Sample Business Contracts

Adobe hereby appoints Sykes and Sykes hereby accepts appointment as a non-exclusive provider of the Services during the Contract Term, subject to the terms of this Agreement. As at the Effective Date, Adobe hereby instructs Sykes to provide all the Services detailed in this Agreement but, consistent with the non-exclusive nature of this appointment, Adobe shall be entitled at any time to discontinue and/or suspend the provision by Sykes of any or all of the Services by giving a reasonable period of notice which shall not be less than forty-five (45) days.

If Adobe, during the Contract Term, seeks (1) any extension to the existing Services provided under this Agreement, or (2) the provision of new services similar to the services provided by Sykes which are not covered by this Agreement, Sykes shall have the opportunity to tender for the provision of such new services.

(a)

Sykes warrants and undertakes to Adobe that the Services shall at all times be provided in accordance with this Agreement, the Services Schedules (including but not limited to the Performance Standards and Performance Metrics) and the Statement of Work.

(b)

Adobe shall be entitled by thirty (30) days' prior written notice to amend the Statement of Work provided that such amendments will not have a material impact (whether requiring an increase or decrease) on the resources required by Sykes to provide the Services. Any such proposed amendments (including amendments to LifeLine or any other Adobe Database to

(c)

Where policies and procedures outlined in the Statement of Work are amended from time to time within the relevant Adobe Databases or within Lifeline, such amendments shall be deemed to vary the Statement of Work accordingly.

(d)

For the avoidance of doubt, unless explicitly stated to be a responsibility of Adobe, all obligations, duties, responsibilities and other matters set out or referred to in the ASN Schedule, the Direct Sales Schedules, and the Statement of Work shall be Sykes' responsibility and shall be obligations of Sykes in terms of this Agreement and except insofar as explicitly stated to be a responsibility of Adobe, it shall be Sykes' responsibility to ensure that all Services are performed as described in the relevant Services Schedule and the Statement of Work.

Without prejudice to specific obligations elsewhere in this Agreement, Sykes shall at all times devote sufficient resources and teams of sufficiently qualified personnel to enable it to provide the Services efficiently and professionally. Without prejudice to the generality of the foregoing, or any Performance Standard or Performance Metric set in relation to the Services, Sykes shall provide the Services to the standards which would reasonably be expected of a competent company which is providing the Services on an arms length basis and Sykes shall at all times perform the Services courteously and in such manner as not to injure Adobe's name or damage Adobe's goodwill.

Sykes hereby represents to Adobe that Sykes will not be in breach of any existing obligation binding on Sykes by reason of its entering into this Agreement.

Sykes undertakes and agrees that it will upon request provide Adobe with such additional Services as Adobe may from time to time 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 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 the Statement of Work as may be appropriate.

Sykes shall provide such reports, information and data as Adobe shall from time to time reasonably require in relation to the performance of this Agreement. This shall include but is not limited to reports on the Performance Standards and Performance Metrics which shall be produced by Sykes in relation to each Service in the terms set out in the relevant Services Schedule and/or the Statement of Work and the production by Sykes of all other reports, information and data more particularly specified in the Schedule and the Statement of Work. Reports on the Performance Metrics shall include all reports on the Performance Standards. Sykes shall 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 direction is good and which is bad and a scale which does not distort trends. Sykes shall ensure that all Performance Standards are drawn to the attention of all relevant employees. Sykes shall ensure that all Direct Sales and ASN

Performance Metrics and Performance Standards are broken down as detailed in the relevant Services Schedule and/or the Statement of Work. Without prejudice to the foregoing, Sykes shall use all reasonable endeavours to inform Adobe without delay of any matter which comes to the attention of Sykes which is likely to affect materially the provision of the Services.

All Services provided shall be provided by Sykes in the name of Adobe. So far as required by Sykes for the proper performance of its duties hereunder during the Contract Term and for no other purpose whatsoever, Adobe shall use its reasonable endeavours to procure for Sykes a non-exclusive royalty-free limited licence to use specified trade marks, service marks, trade names and logos belonging to or licensed by Adobe or any member of the Adobe Group pertaining to the Products. Such licence shall automatically terminate on the date of termination or expiry of this Agreement howsoever terminated or expiring and with effect from such date Sykes shall have no further right to use any such trade marks, service marks, trade names or logos of Adobe or any member of the Adobe Group pertaining to the Products or their licensors.

