Global Governance Panel for Performance
improvement and making recommendations directly to BPA
and Exult on issues affecting the relationships between
the parties and relationships between the stakeholders.
5.5 The parties shall procure that the members of the Executive
Steering Committee shall, at all times, act reasonably and in
good faith having due regard to the interests of all parties.
6 REGIONAL STEERING COMMITTEES
6.1 At the same time as a Regional Governance Panel is established a
Regional Steering Committee will be established by the parties
for that Region to focus primarily on issues effecting
relationships between the parties and between the stakeholders
in the relevant Region. It is agreed that the Regional Steering
Committees should not be involved in day-to-day issues.
6.2 The Regional Steering Committee will be comprised as follows:
6.2.1 one member of the relevant Regional Governance Panel
from each of Exult and BPA;
6.2.2 two other appropriate representatives from Exult such as
the IT manager, the Service Centre Manager or
representatives from equivalent roles; and
6.2.3 up to four other representatives from BPA.
6.3 The Regional Steering Committees shall be chaired by a BPA
representative.
6.4 The Regional Steering Committees will meet quarterly or
otherwise, at times as agreed between the parties and will be
synchronised to precede the Executive Steering Committee
meetings.
6.5 The Regional Steering Committees shall be non-voting bodies.
6.6 The responsibilities and authorities of the Regional Steering
Committees will be determined and delegated in each case by the
Executive Steering Committee and may include matters such as;
6.6.1 reviewing the Regional relationship issues arising out
of the Framework Agreement and of the relevant Country
Agreements;
6.6.2 reviewing significant recommendations and suggestions
made by the Country Representatives relating to issues
affecting the relationships between the parties and
relationships between the stakeholders in the relevant
Region;
6.6.3 reviewing performance and providing advice and guidance
to the Regional Governance Panel for performance
improvement and making recommendations directly to the
Executive Steering Committee on issues affecting the
relationships between the parties [and relationships
between the Stakeholders];
6.6.4 submitting quarterly reviews to the Executive Steering
Committee.
6.7 The parties shall procure that the members of the Regional
Steering Committees shall, at all times, act reasonably and in
good faith having due regard to the interests of all parties.
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7 CONTRACT ADMINISTRATION DOCUMENTS
7.1 All contract administration documents shall be in English unless
required otherwise by any law of a Country, in which case
contract administration documents shall be prepared in both
English and the language required by law of the relevant
Country.
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE Q
DATA PROTECTION
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TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1 DEFINITIONS.........................................................................1
2 PROCESSOR'S OBLIGATIONS AND WARRANTIES..............................................2
3 DATA EXPORT.........................................................................4
4 WARRANTY............................................................................5
5 BPA'S OBLIGATIONS...................................................................5
</TABLE>
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SCHEDULE Q
DATA PROTECTION
PART I
DATA PROCESSING OBLIGATIONS
1 DEFINITIONS
For the purposes of this Schedule, the following terms shall have the
following meanings:
"AGREEMENT" means this Agreement and each Country Agreement;
"APPROPRIATE TECHNICAL AND ORGANISATIONAL MEASURES" means such necessary
measures that need to be taken in order to guarantee the security of the
personal data and to avoid unauthorised, accidental or unlawful
alteration, loss, disclosure, access to and processing of the personal
data, taking account of the state of technology and the cost of their
implementation, the nature of the personal data stored, and the risks
posed by the processing whether they arise from human action or from
physical or natural means. Specific regard shall be had to any relevant
guidance, if any, provided by the Authority in each Country;
"AUTHORITY" means the relevant data protection authority in the Country;
"AUTOMATED DECISION" means a decision which produces legal effects or
significantly affects a data subject and which is based solely on
