Sample Business Contracts

2.1

In this Agreement unless the context otherwise requires, the following expressions shall bear the following meanings:

2.2

Reference to any statute or statutory provisions shall include any statute or statutory provision which amends or replaces, or has amended or replaced, it and shall include any subordinate legislation made under the relevant statute.

2.3

In circumstances where Sykes US, Sykes Asia or Sykes Europe is permitted hereunder to use the services of a sub-contractor in their performance of the Services, references herein to Sykes US, Sykes Asia or Sykes Europe shall, where appropriate, be construed as references to that sub-contractor provided always that Sykes shall remain primarily liable to Adobe Benelux or Adobe Systems, as appropriate, in respect of such sub-contractors.

2.4

A reference to the singular shall include a reference to the plural and vice versa, and a reference to any gender includes a reference to all other genders.

2.5

Headings are for convenience only and shall not affect interpretation.

3.1  Non-Exclusive Appointment  

3.2  Performance  

3.3  Resources  

Without prejudice to specific obligations elsewhere in this Agreement, Sykes Asia, Sykes Europe or Sykes US shall at all times devote sufficient resources and teams of sufficiently qualified personnel to enable it to provide their Services efficiently and professionally. Without prejudice to the generality of

the foregoing, or any Performance Standard or Performance Metric set in relation to their Services, Sykes Asia, Sykes Europe or Sykes US shall provide their Services with best efforts and Sykes Asia, Sykes Europe or Sykes US shall at all times perform their Services courteously and in such manner as not to injure Adobe Benelux' or Adobe Systems' name or damage Adobe Benelux' or Adobe Systems' goodwill.

3.4  No Breach  

Sykes Asia, Sykes Europe and Sykes US hereby represents to Adobe Benelux or Adobe Systems that Sykes Asia, Sykes Europe and/or Sykes US, as appropriate, will not be in breach of any existing obligation binding on Sykes Asia, Sykes Europe and Sykes US by reason of its entering into this Agreement.

3.5  Other Services  

Sykes Asia, Sykes Europe and Sykes US undertake and agree that it will, upon request, appropriately provide Adobe Benelux or Adobe Systems with such additional Services as Adobe Benelux or Adobe Systems may from time to time appropriately require during the Contract Term as long as the request conforms with Commercial Practices and at prices to be agreed by the parties. If such Services are requested and included in this Agreement, the parties shall agree to the terms of a Services Schedule in relation to such Services (or such amendments to existing Services Schedule(s) as may be appropriate) together with such additions and/or amendments to any schedule, statement of work, documentation, appendices or any written documentation containing directions, guidelines, processes or procedures directed to Sykes Europe, Sykes Asia or Sykes US, as may be appropriate.

3.6  Reporting and Performance Metrics  

Sykes Asia, Sykes Europe and Sykes US shall provide such reports, information and data as Adobe Systems and Adobe Benelux shall, from time to time, require in relation to the performance of this Agreement. This requirement shall include but is not limited to reports on the Performance Metrics which shall be produced by Sykes Asia, Sykes Europe or Sykes US, as appropriate, and in relation to their Service in the terms set out in the relevant Services Schedule and the production by Sykes Asia, Sykes Europe and Sykes US, as appropriate, of all other reports, information and data more particularly specified in the Schedule. Reports on the Performance Metrics shall include all reports on the Performance Standards. Sykes Asia, Sykes Europe and Sykes US shall, as appropriate, ensure that all reports on the Performance Metrics and Performance Standards contain charts which show sufficient historical data to identify trends, clearly understood titles and labels, the goal or objective, a clear indication of which trend and trend direction is good and which is bad and a scale which accurately demonstrates but does not distort trends. Sykes Asia, Sykes Europe and Sykes US shall, as appropriate, ensure that all Performance Standards are drawn to the attention of all relevant employees. Sykes Asia, Sykes Europe and Sykes US shall, as appropriate, ensure that all Performance Metrics and Performance Standards are broken down as detailed in the relevant Services Schedule. Without prejudice to the foregoing, Sykes Asia, Sykes Europe and Sykes US shall use all reasonable endeavours to inform Adobe Benelux and Adobe Systems, as appropriate and without delay, of any matter which comes to the attention of Sykes Asia, Sykes Europe and Sykes US which is likely to affect materially the provision of Services.

3.7  Services Provided in Adobe Benelux or Adobe Systems' Name and Grant of License  

Any Services provided by Sykes Asia and Sykes Europe shall be in the name of Adobe Benelux. Any Services provided by Sykes US shall be in the name of Adobe Systems. So far as required by Sykes Asia, Sykes Europe and Sykes US for the proper performance of its duties hereunder during the Contract Term and for no other purpose whatsoever, Adobe Benelux or Adobe Systems shall use its reasonable endeavours to procure for Sykes Asia, Sykes Europe or Sykes US, as appropriate, a non-exclusive royalty- free limited licence to use specified trade marks, service marks, trade names and

logos belonging to or licensed by Adobe Systems pertaining to Products. Such license shall automatically terminate on the date of termination or expiry of this Agreement howsoever terminated or expiring and with effect from such date Sykes Asia, Sykes Europe or Sykes US, as appropriate, shall have no further right to use any such trade marks, service marks, trade names or logos of Adobe Systems pertaining to Products or their licensors.