It is hereby expressly agreed that Adobe shall be the sole and exclusive owner of all Intellectual Property rights in all work carried out by Sykes (or on behalf of Sykes) in the provision of the Services including but not limited to copyright in reports, manuals, electronic files and technical notes authored by Sykes, copyright and database rights in any and all databases created or updated and copyright and related rights in any and all software developed by Sykes in the performance of the Services, to the extent that such software is bespoke software commissioned from Sykes by Adobe and charged to Adobe. Where Adobe has funded such software development, Sykes shall only be entitled to use such software for the exclusive benefit of Adobe during the Contract Term, and any transitional period described in Clause 14.6(a). In the event Sykes develops any other software under this Agreement for the benefit of Adobe and other Sykes clients, the parties shall agree how, if at all, the development costs of such software shall be apportioned. In any event, Adobe shall be entitled to a licence to use such software on terms to be agreed between Adobe and Sykes, provided that such terms shall include, as minimum terms, an irrevocable, worldwide, royalty free licence to use, sub-license to any member of the Adobe Group, and reproduce such software in connection with the Services during the Contract Term, and any transitional period described in Clause 14.6(a). Sykes hereby assigns as legal and beneficial owner to Adobe, by way of future assignation any and all such Intellectual Property rights which are capable of future assignation and on Adobe's request shall assign as legal and beneficial owner all other such Intellectual Property rights. Sykes shall procure the waiver by all persons involved in the creation or development of any such works of such moral or similar rights as such persons may from time to time have in or in relation to such works. Without prejudice to the foregoing, Sykes undertakes to do all such things and execute (or procure the execution of) all such documents as Adobe shall from time to time require in order to perfect Adobe's title to same and obtain any applicable protections in Adobe's name and to confirm such waivers including but not limited to procuring assignations and waivers in Adobe's favour from contractors and consultants. Sykes warrants and represents to Adobe that it is entitled to assign such Intellectual Property to Adobe and that such Intellectual Property does not infringe the Intellectual Property rights or moral or similar rights of any third party.

Sykes shall ensure that it has available to it all hardware, software and other technical resources required from time to time for the provision of the Services all of which shall be at the responsibility and risk of Sykes and Sykes shall maintain and update the same to standards consistent with Sykes' 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:—

(a)

have and maintain for the Contract Term, access to any Adobe Database (or other database) Adobe deems necessary (acting reasonably) for Sykes to perform its obligations under this Agreement;

(b)

maintain facilities for the entry into and processing of data in connection with all relevant Adobe Databases and for all reporting required in terms of this Agreement;

(c)

invoice, process and validate payments of membership fees and renewal fees and ASN Product charges in the provision of the ASN Services;

(d)

invoice, process and validate payments for Direct Sales Products supplied in the course of the Direct Sales Services;

(e)

maintain technical resources which make call monitoring of Services supplied to End Users possible;

(f)

maintain an electronic mail system compatible with that specified by Adobe (acting reasonably); and

(g)

maintain sufficient electronic ordering, processing and other facilities as are necessary for shipping Direct Sales Products and ASN Products to End Users and ASN Members respectively;

Without prejudice to the foregoing, Sykes shall ensure that it has available to it the infrastructure identified in Part 5 of the Schedule and any and all specific hardware, software and technical resources identified in the Statement of Work in relation to each of the individual Services (which shall have no less than the functionality described in the Statement of Work, where specified) and shall not make any material change to any specifications or configurations so described without Adobe's prior written consent, acting reasonably.

Sykes shall set up and maintain effective Management Teams primarily dedicated to Adobe which shall comprise the individuals and reflect the structures contained in the Statement of Work in relation to the relevant Services. Sykes shall ensure that the relevant members of the Management Teams shall attend and hold such meetings as Adobe shall from time to time reasonably require including but not limited to the QBR (which will be held in the month following expiry of each Adobe Financial Quarter during the Contract Term) and the other regular meetings scheduled in the Statement of Work in relation to each of the Services.