automated processing of data intended to evaluate certain personal
aspects such as performance at work, creditworthiness, reliability and
conduct etc;
"BPA" means BPA and each BPA Participating Affiliate;
"CLIENT PERSONAL DATA" means any personal data Processed by Exult
Supplier for or on behalf of BPA in the context of the provision of the
Services;
"DATA SUBJECT" is one who can be identified, directly or indirectly, in
particular by reference to an identification number or to one or more
factors specific to his physical, physiological, mental, economic,
cultural or social identity from any personal data;
"DIRECTIVES" means the European Union Directive entitled "Directive
95/46/EC of the European Parliament and of the Council of 24 October
1995 on the protection of individuals with regard to the processing of
personal data and on the free movement of such data" and the European
Union Directive entitled "Directive 97/66/EC concerning the processing
of personal data and the protection of privacy in the telecommunications
sector";
"EXULT" means Exult and each Exult Participating Affiliate;
"IMPLEMENTING LEGISLATION" means the legislation and any guidance,
policy or recommendations providing by the Authority (if any) in the
Country which implements the Directives;
"PERSONAL DATA" means any information relating to an identified or
identifiable natural person. For the purposes of this definition, an
identifiable person is one who can be identified, directly or
indirectly, in particular by reference to an identification number or to
one or more factors specific to his physical, physiological, mental,
economic, cultural or social identity;
"PROCESS" or "PROCESSING" means any operation or set of operations which
is/are performed upon personal data, whether or not by automatic means,
including collection, recording, organisation, storage, adaptation or
alteration, retrieval, consultation, use, disclosure by
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transmission, dissemination or otherwise making available, alignment or
combination, blocking, erasure or destruction;
"PURPOSES" means the purposes for which BPA personal data is to be
Processed, as may be amended from time to time by the parties, and as
currently set out in Schedule A (Scope of Services);
"SENSITIVE DATA" means personal data revealing racial or ethnic origin,
political opinions, religious or philosophical beliefs, trade-union
membership, or health or sex life;
"THIRD COUNTRY" means any country outside the European Economic Area.
2 PROCESSOR'S OBLIGATIONS AND WARRANTIES
2.1 GENERAL OBLIGATIONS
Exult hereby agrees during the term of the Agreement:
2.1.1 to act only solely on the instructions of BPA and in so
doing to process BPA personal data on behalf of BPA
solely for the Purposes;
2.1.2 to process BPA personal data in accordance with the
Directives and Implementing Legislation if the personal
detail is subject to the Directives; and
2.1.3 to process BPA personal data in accordance with the
provisions of this Agreement.
2.2 SPECIFIC OBLIGATIONS
Without limiting the generality of Section 2.1, Exult shall;
2.2.1 REGISTRATION AND AUTHORITY
Ensure that it has the necessary legal authority for the
purpose of processing BPA personal data for the Purposes
in accordance with the terms of this Agreement;
2.2.2 SECURITY
Prior to any processing of BPA personal data:
(i) put in place appropriate technical and
organisational measures to protect BPA personal
data (including suitable measures to protect
Sensitive Data) against accidental or unlawful
destruction or accidental loss, alteration,
unauthorised disclosure or access and against
all other unlawful forms of processing;
(ii) put in place adequate security programmes and
procedures to ensure that unauthorised persons
will not have access to the equipment used to
process BPA personal data, and that any persons
it authorises to have access to BPA personal
data will respect and maintain the
confidentiality and security of BPA personal
data; and
(iii) have reviewed and to continue to review its
security programmes and procedures to ensure
that they are adequate, having regard to
industry good practice and the cost of their
implementation at that time; and
(iv) once processing has commenced in accordance with
this Agreement, if at any time Exult becomes
aware of any breach in security advise
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BPA forthwith of the nature and extent of the
breach and shall take all necessary remedial
action and shall indemnify BPA against all
costs, damages or other losses arising out of
such breach, except to the extent such loss
results from BPA failing to perform its
obligations in Section 5 below.
