US Country Agreement - BP America Inc. and Exult Inc.
Dated 7 December, 1999
BP AMERICA INC
and
EXULT, INC.
US COUNTRY AGREEMENT
One Silk Street
London EC2Y 8HQ
Tel: (44-171) 456 2000
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TABLE OF CONTENTS
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CONTENTS PAGE
1 Definitions and Interpretation ........................ 2
2 Term .................................................. 2
3 Services .............................................. 3
4 Exclusivity ........................................... 6
5 Client Obligations including BPA Responsibilities ..... 7
6 Transfer Arrangements ................................. 8
7 Third Party HR Contracts .............................. 10
8 Front End Consents .................................... 13
9 Change Control Management Process ..................... 14
10 Charges, Invoicing and Payment ........................ 14
11 Taxes ................................................. 14
12 Audit ................................................. 16
13 Key Personnel ......................................... 18
14 Termination ........................................... 18
15 Suspension of a Process ............................... 20
16 Winding Up Assistance ................................. 21
17 Financial Consequences of Termination ................. 22
18 Transfer Arrangements on Termination .................. 24
19 Intellectual Property Rights .......................... 26
20 Confidentiality ....................................... 28
21 Data Protection and Security .......................... 29
22 Contract and Service Management ....................... 30
23 Contract Minimums ..................................... 33
24 Warranties ............................................ 34
25 Limitation on Liability ............................... 36
26 Indemnities and Defence of Claims ..................... 38
27 Insurance ............................................. 43
28 Recovery of Damage Awards ............................. 43
29 Dispute Resolution .................................... 44
30 Force Majeure ......................................... 46
31 Assignment ............................................ 47
32 Subcontracting ........................................ 47
33 Participating Affiliates .............................. 49
34 General Terms ......................................... 49
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PARTIES
THIS AGREEMENT is made on December 1999
BETWEEN:
(1) BP AMERICA INC, a company incorporated under the laws of Delaware,
whose principal office is at 200 East Randolph Drive, Chicago, IL 60601
("CLIENT"); and
(2) EXULT, INC., a company incorporated under the laws of Delaware whose
principal office is at 4 Park Plaza, Suite 350, Irvine, California,
92614 ("EXULT SUPPLIER").
WHEREAS:
(A) By an agreement (the "Framework Agreement") dated 7 December, 1999
between BPA Amoco p.l.c. ("BPA") a company incorporated under the laws
of England, and Exult, Inc. ("Exult"), a company incorporated under the
laws of the State of Delaware, a framework was agreed to enable Exult
and its Affiliates to provide certain human resource management
services to BPA and certain of its Affiliates.
(B) The purpose of this Agreement is to set out the terms on which Exult
Supplier is to supply the Services to the Client in the United States
of America.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 The definitions applying to this Agreement are set out in
Schedule Z (Definitions).
1.2 A reference to any statute, enactment, order, regulation or
other similar instrument shall be construed as a reference to
the statute, enactment, order, regulation or instrument as
amended by any subsequent statute, enactment, order,
regulation or instrument or as contained in any subsequent
re-enactment thereof.
1.3 Headings are included in this Agreement for ease of reference
only and shall not affect the interpretation or construction
of this Agreement.
1.4 References to Clauses and Schedules are, unless otherwise
provided, references to clauses and schedules in or to this
Agreement.
1.5 References to the words "include(s)" or "including" shall be
construed without limitation to the generality of the
preceding words.
2 TERM
This Agreement shall take effect on the Commencement Date and, unless
the Client provides notice under Clause 14.4 (Termination on Notice
after the Initial Period) that it wishes to
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terminate the Agreement on notice after the Initial Period, the
Agreement shall continue thereafter subject to the other provisions of
Clause 14 (Termination).
3 SERVICES
3.1 The Services
3.1.1 Exult Supplier shall provide the Services to the
Client and the Participating Affiliates in accordance
with the Transition Plan, the Service Levels, the
Controls, Good Industry Practice and otherwise in
accordance with the terms and conditions of this
Agreement.
3.1.2 Exult Supplier shall supply sufficient and
appropriately qualified and skilled Employees and
Subcontractors to provide the Services to the Client.
3.1.3 Exult Supplier shall be responsible for the
management and technical supervision of the
performance of the Services by Employees and
Subcontractors under this Agreement.
3.1.4 Except as otherwise provided in this Agreement, Exult
Supplier shall be responsible for ensuring it has all
the assets required to provide the Services.
3.1.5 In performing the Services Exult Supplier shall use
reasonable endeavours to perform its duties in such
manner and at such times so that no act, omission or
default of the Exult Supplier shall, to its
knowledge, constitute, cause or contribute to any
breach by BPA, the Client or any of the Participating
Affiliates of any contract, including, but not
limited to, the Third Party Contracts binding upon
BPA, the Client or the Participating Affiliates
relating to the Client Premises, the Client Assets
or, the provision of the Services.
3.2 CONTROLS
3.2.1 For the avoidance of doubt, the Client shall be
responsible for establishing and maintaining BPA
Controls, including, but not limited to, management
overview and determination of BPA Controls relating
to human resource management policies and practices.
Exult Supplier shall have no responsibility for the
establishment and maintenance of BPA Controls, but
shall comply with BPA Controls in accordance with the
terms of this Agreement .
3.2.2 As at the Commencement Date, the BPA Controls listed
in Part 1 of Schedule O, BPA Controls, have been
provided to Exult Supplier in writing and the parties
have agreed that Exult Supplier shall comply with
such agreed BPA Controls when fulfilling its
obligations under this Agreement.
3.2.3 During the 6 month period following the Commencement
Date, the parties shall work together in good faith
to review and evaluate the BPA Controls listed in
Part 2 of Schedule O. Such review will involve an
assessment of the
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applicability of such BPA Controls to the performance
of Exult Supplier's obligations under this Agreement
and the impact, if any, of Exult's compliance with
such BPA Controls in terms of the scope of Services,
Service Levels, Charges or any other aspect of this
Agreement.
3.2.4 It is the intention of the parties that through the
review process referenced in Clause 3.2.3, the BPA
Controls listed in Part 2 of Schedule O will be
agreed between the parties and included within Part 1
of Schedule O and Exult Supplier's performance of its
obligations under this Agreement shall be subject to
compliance with such additional agreed BPA Controls.
3.2.5 In the event that the parties are unable to reach
agreement within [***]* of the review as to the
inclusion of any BPA Controls pursuant to Clause
3.2.4 then at the end of such [***]* period, those
BPA Controls shall be deemed to have been included in
Part 1 and the Change Control Management process
shall be applied to implement such BPA Controls.
3.2.6 In addition to the provisions in Clauses 3.2.4 and
3.2.5 for inclusion of BPA Controls into this
Agreement, the parties shall procure the Regional
Governance Panel to review the BPA Controls
periodically during the term of this Agreement and to
use reasonable endeavours to agree and include:
any improvements and updates to BPA Controls; and
any additional BPA Controls established or determined by the Client in relation
to human resource management or to its business generally.
3.2.7 In the event that the parties are unable to reach
agreement as to the inclusion of any BPA Controls
pursuant to Clause 3.2.6 within [***]* of the review,
those BPA Controls shall be deemed to have been
included in Part 1 and the Change Control Management
process shall be applied to implement such BPA
Controls.
3.2.8 Within [***]* following the Commencement Date and
consistent with the Process Take On Dates as set out
in the Country Transition Plan, Exult Supplier will
develop a Quality Control Document. The Quality
Control Document shall thereafter be reviewed
periodically by the Regional Governance Panel with a
view to agreeing and incorporating any improvements
and updates thereto.
3.2.9 Any alleged or suspected violation of the BPA
Controls by any Employees in the performance of this
Agreement shall be promptly reported by the party
with knowledge of the alleged or suspected violation
to the other party. Exult Supplier shall permit the
Client to conduct an investigation into the matter
and shall co-operate with any investigation into such
matter conducted by the Client and shall take
whatever Exult Supplier deems to be the appropriate
corrective action with respect to any such violation
by the Exult Personnel.
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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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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 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
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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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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.
4 EXCLUSIVITY
The parties acknowledge that Exult Supplier will have an exclusive
right to offer to provide Services and Underlying Technology to the
Client in the United States of America save that the Client has the
right to obtain human resources services (including the Services)
directly from itself, from BPA, from a BPA Affiliate or from a third
party in respect of:
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4.1 [***]*
4.2 services received by the Client under Third Party Contracts
which are not Transferred to Exult Supplier pursuant to Clause
7 (Third Party HR Contracts);
4.3 services received by the Client under Sensitive Third Party
Contracts pursuant to Clause 7 (Third Party HR Contracts);
4.4 [***]*
4.5 [***]*
4.6 any Affected Process in relation to which the Client has
terminated this Agreement pursuant to Clause 15.5.1
(Suspension of a Process).
5 CLIENT OBLIGATIONS INCLUDING BPA RESPONSIBILITIES
5.1 The Client shall perform its obligations under this Agreement,
including, but not limited to, the BPA Responsibilities, in
accordance with this Agreement.
5.2 The Client shall arrange for the giving of timely approvals,
management input, information and management review of issues
as and when they are requested by Exult Supplier. The Client
will provide Exult Supplier and its Employees and
Subcontractors full and timely access to all staff relevant to
the provision of the Services to the extent reasonably needed
by Exult Supplier to make decisions in relation to, or to
perform the Services. In the event that such access is not
provided, Exult's Country Representative will advise the
Client's Country Representative.
5.3 The Client shall be responsible for establishing and
maintaining its management policies and strategies, including,
but not limited to, policies relating to the Client's human
resources function. Exult Supplier shall have no
responsibility for the establishment or maintenance of such
policies.
5.4 Exult Supplier shall not be liable for any delay or failure on
its part to provide all or any of the Services or failure to
perform its other obligations under this Agreement to the
extent that this results from:
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;
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* Confidential treatment is requested for redacted portion. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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5.4.3 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
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.
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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;
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
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respective obligations under this and the other
Country Agreements. The parties intend the form of
the agreement should be substantially similar to that
contained in Schedule U and that if it is not
possible to obtain such agreement with NCC, the
parties shall agree on a suitable alternative escrow
agent.
6.3.7 Any costs associated with Exult Supplier's compliance
with Clauses 6.3.4, 6.3.5 and 6.3.6 shall be charged
to the Client as a Pass Through Cost.
6.4 MISCELLANEOUS PROVISIONS RELATING TO THIRD PARTY CONTRACTS
6.4.1 The Client shall procure, so far as is reasonably
practicable and subject to the provisions of Clause 8
(Front End Consents), that Exult Supplier shall be
entitled to the benefit, subject to the burden, of
the Client's or BPA's interest in Third Party
Contracts other than Third Party HR Contracts which
shall be dealt with in accordance with Clause 7.