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

(a)

upon twenty-four (24) hours' advance notice to Sykes, to monitor responses to Incoming Requests (whether calls taken or e-mails or other written responses supplied or otherwise) and to analyse the quality and quantity of call logging; and

(b)

at any time (s) and as it deems appropriate to carry out written, telephone or other surveys of End Users and ASN Members as to their experience with Services provided to them.

Subject to the terms of this Agreement, Sykes agrees to provide Adobe with the Direct Sales Services and the Finance Services during the Contract Term for the sums set out in the Charges Schedule and in accordance with the terms set out in the Direct Sales Schedules and the Statement of Work.

Sykes shall recruit CSRs and other members of the Direct Sales Team meeting the profile contained in the Statement of Work and shall ensure that the Direct Sales Team at all times meets 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 set out in the Statement of Work and the forecasted requirements of Adobe from time to time, in the terms set out in the Statement of Work. Sykes shall ensure that all members of the Direct Sales Team undergo and satisfactorily complete the Direct Sales Training and without prejudice to the foregoing, that the Direct Sales Team is at all times adequately trained and resourced in accordance with Adobe's reasonable requirements from time to time. Sykes shall monitor all CSRs and obtain training evaluations from such CSRs as detailed in the Statement of Work. Sykes' compliance with this provision shall not relieve Sykes of its obligation to achieve the Performance Standards.

Sykes shall perform the Direct Sales Services to the Performance Standards set out in the Direct Sales Schedules and/or the Statement of Work. Sykes further acknowledges and agrees that a consistent failure to meet the standards, goals and objectives identified in the Performance Standards and/or the Performance Metrics shall be deemed to be a material breach of this Agreement as specified in Clause 14.3. Without limiting the foregoing, Sykes agrees to use all reasonable endeavours to achieve the performance standards described as "Targets" in the Statement of Work.

Adobe shall provide the services detailed in the Direct Sales Schedules to support Sykes in the provision of Direct Sales Services together with such other services as may be specifically identified as a responsibility of Adobe in the Statement of Work;

Subject to the terms of this Agreement, Sykes agrees to provide Adobe with the ASN Services and the Finance Services during the Contract Term at the prices set out in the Charge Schedule in accordance with the terms set out in the ASN Schedule and the Statement of Work.

Sykes shall recruit ASN CSRs meeting the profile contained in the Statement of Work and shall ensure that the ASN Team at all times meets 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 set out in the Statement of Work. Sykes shall ensure that all members of the ASN Team undergo and satisfactorily complete the ASN Training and without prejudice to the foregoing, that the ASN Team is at all times adequately trained and resourced in accordance with Adobe's reasonable requirements from time to time. Sykes shall monitor all ASN CSRs and obtain training evaluations from such ASN CSRs as detailed in the Statement of Work. Sykes' compliance with this provision shall not relieve Sykes of its obligation to achieve the Performance Standards.

Sykes shall perform the ASN Services to the Performance Standards set out in the ASN Schedule and/ or the Statement of Work. Sykes further acknowledges and agrees that a consistent failure to meet the standards, goals and objectives identified in the Performance Standards and/or the Performance Metrics shall be deemed to be a material breach of this Agreement as specified in Clause 14.3.

Adobe shall provide such services as may be specifically identified as a responsibility of Adobe in the Statement of Work.

(a)

Within nineteen (19) days of the end of each Adobe Financial Month during the Contract Term, Sykes shall invoice Adobe for all work carried out in the previous Adobe Financial Month calculated as set out in the Charges Schedule. Such invoices shall clearly specify amounts due for each of the Services. Each such invoice shall be accompanied by such supporting documentation and vouchers as Adobe may reasonably require. Except as provided in Clause 5.2, and further provided that such invoice is accurate and fully supported, Adobe agrees to pay each such invoice within thirty (30) days of the date of such invoice which for the avoidance of doubt shall be the date of the end of the relevant Adobe Financial Month.