2.2.3 ASSISTANCE AND ENQUIRIES
(i) without limitation to the other provisions of
this Agreement, take all reasonable steps to
enable BPA to comply with its obligations under
the Directives and relevant Implementing
Legislation in relation to BPA personal data,
promptly upon being notified of such steps by
BPA;
(ii) upon receiving any request for information or
assistance in relation to BPA personal data,
from BPA, the Authority, other regulatory body
in which has jurisdiction or a data subject,
Exult will promptly provide all relevant
information to BPA or the Authority as requested
by BPA;
(iii) promptly appoint an individual (a "Data
Protection Officer") within its organisation
authorised to respond to any enquiries made
pursuant to this Section 2.2.3 or otherwise in
relation to this Agreement and with such other
roles, responsibilities and powers (if any) as
may be required by the laws implementing the
Directives in the jurisdiction of BPA and shall
promptly notify the details of this individual
to BPA.
2.2.4 ENFORCEMENT
Recognise and agree BPA employees may enforce against
Exult any of their rights as Data Subjects under the
Directives or Implementing Legislation in relation to
the processing by Exult of the BPA personal data;
2.2.5 DATA QUALITY
Subject to Section 2.1.1 above, to, where necessary,
maintain the accuracy of BPA personal data and keep it
up to date. Exult shall comply with all instructions
from BPA or any data subject to whom BPA personal data
relates to rectify, delete and update any BPA personal
data and, if so requested by BPA, shall notify in
writing BPA and/or the data subject as appropriate
within a reasonable time that it has done so.
2.2.6 DATA EXPORT
Not export from any Country within the European Economic
Area any BPA personal data to any Third Country without
BPA's prior written consent such consent not to be
unreasonably withheld or delayed provided that BPA has
given such consent in relation to the USA;
2.2.7 ACCESS
If the personal data is subject to the Directives,
provide the data subject with the same rights of access,
correction, blocking, suppression or deletion available
to such individual in the relevant Countries which are
subject to the Directives;
2.2.8 DISCLOSURE
(i) not to disclose, either free of charge or in
return for payment, not even for its
preservation, any BPA personal data to any other
legal or natural person other than where BPA has
given its prior written consent to such
disclosure or where there is a legal obligation
or there
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is a regulatory obligation or where Exult is
responding to a request from the Authority or
other authorial regulatory body, in which case
BPA must, where this is permitted by law, be
informed where practicable prior to such
disclosure; and
(ii) where BPA has consented to a disclosure in
accordance with 2.2.6(i) above, BPA may require
Exult to procure any disclosee to whom BPA
personal data is disclosed pursuant to such
clause to enter into an agreement for the
protection of personal data in similar terms to
this Agreement.
2.2.9 RETENTION AND DESTRUCTION
Keep BPA personal data in such form as shall permit the
identification of data subjects for no longer than is
necessary for the Purposes of providing the Services or
as instructed by BPA;
2.2.10 AUDIT
Submit its facilities used to process personal data,
data files and documentation needed for processing for
auditing and/or certification by BPA (or other duly
qualified auditors of inspection authorities not
reasonably objected to by Exult and approved by BPA) on
reasonable notice and at reasonable times to ascertain
compliance with the obligations and warranties in this
Schedule; and
2.2.11 EMPLOYEE COMPLIANCE
Ensure the compliance of its employees from time to time
with the terms of this Schedule.
3 DATA EXPORT
3.1 If BPA consents to the export of BPA personal data in accordance
with Section 2.2.6 of this Schedule and if the personal data is
subject to the Directives it shall ensure that the party to whom
BPA personal data is exported shall:
3.1.1 process BPA personal data in accordance with any
industry or other codes of practice to which it
subscribes and in accordance with the data protection
principles set out in the Directive, including without
limitation the principles in Article 6 of the Directive
relating to data quality and Article 17 of the Directive
relating to security;
3.1.2 provide the data subject with the same rights of access,
correction, blocking, suppression or deletion available
to such individual Countries in which the personal data
is subject to the Directives;
3.1.3 process BPA personal data purposes of and to the extent
required to provide the Services;
3.1.4 maintain the accuracy of the data and keep it up to
date;
3.1.5 comply with all instructions from BPA to rectify, delete
and update any personal data and confirm to BPA within a
reasonable time that it has done so;
3.1.6 appoint, and identify to BPA and, if requested by BPA to
the Authority, an individual within its organisation
authorised to respond to enquiries from the Authority or
a data subject concerning its processing of his or her
personal data;
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4 WARRANTY
Exult warrants that it will process BPA personal data only:
4.1 for the purposes of and to the extent required to provide the
Services;
4.2 to the extent they are applicable, in accordance with the
Directives and the provisions of the Implementing Legislation;
and
4.3 in accordance with the provisions of this Agreement.