Either Adobe Benelux or Adobe Systems may, in their sole discretion, distribute support software to Sykes technicians from Sykes Asia/Sykes Europe or Sykes US, respectively. Any support software provided by Adobe Benelux or Adobe Systems shall be subject to any applicable license, such license modifiable from time to time by Adobe Benelux or Adobe Systems, respectively, in their sole discretion.

3.8  Intellectual Property  

3.9  Hardware, Software and Systems  

Sykes Asia, together with Sykes Europe, and Sykes US shall each ensure to Adobe Benelux and Adobe Systems, respectively, that it has available to it all hardware, software, including CCS, and other technical resources required from time to time for the provision of Services all of which shall be at the responsibility and risk of Sykes Asia, Sykes Europe and Sykes US, as appropriate, and Sykes Asia, Sykes Europe and Sykes US shall maintain and update the same to standards consistent with Sykes Asia's, Sykes Europe's and Sykes US' independent obligations to meet the Performance Standards and Performance Metrics stated in this Agreement. Without prejudice to the foregoing generality this shall include but not be limited to the personal computers, peripheral devices, equipment and software necessary to:

3.10  Management Teams and Reviews  

3.11  Quality Control.  

Sykes shall at all times comply with applicable quality control schedules and metrics in effect including, but not limited to, those performance parameters related to call waiting times, accuracy of issue logs or any order input, accuracy in responses to customer inquiries, including technical, and confirmation of orders. Sykes shall immediately report any quality and quality control issues to Adobe Benelux and/or Adobe Systems, as appropriate and shall provide quality status as reasonably requested by Adobe Benelux and/or Adobe Systems and at any scheduled meetings related to quality control. Any problems or issues related to quality control shall be addressed immediately and prompt status reports provided to Adobe Benelux and/or Adobe Systems upon request. Any breach in quality, as determined by Adobe in its sole discretion, shall be considered a material breach of this Agreement, and appropriate termination proceedings pursuant to Section 14 apply.

In addition to any specific quality control mechanisms included from time to time in any Services Schedules and/or any applicable statement of work and without prejudice to the Performance Standards, Adobe Benelux shall be entitled:

In addition to any specific quality control mechanisms included from time to time in any Services Schedules and without prejudice to the Performance Standards, Adobe Systems shall be entitled:

3.12  Right of Audit.  

Upon ten (10) days notice to Sykes Europe and/or Sykes Asia, Adobe Benelux shall have the right to inspect and audit all the relevant records of Sykes Europe and/or Sykes Asia, as appropriate, to ensure compliance with the terms of this Agreement. Similarly, upon ten (10) days' notice to Sykes US, Adobe Systems shall have the right to inspect and audit all the relevant records of Sykes US to ensure compliance with the terms of this Agreement. Any audit by Adobe Systems or Adobe Benelux shall be conducted only by a certified public accountant whose fee is paid by Adobe Systems or Adobe Benelux, as appropriate, and shall be conducted during regular business hours at Sykes Europe/Sykes Asia or Sykes US offices, as appropriate, and in such a manner as not to unreasonably interfere with normal business activities.

4.1  Services to be Supplied  

Subject to the terms of this Agreement, Sykes Europe and Sykes Asia agree to provide Adobe Benelux with the Asia Services and Europe Services during the Contract Term at the prices set out in the Charge Schedule in accordance with the terms set out in the Schedule. Subject to the terms of this Agreement, Sykes US agrees to provide Adobe Systems with the North America Services during the Contract Term at the prices set out in the Charge Schedule in accordance with the terms set out in the appropriate Schedule and/or any applicable statement of work.

4.2  Recruitment, Training and Teams  

Sykes Europe, Sykes Asia and Sykes US shall recruit CSRs and shall ensure that the Services Team for Adobe Benelux and Adobe Systems shall at all times meet the requirements in all material respects (which shall mean that there are no adverse or detrimental effects on the Performance Standards) in terms of numbers, structure and seniority. Sykes Europe, Sykes Asia and Sykes US shall ensure that all members of the Services Team undergo and satisfactorily complete the Training and without prejudice to the foregoing, that the Services Team is at all times adequately trained and resourced in accordance with Adobe Benelux' and Adobe Systems' needs and reasonable requirements from time to time. Sykes Europe, Sykes Asia and Sykes US shall monitor all CSRs and obtain training evaluations from such CSRs. Sykes Europe's, Sykes Asia's and Sykes US' compliance with this provision shall not relieve Sykes Europe, Sykes Asia and Sykes US of their independent obligations to achieve Performance Standards.

4.3  Performance Standards  

Sykes Europe, Sykes Asia and Sykes US shall perform their respective Services to the Performance Standards set out in the Schedule. Sykes Europe, Sykes Asia and Sykes US further acknowledge and agree that a consistent failure to meet the standards, goals and objectives identified in the Performance Metrics shall be deemed to be a material breach of this Agreement as specified in Clause 14.3.

