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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
CONTENTS
CLAUSE HEADING PAGE
------ ------- ----
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................................................................. 15
12 Consequences of Termination................................................. 16
13 Intellectual Property Rights................................................ 17
14 Confidentiality............................................................. 18
15 Data Protection and Data Security........................................... 20
16 Contract and Service Management............................................. 20
17 Audit Rights................................................................ 20
18 Contract Minimums........................................................... 21
19 Warranties.................................................................. 22
20 Limitation of Liability..................................................... 23
21 Indemnities................................................................. 25
22 Insurance................................................................... 31
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Letter of Credit......................................................................... 32
24 Recovery of Damage Awards................................................... 34
25 Dispute Resolution.......................................................... 35
26 Force Majeure............................................................... 37
27 BPA Framework Affiliates.................................................... 38
28 General Terms............................................................... 38
ii
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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
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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.
---------------
* 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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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
---------------
* 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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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
---------------
* 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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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.
---------------
* 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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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:
---------------
* 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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(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
---------------
* 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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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.
---------------
* 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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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 the 24 month period following the
Commencement Date, 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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* 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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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 Payments due to Exult under this Agreement shall be due for
payment by BPA within 30 days of the receipt of an invoice by
BPA. BPA shall pay all Charges invoiced by Exult regardless of,
and without prejudice to, whether it disputes all or any of such
invoice.
9.2 All sums due to Exult 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 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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9.3 Exult acknowledges receipt of the sum of [***]* from BPA in
payment for due diligence exercises carried out in respect of
the United States of America and the United Kingdom pursuant to
the terms of the LOI.
9.4 The principles relating to the charging methodology to be
applied when establishing the 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
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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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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;
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
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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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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 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.
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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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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 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
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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.
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.
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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 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
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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 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
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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 Group is less than [***]*;
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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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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
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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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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 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
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cannot be excluded.
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 $250,000.
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.
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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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20.9 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, 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
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of the negligent act or omission of Exult, an Exult
Participating Affiliate or its and their respective
employees, officers, agents or subcontractors;
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
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obtaining consents in respect of such Exult Third
Party Contract obtained on the termination or expiry
of the relevant Country Agreement;
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.
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21.3.3 No liability shall exist under this Clause 21.3 to
the extent that any such claim arises solely from:
(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
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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 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
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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).
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.
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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 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
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Exchange Commission.
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payments may be recovered as a Pass Through Cost under the
relevant Country Agreements.
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) [***]*
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Exchange Commission.
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(ii) [***]*
[***]*
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.
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23.5 Once Exult's Net Equity Value exceeds [***]*, (1) Exult and
BPA shall each issue a notice 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.
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25 DISPUTE RESOLUTION
25.1 INFORMAL DISPUTE RESOLUTION
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.
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Exchange Commission.
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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 :
(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
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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
(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
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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
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
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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
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
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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 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
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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.
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
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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, 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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<PAGE> 46
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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<PAGE> 47
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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<PAGE> 49
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. Confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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<PAGE> 55
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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"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".
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CONTENTS
CLAUSE HEADING PAGE
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
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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
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FRAMEWORK AGREEMENT
SCHEDULE A
SCOPE OF SERVICES
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TABLE OF CONTENTS
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.......................................................................5
M Employee Development..........................................................5
N Resourcing/Recruiting.........................................................5
O Severance.....................................................................5
P Performance Management........................................................6
Q Domestic Relocation Administration............................................6
R HR Information Technology ("HRIT")............................................6
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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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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,
----------
* 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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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.
BPA shall develop training strategies and policies, develop and
deliver training programs based on needs analyses and assess the
cost/benefit of training programs. Exult shall administer course
schedules, registration, confirmations and training materials.
Exult shall also administer attendee evaluations of training
programs and tuition reimbursement.
[***]*
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.
BPA shall define its organisational strategy and organisation
changes. Exult's role is limited to providing data, support,
analysis and projections about the integration or effect of a
given divestiture, acquisition or major organisational change.
[***]*
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.
BPA shall define HR strategy for BPA. Exult shall provide guidance
and support to BPA in completing this task.