5 BPA'S OBLIGATIONS
5.1 BPA warrants that:
5.1.1 it will obtain the written consent of all Data Subjects
whose personal data may be processed by Exult as part of
the Services under this Agreement;
5.1.2 it will indemnify and hold harmless Exult against all
costs, damages or other losses caused by any inaccuracy
in the personal data which BPA provides to Exult and
which results in Exult having any enforcement
proceedings taken by BPA employees and/or Authorities;
5.1.3 it shall ensure that it is permitted under its
registrations with the Authorities in all Countries to
transfer personal data to third party suppliers such as
Exult;
5.1.4 it will co-operate with Exult to ensure that all
personal data is accurate and that the Directives and
Implementing Legislation are complied with in the
applicable Countries.
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UNITED KINGDOM AGREEMENT PRO FORMA
SCHEDULE R
BPA PARTICIPATING AFFILIATES
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SCHEDULE R
BPA PARTICIPATING AFFILIATES
This schedule sets forth the BPA Affiliates that shall receive the Services
under the applicable Country Agreement. This table shall be completed following
the Country Commencement Date.
- --------------------------------------------------------------------------------
COMPANY COUNTRY PARENT IF NOT THE REGISTERED OFFICE OR
CLIENT PRINCIPAL OR PLACE OF
BUSINESS
- --------------------------------------------------------------------------------
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE T
PROCESS LINE POPULATION
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SCHEDULE T
PROCESS LINE POPULATION
This schedule sets forth the populations that shall receive the Services for
this County Agreement. The table below shall be completed prior to the Process
Take On Date for each Process. The Client shall provide both initial data and
monthly updates for this table until such time as the systems are available to
automatically report on this data.
PROCESS LINE POPULATION TABLE
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
OIL (COUNTRY)
Retail
CI
MAS
Corporate Functions
</TABLE>
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL
BUSINESS/OTHER POPULATION BY PROCESS LINE
Under E/U Resourcing/ Performance Domestic
Compliance Admin Payroll Development Recruiting Severance Management Relocation HRIT
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
OIL (COUNTRY)
Retail
CI
MAS
Corporate Functions
</TABLE>
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<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Other
(1) __________________
(2) __________________
OIL (INTERNATIONAL)
Air
Marine
Shipping
Other
(1) __________________
(2) __________________
EXPLORATION
</TABLE>
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL
BUSINESS/OTHER POPULATION BY PROCESS LINE
Under E/U Resourcing/ Performance Domestic
Compliance Admin Payroll Development Recruiting Severance Management Relocation HRIT
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Other
(1) __________________
(2) __________________
OIL (INTERNATIONAL)
Air
Marine
Shipping
Other
(1) __________________
(2) __________________
EXPLORATION
</TABLE>
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<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Business Units
(1) __________________
(2) __________________
Corporate Functions
Other
(1) __________________
(2) __________________
CHEMICALS
Business Units
(1) __________________
(2) __________________
</TABLE>
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL
BUSINESS/OTHER POPULATION BY PROCESS LINE
Under E/U Resourcing/ Performance Domestic
Compliance Admin Payroll Development Recruiting Severance Management Relocation HRIT
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Business Units
(1) __________________
(2) __________________
Corporate Functions
Other
(1) __________________
(2) __________________
CHEMICALS
Business Units
(1) __________________
(2) __________________
</TABLE>
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<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Corporate Functions
Other
(1) __________________
(2) __________________
SOLAR
Business Units
(1) __________________
(2) __________________
Corporate Functions
Other
(1) __________________
</TABLE>
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL
BUSINESS/OTHER POPULATION BY PROCESS LINE
Under E/U Resourcing/ Performance Domestic
Compliance Admin Payroll Development Recruiting Severance Management Relocation HRIT
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Corporate Functions
Other
(1) __________________
(2) __________________
SOLAR
Business Units
(1) __________________