(b)

Within nineteen (19) days of the end of each Adobe Financial Month, Sykes shall also provide Adobe with a written statement of the amounts received by Sykes on behalf of Adobe during the previous Adobe Financial Month from all sources in relation to Services provided. Sykes shall ensure that all sums received or receivable in this respect shall be payable to and paid to Adobe and shall be paid into such nominated Adobe accounts as Adobe shall notify Sykes from time to time. In no event and under no circumstances shall Sykes receive sums from End Users or ASN Members or in any other manner on its own account in relation to the Services but if for any reason any such sums are received, they shall be held in trust for Adobe and immediately paid to Adobe in such manner as Adobe shall direct.

Without prejudice to its other rights hereunder Adobe shall not be obliged to make payment of any sums pursuant to Clause 5.1 if:—

(a)

Sykes has unreasonably refused or failed to perform any Services as and when requested by Adobe; or

(b)

Sykes has failed to perform any or all of the Services in accordance with the Performance Standards and/or the Performance Metrics such that, in Adobe's reasonable judgement, there has been or is likely to be a materially adverse effect on the Service(s) in question; or

(c)

any of the circumstances specified in Clause 14.3 has arisen.

Except as specifically provided herein Sykes 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.

All payments due hereunder shall be exclusive of Value Added Tax or its equivalent and shall be made in Sterling.

(a)

Sykes shall keep full, adequate and accurate books of account and other records reflecting the management, operation and financial results of the Services at its normal place of business. Such books and records shall, at all times, be kept in all material respects in accordance with good administrative, and secretarial practice and generally accepted accounting principles. Title to such books and records shall vest in Sykes.

(b)

Such books of account and all relevant records shall be open upon reasonable prior notice during normal working hours and at reasonable intervals for inspection by a duly authorised representative or representatives of Adobe for the purpose of verifying the accuracy of all payments made or to be made by or to Adobe pursuant to this Clause 5. Provided that Adobe has access to all information necessary to verify the accuracy of all payments made to or to be made by Adobe pursuant to this Clause 5, Sykes shall not be obligated to provide Adobe with access to records relating to Sykes' profitability in the provision of the Services or access to any records containing other Sykes client information. For the avoidance of doubt, where such records may contain Adobe information and information relating to other Sykes clients, Sykes shall provide Adobe with properly redacted versions of such records.

Interest shall be payable on all sums which are due and payable hereunder to or by Adobe (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 2% per annum above the Base Rate from time to time of the Bank of Scotland.

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 to instruct Sykes to provide Adobe with any Service during the Contract Term.

If at any time during the Contract Term Sykes 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 be amended to provide for such favourable terms but nothing contained in this Clause 5.8 shall oblige Sykes to disclose the identity of any such third party. Sykes shall be bound to inform Adobe immediately if any such circumstances arise.

The parties agree that any dispute regarding sums due to or by Sykes in terms of this Agreement shall be referred for final settlement to a Chartered Accountant nominated jointly by the parties or failing agreement as to such nomination within seven days after either party's request to the other therefor as nominated at the request of either party by the President for the time being of the Institute of Chartered Accountants of Scotland. Such expert shall be deemed to act as an expert and not as an arbiter. His/her decision in the absence of clerical or manifest error shall be final and binding on the parties and his/her fees for so acting shall be borne by the parties in equal shares unless he/she determines that the conduct of either party is such that such party should pay all or a major part of such fees.

(a)

For the purposes of this Agreement, "Confidential Information" shall mean any and all technical and non-technical information in any form, including patent, trade secret and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to current, future and proposed products and services of Adobe and members of the Adobe Group and includes, without limitation, its respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans and information. Without prejudice to the foregoing generality, "Confidential Information" shall also include any and all information contained in any and all Adobe Databases to which Sykes may have access under this Agreement.

(b)

For the purposes of this Agreement, "Confidential Materials" shall mean all tangible materials containing Confidential Information including, without limitation, all written or printed documents and computer disks, tapes or CD-ROMs, whether machine or user readable, all PDF (portable document format) files and databases containing any Confidential Information.