[***]*
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.
BPA shall provide the direct interface to any of its works
councils, trade unions, collective bargaining units, employee
forums and to all BPA employees. Exult shall provide support and
data to BPA to facilitate this interface.
[***]*
----------
* 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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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.
BPA shall define all policies relating to expatriate relocation
and administration strategy and policy as well as handle any
second and final level of problem, exception and issues
resolution. Exult shall provide administration and implementation
of BPA's strategy and policy, as well as handle first level of
problem, exceptions and issues resolution.
[***]*
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.
BPA shall interpret HRIS policies and legal data requirements,
define data protection and registration requirements, and maintain
physical employee records in accordance with legal requirements.
Exult shall provide HR data maintenance and reporting functions,
administer employee HRIS data, manage HR data integrity, and
maintain physical employee records received at the Client Service
Centres. Exult shall also provide customer service for HR
inquiries and problem reporting.
[***]*
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.
BPA shall define its benefits strategy and policy. Exult shall be
responsible for the execution and delivery of BPA benefits
policies and strategy. in conjunction with approved third party
providers, where appropriate.
[***]*
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.
----------
* 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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BPA shall define compensation strategies, policies and programs.
Exult shall provide compensation and program administration.
[***]*
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.
BPA shall develop overall policies affecting employees and their
work environment. Exult shall provide data and support on BPA's
business and work environment.
[***]*
J COMPLIANCE
Compliance is the management of BPA's legal requirements and
internal business policies across all HR processes.
BPA is responsible for overall compliance with laws, regulations
and company policies. Exult shall provide data to support BPA's
compliance activities. Exult shall facilitate training and
distribute communications concerning policy and legal compliance
to employees.
[***]*
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.
BPA shall develop its third party strategy guidelines. Exult shall
perform the responsibilities as indicated in the table below for
Exult's third party suppliers or for third party suppliers managed
by Exult on behalf of BPA. As part of its responsibilities Exult
shall support BPA in performing vendor assessments, renegotiating
vendor contracts, streamlining, consolidating and eliminating
vendors and assisting BPA in developing its overall vendor
strategy. For the avoidance of doubt, banking relationships do not
fall within Vendor Administration.
[***]*
----------
* 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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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.
BPA shall define pay delivery policies and standards. Exult shall
administer the payroll process including payroll transaction
processing, employee payment and statutory reporting.
[***]*
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.
BPA shall define employee development policy and strategy and
shall interface directly with employees on their individual
development plans. Exult shall support BPA in the design and
delivery of employee development programs, identify best
practices, and track, monitor and administer these programs.
[***]*
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.
BPA shall develop resourcing/recruiting related policies, conduct
workforce planning, refine employee selection criteria, and assess
and select candidates. Exult shall track open requisitions, manage
candidate pools, develop candidate lists and maintain and
administer job posting systems.
[***]*
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.
BPA shall establish the need for severance programs, select
targeted employees and perform severance logistics planning and
execution. Exult shall administer severance activities,
outplacement activities and severance follow-ups.
----------
* 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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[***]*
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.
BPA shall develop overall employee performance guidelines and
policies. BPA shall also determine individual employee performance
expectations and manage the performance contract process. Exult
shall provide data and reporting on the scheduling and tracking of
performance reviews and external trend analysis on performance
management.
[***]*
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.
BPA shall determine and monitor the effectiveness of BPA's
domestic relocation policy. Exult shall provide administration and
implementation of BPA's domestic relocation policy including
administration of third party providers performing the services.
[***]*
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.
"Exult IT Domain" shall mean the CSC infrastructure, data
processing infrastructure, servers, data communications equipment,
local area networks, desktop equipment and support, common office
environment, and wide area network facilities (including the link
between the Exult IT Domain and the BPA IT Domain), operated and
maintained by Exult and/or operated and maintained by third
parties under Third Party Contracts administered by Exult.
HRIT responsibilities include technical infrastructure management
associated with the systems that process employee data. Also
included are system design, access/reporting
----------
* 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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tool development and HRIT strategy development.