5.1  Invoicing  

5.2  Withholding Payment  

Without prejudice to its other rights hereunder neither Adobe Benelux nor Adobe Systems shall not be obliged to make payment of any sums pursuant to Clause 5.1 if:

5.3  No Expenses  

Except as specifically provided herein Sykes Asia, Sykes Europe and Sykes US shall not be entitled to receive any remuneration or be reimbursed in respect of any expenses incurred by it in the performance of its duties hereunder.

5.4  VAT  

Unless otherwise agreed by Adobe in writing, all payments due hereunder shall be exclusive of Value Added Tax or its equivalent and shall be made in US dollars.

5.5  Accounts and Records  

5.6  Interest  

Interest shall be payable on all sums which are due and payable hereunder to or by Adobe Benelux or Adobe Systems (other than amounts which are the subject of a bona fide dispute between the parties) from the due date for payment as specified herein until payment in full is made at the rate of 1.5% per month or the maximum rate permitted by law, whichever is lower.

5.7  Review  

Without prejudice to the other provisions of this Clause 5 but subject to the provisions of Clause 5.8, the parties agree that the Charges Schedule shall be reviewed by the parties on an annual basis with the first such review occurring one (1) year after the Effective Date. Such reviews shall be conducted in order to ensure that the Charges Schedule is competitive. If, following any such review, the parties are not able to agree a new Charges Schedule, the last Charges Schedule shall remain in force until the next review subject to this Clause 5. It is acknowledged and agreed between the parties that, notwithstanding each such review, there is no obligation on Adobe Benelux or Adobe Systems to instruct Sykes Asia, Sykes Europe and Sykes US, as appropriate, to provide Adobe Benelux or Adobe Systems with any Service during the Contract Term.

5.8  Most Favorable Terms  

If at any time during the Contract Term Sykes Asia, Sykes Europe and Sykes US or any Sykes Associated Company provides services similar to the Services or any of them to any third party on terms which are more favourable in respect of such services than the terms provided herein then the parties agree that the terms applying to provision of such Services hereunder shall at the request of Adobe Benelux or Adobe Systems, as appropriate, be amended to provide for such favourable terms but nothing contained in this Clause 5.8 shall oblige Sykes Asia, Sykes Europe and Sykes US to disclose the identity of any such third party. Sykes Asia, Sykes Europe and Sykes US shall be bound to appropriately inform Adobe Benelux or Adobe Systems immediately if any such circumstances arise.

7.1  Adobe Benelux and Adobe Systems Property  

Sykes Asia, Sykes Europe and Sykes US agree that all property of Adobe Benelux or Adobe Systems to be held in their possession of or under their control pursuant to this Agreement shall be held at the risk and liability of Sykes Asia, Sykes Europe and Sykes US, as appropriate, notwithstanding that title to such property shall at all times remain with Adobe Benelux or Adobe Systems, as appropriate.

7.2  Insurance  

Sykes Asia, Sykes Europe and Sykes US shall obtain and maintain Commercial General Liability (including Products and Completed Operations coverage and Contractual Liability Coverage), Workers' Compensation and Employers Liability according to statute and Professional Indemnity insurance policies with limits of not less than [*] for each of such policies and All Risk Property Coverage with limits covering no less than the full value of all Adobe Property and Inventory. All insurance policies must be written through insurers rated no less than A- by AM Best and must be Admitted in the location being insured. Coverage must be affected in respect of Vendor's liabilities hereunder both during the Contract Term and for a period of five years after its expiry or termination. For as long as such insurance is required as aforesaid, upon request by Adobe, Sykes Europe, Sykes Asia and Sykes US shall submit to Adobe certificates of insurance evidencing all relevant insurance policies which will be provided at least 30 days prior to renewal or material change in coverage; such evidence of payment of premiums (including payment receipts) as Adobe shall reasonably require in respect of such insurance to show that it has been obtained and renewed. Adobe shall be named Additional Insured under all liability policies. All policies will be primary and non-contributing and will provide waivers of subrogation for Adobe.

8.1  Good faith  

Each party undertakes at all times to perform its obligations and exercise its rights hereunder with the utmost good faith (which includes in the case of Adobe Benelux and Adobe Systems the right to assign).

8.2  Press Releases  

The parties agree that neither of them shall make any press release or originate any other publicity regarding this Agreement or the Services or make any announcement or publication whatsoever which involves the name of the other party without the prior written consent of the other party hereto. Without prejudice to the foregoing generality, neither party shall at any time without the prior written consent of the other party make or cause or give permission to any employee or any third party to make any untrue or misleading statement in relation to Sykes Asia, Sykes Europe and Sykes US, any Sykes Associated Company, Adobe Benelux and/or Adobe Systems, nor in particular after the termination of this Agreement represent or cause or permit any representation to be made that Sykes Asia, Sykes Europe or Sykes US is connected with Adobe Benelux and/or Adobe Systems in relation to the provision of the Services save as required by law or as is publicly available.