(a)

take such action in relation to its employees, agents and sub-contractors as Adobe may from time to time reasonably require in order to secure the effective performance by Sykes of its obligations hereunder;

(b)

without prejudice to the obligations contained in Clause 2.9 of this Agreement, ensure that all systems, equipment, machinery and/or software employed by Sykes for provision of the Services shall be of adequate quality for the performance of the 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;

(c)

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 the Services;

(d)

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

(e)

not sub-contract its performance of any or all of the Services to any third party or appoint an agent without Adobe's prior written consent and such consent shall only be given inter alia (i) on the basis that Sykes remains 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 or such party(ies) as Adobe 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 2.8; (f) 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;

(g)

without prejudice to Clause 10.1(f), 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 shall make all appropriate registrations and shall apply for all appropriate authorisations, 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 and any third party(ies) designated by Adobe, and their holding and use by Adobe and any third party(ies) designated by Adobe, for any purposes specified by Adobe, and insofar as permitted under the applicable privacy protection regulations and the applicable data protection regulations. Sykes shall defend, indemnify and hold Adobe and its successors, officers, directors and employees and all third party(ies) designated by Adobe 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 or in connection with the use by Adobe or any other party(ies) designated by Adobe of such data provided that Adobe has complied with its obligations under applicable data protection regulations and any other relevant regulations in respect of such data. Sykes' obligation of indemnification shall survive the expiry or termination of this Agreement.

(a)

the use or failure of use by Sykes of any code, data, media, material, firmware, or software at any time during the Contract Term; or

(b)

any computer instruction, circuitry, "virus", "worm", "Trojan horse" or "logic bomb" (as these words are generally understood as at the Effective Date within the computer industry) or any other technological means whose purpose is to disrupt, damage or interfere with Adobe's use of its computer and/or telecommunications facilities, or any other similar matter or thing resulting from such use or failure as specified in Clause 11.2 (a) which comes into existence or is introduced during the Contract Term.

(a)

the misuse by Sykes of any Adobe Database to which it may have access hereunder or of any part thereof; and/or

(b)

any failure by Sykes to carry out any or all of the Services strictly in accordance with its obligations in this Agreement and/or in respect of any negligent act or omission of Sykes in the provision of any or all of the Services.

(a)

Sykes acknowledges that the structure, organisation and code of the Adobe Products are proprietary to Adobe, its licensors and suppliers, and that the Products are the Intellectual Property of Adobe, its licensors and suppliers. Adobe, its licensors and suppliers retain exclusive ownership of the Intellectual Property rights vested in the Products and any and all trade marks licensed to Sykes in accordance with Clause 2.7 (the "Trade Marks") and Sykes shall take all reasonable measures to protect the Intellectual Property rights of Adobe, its licensors and suppliers in the Products and the Trade Marks including but not limited to providing such assistance and taking such measures as are reasonably requested by Adobe from time to time.

(b)

Except as provided herein, Sykes is not granted any rights to any Intellectual Property or any other rights, franchises or licences with respect to the Trade Marks. Without prejudice to the foregoing, Sykes acknowledges and agrees that any and all Intellectual Property rights in and to any Adobe Database to which Sykes may have access hereunder are and shall remain the Intellectual Property of Adobe, its licensors and suppliers. Sykes hereby assigns any and all present and future Intellectual Property rights, if any, in Sykes' updates of the Adobe Databases and any authoring, localisation or translation by Sykes of any items(s) contained in or entered into any Adobe Database to which Sykes has access under this Agreement or any data contained therein, to Adobe. Sykes shall procure waivers of all moral or similar rights which may from time to time subsist in relation to such updates and other works. At any time upon first request, Sykes shall take all steps, sign all documents and otherwise fully co-operate with Adobe to secure a binding transfer and waiver of all such rights to Adobe all on like terms to those contained in Clause 2.8.

(c)

For the avoidance of doubt, all rights of any nature in the Sales and Registration Database (other than Sykes' or any third party's rights in the underlying software and file and database structures) shall belong to Adobe. Such rights include, but are not limited to database rights and the right to regard such database and all data contained therein as confidential information. Should Adobe wish at any time to relocate, duplicate or transfer the Sales and Registration Database to a location within Adobe's own network, Sykes undertakes fully and effectively to co-operate with any such relocation, duplication and/or transfer as required by Adobe on such terms as the parties shall agree.