BPA shall develop and communicate business/functional HRIT
requirements, provide timely acceptance testing of application
changes, and define HR disaster recovery requirements and HR
security requirements. BPA shall also implement, manage, operate
and provide disaster recovery for the non-HRIS technical
infrastructure. Exult shall develop, implement and maintain HRIS
applications software, manage the Client Service Centre technical
infrastructure and develop/execute the disaster recovery plan for
the Exult IT Domain.
[***]*
* 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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FA Sch. B i Exult
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TABLE OF CONTENTS
PAGE
----
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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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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"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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"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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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.
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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 [***]*
------------
* 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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5.2.2 [***]*
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.
------------
* 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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CATALOGUE OF BPA WORK TYPES
NATURAL SIZE NUMBER WORK UNIT/ ANNUAL
WORK TYPE UNIT REQUESTED SIZE UNIT WORK UNITS
------------------ ------------ --------- ---------- ----------
Regulatory
Changes (Small)
Regulatory Changes
(Medium)
Regulatory Changes (Large)
Union Contract Changes
Small Enhancements
Upgrades
YEAR 1 TOTAL
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.
------------
* 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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5.3 [***]*
[***]* 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.
------------
* 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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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
------------
* 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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11.2 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
[***]*
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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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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
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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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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
---------------------------------------------------------------------------------------------------------------
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
---------------------------------------------------------------------------------------------------------------
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
---------------------------------------------------------------------------------------------------------------
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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].
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1
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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
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2
<PAGE> 104
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.
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3
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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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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;
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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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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.
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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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Dated
BP AMOCO P.L.C. [AFFILIATE]
and
EXULT [AFFILIATE]
COUNTRY AGREEMENT (PRO FORMA)
LINKLATERS
One Silk Street
London EC2Y 8HQ
Tel: (44-171) 456 2000
Ref: JPC/CXC
<PAGE> 113
TABLE OF CONTENTS
CONTENTS PAGE
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................................................. 13
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...................................................... 26
20 Confidentiality................................................................... 28
21 Data Protection and Security...................................................... 30
22 Contract and Service Management................................................... 30
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23 Contract Minimums................................................................. 34
24 Warranties........................................................................ 35
25 Limitation on Liability........................................................... 36
Indemnities and Defence of Claims........................................................ 39
27 Insurance......................................................................... 44
28 Recovery of Damage Awards......................................................... 44
29 Dispute Resolution................................................................ 45
30 Force Majeure..................................................................... 47
31 Assignment........................................................................ 48
32 Subcontracting.................................................................... 48
33 Participating Affiliates.......................................................... 49
34 General Terms..................................................................... 49
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PARTIES
THIS AGREEMENT is made on [ ]
BETWEEN:
(1) [BP AMOCO AFFILIATE], a company incorporated under the [laws of [o]],
whose principal office is at [[o]] ("CLIENT"); and
(2) [EXULT AFFILIATE], a company incorporated under the laws of [o] whose
principal office is at [o] ("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 [***]* 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 and
shall take whatever Exult Supplier deems to be the
appropriate corrective
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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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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 Services. Exult Supplier shall
maintain the Exult Supplier Disaster Recovery
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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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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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* 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 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 that this
results from:
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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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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 (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 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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(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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(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.
9 CHANGE CONTROL MANAGEMENT PROCESS
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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.
11.2 GROSSING UP FOR SALES TAXES
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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.
(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
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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 representatives (the "AUDITOR"), including
BPA, and may be undertaken [***]* at such time as the Client,
reasonably requests or more frequently in exceptional circumstances
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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 Agreement for a period of [***]* from
the date of such expiry or termination.
13 KEY PERSONNEL
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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:
[***]*
14.2 TERMINATION FOR CONVENIENCE
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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.
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
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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 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 [***]*
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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.
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
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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 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 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.
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redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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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).
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,
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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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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
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
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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.
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
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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 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
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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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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.
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
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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 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.
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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 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
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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 BENCHMARKING
22.2.1 INTERNAL BENCHMARKING
(i) On an annual basis Exult Supplier shall conduct an
internal benchmarking exercise to measure (i) the
quality of Exult Supplier's provision of the
Services against the Service Levels, as well as, (if
appropriate,) against Exult Supplier's [***]* and
(ii) the [***]* against charging methodology set out
in Schedule C.