9.1  Confidential Information and Materials  

9.2  Property of Adobe Benelux and Adobe Systems  

All Confidential Information and/or Confidential Materials, and any Intellectual Property rights embodied therein, shall remain the sole and exclusive property of Adobe Benelux or Adobe Systems, as appropriate hereunder. Upon termination or expiry of this Agreement, all Confidential Materials, including any copies thereof which Adobe Benelux or Adobe Systems has authorized Sykes Asia, Sykes Europe and Sykes US to make, as appropriate, shall be returned to Adobe Benelux or Adobe Systems, as appropriate, immediately.

9.3  Restrictions  

Sykes Asia, Sykes Europe and Sykes US agree that it shall not make use of, disseminate or in any way disclose the Confidential Information or the Confidential Materials to any person, firm, business, company or organization, except to the extent necessary to strictly comply with its obligations hereunder and only to those individuals who sign the Non-Disclosure Agreement provided by Adobe. For the avoidance of doubt, (a) Sykes Asia, Sykes Europe and Sykes US shall each not be entitled to use the Confidential Information and/or the Confidential Materials for any purpose other than to the extent strictly necessary to comply with its obligations hereunder. Sykes Asia, Sykes Europe and Sykes US shall each not circulate (by fax, electronic mail or any other method) any of the Confidential Materials to any End User and (b) the Confidential Materials are provided to Sykes Asia, Sykes

Europe and Sykes US to use as a resource in providing the Services and Sykes Asia, Sykes Europe and Sykes US shall each not publish any of the Confidential Materials.

9.4  Degree of Care  

Without prejudice to any other obligation under this Agreement, Sykes Asia, Sykes Europe and Sykes US agree that it shall treat all Confidential Information and all Confidential Materials with the same degree of care as it accords to its own confidential information, and Sykes Asia, Sykes Europe and Sykes US each represent that it uses best efforts to protect its confidential information. Sykes Asia, Sykes Europe and Sykes US may each disclose the Confidential Information and the Confidential Materials only to their employees who have signed a nondisclosure agreement to such effect and who have a need to know such Confidential Information and/or need to use such Confidential Materials and who have previously agreed in writing to be bound by the terms and conditions of this Agreement as they relate to Confidential Information and Confidential Materials.

9.5  Care of Confidential Information  

Adobe Benelux and Adobe Systems each agree to treat as confidential any information which is proprietary to Sykes Asia, Sykes Europe and Sykes US and is made available to Adobe Benelux and Adobe Systems during the Contract Term at Adobe Benelux' and Adobe Systems' request, and to ensure that all appropriate precautions are in place to ensure that all such confidential information is treated as confidential by it, its officers and employees. Sykes Asia, Sykes Europe and Sykes US each agree to treat as confidential any information which is proprietary to Adobe Benelux and Adobe Systems and is made available to Sykes Asia, Sykes Europe or Sykes US during the Contract Term and to ensure that all appropriate precautions are in place to ensure that all such confidential information is treated as confidential by it, its officers and employees, and not limited to procedures for securing such Confidential Information in separate and locked locations as may be appropriate. The foregoing obligation shall cease when the said information enters the public domain, provided that this was not the result of a breach of the foregoing obligation by the recipient party of the information. Adobe Benelux and Adobe Systems each reserves the right to disclose information provided by Sykes Asia, Sykes Europe and Sykes US, as appropriate, in the event of any legal or administrative authority in any relevant jurisdiction so requesting such information, as well as in the event of any proceedings, either legal or administrative, in order to preserve Adobe Benelux' or Adobe Systems' interests PROVIDED THAT Adobe Benelux or Adobe Systems shall use all reasonable efforts to ensure that Sykes Asia, Sykes Europe and Sykes US, as appropriate, is notified before such disclosure (if possible) or immediately thereafter.

10.1  Undertakings  

Sykes Asia, Sykes Europe and Sykes US each hereby agree that during the Contract Term each will:

(e)

without prejudice to the obligations contained in Clause 3.9 of this Agreement, ensure that all systems, equipment, machinery and/or software employed by Sykes Asia, Sykes Europe and Sykes US for provision of their respective Services shall be of adequate quality for the performance of such Services and shall ensure that they are well maintained and shall ensure that all payments due to third parties in respect thereof whether by way of maintenance or otherwise shall be timeously paid save in the case of any bona fide dispute;

(f)

not, to the best of its knowledge and belief, make any illegal use of any software licensed from any third party in the performance of Services;

(g)

not use Adobe Benelux' or Adobe Systems' trade marks, trade names, service marks or logo(s) (except as expressly permitted hereunder in relation to the Services) without obtaining appropriate Adobe Benelux' or Adobe Systems' prior written consent;

(h)

not sub-contract its performance of any or all of the Services to any third party or appoint an agent without Adobe Benelux' or Adobe Systems' prior written consent and such consent shall only be given inter alia (i) on the basis that Sykes Asia, Sykes Europe and Sykes US each remain entirely liable for the acts and omissions of each such sub-contractor or agent and (ii) provided that each such sub-contractor or agent expressly agrees to assign to Adobe Benelux or Adobe Systems, as appropriate, or such party(ies) as Adobe Benelux or Adobe Systems, as appropriate, may designate all Intellectual Property that the sub-contractor or agent may create or develop in its provision of the Service(s) on like terms to those contained in Clause 3.8;