(a)

Subject to the limitations set forth in this Clauses 13.4 and Clause 13.5, Adobe shall defend and indemnify Sykes with respect to all claims, suits or proceedings with respect to any claim that any Adobe Product delivered to Sykes by Adobe in order to allow Sykes to fulfil its obligations hereunder infringes any patent, trade mark or copyright of any Member State of the European Union provided, however, that (i) Sykes promptly notifies Adobe in writing of such claim, suit or proceeding (ii) Sykes gives Adobe the right to control and direct the investigation, preparation, defence and settlement of any such claim, suit or proceeding (iii) Sykes makes no admission of liability and (iv) Sykes gives assistance and full co-operation for the defence of same as requested at Adobe's expense and further provided that Adobe's liability with respect to portions of the Adobe Products provided by or licensed from third parties will be limited to the extent that Adobe is indemnified by such third parties. Adobe shall pay any resulting damages, costs and expenses finally awarded or as a result of a settlement made by Adobe to a third party but Adobe is not and shall not be liable for such amounts or for settlements incurred by Sykes without Adobe's written authorisation. If such claim, suit or proceeding has occurred or in Adobe's opinion is likely to occur, Adobe may at its election and expense either obtain for Sykes the right to continue performing the Services with regard to such allegedly infringing Adobe Product, replace or modify the Adobe Product so it is not infringing or remove such Adobe Product from this Agreement;

(b)

The provisions of the indemnity set out in Clause 13.4(a) shall not apply with respect to any instances of alleged infringement based upon or arising out of the use of Adobe Products other than as strictly permitted under this Agreement or in any manner for which the Adobe Products were not designed, or for use of the Adobe Products for other than the uses designated by Adobe, for use of any Adobe Product which has been modified by Sykes or any third party (except to the extent such modifications are authorised and approved in writing by Adobe or expressly permitted hereunder) or for use of any Adobe Products in connection with or in combination with any equipment, devices or software which have not been supplied by Adobe (if such infringement or claim could have been avoided by use of the Adobe Products with other equipment, devices or software). Notwithstanding any other provisions hereof, the indemnity set out in Clause 13.4 (a) shall not apply with respect to any infringement based on Sykes' activities occurring subsequent to its receipt of notice of any claimed infringement unless Adobe shall have given Sykes written permission to continue to use the relevant Adobe Product;

(c)

THE FOREGOING CLAUSES 13.4(a) AND (b) STATE THE SOLE AND EXCLUSIVE REMEDY OF SYKES 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.

(b)

if the other party is deemed unable to pay its debts (within the meaning of section 123(1) of the Insolvency Act 1986), or if an application for an administration order in relation to it is presented to the Court, or if any steps are taken by it with a view to proposing any kind of composition or arrangement involving its creditors generally (or any class of them), or if any administrative or other receiver or any manager of it or any of its property is appointed, or if any diligence, distress, execution or other process is levied, enforced or sued out against it or its assets and not discharged within 21 days, or if any meeting is convened, resolution passed, petition presented or order made for its winding up, or if an order is made or resolution passed or other action taken for suspension of payments, protection from creditors or bankruptcy of it, or if a liquidator, trustee or similar office is appointed in respect of it, or all or part of its assets (or if any similar event occurs in relation to either party in any jurisdiction outside the United Kingdom);

(c)

if either party shall be guilty of conduct tending to bring the other party and/or any associated company of the other (being a member of the Adobe Group or a Sykes Associated Company respectively) into disrepute;

(d)

for the purposes of this Clause 14.2, where the party in question is Sykes, Sykes shall include any Sykes Associated Company which is involved in providing the Services or any of them whether under sub-contract or otherwise or any other sub-contractor whether or not such sub-contractor is registered in the United Kingdom.