(2) __________________
Corporate Functions
Other
(1) __________________
</TABLE>
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<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(2) __________________
GAS
Business Units
(1) __________________
Corporate Functions
Other
(1) __________________
(2) __________________
OTHER COUNTRY UNITS
SUPPORTED
(1) __________________
</TABLE>
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL
BUSINESS/OTHER POPULATION BY PROCESS LINE
Under E/U Resourcing/ Performance Domestic
Compliance Admin Payroll Development Recruiting Severance Management Relocation HRIT
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(2) __________________
GAS
Business Units
(1) __________________
Corporate Functions
Other
(1) __________________
(2) __________________
OTHER COUNTRY UNITS
SUPPORTED
(1) __________________
</TABLE>
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<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(2) __________________
OTHER POPULATIONS
(1) EXAMPLE-ANNUITANTS
(2) __________________
</TABLE>
<TABLE>
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL
BUSINESS/OTHER POPULATION BY PROCESS LINE
Under E/U Resourcing/ Performance Domestic
Compliance Admin Payroll Development Recruiting Severance Management Relocation HRIT
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(2) __________________
OTHER POPULATIONS
(1) EXAMPLE-ANNUITANTS
(2) __________________
</TABLE>
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UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE U
ESCROW AGREEMENT
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TABLE OF CONTENTS
<TABLE>
<S> <C>
1 DEFINITIONS...................................................... 1
2 OWNER'S DUTIES AND WARRANTIES.................................... 2
3 LICENSEE'S RESPONSIBILITIES...................................... 2
4 ESCROW AGENT DUTIES.............................................. 2
5 PAYMENT.......................................................... 3
6 RELEASE EVENTS................................................... 3
7 CONFIDENTIALITY.................................................. 4
8 INTELLECTUAL PROPERTY RIGHTS..................................... 4
9 VERIFICATION..................................................... 4
10 ESCROW AGENT'S LIABILITY......................................... 4
11 TERMINATION...................................................... 5
12 GENERAL.......................................................... 5
</TABLE>
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SCHEDULE U
ESCROW AGREEMENT
BETWEEN:
(1) Exult, Inc. whose registered office is at 4 Park Plaza, Suite 350,
Irvine, California 92614 (the "Owner");
(2) BP Amoco plc whose registered office is at Britannic House, 1 Finsbury
Circus, London, EC2M 7BA (the "Licensee"); and
(3) NCC Escrow International Limited whose registered office is at Oxford
House, Oxford Road, Manchester, M1 7ED (the "Escrow Agent")
PRELIMINARY:
(A) The Licensee has been granted a license to use a software package
comprising computer programs.
(B) Certain technical information and documentation describing the software
package and other process flowcharts describing the way in which the
Owner provides certain services to the Owner and its affiliates, are the
confidential property of the Owner and are required for understanding,
maintaining and correcting the software package and the provision of the
services respectively.
(C) The Owner acknowledges that in certain circumstances the Licensee may
require possession of the technical information and documentation held
under this Agreement.
(D) Each of the parties to this Agreement acknowledges that the
considerations for their respective undertakings given under it are the
undertakings given under it by each of the other parties.
IT IS AGREED THAT:
1 DEFINITIONS
In this Agreement the following terms shall have the following meanings:
1.1 "FULL VERIFICATION SERVICE" means those bespoke tests agreed
between the Licensee and Escrow Agent for the verification of
the Material;
1.2 "INTELLECTUAL PROPERTY RIGHTS" means copyright, trade secret,
patent, and all other rights of a similar nature;
1.3 "SERVICES AGREEMENT" means the agreement pursuant to which the
Owner grants a licence to the Licensee for the Package;
1.4 "MATERIAL" means the source code of the Package comprising the
latest technical information and documentation described in
Schedules 1 and 2;
1.5 "PACKAGE" means the software package licensed to the Licensee
under the Services Agreement; and
1.6 "STANDARD VERIFICATION SERVICE" means those tests detailed in
the Standard Verification Service published by Escrow Agent from
time to time.