(i)

perform the Services in conformity with all local laws in the territories covered by this Agreement, including but not limited to those in the area of data protection, taxation, privacy, competition and advertising;

(j)

without prejudice to Clause 10.1(i), in collecting, processing, recording, storing, registering, disclosing, transferring and using data and in maintaining records, comply fully with any applicable privacy protection regulations, data protection regulations and other applicable laws. Without limiting the generality of the foregoing, Sykes Asia, Sykes Europe and Sykes US shall each make all appropriate registrations and shall each apply for all appropriate authorizations, approvals, and/or licences so as to enable an inspection and/or audit as may be appropriate or the transfer of the data to Adobe Benelux or Adobe Systems, as appropriate, and any third party(ies) designated by Adobe Benelux or Adobe Systems, as appropriate, and their corresponding holding and use by Adobe Benelux or Adobe Systems and any third party(ies) designated by Adobe Benelux or Adobe Systems for any purposes specified by Adobe Benelux or Adobe Systems, as appropriate, and insofar as permitted under the applicable privacy protection regulations and the applicable data protection regulations. Sykes Asia, Sykes Europe and Sykes US shall each defend, indemnify and hold Adobe Benelux and Adobe Systems and its successors, officers, directors and employees and all third party(ies) designated by Adobe Benelux or Adobe Systems, as appropriate, harmless against any and all costs, expenses, liabilities, losses, damages, injunctions, interdicts, suits, actions, fines, penalties, claims, proceedings and demands of every kind or nature (including but not limited to reasonable legal fees) made against or incurred by the indemnified party in respect of claims by any person whose data are registered, or by any government entity enforcing privacy regulations, data protection regulations or any other applicable laws, or any other party based on any regulations or any other applicable laws in connection with the data collected, processed, stored, registered, disclosed, maintained or transferred by Sykes Asia, Sykes Europe or Sykes US or in connection with the use by Adobe Benelux or Adobe Systems or any other party(ies) designated by Adobe Benelux or Adobe Systems, as appropriate, of such data provided that Adobe Benelux or Adobe Systems has complied with

10.2  Third Parties  

For the purposes of this Clause 10, "third party" shall include, without limitation, any Sykes Associated Company.

10.3  Facility Certification  

Unless otherwise approved by Adobe, any Services by Sykes Europe, Sykes Asia and Sykes US from call or fulfillment centers shall be provided at the Europe Call Center Facility, Asia Call Center Facility and North America Call Center Facility, respectively. Each call center facility shall comply with any standards and specification provided herein or otherwise agreed to by the parties from time to time. The North America Call Center Facility shall be certified by Sykes US to comply with the COPC-2000 technical support standard by [*]. Sykes further agrees that the Europe Call Center Facility, Asia Call Center Facility and any other international site supporting Adobe Benelux' technical support business shall comply with the COPC-2000 technical support standard and any other international technical support standard, as agreed to by Sykes and Adobe Benelux, by [*]. Sykes Europe, Sykes Asia and Sykes US, as appropriate, shall be compliant to the customer metrics and reporting requirements, available at www.copc.com, by January 1, 2000.

11.1  Errors or Omissions  

Sykes Asia, Sykes Europe and Sykes US each agree to indemnify and hold harmless Adobe Benelux and Adobe Systems, as appropriate, and its successors, officers, directors and employees from all and any costs, expenses, liabilities, losses, damages, injunctions, interdicts, suits, actions, fines, penalties, claims, proceedings and demands of every kind or nature (including but not limited to Adobe Benelux' and Adobe Systems' reasonable legal fees) made against or incurred by the indemnified party as a result of misrepresentation, wilful or negligent act, error or omission on the part of Sykes Asia, Sykes Europe and Sykes US, its employees or sub-contractors arising out of or in any way connected with Sykes Asia's, Sykes Europe's and Sykes US' performance of the Services.

11.2  Data Corruption  

Without prejudice to their obligations hereunder, Sykes Asia, Sykes Europe and Sykes US each shall take all reasonable steps in the performance of their respective Services to secure that any data (which is made available to and/or processed by Sykes Asia, Sykes Europe and Sykes US) and the Adobe Benelux or Adobe Systems networks do not suffer from any corruption, deterioration or alteration or addition to them (other than as specifically provided for in terms of this Agreement) or the generation of any errors, defects or malfunctions therein caused by:

11.3  Other Liabilities  

Without prejudice to the provisions of Clause 11.1 Sykes Asia, Sykes Europe and Sykes US each hereby agree to defend, indemnify and hold harmless Adobe Benelux and Adobe Systems and its successors, officers, directors and employees from all and any costs, expenses, liabilities, losses, damages, injunctions, interdicts, suits, actions, fines, penalties, claims, proceeding and demands of every kind or nature (including but not limited to Adobe Benelux' and Adobe Systems' reasonable legal fees) made against or incurred by the indemnified party arising from:

11.4  Notification of Claims  

If any action or claim shall be brought against Adobe Benelux or Adobe Systems in respect of which indemnity may be sought from Sykes Asia, Sykes Europe or Sykes US under this Agreement, Adobe Benelux or Adobe Systems shall promptly notify Sykes Asia, Sykes Europe and Sykes US, as appropriate, in writing, specifying the nature of the action and the total monetary amount sought or other such relief as is sought therein. Adobe Benelux and Adobe Systems shall co-operate with Sykes Asia, Sykes Europe and Sykes US, as appropriate, at Sykes Asia, Sykes Europe and Sykes US' expense, as appropriate, in all reasonable respects in connection with the defense of any such action. Sykes Asia, Sykes Europe and Sykes US each undertakes to conduct all proceedings or negotiations in connection therewith, assume the defense thereof, and shall also undertake all other required steps or proceedings to settle or defend any such action, including the employment of counsel which shall be satisfactory to Adobe Benelux and Adobe Systems (acting reasonably), and payment of all expenses. Adobe Benelux and Adobe Systems shall have the right to employ separate counsel and participate in the defense thereof. As part of the indemnity contained in this Agreement, Sykes Asia, Sykes Europe and Sykes US shall reimburse Adobe Benelux and Adobe Systems upon demand for any payments made or loss suffered by it, based upon the judgement of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims, demands or actions, in respect of any damages to which the foregoing relates.

11.5  No Indemnity  

Nothing in this Agreement shall render Adobe Systems or Adobe Benelux liable to indemnify Sykes Asia, Sykes Europe, Sykes US or any third party in respect of any liability of any kind incurred by Sykes Asia, Sykes Europe, Sykes US or any third party.

11.6  Survival of Terms  

The indemnities given by Sykes Asia, Sykes Europe or Sykes US pursuant to this Clause 11 shall survive the termination or expiry of this Agreement however caused.

11.7  Maximum Liability  

Subject to the provisions of Clause 11.8, the maximum individual aggregate liability of Sykes US separately, Sykes Europe or Sykes Asia, under this Agreement or otherwise (whether or not caused by the negligence of Sykes Asia, Sykes Europe or Sykes US, its employees or sub- contractors) arising out of or connected with the provision or purported provision of or failure in the provision of their respective Services to Adobe Benelux or Adobe Systems, as appropriate, including the indemnities given hereunder, but specifically excluding any breach or breaches by Sykes Asia, Sykes Europe or Sykes US of any obligation to collect, remit or pay to Adobe Benelux or Adobe Systems, as appropriate, any sums owed them by Sykes Asia, Sykes Europe or Sykes US or any third party in

connection with the Services (in which case their liability shall be unlimited), shall in no circumstances be greater than US$[*].

11.8  No Exclusion for Death/Personal Injury  

Neither party excludes or limits its liability for death or personal injury to the extent only that the same arises as a direct result of the negligence of that party or its employees.

11.9  Exclusion for Adobe Benelux or Adobe Systems Default  

Sykes Asia, Sykes Europe and Sykes US each expressly exclude and/or limits its liability hereunder to the extent that such liability arises by reason of any default (whether wilful or negligent) by Adobe Benelux or Adobe Systems, as appropriate, in the performance of its obligations hereunder.

12.1  Technical Information  

Provided all necessary security is in place prior to any access, Adobe Benelux and Adobe Systems each agrees to make available to Sykes Asia, Sykes Europe or Sykes US, as appropriate, all information, technical knowledge, product sales information, documentation and support which may be reasonably required by Sykes Asia, Sykes Europe and Sykes US to provide their respective Services but that on the understanding that Sykes Asia, Sykes Europe and Sykes US shall be deemed to have the expertise and ability of a reasonably skilled provider of services similar to their respective Services. Adobe Benelux and Adobe Systems shall, as appropriate, ensure that Sykes Asia, Sykes Europe and Sykes US each have access to all necessary networks and Adobe Databases for the purpose of providing their respective Services hereunder. For the avoidance of doubt, any and all information provided by Adobe Benelux or Adobe Systems to Sykes Asia, Sykes Europe or Sykes US, as appropriate hereunder, shall be deemed to be Confidential Information of Adobe Benelux or Adobe Systems, as appropriate.

12.2  License of Products  

Without prejudice to the other provisions hereof, Adobe Benelux and Adobe Systems each undertakes and agrees to grant or procure for Sykes Asia, Sykes Europe and/or Sykes US, as appropriate, a non- exclusive, non-transferable, royalty-free limited license to use such number of copies of each Adobe Product as Adobe Benelux or Adobe Systems may deem necessary for Sykes Asia, Sykes Europe or Sykes US, as appropriate, to perform each of the Services PROVIDED THAT Sykes Asia, Sykes Europe or Sykes US each shall not use any Adobe Product for any purpose other than the performance of the relevant Service for which the relevant license is granted, and further provided that (without prejudice to Clause 13) Sykes Asia, Sykes Europe and Sykes US each shall at all times comply with the terms and conditions of Adobe Benelux' or Adobe Systems' End User licence agreement for such Adobe Products.