(ii) Exult Supplier will conduct the internal
benchmarking exercise using Gunn Partners
benchmarking database to evaluate the results
against industry standards relating to the
appropriate segment of the outsourcing industry
which provides services similar to the Services to
clients similar to the Client whether or not in the
oil industry.
(iii) In carrying out the internal benchmarking exercise,
the provision to the Client by Exult Supplier of any
confidential or proprietary information of any
client of Exult Supplier shall be subject to the
terms of Exult Supplier's agreements with such
clients.
(iv) Each party shall be responsible for its own costs
associated with the internal benchmarking process.
22.2.2 INDEPENDENT BENCHMARKING
(i) Once every two years, or as otherwise mutually
agreed between the parties, an independent
benchmarking exercise will be conducted by an
independent organisation (e.g., The Gartner Group,
API and Saratoga) agreed by the Regional Governance
Panel. The costs of participating in such an
exercise will be shared on an equitable basis by
Exult Supplier, the Client and any other clients of
Exult participating in the exercise. The output from
the exercise will be the joint property of Exult
Supplier, the Client and, if appropriate the other
clients of Exult which are party to the exercise.
(ii) The benchmarking process, the peer group against
which the provision of the Services is to be
benchmarked, and the metrics to be
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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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benchmarked will be agreed by the Regional Governance
Panel. The benchmarker shall use consistent
methodologies and objective measurements in conducting
the benchmarks and shall compare (i) the quality of
the Services benchmarked to similar services provided
to other comparable companies; and (ii) the cost of
the Services benchmarked to similar services provided
to other comparable companies.
22.2.3 Subject to applicable confidentiality restrictions, each
party will be required to furnish all benchmarking
information required to meaningfully participate in this
exercise.
22.2.4 If either of the internal or external benchmarking
exercises referred to in Clauses 22.2.1 and 22.2.2
indicates that:
(i) the quality of the Services provided to the Client
falls below the [***]* of the relevant competitors
required as part of the benchmarking exercise; or
(ii) Exult Supplier's Charges are greater than that of
the [***]* of the relevant competitors reviewed as
part of the benchmarking exercise having regard to
the quality of the Services provided,
then the report of the benchmarking exercise shall be
reviewed by the Regional Governance Panel who shall
promptly meet and together consider what action, if any,
should be taken in response to the report of the
benchmarking exercise and if it is agreed that changes are
required, the Regional Governance Panel shall agree the
relevant Change Requests, including details of any Proposed
Changes to the Charges, the Services and/or Service Levels.
22.2.5 Where the Client wishes to use a third party to conduct or
otherwise assist with a benchmarking exercise, access by
such third party to any Exult Confidential Information
shall be subject to Exult Supplier's prior written consent
as to the identity of the third party, such consent shall
not be unreasonably withheld or delayed, and to the third
party entering into a separate confidentiality agreement
with Exult Supplier on terms reasonably acceptable to Exult
Supplier.
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:
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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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(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 [***]* 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 reviewed under Clause 23.5 is or would
be to reduce the Contract Minimum for the
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redacted portion has been omitted and filed separately with the Securities
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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.
24.2.3 Exult shall not be in breach of the warranties in Clause
24.2.2 to the extent that
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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 Charges (excluding Pass Through
Costs) payable to Exult Supplier for a 6 month period. For the
purposes of calculating the Charges under this Clause 25.3, the
maximum level of liability shall be based on (i) the average
monthly Charges during the 12 month period prior to the month in
which the event giving rise to the liability occurred multiplied by
6, or, (ii) where the event giving rise to the liability occurs
during the initial 16 months of this Agreement the Initial Baseline
divided by 16 multiplied by 6, 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;
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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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(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;
(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,
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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;
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
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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 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
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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;
(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
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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.
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
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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 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
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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 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
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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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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 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.
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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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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 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
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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 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
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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 [***]* 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
-------------------
* 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 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.
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
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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]
[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.
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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 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
The parties agree that damages shall be the only remedy available
in respect of each
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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 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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