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2 OWNER'S DUTIES AND WARRANTIES
2.1 The Owner shall:
2.1.1 deliver a copy of the Material to Escrow Agent within 30
days of the date of this Agreement;
2.1.2 at all times ensure that the Material as delivered to
Escrow Agent is capable of being used to generate the
latest version of the Package issued to the Licensee and
shall deliver further copies of the Material as and when
necessary;
2.1.3 deliver to Escrow Agent a replacement copy of the
Material within 12 months of the last delivery;
2.1.4 deliver a replacement copy of the Material within 14
days of receipt of a notice served upon it by Escrow
Agent under the provisions of Section 4.1.5; and
2.1.5 deliver with each deposit of the Material the
information detailed in Schedule 2.
2.2 The Owner warrants that:
2.2.1 it owns the Intellectual Property Rights in the Material
and has authority to enter into this Agreement; and
2.2.2 the Material lodged under Section 2.1 shall contain all
information in human readable form and on suitable media
to enable a reasonably skilled programmer or analyst to
understand, maintain and correct the Package and to
enable a suitably skilled person to understand and
maintain the provision of services under the Services
Agreement without the assistance of any other person.
3 LICENSEE'S RESPONSIBILITIES
It shall be the responsibility of the Licensee to notify Escrow Agent of
any change to the Package that necessitates a replacement deposit of the
Material.
4 ESCROW AGENT DUTIES
4.1 Escrow Agent shall:
4.1.1 hold the Material in a safe and secure environment;
4.1.2 inform the Owner and the Licensee of the receipt of any
copy of the Material;
4.1.3 in accordance with the terms of Section 9 perform those
tests that form part of its Standard Verification
Service form time to time;
4.1.4 at all times retain a copy of the latest verified
deposit of the Material; and
4.1.5 notify the Owner if it becomes aware at any time during
the term of this Agreement that the copy of the Material
held by it has been lost, damaged or destroyed.
4.2 Escrow Agent shall not be responsible for procuring the delivery
of the Material in the event of failure by the Owner to do so.
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5 PAYMENT
Escrow Agent's fees are payable in accordance with Schedule 4.
6 RELEASE EVENTS
6.1 Subject to the provisions of Sections 6.2 and 6.3, Escrow Agent
will release the Material to a duly authorised officer of the
Licensee if any of the following events occur:
6.1.1 the Owner enters into any composition or arrangement
with its creditors or (being a company) enters into
liquidation whether compulsory or voluntary (other than
for the purposes of solvency reconstruction or
amalgamation) or has a receiver or administrative
receiver appointed over all or any party off its assets
or undertaking or a petition is presented for an
Administration Order or (being an individual or
partnership) becomes bankrupt, or an event occurs within
the jurisdiction of the country in which the Owner is
situated which has a similar effect to any of the above
events in the United Kingdom; or
6.1.2 the Owner ceases to trade; or
6.1.3 the Owner assigns copyright in the Material and the
assignee fails within 60 days of such assignment to
offer the Licensee substantially similar protection to
that provided by this Agreement without significantly
increasing the cost to the Licensee; or
6.1.4 the Owner has defaulted in any obligation to provide the
Material under the Services Agreement and has failed to
remedy such default notified by the Licensee to the
Owner.
6.2 The Licensee must notify Escrow Agent of the event(s) specified
in Section 6.1 by delivering to Escrow Agent a declaration (the
"Declaration") made by an officer of the Licensee attesting that
such event has occurred exhibiting:
6.2.1 such documentation in support of the Declaration as
Escrow Agent shall reasonably require;
6.2.2 a copy of the Services Agreement;
6.2.3 a signed confidentiality undertaking as detailed in
Schedule 3
then Escrow Agent will release the Source Code to the Licensee
upon receipt of the release fee stated in Schedule 3.
6.3 Upon receipt of a Declaration from the Licensee claiming a
release event under Section 6.1.4 then Escrow Agent will release
the Material to the Licensee upon receipt of the release fee
stated in Schedule 4.