6.4.2 All charges and expenses arising from the Third Party
Contracts transferred to Exult Supplier (including
Third Party HR Contracts) (to the extent that the
same relate to the Services) shall, subject to Clause
8 (Front End Consents), be equitably apportioned
between the Client and Exult Supplier as at the date
of the Transfer.
7 THIRD PARTY HR CONTRACTS
7.1 THIRD PARTY HR CONTRACTS
Those contracts identified during the Due Diligence Exercise
as potential Third Party HR Contracts are set out in Schedule
D. The parties acknowledge that more potential Third Party HR
Contracts may be identified during the term of the Agreement
in which case such Third Party HR Contracts shall be added to
Schedule D and be subject to the provisions of this Clause 7.
It is the intention of the parties that, subject to the other
provisions of this Clause, where practicable the
responsibility for the provision of the services provided
under Third Party HR Contracts should be Transferred to Exult
Supplier either by termination of such Third Party HR
Contracts or by an assignment or novation of such Third Party
HR Contracts to Exult Supplier, and in any event upon the
expiry of such Third Party HR Contracts. However, the parties
recognise that this may not be practicable in all
circumstances and have agreed that the following procedure
shall apply to Third Party HR Contracts.
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
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(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
(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
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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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shall apply.
7.4 ADMINISTRATION OF THIRD PARTY HR CONTRACTS
7.4.1 Where the parties agree pursuant to Clause 7.3.2 or
Clause 7.3.3 that a Third Party HR Contract should be
administered by Exult Supplier the parties shall
agree a suitable Contract Transfer Plan and shall
ensure that Exult Supplier takes over administration
of the Third Party HR Contract in accordance with
Clause 7.3.1 and such Contract Transfer Plan, in the
most practicable and efficient manner and with the
minimum of disruption to the Client, BPA, the
Participating Affiliates and to the provision of the
Services. The Contract Transfer Plan shall include
the scope of Exult Suppliers' responsibilities
relating to its administration role together with the
Client's role and responsibilities.
7.4.2 Exult Supplier's duties with respect to Third Party
HR Contracts under this Clause 7.4 relating to any
Benefit Plan as defined in Schedule W shall be
limited to (a) monitoring the third party's
performance in accordance with the terms of the Third
Party HR Contract and any other policies and
guidelines established by the appropriate fiduciaries
of such Benefit Plan, (b) reporting to the Client
Country Representative on the result of its
monitoring activities and (c) taking such action as
directed by the Client Country Representative with
respect to such Third Party HR Contract.
7.5 MONITORING AND REVIEW OF THIRD PARTY HR CONTRACTS
In the event that a Third Party HR Contract is not Transferred
to Exult Supplier or administered by Exult Supplier, the
parties, through the Regional Governance Panel, shall continue
to monitor the Third Party HR Contract and work towards
integrating Exult Supplier into the relationship with the
third party with a view to Transferring the Third Party HR
Contract or its administration to Exult Supplier when the
parties agree it is appropriate to do so.
7.6 SENSITIVE THIRD PARTY CONTRACTS
7.6.1 [***]*
7.6.2 In the case of Sensitive Third Party Contracts
Transferred by assignment or novation to Exult
Supplier pursuant to Clause 7.3.1 to Clause 7.3.5
inclusive, Exult Supplier shall:
(i) not terminate any such Sensitive Third Party
Contract without the prior written consent
of the Client; and
(ii) not enter into a new contract with a third
party in relation to Services provided under
any such Sensitive Third Party Contract
without the prior
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* Confidential treatment is requested for redacted portion. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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written consent of the Client.
7.6.3 Without prejudice to the Client's right under Clauses
4.1 and 4.3 to obtain such human resources services
(including the Services) directly from itself, from
BPA, from a BPA Affiliate or from a third party, in
the event that the Client wishes to Exult Supplier to
provide any Special Services, the provisions of
Schedule W shall apply.
7.6.4 [***]*
7.7 USE OF CHANGE CONTROL
Any changes to this Agreement, including the relevant
Schedules which are required as a result of the Transfer,
termination or expiry of any Third Party Contract or required
as a result of Exult Supplier assuming or ceasing
administration responsibilities in relation to any Third Party
Contract, shall be dealt with in accordance with the Change
Control Management process.
7.8 FAILURE TO REACH AGREEMENT
If the parties fail to reach agreement pursuant to Clause 7.2
to Clause 7.5 inclusive, the 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.
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8.2 Subject to Clause 8.1, if Exult Supplier does not have the
right to use the Client Assets, Third Party Systems, or the
benefit of the Third Party Contracts or any suitable
alternative, Exult Supplier shall not be liable for any
failure to provide that part of the Services to the extent
that such failure results from the lack of such right or
benefit, provided that Exult Supplier shall use reasonable
endeavours to minimise the extent of such failure.
9 CHANGE CONTROL MANAGEMENT PROCESS
Any changes to this Agreement shall be dealt with in accordance with
the Change Control Management process set out in Schedule L.
10 CHARGES, INVOICING AND PAYMENT
10.1 The Client shall pay the Charges to Exult Supplier in
accordance with the provisions of this Agreement, including
Schedule C. The Client shall pay all Charges invoiced by Exult
Supplier regardless of, and without prejudice to, whether it
disputes all or any of such invoice.
10.2 Exult Supplier shall, on the Client's request, provide copies
of all relevant accounts and records on which the calculations
are based to demonstrate that the amounts invoiced have been
properly calculated in accordance with the methodology set out
in Schedule C and such other information as the Client may
reasonably require to enable the Client to 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
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connection with the carrying out of the Services
under this Agreement. Exult Supplier acknowledges
that the Client is not and shall not become liable to
any taxes referred to in this Clause 11.1.3.
11.1.4 Each party shall indemnify and keep indemnified the
other against all liabilities incurred by the other
as a consequence of its breach of any of the
obligations under Clause 11.1.1 and (in the case of
Exult Supplier) under Clauses 11.1.2 and 11.1.3.
11.2 GROSSING UP FOR SALES TAXES
11.2.1 Notwithstanding the provisions of Clause 11.1, all
sums due to Exult Supplier under this Agreement are
exclusive of any VAT, sales and use tax, and any
other similar taxes which apply or may from time to
time be introduced, which shall be charged thereon in
accordance with the relevant regulations in force at
the time of making the taxable supply, and shall be
paid by [***]*
11.2.2 Where required by the relevant fiscal regulations,
invoices shall show the relevant currency and any
conversion of the VAT, sales and use tax, or other
similar taxes, into any currency required to be shown
in accordance with the relevant fiscal regulations of
the Country, or Countries concerned.
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.
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(ii) Exult Supplier shall use reasonable
endeavours to mitigate the effect of any
Withholding Tax imposed on any payment under
this Agreement by seeking to reduce the rate
of Withholding Tax by credit, off-set,
deduction, repayment or otherwise, or by
eliminating such Withholding Tax by making
use of any applicable double taxation
treaties or similar provisions.
(iii) If the Client withholds or deducts
Withholding Tax in accordance with Clause
11.2.5(i) and Exult Supplier is unable to
mitigate the effect of any Withholding Tax
as set out in Clause 11.2.5(ii), the Client
and Exult Supplier shall agree an additional
amount ("Additional Amount") of cost to be
included in Exult Return and ROC. Such
Additional Amount may be any amount
(including zero) agreed as reasonable by
Exult Supplier and the Client on a case by
case basis (taking account, inter alia,
Exult Supplier's overall Tax position in the
Country or, if different, in its Country of
Tax residence) but shall not exceed such
additional amount as will result in receipt
by Exult Supplier of more than the full sum
payable under this Agreement.
(iv) If there is any dispute in relation to any
matter under this Clause 11.2.5, the matter
shall be referred to an Expert appointed
pursuant to Clause 29.2 (Dispute
Resolution). The costs of such Expert shall
be borne equally by the parties.
12 AUDIT
12.1 The Client shall have the right at all reasonable times (in
accordance with Clause 12.2) and on reasonable notice to audit
(which for the avoidance of doubt includes inspection) 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.
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12.2 The audits referred to in Clause 12.1 may be carried out by
the Client or its authorised representatives (the "AUDITOR"),
including BPA, and may be undertaken [***]* at such time as
the Client, reasonably requests or more frequently in
exceptional circumstances as determined by the Regional
Governance Panel. The Client, shall use reasonable endeavours
to conduct any such audits in a manner which will result in
the minimum of inconvenience to Exult Supplier including, but
not limited to, conducting such audit in conjunction with
Exult Supplier's own internal and/or external audits where
practicable.
12.3 Where the Client exercises its rights under Clause 12.1, and
where the Auditor has access to any Exult Confidential
Information or third party confidential information, the
Auditor shall enter into a separate confidentiality agreement
with respect to that confidential information with Exult
Supplier and/or, at Exult Supplier's election, with the third
party prior to such exercise by the Client. No Auditor shall
be selected without the prior written consent of Exult
Supplier as to the identity of the Auditor, such consent not
to be unreasonably withheld or delayed.
12.4 Exult Supplier shall provide the Auditor reasonable access to
Employees, Subcontractors, documents, records and systems
relating to the provision of the Services and shall provide
the Auditor with routine assistance in connection with the
audits. The Auditor shall have the right to copy and retain
copies of any relevant records solely for the purposes of
conducting the audit and subject to the applicable
confidentiality obligations.
12.5 Any amounts agreed as a result of the audit to have been
incorrectly charged by Exult Supplier shall be adjusted in the
next regular payment by the Client in accordance with Schedule
C (Charges and Invoicing).
12.6 In the event that there is any Dispute relating to any report
produced pursuant to any audit carried out under the
provisions of Clause 12.1, the matter shall be referred to an
Expert appointed pursuant to Clause 29.2 (Dispute Resolution).
[***]*
12.7 Exult Supplier shall use reasonable endeavours to seek to
obtain for the Client the right to audit on terms equivalent
to those contained in this Clause 12 the relevant documents,
records and Systems of Exult, Exult Affiliates and any
Subcontractors.
12.8 Exult Supplier and the Client shall [***]* costs with respect
to any audits carried out pursuant to this Clause 12.
12.9 Exult Supplier shall make available all books of account and
records held on behalf of the Client and relating to the
provision of the Services by Exult Supplier to the internal
and external auditors of the Client for the purposes of
performing any statutory or regulatory audit in relation to
the Client.
12.10 The audit rights contained in this Clause 12 shall survive the
termination or expiry of this
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Agreement for a period of [***]* from the date of such expiry
or termination.
13 KEY PERSONNEL
13.1 Exult Supplier shall ensure, to the extent that it is within
its reasonable control, that the Key Employees are actively
involved in supplying the Services for the minimum period
specified in Schedule I (Employees) in relation to each Key
Employee and shall not replace any Key Employees with another
person during that period unless the parties agree that the
relevant Key Employees need no longer be actively involved in
the provision of the Services.