13.1  Restriction  

Sykes Asia, Sykes Europe and Sykes US each agree not to translate any Adobe Product into another computer language, in whole or in part. Sykes Asia, Sykes Europe and Sykes US each shall not make copies or make media translations of any Adobe Product including without limitation any user documentation supplied herewith in whole or in part without appropriate Adobe Benelux or Adobe Systems prior written approval. Sykes Asia, Sykes Europe and Sykes US each agree that if, for any reason, it comes into possession of any source code or portion thereof for any Adobe Product not provided by Adobe Benelux or Adobe Systems or its licensors as a part of an Adobe Product it shall not use or disclose such source code and it shall immediately deliver all copies of such source code to Adobe Benelux or Adobe Systems, as appropriate. Nothing contained in this Agreement shall be interpreted so as to exclude or prejudice the rights (if any) of Sykes Asia, Sykes Europe and Sykes US or any End User under the European Directive on the Legal Protection of Computer Programs (as implemented in the relevant jurisdiction) with respect to the Adobe Products.

13.2  Safeguarding Products  

Sykes Asia, Sykes Europe and Sykes US agree to take all reasonable action to safeguard the Products while in its possession against all probable or foreseeable risks or wrongful obtaining by others and shall take such security measures as are reasonably necessary for those purposes.

13.3  Adobe's Intellectual Property  

13.4  Intellectual Property Infringement  

(c)

THE FOREGOING CLAUSES 13.4(a) AND (b) STATE THE SOLE AND EXCLUSIVE REMEDY OF SYKES ASIA, SYKES EUROPE OR SYKES US AND THE ENTIRE LIABILITY AND OBLIGATION OF ADOBE, ITS LICENSORS AND SUPPLIERS WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE PRODUCTS OR ANY PART THEREOF.

14.1  Term  

Notwithstanding the date or dates of execution hereof, this Agreement shall be deemed to be effective as of the Effective Date and subject to the provisions of Clause 17.2 shall continue for the Contract Term whereupon it shall automatically expire. There shall be no automatic renewals of this Agreement. This Agreement may only be renewed by the written agreement of both parties.

14.2  Termination  

A party shall have the right at all times by giving notice in writing to the other appropriate party to terminate this Agreement forthwith on the occurrence of any of the following events:

14.3  Material Breach by Sykes Asia, Sykes Europe or Sykes US  

It is hereby acknowledged and agreed that the following shall amount to a material breach of a term of this Agreement by Sykes Asia, Sykes Europe or Sykes US, such that Adobe Benelux or Adobe Systems, as appropriate, would be entitled to terminate this Agreement pursuant to Clause 14.2 (a):

and, for the avoidance of doubt, time will be of the essence in meeting the various dates specified in paragraphs (a) and (b) of this Clause 14.3. For the avoidance of doubt (i) meeting its respective Performance Standards by Sykes Asia, Sykes Europe or Sykes US shall not he conclusive of Sykes Asia, Sykes Europe or Sykes US, as appropriate, being in compliance with its obligations under this Agreement (other than its obligations to meet its relevant Performance Standards) and (ii) the making of any and all deductions which may be applied by Sykes Asia, Sykes Europe or Sykes US in terms of

this Agreement shall be without prejudice to any and all other rights which Adobe Benelux or Adobe Systems, as appropriate, may have in respect of any breach including hut not limited to the right to terminate this Agreement.

14.4  Change of Control  

Adobe Systems or Adobe Benelux shall be entitled to terminate this Agreement if (i) there is a change in the persons or entities who control 50% or more of the voting security or equity interests of Sykes Asia, Sykes Europe or Sykes US or (ii) in the event of a sale by Sykes Asia, Sykes Europe or Sykes US of 75% or more of its business which is involved in providing the Services.

14.5  Termination for Convenience  

Notwithstanding the provisions of Clauses 3.1 and 14.1 of this Agreement, Adobe Systems and/or Adobe Benelux may terminate this Agreement at any time without cause and without judicial intervention and without prejudice to the rights and obligations of the parties which have accrued as at the date of termination upon one hundred twenty (120) days' prior written notice to the other party by registered mail with notice of receipt. Notwithstanding the provisions of Clauses 3.1 and 14.1 of this Agreement, Sykes Europe, Sykes Asia and/or Sykes US may terminate this Agreement at any time without cause and without judicial intervention and without prejudice to the rights and obligations of the parties which have accrued as at the date of termination upon [*] prior written notice to the other party by registered mail with notice of receipt.

14.6  Consequences of Termination  

14.7  Survival of Terms  

Termination or expiry of this Agreement shall not affect the obligations of the parties in terms of Clauses 3.8, 5.2, 5.5, 7, 9, 10.1(i), 11, 13, 14.6, 14.10 and 15 of this Agreement which shall continue notwithstanding termination or expiry.

14.8  Accrued Rights  

Termination or expiry of this Agreement shall not affect the rights of either party accrued against the other up to the date of termination.