6.4 Where there is any dispute as to the occurrence of any of the
events set out in Section 6 or the fulfilment of any obligations
detailed therein, such dispute will be referred at the request
of either the Owner or the Licensee to the dispute resolution
procedure set out in the Services Agreement.
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7 CONFIDENTIALITY
7.1 The Material shall remain the confidential property of the Owner
and in the event that Escrow Agent provides a copy of the
Material to the Licensee, the Licensee shall be permitted to use
the Material only in accordance with a confidentiality
undertaking in the form contained in Schedule 3 of this
Agreement.
7.2 Escrow Agent agrees to maintain all information and/or
documentation coming into its possession or to its knowledge
under this Agreement in strictest confidence and secrecy. Escrow
Agent further agrees not to make use of such information and/or
documentation other than for the purposes of this Agreement and
will not disclose or release it other than in accordance with
the terms of this Agreement.
7.3 Termination of this Agreement will not relieve Escrow Agent or
its employees or the Licensee or its employees from the
obligations of confidentiality contained in this Section 7.
8 INTELLECTUAL PROPERTY RIGHTS
The release of the Material to the Licensee will not act as an
assignment of any Intellectual Property Rights that the Owner possesses
in the Material.
9 VERIFICATION
9.1 Subject to the provisions of Sections 9.2 and 9.3, Escrow Agent
shall bear no obligation or responsibility to any person, firm,
company or entity whatsoever to determine the existence,
relevance, completeness, accuracy, effectiveness or any other
aspect of the Material.
9.2 Upon the Material being lodged with Escrow Agent, Escrow Agent
shall perform those tests in accordance with its Standard
Verification Service and shall provide a copy of the test report
to the parties to this Agreement.
9.3 The Licensee shall be entitled to require that Escrow Agent
carries out a Full Verification. Any reasonable charges and
expenses incurred by Escrow Agent in carrying out the Full
Verification will be paid by the Licensee save that if in the
opinion of the expert appointed by the Managing Director of
Escrow Agent, the Material is substantially defective in content
any such reasonable charges and expenses will be paid by the
Owner.
10 ESCROW AGENT'S LIABILITY
10.1 Escrow Agent shall not be liable for loss caused to the Owner or
the Licensee either jointly or severally except for loss or
damage to the Material to the extent that such loss or damage is
caused by the negligent acts or omissions of Escrow Agent, its
employees, agents or sub-contractors and in such event Escrow
Agent's total liability in respect of all claims arising under
or by virtue of this Agreement shall not (except in the case of
claims for personal injury or death) exceed the sum of Pound
Sterling 500,000.
10.2 Escrow Agent shall in no circumstances be liable to the Owner or
the Licensee for indirect or consequential loss of any nature
whatsoever whether for loss of profit, loss of business or
otherwise.
10.3 Escrow Agent shall be protected in acting upon any written
request, waiver, consent, receipt or other document furnished to
it pursuant to this Agreement, not only in assuming its due
execution and the validity and effectiveness of its provisions
but also as to the
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truth and acceptability of any information contained in it,
which Escrow Agent in good faith believes to be genuine and what
it purports to be.
11 TERMINATION
11.1 Escrow Agent may terminate this Agreement after failure by the
Owner or the Licensee to comply with a 30 day written notice
from Escrow Agent to pay any outstanding fee. If the failure to
pay is on the part of the Owner, the Licensee shall be given the
option of paying such fee itself. Such amount will be
recoverable by the Licensee direct from the Owner.
11.2 Escrow Agent may terminate this Agreement by giving 60 days
written notice to the Owner and the Licensee. In that event the
Owner and the Licensee shall appoint a mutually acceptable new
custodian on terms similar to those contained in this Agreement.
11.3 If a new custodian is not appointed within 30 days of delivery
of any notice issued by Escrow Agent in accordance with the
provisions of Section 11.2, the Owner or the Licensee shall be
entitled to request the President for the time being of the
British Computer Society to appoint a suitable new custodian
upon such terms and conditions as he shall require. Such
appointment shall be final and binding on all parties.