13.2 The Client shall, to the extent that it is within its
reasonable control, ensure that the BPA Key Employees are
actively involved in fulfilling the Client's obligations under
this Agreement for the minimum period's specified in Schedule
I (Employees) in relation to each BPA Key Employee. The Client
shall not replace any BPA Key Employees with another person
during that period unless the parties agree that the relevant
BPA Key Employees no longer needs to be actively involved in
the performance of this Agreement.
14 TERMINATION
14.1 TERMINATION ON WINDING UP OR DEFAULT
Either the Client or Exult Supplier may at any time by notice
in writing terminate this Agreement as from, subject to Clause
14.7, the date of giving such notice to terminate if:
14.1.1 in the case of the Client, Exult Supplier or in the
case of Exult Supplier, the Client passes a
resolution or the court makes an order that it be
wound up otherwise than for the purposes of a
reconstruction or amalgamation, or a receiver manager
or administrator on behalf of a creditor is appointed
in respect of the other party's business, or
circumstances arise which would entitle a creditor to
request that a court appoint a receiver, manager or
administrator or which would entitle the court
otherwise than for the purpose of a bona fide
reconstruction or amalgamation to make a winding-up
order, or the other party is unable to pay its debts
within the meaning of Section 123 of the UK
Insolvency Act 1986 or its relevant foreign
jurisdiction;
14.1.2 in the case of the Client, Exult Supplier or in the
case of Exult Supplier, the Client, is in Default and
the party in Default fails to remedy or compensate
for the Default within [***]* of a written notice
from the other party specifying the Default and
requiring its remedy; or
14.1.3 in the case of the Client if there are:
[***]*
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14.2 TERMINATION FOR CONVENIENCE
The Client may, subject to Clause 17.2 (Termination for
Convenience Payment), terminate this Agreement by giving Exult
Supplier [***]* prior written notice, such notice not to take
effect before [***]* where no Winding Up Plan is implemented
or on such later date as is determined in accordance with
Clause 14.7.
14.3 TERMINATION ON TERMINATION OF FRAMEWORK AGREEMENT
This Agreement shall, subject to Clause 14.7, terminate upon
the termination or expiry of the Framework Agreement.
14.4 TERMINATION ON NOTICE AFTER THE INITIAL PERIOD
The Client may terminate this Agreement by giving not [***]*
notice to Exult Supplier such notice to take effect, subject
to Clause 14.7, on the expiry of the Initial Period.
14.5 TERMINATION FOR FORCE MAJEURE
If an event of Force Majeure arises which cannot be readily
resolved and continues for a period of 6 months which
materially prevents or hinders the performance of material
obligations under this Agreement in relation to one or more
Processes then either party may at any time by notice
terminate this Agreement in relation to the Process or
Processes affected by the Force Majeure event as from, subject
to Clause 14.7, the date of giving such notice. In the event
of a partial termination of this Agreement in accordance with
this Clause 14.5, the provisions of this Agreement relating to
termination for Force Majeure and the consequences of
termination, including Winding Up Assistance shall apply (but
only to the extent of the Process or Processes affected by the
Force Majeure event).
14.6 TERMINATION FOR CHANGE OF CONTROL
The Client may at any time by notice terminate this Agreement
as from, subject to Clause 14.7, the date of giving such
notice if there is a Change of Control of Exult 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 [***]*
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
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Assets, Exult Proprietary Systems and Future Systems and any
other resources then being used to provide the Affected
Process as the Client may reasonably require in order to
provide for itself or procure the Affected Process through a
third party in accordance with Clause 15.2; provided that in
exercising its rights, the Client shall seek to minimise the
disruption to Exult Supplier's other business. In this Clause
15.8, any contractor employed by the Client during the
suspension period shall be deemed to be a Successor Operator
for the purposes of the application of Clause 19.6. Any
licence and/or access rights granted pursuant to this Clause
15.8 shall apply solely for the suspension period.
15.9 The remedies of the Client under this Clause 15 may be
exercised in respect of any one or more Defaults of this
Agreement by Exult Supplier.
16 WINDING UP ASSISTANCE
16.1 [***]* prior to the Framework Expiry Date or on notice of
termination of this Agreement at the request of BPA:
16.1.1 the parties will promptly meet and develop and agree
the Winding Up Plan to provide an orderly
transitioning of the Services provided under the
Agreement to the Successor Operator(s), including,
but not limited to, the orderly transitioning of
support and maintenance in respect of Exult Systems
and Future Systems; and
16.1.2 Exult Supplier shall co-operate fully with the
Client, BPA and the Participating Affiliates to
implement the Winding Up Plan, to minimise the cost
and disruption of termination to the Client, BPA and
the Participating Affiliates and to facilitate the
orderly transitioning of the Services from Exult
Supplier to Successor Operator in accordance with the
provisions of this Agreement.
16.2 The Winding Up Plan is to cover the period [***]* from the
earlier of (i) the Expiry Date; and (ii) the date of giving
notice of termination of this Agreement.
16.3 In the event that the parties fail to agree the Winding Up
Plan within [***]* of first meeting in accordance with Clause
16.1, the matter shall be referred to the informal Dispute
Resolution Procedure pursuant to Clause 29.1, and, if
necessary, to an Expert in accordance with Clause 29.2. The
costs of such Expert shall be borne equally by the parties.
16.4 Exult Supplier shall provide all assistance reasonably
required by the BPA Regional Project Leader or the Client for,
or in connection with, the Winding Up Plan and/or to ensure an
orderly migration of the obligations of Exult Supplier
(including the provision of the Services) to a Successor
Operator for the period of the Winding Up Plan.
16.5 Exult Supplier shall develop a Service Delivery Description
and shall deliver it to the BPA Regional Representatives and
the Client as soon as reasonably practical after first meeting
to develop and agree the Winding Up Plan. It will include
up-to-date process flowcharts and any other documentation
reasonably necessary to provide the BPA
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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
16.9 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 Supplier
the Early Termination Payment [***]* of an invoice
together with copies of all relevant accounts and
records on which the calculations are based to
demonstrate that the amount has been properly
calculated in accordance with the methodology in
Schedule C.
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17.2.2 The Client shall have the right to conduct an audit
pursuant to Clause 12 (Audit) to verify the amount
paid to Exult Supplier under Clause 17.2.1 and if the
audit reveals that any over payment has been made,
the provisions of Section 14 of Schedule C shall
apply.
17.2.3 Notwithstanding Clauses 17.2.1 and 17.2.2, if the
Client reasonably disputes the amount claimed by
Exult Supplier under Clause 17.2.1, then the dispute
will be referred to the informal Dispute Resolution
Procedure in accordance with Clause 29.1 and in the
event the parties fail to agree the Dispute shall be
referred to an Expert for resolution, such Expert to
be appointed in accordance with Clause 29.2.
17.3 THIRD PARTY CONTRACTS
17.3.1 GENERAL
Notwithstanding the other provisions of this Clause
17.3, on the termination of this Agreement for any
reason, any financial consequences arising or flowing
from any Exult Third Party Contracts or the
termination of any such Exult Third Party Contracts:
(i) the duration of which Exult Supplier has
agreed to extend beyond the Expiry Date; and
(ii) the terms and conditions of which have not
been approved in writing by the BPA Regional
Representative prior to the entering into or
extension of such Exult Third Party
Contracts,
shall, subject to Clauses 17.3.5 and 17.3.6, be borne
in their entirety by Exult Supplier.
17.3.2 TERMINATION FOR EXULT SUPPLIER'S DEFAULT
On the termination of this Agreement by the Client
pursuant to Clause 14.1 (Termination on Winding Up or
Default), any financial consequences arising or
flowing from any Exult Third Party Contracts or the
termination of any such Exult Third Party Contracts
shall, subject to Clause 17.3.4 (Mitigation), be
borne in their entirety by Exult Supplier.
17.3.3 TERMINATION FOR ANY OTHER REASON
On the termination of this Agreement for any reason
other than by the Client pursuant to Clause 14.1
(Termination on Winding Up or Default) any financial
consequences arising or flowing from any Exult Third
Party Contracts or the 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
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termination of this Agreement, and agree that where
either party is able to make use of the Exult Third
Party Contracts, in whole or in part, for itself, its
Affiliates or another client, it shall use reasonable
endeavours to do so and the other party's obligation
in relation to any Exult Third Party Contracts shall
extend only to that element of cost of the Exult
Third Party Contracts which remains unused.
17.3.5 Exult Supplier further agrees that for a period of
[***]* the date of termination of this Agreement if,
subsequent to being reimbursed by the Client under
this Clause 17, Exult or an Exult Affiliate or their
clients use the whole or part of the Exult Third
Party Contract for which Exult Supplier has been
previously reimbursed by the Client, Exult Supplier
shall refund to the Client such portion of the
reimbursement which represents the use by Exult,
Exult Affiliate or their clients of such Exult Third
Party Contract.
17.3.6 EMPLOYEES
The termination costs associated with Employees shall
be dealt with in accordance with Schedule J (Employee
Transfer Arrangements).
17.4 ASSETS
On termination or expiration of this Agreement, the Client
shall have the option and in certain circumstances the
obligation to purchase Exult Assets at the written down book
value as set out in Clause 18.2 (Transfer Arrangements on
Termination - Exult Assets).
18 TRANSFER ARRANGEMENTS ON TERMINATION
18.1 CLIENT PREMISES
Exult Supplier shall vacate any Client Premises on or before
the termination or expiry of this Agreement, provided that
Client Premises or rights to Client Premises transferred to
Exult Supplier pursuant to Clause 6.1 shall, on termination or
expiry of this Agreement, be dealt with in accordance with
Clause 18.2.
18.2 EXULT ASSETS
18.2.1 On the termination of this Agreement for all other
reasons than by the Client pursuant to Clause 14.1
(Termination on Winding Up or Default). Exult
Supplier shall offer to sell to the Client or its
nominee and the Client shall or shall cause its
nominee to, subject to Clause 18.2.3, purchase the
Exult Assets at the 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
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(Termination on Winding Up or Default), Exult
Supplier shall offer to sell to the Client or its
nominee the Exult Assets (at the written down book
value as at termination or expiry), but the Client
shall not be obliged to purchase such Exult Assets.
18.2.3 The parties agree to take reasonable steps to
mitigate costs arising from or in connection with the
Exult Assets on termination or expiry of this
Agreement and the parties agree that where a party is
able to make use of an Exult Asset for itself, its
Affiliates or another client it shall use reasonable
endeavours to do so at the request of the other
party.
18.2.4 Exult Supplier further agrees, at the Client's cost,
to co-operate in the relocation of any Exult Assets
to be purchased by the Client pursuant to this
Clause, provided that for the avoidance of doubt this
will not prevent the Client from seeking to recover
damages in respect of any loss it suffers pursuant to
any termination of this Agreement as a result of
Exult Supplier's Default.
18.2.5 On expiry of this Agreement Exult Supplier shall
offer to transfer ownership of any fully amortised
Exult Assets to the Client at no cost.