(a)

where Adobe requests any Service in accordance with the provisions hereof and specifies in such request that the end implementation date for provision of the specific Service is linked to a Product which is specified by Adobe (acting reasonably) as being important and Sykes fails to meet that end implementation date; or

(b)

where Adobe requests any Service in accordance with the provisions hereof and specifies in such request that the end implementation date for provision of the specific Service is linked to any campaign specified by Adobe (acting reasonably) as being important and Sykes fails to meet that end implementation date; or

(c)

where Sykes is in breach of any obligation of confidentiality imposed on it pursuant to this Agreement or is in breach of any security which is put in place at the request of Adobe which in Adobe's view (acting reasonably) has a significant adverse effect on Adobe's business including but not limited to the disclosure of any product plans of Adobe where such disclosure falls within the confidentiality obligations contained in Clause 9; or

(d)

where Sykes has knowingly or negligently injured Adobe's name or damaged Adobe's goodwill; or

(e)

where Sykes has used or misused Adobe's name or any or its trade names, trade marks, service marks or logos other than as expressly provided in this Agreement; or

(f)

where Sykes has knowingly or negligently used unlicensed third party software or has allowed any Product to be used other than as specified under this Agreement so far as is within its control; or

(g)

where Sykes has failed to meet any or all of the Performance Standards; or

(h)

where Sykes has, in Adobe's reasonable opinion, consistently failed to meet the standards, goals and targets identified in the Performance Standards and/or the Performance Metrics;

(a)

On termination or expiry of this Agreement for any reason Sykes will liaise with Adobe making available for such purposes such Sykes liaison staff as Adobe may reasonably require and acting in good faith to ensure mutually satisfactory handover of the performance of the Services to Adobe or to a replacement contractor(s). The period of liaison will commence as

(b)

Sykes agrees that at the time of termination or expiry of this Agreement it will render all assistance (including that specified in paragraph (a) above), provide all documentation and undertake all actions to the extent necessary to effect an orderly assumption of the Services by Adobe or by replacement contractor(s), subject to agreeing with Adobe a fee for its reasonable costs and expenses in so doing without prejudice to any rights of Adobe to claim damages in the event of termination arising from any breach of this Agreement by Sykes. Without prejudice to the foregoing, Sykes shall do all things required to transfer the Sales and Registration Database and all data contained therein to Adobe or its replacement contractors, as above.

(c)

Each party undertakes to return to the other party upon termination or expiry of this Agreement any equipment, software, documentation, information or other materials belonging to the other party. Without prejudice to the foregoing generality, Sykes shall deliver immediately to Adobe all Confidential Information and/or Confidential Materials in its possession including but not limited to any and all copies of Adobe Databases and all registration cards.

(d)

For the avoidance of doubt, until this Agreement expires or is terminated (including during any notice period), Sykes shall continue to provide the Services in accordance with the terms of this Agreement including, without limitation, Clause 2.3 and the Performance Standards.

(a)

at any time during the Contract Term and/or any transitional period described in Clause 14.6(a), without the prior consent of the other party, endeavour to entice away from the other party or knowingly employ or offer employment to any person who is then, or has been during the Contract Term, a director, employee, consultant or agent of the other party; or

(b)

for a period of one (1) year after the termination or expiry of this Agreement, without the prior consent of the other party, endeavour to entice away from the other party or knowingly employ or offer employment to any person who is then a director, employee, consultant or agent of the other party; or

(c)

at any time do or say anything likely to be calculated to lead any person, firm or company to breach any contract with the other party or withdraw from the other party any rights of import, supply, distribution or agency now enjoyed by it.

(a)

strikes, lock-outs or other industrial action (other than insofar as these involve the party claiming Force Majeure);

(b)

civil commotion, riot, invasion, war threat or preparation for war;

(c)

fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural physical disaster;

(d)

impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

(e)

political interference with the normal operations of any party.

(i)

operate any Adobe Database to which Adobe may provide access under the terms of this Agreement;

(ii)

make either a TCP/IP or modem connection to Adobe's internal network sufficient to provide or receive updates to any Adobe Database to which Sykes may have access under this Agreement.

In order to ensure that Sykes is able to meet the Performance Standards and the Performance Metrics with respect to the Services provided under this Agreement, Sykes shall have and maintain during the Contract Term (and until the transfer of all relevant materials to Adobe in terms of Clause 14.6 of the Agreement) fault tolerance and disaster recovery capabilities and plans which will allow it to recover from any and all hardware, software, communications and/or power failure(s) used by Sykes from time to time in each case within a maximum of 24 hours of the relevant failure(s) occurring. For the avoidance of doubt, such plans and capabilities shall cover all infrastructure required to provide the Services, including but not limited to all computer, telephony and other systems.