11.4 The Licensee may terminate this Agreement at any time by giving
written notice to the Owner and Escrow Agent.
11.5 The Owner may only terminate this Agreement with the written
request of the Licensee.
11.6 This Agreement shall terminate upon release of the Material to
the Licensee in accordance with Section 6.
11.7 Upon termination under the provisions of Sections 11.2, 11.4,
11.5 or 11.6, Escrow Agent will deliver the Material to the
Owner. IF Escrow Agent is unable to trace the Owner, Escrow
Agent will destroy the Material.
11.8 Upon termination under the provisions o Section 11.1 the
Material will be available for collection by the Owner from
Escrow Agent for 30 days from the date of termination. After
such 30 day period Escrow Agent will destroy the Material.
11.9 Escrow Agent may forthwith terminate this Agreement and destroy
the Material if it is unable to trace the Owner having used all
reasonable endeavours to do so.
12 GENERAL
12.1 This Agreement shall be governed by and construed in accordance
with the laws of England and Wales.
12.2 This Agreement represents the whole agreement relating to the
escrow arrangements between the parties for the Package and
supersedes all prior arrangements, negotiations and
undertakings.
12.3 All notices to be given to the parties under this Agreement
shall be deemed to have been duly given or made when delivered
personally or 7 days after posting or if sent by facsimile, 12
hours after despatch to the party to which such notice is
required to be given or made under this Agreement address to the
principal place of business or for companies based in the UK,
the registered office.
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SCHEDULE 1
MATERIAL: TECHNICAL INFORMATION
The source code of the Package known as [ ]
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SCHEDULE 2
MATERIAL: TECHNICAL INFORMATION
The Material shall be supplied with details of the following:
1. Details of the deposit; full name and version details, number of
media items, media type and density, file or archive format,
list or retrieval commands, archive hardware and operating
system details.
2. Name and functionality of each module/application of the
Material.
3. Names and versions of development tools etc.
4. Documentation describing the procedures for
building/compiling/executing/using the software (technical
notes, user guides).
5. Hardcopy directory listings of the contents of the media.
6. Name and contact details of employee(s) with knowledge of how to
maintain and support the Material.
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SCHEDULE 3
CONFIDENTIALITY UNDERTAKING
This undertaking is given on release of the Material pursuant to an Escrow Agent
dated [date] between:
(1) ("the Owner");
(2) ("the Licensee"); and
(3) Escrow Agent
1. Definitions contained in the Escrow Agent will apply to this
undertaking.
2. In consideration of Escrow Agent delivering the Materials to the
Licensee, the Licensee undertakes with the Owner and Escrow Agent.
2.1 to use the Material only for the purpose of understanding,
maintaining, developing, enhancing and correcting the Package
exclusively on behalf of the Licensee;
2.2 not to use the Material for any other purpose nor disclose it to
any person save such of its employees or contractors who need to
know the same in order to understand, maintain, develop, enhance
and correct the Package exclusively on behalf of the Licensee. ;
2.3 to hold all media containing the Material in a safe and secure
environment when not in use; and
2.4 forthwith to destroy the same should the Licensee cease to be
entitled to use the Package.
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SCHEDULE 4
ESCROW AGENT'S FEES (STL)
1. Initial Fee
2. Annual Fee
(payable on completion of this Agreement and on each anniversary
thereafter)
1. Update Fee
(per update after the first 4 updates per annum)
1. Storage Fee
(per annum, per cubic foot payable if the source exceeds 1 cubic foot)
1. Release Fee
(plus Escrow Agent's reasonable expenses)
(i) All fees are subject to VAT where applicable(1)
(ii) All fees are reviewed by Escrow Agent from time to time
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(1) Only applicable to countries within the EU.
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COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
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Signed on behalf of Exult, Inc.
Name:
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Position: (Authorised Signatory)
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Signed on behalf of BP Amoco plc
Name:
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Position: (Authorised Signatory)
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Signed on behalf of Escrow Agent
Name:
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Position: (Authorised Signatory)
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