18.3 SYSTEMS
On the termination or expiry of this Agreement for any reason:
18.3.1 LICENCES
All licences and all other rights to any Systems
shall be dealt with in accordance with Clause 19.
18.3.2 ESCROW
Exult Supplier shall, on Client's written request,
provide the Client with a copy of any source code
materials held in escrow pursuant to Clause 6.3.4.
18.3.3 RETURN OF CLIENT SYSTEMS AND MATERIALS
As soon as reasonably practicable following the
termination or expiry of this Agreement, Exult
Supplier shall return to the Client all Client
Systems, Materials and Client Information subject to
the Exult Supplier having the right to retain a copy
of such Client Systems, Materials and Client
Information for compliance with applicable laws,
professional standards or quality assurance purposes.
18.4 THIRD PARTY CONTRACTS
On the termination or expiry of this Agreement, the parties
shall, subject to Clause 17.3 (Third Party Contracts) and at
the Client's option and request, use reasonable endeavours to
transfer or assign all, or in the case of Exult Third Party
Contracts which are not used solely to provide the Services to
the Client, the relevant parts of, Exult Third Party Contracts
entered into by Exult Supplier to provide the Services to the
Client, BPA,
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a Participating Affiliate or a Successor Operator, as the
Client may direct.
18.5 EMPLOYEES
The transfer of Employees on termination or expiry shall be
dealt with in accordance with Schedule J (Employee Transfer
Arrangements).
18.6 BACK END CONSENTS
Where the consent of any third party is required to enable
Exult Supplier to provide the Client or Successor Operator,
with the benefit of the arrangements under which Exult
Supplier holds or uses any Exult Assets, Third Party Systems
or Third Party Contracts or such a consent is otherwise
required to enable the Client, or Successor Operator to take
over the provision of the Services from Exult Supplier in the
manner contemplated by this Agreement, Exult Supplier shall
use reasonable endeavours, to procure that such consent is
granted or at Exult Supplier's option, procure suitable
alternative rights or services are provided to the Client or
Successor Operator to enable it to perform the Services. The
Client shall use reasonable endeavours to co-operate in
obtaining such consents or obtaining suitable alternative
rights, including where necessary entering into new agreements
or agreeing to comply with the terms of the relevant existing
agreements. The use of reasonable endeavours shall not include
the payment of any monies by any party, but where consent can
only be obtained in return for the payment of an additional
sum, the parties shall consider paying such sum if it appears
the most cost effective way of proceeding. Any such payment
shall be charged as a Pass Through Cost.
19 INTELLECTUAL PROPERTY RIGHTS
19.1 CLIENT INTELLECTUAL PROPERTY
All Intellectual Property Rights subsisting in or relation to
Client Assets, Client Information, Client Systems, Materials
and the BPA Service Delivery Model (collectively, the "Client
Intellectual Property") shall (as between the parties) belong
to and be vested in BPA or the relevant BPA Affiliate or their
respective licensors as appropriate.
19.2 EXULT SUPPLIER INTELLECTUAL PROPERTY
All Intellectual Property Rights subsisting in or relation to
Exult Systems, Future Systems, Work Product, and the Exult
Service Delivery Model (collectively, the "Exult Supplier
Intellectual Property") shall (as between the parties) belong
to and be vested in Exult Supplier, Exult Participating
Affiliates or their respective licensors as appropriate.
19.3 LICENCE OF CLIENT INTELLECTUAL PROPERTY
The Client hereby grants to Exult Supplier (or, in the case of
Client Intellectual Property licensed to the Client, to the
extent that such grant is not within its power, shall use
reasonable endeavours to procure the grant to Exult Supplier
of) a worldwide, non-
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exclusive, unlimited user, royalty free licence to use and the
right to sublicence to subcontractors, the Client Intellectual
Property solely for the purposes of providing the Services to
the Client under this Agreement.
19.4 LICENCE OF EXULT SUPPLIER INTELLECTUAL PROPERTY
Exult Supplier hereby grants to the Client (or, in the case of
Exult Supplier Intellectual Property licensed to Exult
Supplier by third parties to the extent that such grant is not
within its power, shall use reasonable endeavours, to procure
the grant to the Client of) a worldwide non-exclusive,
unlimited user licence, together with a right to sub-license
to third parties, to use the Exult Supplier Intellectual
Property or any physical material created as a result of the
use of the same in connection with the supply of the Services
to the extent necessary to enable the Client to receive the
benefit of the Services.
19.5 LICENCES OF CLIENT INTELLECTUAL PROPERTY ON TERMINATION
On expiration or termination of this Agreement for any reason,
the licences granted pursuant to Clause 19.3 shall
automatically terminate.
19.6 LICENCES OF EXULT SUPPLIER INTELLECTUAL PROPERTY ON
TERMINATION
On expiration or termination of this Agreement for any reason,
Exult Supplier shall offer to, and at the Client's option,
grant to the Client or Successor Operator (or, in the case of
Exult Supplier Intellectual Property licensed to Exult
Supplier from a third party, use reasonable endeavours for the
provision of services substantially similar to the Services
under similar economic arrangements ) to procure the grant to
the Client, BPA and the BPA Affiliates or Successor Operator
of) a worldwide, perpetual, irrevocable, non-exclusive,
unlimited user licence (which shall be at the lesser of the
standard market rates and the lowest royalty Exult Supplier
charges to other licensees for similar licences for the
provision of services substantially similar to the Services
provided under similar economic arrangements to use, modify
and enhance any Exult Supplier Intellectual Property used for
the provision of the Services in the [***]* immediately before
the termination or expiry of this Agreement, with a right to
grant sub-licences to Successor Operators, subject to Exult
Supplier's prior consent to the identity of such Successor
Operator for the purpose of being a sub-licensee of such Exult
Supplier Intellectual Property and the terms of such
sub-licence, such consent not to be unreasonably withheld or
delayed. Such licence shall be for use solely in connection
with the provision of services comparable to the Services for
the Client and Participating Affiliates.
19.7 ROYALTIES
In the event that Exult Supplier exploits by way of
assignment, license or otherwise, any Exult Supplier
Intellectual Property which has been developed by way of a
Project under this Agreement and such development was funded
by the Client, then Exult Supplier shall pay to the Client
royalties in respect of the benefits received from such
exploitation.
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confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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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 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.
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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.
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
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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
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
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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
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.
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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:
(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:
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confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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(i) bring incidents quickly to the attention of
Exult Supplier's and the Client's
management; and
(ii) highlight areas of control weakness,
initiate procedures reviews and generate
action to remedy control weaknesses
identified.
22.4.3 The reporting of Key Incidents does not replace or
supersede, but shall be in addition to, the normal
reporting (including the provision of Service
Performance Reports under Clause 22.3) and updating
of appropriate management of routine work incidents.
22.5 SATISFACTION SURVEYS
22.5.1 Exult Supplier shall prepare customer satisfaction
surveys and management satisfaction surveys on a
frequency and basis to be agreed by the Regional
Governance Panel.
22.5.2 Customer satisfaction surveys and management
satisfaction surveys shall be submitted to the
Regional Governance Panel by the Country
Representatives and the results of such surveys shall
be summarised in the relevant Service Performance
Report.
22.6 CONTINUOUS IMPROVEMENT
22.6.1 Exult Supplier recognises that it has an obligation
under this Agreement to maintain continuous
improvement in the Service Delivery Model used in the
provision of the Services on an ongoing basis in
order to establish and maintain a position as a
market leader and to continue efficient and effective
use of developing processes and technologies.
22.6.2 In addition to the benchmarking exercises referred to
in Clause 22.2, Exult Supplier shall report to the
Client on an annual basis its strategy plans to
achieve continuous improvement referred to in Clause
22.6.1.
22.6.3 To the extent that the parties agree particular
Projects are appropriate to maintain continuous
improvement, these shall be dealt with under Change
Control Management process, provided that the parties
recognise Exult 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
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23.1 Contract Minimums for each Contract Minimum Year shall be
established in accordance with this Clause 23.
23.2 The Contract Minimum for:
23.2.1 [***]*
23.2.2 [***]*
23.3 Prior the commencement of each calendar quarter in each
Contract Minimum Year, the Client may give Exult Supplier
[***]* of a proposed reduction in the Contract Minimums to
take account of reductions in the Client's requirements for
Services.
23.4 This Clause 23 applies to situations which result in an actual
reduction in the Client's requirement for Services and, for
the avoidance of doubt, the Client may not assume
responsibility internally for services equivalent to the
Services or appoint a third party to provide services
equivalent to the Services pursuant to the terms of this
Clause 23.
23.5 [***]* prior to the end of each Contract Minimum Year, the
Regional Governance Panel shall meet to assess the impact,
including the impact on the Charges for the then current
Contract Minimum Year, of the reductions in the Client's
requirements for Services notified in accordance with Clause
23.3 above. Subject to Clause 23.6, the Regional Governance
Panel shall agree a decrease in the Contract Minimum for the
succeeding Contract Minimum Year which is proportionate with
the actual reduction in Charges arising from the events and in
the event that the Regional Governance Panel cannot agree on
the amount of the decrease the matter shall be referred to an
Expert to be appointed in accordance with Clause 29.2.
23.6 In no event shall a Contract Minimums be reduced by more than
[***]*
23.7 In the event that the impact of reductions in the Client's
requirements for Services as reviewed under Clause 23.5 is or
would be to reduce the Contract Minimum for the succeeding
Contract Minimum Year by more than [***]* the matter will be
referred by either party to the Regional Governance Panel
under Clause 18 of the Framework Agreement (Contract Minimums)
to reassess the impact of such reduction across the 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.
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confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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24.1.2 POWER AND AUTHORITY It has the legal right and full
power and authority to execute and deliver, and to
exercise its rights and perform its obligations
under, this Agreement and all the documents which are
to be executed by it as envisaged by this Agreement.
24.1.3 CORPORATE ACTION All corporate action required by it
to authorise the execution and delivery of, and to
exercise its rights and perform its obligations under
this Agreement and all other documents which are to
be executed by it as envisaged by this Agreement has
been or will be taken.
24.1.4 ASSURANCE Nothing contained in this Agreement will:
(i) result in a breach of any provision of its
constitutional documents; or
(ii) result in a breach of any agreement, licence
or other instrument, order, judgment or
decree of any Court, governmental agency or
regulatory body to which it is bound.
24.2 YEAR 2000 AND EMU COMPLIANCE
24.2.1 Subject to Clause 24.2.2, Exult Supplier makes no
warranties in respect of Year 2000 or EMU Compliance
in respect of Services or Projects or other
activities carried out under this Agreement and the
Client or BPA and the BPA Affiliates shall be solely
responsible for its and their Year 2000 and EMU
Compliance.