14.9  Other Rights  

Each party's right of termination as herein provided shall be without prejudice to any other rights and remedies it may have under this Agreement.

14.10  No Compensation  

Each party understands that the rights of termination or expiry hereunder are absolute. Without prejudice to any right to claim damages for breach of contract, neither party shall incur any liability whatsoever for any other damage, loss or expenses of any kind (with the exception of damage, loss or expense which is the result of wilful misconduct or gross negligence of such party's senior managerial personnel) suffered or incurred by the other arising from or incidental to any termination of this Agreement by such party or any expiry hereof which complies with the terms of the Agreement whether or not such party is aware of any such damage, loss or expenses in such circumstances. In particular, without in any way limiting the foregoing, neither party shall be entitled to any damages on account of prospective profits or anticipated sales. Where applicable, Sykes Asia, Sykes Europe or Sykes US each hereby irrevocably agree to waive the benefit of any law or regulation providing compensation to it arising from the termination or expiry or failure to renew this Agreement. Sykes Asia, Sykes Europe or Sykes US each also agree to indemnify and hold harmless Adobe Benelux and Adobe Systems, as appropriate, from any and all claims for compensation asserted by Sykes Asia's, Sykes Europe's or Sykes US' employees and sub-contractors.

15.1  Fair and Reasonable  

Sykes Asia, Sykes Europe and Sykes US acknowledge that in the course of this Agreement it is likely to obtain knowledge of Adobe Benelux' or Adobe Systems' trade secrets and other Confidential Information and will have dealings with certain of the customers and suppliers of Adobe Benelux and Adobe Systems and that it is fair and reasonable for Adobe Benelux and Adobe Systems to seek to protect its interests by the provisions of this Clause.

15.2  Non-Solicitation  

All parties hereby agree that (without prejudice to any other duty implied by law) they will not (whether alone or jointly with or as principal, manager, employee, partner, agent or consultant of or for any other person, firm or company):

16.1  Entire Agreement  

This Agreement constitutes the entire agreement and understanding between the parties hereto relating to the subject matter hereof and this Agreement cancels, terminates and supersedes any prior agreement or understanding relating to the subject matter hereof including but not limited to the statements of work agreed by the parties prior to the Effective Date. The relationship between the parties is as herein described and no partnership, joint venture or agency relationship save as provided herein shall be deemed to subsist between the parties and neither shall have the power to bind the other or to pledge the credit of the other. Sykes Asia, Sykes Europe and Sykes US each shall not say or do anything that might lead any third party to believe that Sykes Asia, Sykes Europe or Sykes US is acting as the agent of Adobe Benelux or Adobe Systems (except insofar as is required in the proper performance of the Services hereunder).

16.2  No Variation  

None of the provisions of this Agreement may be varied, waived, extended or modified except expressly in writing and signed by any of the parties hereto.

16.3  No Waiver  

Any omission by any party to exercise any right or remedy available to that party under the terms of this Agreement shall not be taken to signify acceptance of the event giving rise to the right to exercise such right or remedy and shall be without prejudice to the rights of any party which may arise in the future.

16.4  Severability  

Any provisions of this Agreement which in any way contravene the law of any state or region in which this Agreement is effective shall in such state or region to the extent of such contravention of laws be deemed severable and shall not invalidate any other provision or provisions of this agreement. Without prejudice to the foregoing, where practicable, the parties hereto shall negotiate with a view to replacing any such severed provisions with enforceable provisions to the satisfaction of both parties.

16.5  Set-Off  

Adobe Benelux and Adobe Systems, will be entitled to set off all sums due to Sykes Asia, Sykes Europe or Sykes US, as appropriate, pursuant to this Agreement against all sums due by Sykes Asia, Sykes Europe or Sykes US to Adobe Benelux or Adobe Systems.

17.1  Definition  

For the purpose of this Agreement "Force Majeure" shall be deemed to be any cause affecting the performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the party failing to perform and without limiting the generality thereof shall include the following:

17.2  Suspension  

If any party to this Agreement is prevented or delayed in the performance of any of its obligations under this Agreement by Force Majeure, and if such party gives written notice thereof to its respective other party specifying the matters constituting Force Majeure, together with such evidence as it reasonably can give and specifying the period for which it is estimated that such prevention or delay will continue then the party in question shall be excused the performance or the punctual performance as the case may be as from the date of such notice for as long as such cause of prevention or delay shall continue up to a period of [*] from the date of service of the said written notice and upon expiry of the said period of [*] either party may by written notice to the other summarily terminate this Agreement without prejudice to the then accrued rights of each party hereunder;

17.3  Non-Payment not Force Majeure  

For the avoidance of doubt any failure by Sykes Asia, Sykes Europe or Sykes US to supply the Services due to any non-payment by Sykes to any of its vendors shall not constitute a "Force Majeure" under this Clause. In such circumstances Sykes Asia, Sykes Europe or Sykes US, as appropriate, shall be required to make arrangements such that it is able to provide its Services.

(a)

in the case of a notice delivered personally, at the time of delivery; and

(b)

in the case of a notice delivered by courier, on the date of delivery shown in the business records of the courier.