24.2.2 Exult Supplier warrants that Future Systems and Exult
Proprietary Systems are Year 2000 Compliant and EMU
Compliant and that it has used and shall continue to
use reasonable endeavours to ensure that other Exult
Systems are Year 2000 Compliant and EMU Compliant,
including wherever practicable obtaining appropriate
warranties from the third party providers and
providing the Client with the benefit of such
warranties.
24.2.3 Exult shall not be in breach of the warranties in
Clause 24.2.2 to the extent that any failure of the
Exult Proprietary Systems and Future Systems to be
Year 2000 Compliant or EMU Compliant is caused by
data, interfaces with third party systems including
BPA Systems, other than Exult Systems and software,
in each case, which are not Year 2000 Compliant or
EMU Compliant.
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.
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24.3.3 CORPORATE ACTION All corporate action required by it
to authorise the execution and delivery of, and to
exercise its rights and perform its obligations under
this Agreement and all other documents which are to
be executed by it as envisaged by this Agreement has
been or will be taken.
24.3.4 ASSURANCE Nothing contained in this Agreement will:
(i) result in a breach of any provision of its
constitutional documents; or
(ii) result in a breach of any agreement, licence
or other instrument, order, judgment or
decree of any Court, governmental agency or
regulatory body to which it is bound.
24.4 Each of the Client and Exult Supplier undertakes to perform
its obligations under this Agreement in compliance with all
applicable laws, enactments, orders and regulations.
24.5 Except as expressly stated in this Agreement, all warranties
and conditions, whether express or implied by statue, common
law or otherwise are hereby excluded to the extent permitted
by law.
25 LIMITATION ON LIABILITY
25.1 Neither party shall limit or exclude its liability to the
other in respect of (i) death or personal injury caused by its
negligence or the negligence of its employees acting in the
course of their employment; (ii) for any fraudulent
misrepresentation, including fraudulent pre-contractual
misrepresentation made by a party on which the other party can
be shown to have relied when entering into this Agreement; and
(iii) any other liability which by law cannot be excluded.
25.2 Subject to Clauses 25.1, 25.3 and 25.4 each party's liability
to the other under this Agreement in respect of a claim
arising out of this Agreement shall be limited to an amount
equal to [***]*. Where an event which gives rise to a claim
occurs during the initial 16 months of this Agreement each
party's liability to the other shall be limited to [***]*
established in accordance with the provisions of Schedule C,
(Charges and Invoicing).
25.3 Each party's aggregate liability to the other during the term
of this Agreement for all claims arising out of this Agreement
shall be limited to an amount equal to 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.
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25.4 Each party's liability to the other for all claims arising
under this Agreement in respect of any Project shall, unless
agreed otherwise agreed in accordance with the procedure set
out in Schedule H, (Projects), be limited to [***]*
25.5 Subject to Clause 25.7, neither party shall be liable to the
other for any consequential or indirect loss or damage
suffered by the other party in connection with this Agreement.
25.6 Neither party shall be liable to the other for loss of
profits, loss of revenue, loss of goodwill or loss or failure
to make any anticipated savings.
25.7 In respect of the Client, the Client's re-establishment costs,
and in respect of Exult Supplier, the categories of cost
identified in Schedule C in relation to termination, such
costs are not considered consequential or indirect loss.
25.8 The limitations set out in Clauses 25.2 to 25.7 shall not
apply with respect to:
(i) Indemnities (including those set forth in Schedule
J);
(ii) Payment under Letter of Credit (as described in
Clause 22 of the Framework Agreement);
(iii) Payment under designated insurance policies (as
described in the Clause 22 of the Framework
Agreement);
(iv) Client's obligation to pay, including with respect to
Early Termination Charges;
(v) Liabilities arising from the breach of the
confidentiality provisions under this Agreement;
(vi) Payment of Charges and Service Credits.
25.9 Subject to Clauses 34.12 (Legal Proceedings) and 34.13
(Equitable Remedies) the parties recognise that damages are
the only remedy available under this Agreement and, to the
extent permissible by law, the limits under this Clause are
the absolute limit of each party's liability arising under or
in connection with this Agreement. All other liability is
expressly excluded.
25.10 LIMITATIONS ON PARTICIPATING AFFILIATES' CLAIMS
25.10.1 The following represents the limit of all claims or
actions that may be made pursuant to this Agreement
relative to Participating Affiliates:
(iii) subject to the terms of this Clause 25.10,
the Client shall have the right to bring
actions against Exult Supplier in respect of
such Participating Affiliates for Losses
suffered by the Participating Affiliates in
respect of the Services or this Agreement;
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* Confidential treatment is requested for redacted portion. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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(iv) the Client shall wherever reasonably
practicable consolidate actions against
Exult Supplier for Losses suffered by
Participating Affiliates in respect of each
alleged default; and
(v) the Participating Affiliates' Losses shall
be deemed the direct Losses of the Client,
but all such Losses shall be subject to the
exclusions and limitations set out in this
Agreement.
25.10.2 The Client shall procure that:
(i) the Participating Affiliate will not make
any claim or be a party to any claim or
other action against Exult Supplier, Exult
or an Exult Affiliate or their employees,
offices or directors arising from or in
connection with this Agreement; and
(ii) the Participating Affiliate will direct all
communications regarding this Agreement
through and to the Client and not to Exult
Supplier.
25.10.3 The Client is fully responsible for the performance
of all its obligations under this Agreement with
respect to the Services provided to such
Participating Affiliates.
25.10.4 Nothing in Clause 25.10.1, 25.10.2 or Clause 25.10.3
relieves the Client of its obligations or expands
Exult Supplier's obligations under this Agreement.
26 INDEMNITIES AND DEFENCE OF CLAIMS
26.1 INDEMNIFICATION BY EXULT SUPPLIER
Subject to Clause 26.5, Exult Supplier shall indemnify and
keep indemnified the Client, BPA, the Participating Affiliates
and its and their respective officers, directors, employees,
agents, successors and assigns (each, an "Indemnified BPA
Party") from and against any and all Losses arising in
connection with this Agreement from any of the following:
26.1.1 a claim by a BPA Third Party arising from the death
or illness of or personal injury to any BPA Third
Party or from any damage to any real or tangible
personal property of any BPA Third Party arising
directly from and to the extent of the negligent act
or omission of Exult Supplier, an Exult Participating
Affiliate or its and their respective employees,
officers, agents or subcontractors;
26.1.2 a claim by a BPA Third Party arising from the death
or illness of or personal injury to any employee of
Exult Supplier or of an, Exult Participating
Affiliate or to any employee of their respective
agents, or subcontractors or arising from any damage
to any real or tangible personal property of any
employee of Exult Supplier or of, an Exult
Participating Affiliate or of any employee of their
respective agents, or subcontractors, in each case,
notwithstanding that such claim arose from the
negligence of an Indemnified BPA Party;
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26.1.3 a claim by a third party other than a BPA Affiliate
to a Third Party Contract where such claim arises in
connection with a breach of Exult Supplier's or Exult
Participating Affiliate's obligations under or
relating to such Third Party Contract assumed by
Exult Supplier or the relevant Exult Participating
Affiliate pursuant to obtaining consents in respect
of such Third Party Contract to enable Exult Supplier
or the relevant Exult Participating Affiliate to
provide the Services; and
26.1.4 a claim by a BPA Third Party arising from and
directly connected with the breach of any law, rule,
regulation or order, where such breach arises
directly from the negligent act or omission of Exult
Supplier, an Exult Participating Affiliate or its and
their respective employees, officers, agents or
subcontractors.
26.2 INDEMNIFICATION BY BPA
Subject to Clause 26.5, the Client shall indemnify and keep
indemnified Exult Supplier, the Exult Participating Affiliates
and its and their respective officers, directors, employees,
agents, successors and assigns (each, an "Indemnified Exult
Party") from and against any and all Losses arising in
connection with this Agreement from any of the following:
26.2.1 a claim by an Exult Third Party arising from the
death or illness of or personal injury to any Exult
Third Party or from any damage to any real or
tangible personal property of any Exult Third Party
arising directly from and to the extent of the
negligent act or omission of the Client, a
Participating Affiliate or its and their respective
employees, officers, agents, or subcontractors;
26.2.2 a claim by an Exult Third Party arising from the
death or illness of or personal injury to any
employee of the Client, or of a Participating
Affiliate or to any employee of their respective
agents or subcontractors or arising from any damage
to any real or tangible personal property of any
employee of the Client or of, a Participating
Affiliate or of any employee of their respective
agents or subcontractors, in each case,
notwithstanding that such claim arose from the
negligence of an Indemnified Exult Party;
26.2.3 a claim by a third party other than an Exult
Affiliate to an Exult Third Party Contract where such
claim arises in connection with a breach of the
Client's or Participating Affiliate's obligations
under or relating to such Exult Third Party Contract
assumed by the Client or the relevant Participating
Affiliate pursuant to obtaining consents in respect
of such Exult Third Party Contract obtained on the
termination or expiry of the relevant Country
Agreement;
26.2.4 a claim by an Exult Third Party arising from and
directly connected with the breach of any law, rule,
regulation or order, where such breach arises
directly from the negligent act or omission of the
Client, a Participating Affiliate or its and their
respective employees; and
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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.
26.2.6 a claim by an Exult Third Party arising from the
provision by Exult Supplier of any Special Services,
except to the extent caused by Exults Supplier's
negligent acts or omissions.
26.3 INDEMNIFICATION BY EXULT SUPPLIER WITH RESPECT TO INTELLECTUAL
PROPERTY
26.3.1 Subject to Clause 26.5, Exult Supplier shall
indemnify and keep indemnified the Client, its
Affiliates and their respective officers, directors,
employees and agents, from and against all reasonable
costs and expenses (including the amount of any
damages awarded by a court of competent jurisdiction)
which the Client may incur as a result of defending
or settling any claim by a third party that the
Client's use or possession of any of the Exult
Proprietary Systems is unauthorised or infringes the
Intellectual Property rights of any third party.
26.3.2 In the event of any such claim being made, the Client
shall notify the Exult Regional Representative as
soon as practicable upon becoming aware of the same
and, subject to being indemnified, at the request of
Exult Supplier, grant Exult Supplier sole conduct of
the claim and provide to Exult Supplier all
reasonable assistance in the conduct of the claim,
provided that in conducting the claim Exult Supplier
shall minimise the disruption to the business of BPA
and the Participating Affiliates, including the use
of the Exult Supplier Intellectual Property, as the
case may be.
26.3.3 No liability shall exist under this Clause 26.3 to
the extent that any such claim arises solely from:
(i) the use by the Client and/or the
Participating Affiliates of the relevant
Exult Systems, Future Systems or Work
Product for purposes not
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<PAGE> 42
connected with the provision of the Services
or services equivalent to the Services in
the Country in which those Services are
being provided or as otherwise authorised;
(ii) any modification of the relevant Exult
Systems, Future Systems or Work Product by
or on behalf of the Client and/or the
Participating Affiliates to which Exult
Supplier or the third party, as the case may
be, has not given its consent; or
(iii) use of the relevant Exult Systems, Future
Systems or Work Product in connection with
materials or data supplied by the Client.
26.3.4 In the event that the Client's use or possession of
any part of the Exult Systems, the Future Systems or
Work Product is held to be unauthorised or to
infringe any third party Intellectual Property
rights, then Exult Supplier shall at its own expense
and at the Client's option:
(i) obtain for the Client a licence or such
other right to continue to use that System
or Work Product or part thereof; or
(ii) replace or modify such part so as to avoid
or rectify the unauthorised use or
infringement without significant
interruption or degradation in performance
of that System or the Services,
provided that the Client shall provide Exult Supplier
with all reasonable assistance (at the cost of Exult
Supplier) to enable Exult Supplier to so do.
26.4 INDEMNIFICATION OF EXULT IN RELATION TO INTELLECTUAL PROPERTY
26.4.1 Subject to Clause 26.5, the Client shall indemnify
and keep indemnified Exult Supplier from and against
all reasonable costs and expenses (including the
amount of any damages awarded by a court of competent
jurisdiction) which Exult Supplier may incur as a
result of defending or settling any claim by a third
party that Exult Supplier's use of any of the Client
Systems which has been authorised by the Client is
unauthorised or infringes the Intellectual Property
rights of any third party.
26.4.2 In the event of any such claim being made, Exult
shall notify the BPA Regional Representative as soon
as practicable upon becoming aware of the claim and,
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
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<PAGE> 43
not connected with the provision of the
Services in the Country in which the
Services are provided; or
(ii) any modification of the Client System by or
on behalf of Exult Supplier to which the
Client has not given its consent.
26.4.4 In the event that Exult Supplier's use of any part of
the Client Systems is held to be unauthorised or to
infringe any Intellectual Property rights relating
thereto, then the Client shall at its own expense:
(i) obtain for Exult Supplier a licence or such
other right to continue to use that System;
or
(ii) replace or modify such part so as to avoid
or rectify the unauthorised use or
infringement,
provided that Exult Supplier shall provide the Client
with all reasonable assistance to enable the Client
to so do.
26.5 DEFENCE OF CLAIMS
26.5.1 Each party will defend and procure the relevant
Affiliate to defend any claim brought or threatened
against the other party to the extent that such claim
is or may be subject to the indemnity contained in
Clauses 26.1, 26.2, 26.3 and 26.4 (the party
providing such defence, the "Indemnifying Party" and
the party entitled to such defence, the "Indemnified
Party"). The Indemnifying Party will bear the expense
of such defence and pay any damages and legal fees
finally awarded by a court of competent jurisdiction
which are attributable to such claim.
26.5.2 The Indemnified Party shall notify the Indemnifying
Party of any claim under Clauses 26.1, 26.2, 26.3 and
26.4 within 30 days (or such shorter period as may be
required to respond to a third party claim) after
receipt of notice. The Indemnifying Party required to
indemnify the Indemnified Party under this Agreement
shall have no obligation for any claim under this
Clause 26.5 to the extent that the defence of such
claim is prejudiced by such failure if:
(i) the Indemnified Party fails to notify the
Indemnifying Party of such claim as provided
above;
(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).
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26.5.3 The Indemnifying Party shall have no obligation for
any claim under this Agreement if the Indemnified
Party makes any admission or settlement regarding
such claim without the prior written consent of the
Indemnifying Party, which consent shall not be
unreasonably withheld or delayed. Notwithstanding the
foregoing sentence, the Indemnifying Party may settle
any claim involving only the payment of money by the
Indemnifying Party.
26.5.4 The Indemnified Party shall have the right (but not
the obligation) to participate in such defence or
settlement (and in the case of any proposed
settlement of a claim which does not involve only the
payment of money, the Indemnifying Party shall obtain
the prior written consent of the Indemnified Party to
such settlement, such consent not to be unreasonably
withheld or delayed), in which event the Indemnified
Party shall pay its attorneys' fees associated with
such participation.
26.5.5 In conducting the defence of the claim the
Indemnifying Party shall liaise with the Indemnified
Party and keep the Indemnified Party informed as to
the progress of the action and shall take into
account the requirements and requests of the
Indemnified Party and in particular shall not make
any public statement relating to the action without
the Indemnified Party's prior written consent and
shall not do anything which could potentially
adversely prejudice the reputation or goodwill of the
Indemnified Party or its Affiliates.
26.6 SURVIVAL OF RIGHTS
All indemnities, and exclusions and limitations of liability
contained in this Clause 26 and elsewhere in this Agreement
shall remain binding on the parties hereto, notwithstanding
the expiry or termination of this Agreement.
27 INSURANCE
Exult Supplier shall inform the Client immediately in the event that it
becomes aware that insurance cover as required under Clause 22 of the
Framework Agreement is not in place and in such event shall itself
obtain the appropriate insurance to the extent that this relates to
this Agreement.
28 RECOVERY OF DAMAGE AWARDS
28.1 In the event that the parties cannot agree as to whether there
is a default or as to the amount to be paid to either party in
connection with any default by the other party under 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
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<PAGE> 45
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 [***]* period in
Clause 28.2.2, then BPA shall have the right, but not
the obligation to make a demand under the Letter of
Credit.
28.2.5 Exult Supplier shall not be entitled to seek to
recover under any insurance policy maintained
pursuant to Clause 22 of the Framework Agreement
(Insurance) in order to satisfy any indemnity claim
or obligation or to seek to recover any Award made in
connection with indemnity provisions other than
claims, obligations or Awards made in connection with
Clauses 26.1.1 and 26.1.2.
28.3 In respect of an Award or other indemnity claim or obligation
that the Client is liable to pay to Exult Supplier, the Client
shall not be entitled to seek to recover under any insurance
policy maintained pursuant to Clause 22 of the Framework
Agreement (Insurance) in order to satisfy any indemnity claim
or obligation or to recover any Award made in connection with
indemnity provisions other than claims, obligations or Awards
made in connection with Clauses 26.2.1 and 26.2.2.
29 DISPUTE RESOLUTION
29.1 INFORMAL DISPUTE RESOLUTION
Prior to the initiation of dispute resolution procedures
pursuant to Clause 29.2 and 29.3, the parties shall attempt to
resolve any Dispute informally, as follows:
29.1.1 Upon the request of either Country Representative, in
the case of a Dispute which has not been resolved, or
cannot be resolved by the Country Representatives
within [***]*, that Dispute shall be referred to the
Regional Governance Panel.
29.1.2 If the Regional Governance Panel is unable to resolve
the Dispute within [***]*
----------
* 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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after it is submitted to the Regional Governance
Panel, then the Dispute will be referred to the
Global Governance Panel. The Global Governance Panel
shall use its best efforts to resolve such Dispute.
29.1.3 If the Global Governance Panel is unable to resolve
the Dispute within [***]* after it is submitted to
the Global Governance Panel (or such later time as
may be agreed by the Global Governance Panel), then
the Dispute shall be referred to the Exult Chief
Executive Officer and the BPA Vice President Group
HR.
29.1.4 If the BPA Vice President Group HR and the Exult
Chief Executive Officer have not been able to resolve
the Dispute within [***]* of the matter having been
referred to them (or such later date as they may
agree), the Dispute shall be referred to Expert
Decision or Arbitration (as the case may be) in
accordance with the provisions of this Agreement.
29.1.5 During the course of any discussions in accordance
with this Clause 29, all reasonable requests made by
one party to the other for information will be
honoured in order that the parties may be fully
advised of each other's position. Any Confidential
Information disclosed will be treated by the
recipient in accordance with Clause 20
(Confidentiality).
29.1.6 Unless the Agreement specifies otherwise, all
Disputes shall be referred to the informal Dispute
Resolution Procedure and thereafter to Arbitration
pursuant to Clause 29.3.
29.1.7 Only the informal Dispute Resolution Procedures set
out in Clause 29.1 can apply where the parties fail
to agree to carry out a new or Project or project or
to make a substantial or material change to the
Agreement or any Service or any provision specified
in the Agreement as being an agreement to agree.
29.2 EXPERT DECISION
29.2.1 Where a Dispute is designated in this Agreement as
appropriate for Expert Decision it shall be referred
for determination to an Expert nominated either
jointly by the parties, or failing agreement between
them within the time stated in this Agreement or,
where no time is stated, within 10 working days, on
the application of the Client or Exult Supplier, to:
(i) the Institute of Electrical and Electronic
Engineers for any issue involving software,
hardware, or systems;
(ii) the Institute of Certified Public Chartered
Accountants for any issue involving finance,
accounting and tax; and
----------
* 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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(iii) the Society for Human Resource Professional
for any issue involving human resources
polices and practices that cannot be
referred to an appropriate Expert under
Clause 29.2.1(i) and (ii).
29.2.2 The parties agree:
(i) to supply the Expert with the assistance,
documents and information he/she requires
for the purpose of his/her determination;
(ii) that in all cases, the terms of appointment
of the Expert shall include a requirement on
the Expert to give his/her determination
with 21 days or such other period as may be
agreed, to hold professional indemnity
insurance for both then and for 3 years
following the date of his/her determination
and to establish his/her own reasonable
procedures to enable him to give his
determination; and
(iii) that in considering any issue relating to
the KPIs the Expert shall take into account
the performance levels of service achieved
by the Client.
29.2.3 The Expert's Decision is final and binding on the
parties in the absence of negligence, manifest error
or bad faith. The Expert acts as an expert and not an
arbitrator and the Expert's Decision is not a
quasi-judicial procedure. Save as provided elsewhere
in this Agreement, each party shall bear its own
costs and the costs of the Expert shall be borne
equally between the parties.
29.3 ARBITRATION
29.3.1 Subject to any other terms of this Agreement, if any
Dispute, which is designed as a Dispute to be
referred to Arbitration, arising in connection with
this Agreement cannot be resolved in accordance with
the provisions of Clause 29.1 it shall be referred to
arbitration at the written request of any party under
the Rules of the International Chamber of Commerce,
which rules are deemed to be incorporated by
reference into this Clause 29.3.
29.3.2 The parties agree that:
(i) the number of arbitrators shall be three;
(ii) the place of the arbitration shall be
London;
(iii) the language to be used in the arbitration
proceedings shall be English; and
(iv) the ruling of the arbitrators on the Dispute
shall be final and binding.
30 FORCE MAJEURE
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30.1 Subject to Clause 30.2, neither party shall be liable to the
other for any Loss of any kind whatsoever, including but not
limited to any damages, whether directly or indirectly caused
to or incurred by the other party to the extent such Loss
arises by reason of any failure or delay in the performance of
its obligations hereunder which is due to Force Majeure.
30.2 The party claiming to be prevented or delayed in the
performance of any of its obligations under this Agreement by
reason of Force Majeure shall use reasonable endeavours to
continue to perform its obligations under this Agreement
without being obliged to incur any significant additional cost
to bring the Force Majeure to a close or to find a solution by
which the Agreement may be performed despite the continuance
of the Force Majeure circumstances.
30.3 If either party shall become aware of circumstances of Force
Majeure which give rise to or which are likely to give rise to
any such failure or delay on its part, it shall forthwith
notify the other by the most expeditious method then available
and shall inform the other of the period which it is estimated
that such failure or delay may continue. If Force Majeure
continues for seven days or longer the Global Governance Panel
shall be notified by the party affected by such Force Majeure
and requested to decide upon a course of action.
30.4 It is agreed that any failure by a party to perform or any
delay by a party in performing its obligations under this
Agreement which results from any failure or delay in the
performance of its obligations by any person, firm or company
with which such party shall have entered into any contract,
supply arrangement or sub-contract or otherwise shall be
regarded as a failure or delay due to Force Majeure only in
the event that such person, firm or company shall itself be
prevented from or delayed in complying with its obligations
under such contract, supply arrangement or sub-contract or
otherwise as a result of circumstances which would be Force
Majeure for the purposes of this Agreement.
31 ASSIGNMENT
31.1 Exult Supplier shall not be entitled to and shall not assign,
novate or otherwise transfer this Agreement, in whole or in
part, without the Client's prior written consent.
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
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the other provisions of this Clause 32, employ other
subcontractors in the provision of any part of the Services.
Subcontractors listed in Schedule M are approved for the
purposes of Clause 32.2.
32.2 Exult Supplier shall not employ subcontractors without the BPA
Regional Commercial Contract Leader's prior written approval
(such approval not to be unreasonably withheld or delayed):
32.2.1 on any occasion where the value of a proposed
individual subcontract is in excess of [***]* or
32.2.2 where the subcontracted work relates to a Sensitive
Third Party Contract.
32.3 Exult Supplier shall promptly notify the BPA Regional
Commercial Contract Leader if at any time the total value of
the subcontracted work in any twelve month period would be
[***]*
32.4 Exult Supplier shall ensure that the Subcontractors are
appropriately skilled and qualified.
32.5 Exult Supplier shall remain liable to the Client in respect of
any such Services provided by Subcontractors.
32.6 Data protection and confidentiality provisions equivalent to
those contained in this Agreement shall be included in any
agreement with Subcontractors entered into by Exult Supplier
pursuant to this Clause 32, provided that in respect of
Subcontractors which are parties to Third Party Contracts
which are assigned or novated to Exult Supplier, Exult
Supplier shall use reasonable endeavours to comply with its
obligations under this Clause relating to such Subcontractors
and shall inform the Client where it has not been possible to
fulfil such obligation.
32.7 For the purposes of this Clause 32, Subcontractors shall not
include contract staff whether hired on an individual basis or
through an agency where Exult Supplier exercises direction and
control over the work of such contract staff. The BPA Regional
Commercial Contract Leader's consent is not required in
relation to Exult Supplier hiring such contract staff.
32.8 Exult Supplier's use in the ordinary course of business of
third party services or products that are not dedicated solely
to the provision of the Services and that are not material to
the performance of the Services and which do not result in a
material change in the way Exult Supplier conducts its
business will not be subject to the provisions of this Clause
32. If the Client expresses any concern to Exult Supplier
about any such third party services or products, Exult
Supplier shall discuss such concerns with the Client and work
in good faith to resolve the Client's concerns on a mutually
acceptable basis.
32.9 It is understood that no approval given under this Clause 32
shall generate contractual relations between the Client or any
of its Affiliates and any Subcontractor except as expressly
contemplated by this Clause 32.
----------
* 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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33 PARTICIPATING AFFILIATES
33.1 Exult Supplier acknowledges that the Client has concluded this
Agreement for the benefit of the Client and the Participating
Affiliates.
33.2 At the request of the Client, Exult Supplier shall at the
Client's expense execute all deeds or other documents required
to enable any Loss incurred or sustained by any Participating
Affiliate recovered pursuant to Clause 25.10 (Limitations on
Participating Affiliates' Claims).
34 GENERAL TERMS
34.1 PUBLICITY
34.1.1 Except with the prior written consent of the other
party each party shall not and shall procure that its
Affiliates shall not make any press or other public
announcements relating to this Agreement, the
Framework Agreement or any other Country Agreement,
or disclose any information relating to the
commercial or other terms of this Agreement, the
Framework Agreement or any other Country Agreement.
34.1.2 It is the intention of the parties that immediately
following the Commencement Date, they will jointly
develop and agree a press release relating to their
relationship under this Agreement and the Framework
Agreement.
34.2 NOTICES
Wherever under this Agreement a party is required or permitted
to give notice to the other party, such notice shall be in
writing and shall be delivered personally, sent by fax, (as
appropriate) recognised express courier service or certified,
registered, or first class mail. Any such notice shall be
deemed given when actually received when so delivered
personally, by fax or express courier, or if mailed, on the
5th day after its mailing, postage prepaid to the recipient
party addressed as follows:
In the case of the Client:
Country Representative
200 East Randolph Drive
Chicago
IL 60601
BPA Regional Representative
200 East Randolph Drive
Chicago
IL 60601
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In the case of Exult Supplier:
Exult Country Representative
4 Park Plaza
Suite 350
Irvine
California 92614
Fax: (949) 250 8086
with a copy (which shall not constitute effective notice) to:
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Legal Department
4 Park Plaza
Suite 350
Irvine
California 92614
Fax: (949) 250 8086
Any party may change its address for notices upon giving 10
days' prior notice of the change to the other parties in the
manner provided in this Clause 34.2.
34.3 LIMITATION ON RECRUITING
34.3.1 Subject as hereinafter provided in this Clause 34.3,
each of the Client or Exult Supplier shall not during
the term of this Agreement or within six months of
its termination or expiry employ and/or solicit
directly or indirectly any employees of the other
party who have been involved in providing the
Services or are otherwise connected with this
Agreement.
34.3.2 Clause 34.3.1 will not restrict the Client or Exult
Supplier from employing employees of the other party:
(i) who apply unsolicited in response to a
general advertising or other general
recruitment campaign;
(ii) which the party who employed the relevant
employee has agreed in writing may be so
employed; or
(iii) as contemplated in Schedule J of this
Agreement.
34.4 WAIVER
34.4.1 Subject to Clause 34.12 (Legal Proceedings) no delay
or omission by either party to exercise any right or
power shall impair such right or power or be
construed as a waiver.
34.4.2 A waiver by either of the parties of any covenants to
be performed by the other party or of any breach
shall not be construed to be a waiver of any
succeeding breach or of any other covenant.
34.4.3 No waiver of any of the provisions of this Agreement
shall be effective unless it is expressly stated to
be a waiver and communicated to the other party in
writing in accordance with the provisions of Clause
34.2 (Notices).
34.5 AMENDMENTS
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The terms and conditions of this Agreement shall not be varied
or amended, except by a written instrument executed by or on
behalf of each of the parties in accordance with the Change
Control Management process.
34.6 SEVERABILITY
If any provision of this Agreement is held to be invalid,
unenforceable or void, such decision shall not have the effect
of invalidating or voiding the remainder of this Agreement,
and the parties agree that they shall immediately commence in
good faith negotiations to seek to remedy such invalidity,
unenforceability or illegality.
34.7 COSTS
Except as expressly otherwise provided for in this Agreement,
each party shall bear its own costs and expenses incurred in
connection with the negotiation and preparation of this
Agreement.
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
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This Agreement may be executed in two or more counterparts or
by fax, each of which shall be deemed to be an original, but
all of which together shall constitute one agreement binding
on all parties, notwithstanding that all parties are not
signatories to the original or the same counterpart or fax
copy.
34.12 LEGAL PROCEEDINGS
Any legal proceedings in relation to this Agreement must be
commenced by the relevant party within 2 years of the
termination or expiry of this Agreement.
34.13 EQUITABLE REMEDIES
The parties agree that damages shall be the only remedy
available in respect of each parties' liability arising under
this Agreement provided that the parties shall be free to seek
equitable remedies (including injunctive relief) in respect of
breaches of confidentiality and matters relating to the
infringement of Intellectual Property Rights.
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.
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34.17 GOVERNING LAW
This Agreement shall be governed and construed in accordance
with the laws of England and Wales.
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In witness whereof this Agreement has been executed the day and year first
written above.
SIGNED BY ..............................
for and on behalf of the Client
in the presence of:
..............................
SIGNED BY ..............................
for and on behalf of Exult Supplier
in the presence of:
..............................
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INDEX TO SCHEDULES
TO US COUNTRY AGREEMENT
Schedule A Scope of Services (indicative)
Schedule B Service Levels (indicative)
Schedule C Charges and Invoicing
Schedule D Third Party Contracts
Schedule E Assets
Schedule F Systems
Schedule G Part I Country Transition Plan
Part II Validation Exercise
Schedule H Projects/Projects
Schedule I Part I Key Employees
Part II BPA Key Employees
Schedule J Employee Transfer Arrangements
Schedule L Change Control Management
Schedule M Approved Exult Sub-contractors
Schedule O BPA Business Policies and Controls
Schedule P Global Governance Arrangements
Schedule Q Data Protection
Schedule R BPA Participating Affiliates
Schedule T Process Line Population
Schedule U Escrow Agreement
Schedule W Matters to be taken into account when
considering changes to Agreements or any
schedule to reflect any Special Services
provided by Exult Supplier
Schedule Z Definitions
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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:
(ii) 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
(iv) 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:
(iii) 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
(v) the power, whether direct or indirect, to direct the
management or policies of such person.
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"CHANGE CONTROL MANAGEMENT" means the procedure by which changes may be
made to the Agreement pursuant to Clause 9 (Change Control Management
Process) and as further set out in Schedule L (Change Control
Management);
"CHANGE REQUEST" means a request for a Change made in accordance with
the Change Control Management process;
"CHARGES" means the charges payable by the Client in respect of the
Services calculated in accordance with Schedule C (Charges and
Invoicing);
"CLIENT ASSETS" means the goods and other assets which are owned or
used by BPA, a BPA Affiliate or the Client solely to provide the
services equivalent to the Services immediately before the Commencement
Date, including, but not limited to, Client Systems and Third Party
Systems and facilities whether or not the subject of Third Party
Contracts and as identified in Schedule E (Assets), in each case which
are required to be used by Exult Supplier to provide the Services;
"CLIENT INFORMATION" means the information provided by the Client which
comes into the possession of Exult Supplier or the Exult Affiliates or
their subcontractors pursuant to this Agreement, or created under or
arising out of data and records of the Client, BPA or BPA Affiliates
pursuant to this Agreement;"CLIENT INTELLECTUAL PROPERTY" has the
meaning ascribed to it in Clause 19.1 (Intellectual Property Rights);
"CLIENT PREMISES" means any premises of Client Affiliates in the United
States of America which the Client or Client Affiliates use to provide
services equivalent to the Services immediately prior to the applicable
Country Commencement Date;
"CLIENT SERVICE CENTRE" means each of the remote service centres to be
established by Exult Supplier;
"CLIENT SYSTEMS" means Systems (or part thereof) in which the
Intellectual Property is owned by either Client or Client Affiliates
and to be used in whole or in part in the provision of the Services as
identified in this Agreement;
"COMMENCEMENT DATE" means the date of execution of this Agreement by
both of the parties to this Agreement;
"CONFIDENTIAL INFORMATION" means all information obtained from the
other party which by its nature should be treated as confidential
information or is marked as such which may come into its possession or
into the possession of its employees, agents or subcontractors as a
result of or in connection with this Agreement and any and all
information which may be derived from such information;
"CONTRACT MINIMUM(s)" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"CONTRACT MINIMUM YEAR" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
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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:
(iv) the Client Business Standards and Policy Document;
(v) the Client Policy on the Business Conduct and Code of Business
Ethics;
(vi) the Client Disaster Recovery Plan; and
(vii) 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:
(viii) 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
(ix) a particular company is indirectly controlled by a company if
a series of companies can be specified, beginning with that
company and ending with the particular company, so related
that each company in the series is directly controlled by one
or more of the companies earlier in the series;
"EXULT ASSETS" means the goods and other assets which are owned by
Exult Supplier, Exult or an Exult Affiliate and acquired and used
solely to provide the Services immediately before the termination or
expiry of this Agreement, including Systems owned by Exult Supplier but
excluding any assets licensed or leased to Exult Supplier, Exult or
Exult Affiliate by way of a Third Party Contract;
"EXULT PROPRIETARY SYSTEMS" means Exult's Systems in which the
Intellectual Property is owned by Exult or Exult Supplier;
"EXULT REGIONAL REPRESENTATIVES" means the individuals appointed by
Exult Supplier pursuant to, the Framework Agreement;
"EXULT SUPPLIER DISASTER RECOVERY PLAN" means the plan to be agreed
between the parties which sets out the procedures to be adopted by
Exult Supplier and the Exult Participating Affiliates in the event that
any Systems used in the provision of the Services, or any data relating
to the Services, is damaged or becomes unavailable for any reason;
"EXULT SUPPLIER INTELLECTUAL PROPERTY" has the meaning ascribed to it
in Clause 19.2 (Intellectual Property Rights);
"EXULT SYSTEMS" means Systems used in the provision of the Services in
which Exult or Exult Supplier owns the Intellectual Property or has
been granted a licence to use the Intellectual Property, excluding
Future Systems and Client Systems;
"EXULT THIRD PARTY" means a third party other than Exult, an Exult
Affiliate and its and their
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respective agents, subcontractors, officers, directors and employees;
"EXULT THIRD PARTY CONTRACT" means any contracts, including
subcontracts and licences, but excluding contracts relating to
employment, entered into by, assigned to or novated to Exult, Exult
Supplier or an Exult Supplier Participating Affiliate the benefit of
which relates to, or which are used in whole or in part for, providing
the Services;
"FAILED READINESS TEST" means a failure to complete all material
elements of a Readiness Test.
"FORCE MAJEURE" means any cause affecting the performance of the
obligations under this Agreement by a party arising from acts, events,
omissions, happenings or non-happenings beyond its reasonable control
including (but without limiting the generality thereof) governmental
regulations arising after the Commencement Date, civil and/or political
unrest, fire, flood, or any disaster or an industrial dispute (other
than those relating to Exult's employees) but shall not include lack of
funds or events caused by the party seeking to rely on the Force
Majeure event or by any third party employed or engaged by the party
seeking to rely on the Force Majeure event (except where and to the
extent that such third party is also affected by a Force Majeure event)
and provided that in determining what is in the reasonable control of
Exult Supplier, full account shall be taken of the existence of the
Exult Supplier Disaster Recovery Plan;
"FULL SERVICE DATE" means 00.01 a.m. on the date (which is the end of
the Transition Period) on which Exult Supplier is required to provide
all of the Services to the Client pursuant to the Country Transition
Plan.
"FUTURE SYSTEMS" means Systems created by Exult Supplier or its
Affiliates, or which Exult Supplier or its Affiliates procure to be
created, in fulfilling obligations under this Agreement, during the
term of this Agreement and provided to the Client or used in the
provision of the Services;
"FRAMEWORK COMMENCEMENT DATE" means the date defined as Commencement
Date in the Framework Agreement;
"FRAMEWORK EXPIRY DATE" means the date 7 years from the *Framework
Commencement Date or in the event the Framework Agreement is extended
by agreement between the parties, the date which is then stated as
being the Expiry Date of the Framework Agreement;
"GENERAL WINDING UP PLAN" means the plan for co-ordinating the orderly
assumption of the provisions of the Services by the Successor Operator
to be produced pursuant to the Framework Agreement;
"GLOBAL GOVERNANCE PANEL" means the body to be established in
accordance with the Framework Agreement;
"GOOD INDUSTRY PRACTICE" means in relation to any undertaking and any
circumstances, the exercise of the degree of skill, care, prudence and
foresight which would be expected from a reasonably skilled and
experienced person engaged in the same type of undertaking under the
same or similar circumstances;
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"GUARANTEED MINIMUM SAVINGS" has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
"GUARANTEED MINIMUM SAVINGS DATE" has the meaning ascribed to it in
Schedule C (Charges and Invoicing);
"HR IT SERVICES" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"INCREASES" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"INDEMNIFIED PARTY" has the meaning ascribed to it in Clause 26.5.1
(Defence of Claims);
"INDEMNIFYING PARTY" has the meaning ascribed to it in Clause 26.5.1
(Defence of Claims);
"INDEPENDENT BUSINESS" means any business unit within a Country
designated by Client executive committee from time to time to operate
at arm's length because (i) it is pending decision regarding a possible
disposal of the business unit; or (ii) the business unit operates under
conditions materially distinct from those applying to the Services as
evidenced by non participation in all or some of the other Client main
stream support services in that Country;
"IN-SITU PROCESS TAKE ON DATE" means 00:01AM on the day on which Exult
Supplier assumes responsibility for a Process in-situ;
"INITIAL BASELINE" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"INITIAL BASE CHARGES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"INITIAL PERIOD" means the period of 5 years from the Commencement
Date;
"INITIAL RESOURCE VOLUMES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"INTELLECTUAL PROPERTY" means patents, trade marks, service marks,
copyrights, topography rights, rights to extract information from
databases, design rights, trade secrets and rights of confidence and
all rights or forms of protection of a similar nature or having
equivalent or similar effect to any of them which may subsist anywhere
in the world, whether or not any of them are registered and including
applications for registration of any of them;
"INTERNAL CONTROLS" means such controls as would be reasonably required
in accordance to Good Industry Practice;
"KEY EMPLOYEES" means those Employees to be identified pursuant to
Section 2, Schedule I (Employees) to this Agreement;
"KEY INCIDENT" means an incident (whether or not a KPI failure) which
would have an impact either real or perceived on the operational
performance, finances or reputation of Client or the Client Affiliates
or Exult's or the Exult Affiliates' performance, finances or
reputation;
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"KPI CREDIT" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"KPI FAILURE" means any failure by the Exult Supplier to achieve a KPI;
"KPI FAILURE PERIOD" means the period of time during which there has
been a KPI Failure;
"KPIs" means the key performance indicators set out in the Service
Levels in Schedule B (Service Levels) and "KPI" means any one of them;
"% OF KPI POOL" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"KPI PER EVENT CREDIT" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"LEVERAGED OPERATIONS" means the result of Exult Supplier's
transformation of the Services to Exult Supplier's Service Delivery
Model intended to improve the quality of HR services provided to the
Client and achieve the Guaranteed Minimum Savings.
"LEVERAGED PROCESS TAKE ON DATE" means 00:01AM local time on the day on
which Exult Supplier assumes responsibility for a Process in Leveraged
Operations;
"LOSSES" means all losses, liabilities, costs (including reasonable
legal costs), charges, expenses, actions, procedures, claims, demands
and damages (including the amount of damages awarded by an arbitrator
pursuant to Clause 29.3) (Dispute Resolution);
"MATERIALS" means all materials, including without limitation, magnetic
tapes, documents, designs, drawings, manuals, specifications,
flowcharts, and all stationery and other consumables as are, at the
applicable Country Commencement Date, in use by Client, the Client or
their Affiliates for the provision of the services equivalent to the
Services to the Client;
"NON-TRANSFERRABLE THIRD PARTY CONTRACT" means a Third Party Contract
other than a Transferable Third Party Contract;
"NORTH AMERICA" means United States of America, Canada, and Trinidad
and Tobago;
"OPERATIONAL CHANGE" means a change to any Process which affects the
procedures, scheduled operations activities, output and/or functioning
of the Service Delivery Model, but which is not determined to be a
Project, and does not require an adjustment to the Agreement;
"PARTICIPATING AFFILIATES" means the Client Affiliates, in addition to
the Client, which will receive the Services from the Exult Supplier
Participating Affiliates under this Agreement and "Participating
Affiliate" mean any one of them;
"PASS THROUGH COSTS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"PROCESS" means one of the 17 processes identified in Section II of
Schedule A (Scope of Services);
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"PROCESS TAKE ON DATE" means 00.01am local time on the day on which
Exult Supplier assume responsibility for the delivery of the applicable
Process pursuant to the Country Transition Plan.
"PROJECT" means a discrete piece of work which is not a Service, is not
included in the Baseline, is limited in duration, has specific
deliverables, has identifiable start and end dates, is agreed through
the Change Control Management process, and is subject to an Process
Charge as defined in Schedule C;
"PROPOSED CHANGE" means a change requested through a Change Request,
pending approval;
"QUALITY CONTROL DOCUMENT" means the summary document to be prepared by
Exult Supplier in accordance with Clause 3.2.8 (Controls) which sets
out the basis on which Exult Supplier will apply the Controls to the
provision of the Services;
"READINESS TEST" means the test agreed between the parties to establish
the readiness of both the Client and Exult Supplier to transition a
Process to Exult Supplier as described in Sections 7 and 8 of Schedule
G (Transition Plan).
"REDUCED RESOURCE CHARGES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"REGION" shall mean each of North America, Europe and the Rest of the
World;
"REGIONAL REPRESENTATIVES" means the BPA Regional Representative and
the Exult Regional Representative;]
"RELEVANT ENTITY" means a person who in the reasonable opinion of
Client either:
(x) is a competitor of the Client, Client or a Participating
Affiliate primarily engaged in the business of distribution
and production of oil and petrochemicals;
(xi) whose (i) financial substance and (ii) credit rating are
weaker in any material respect than those of the Company; or
(xii) may, through its control of the Company, have any adverse
effect on the reputation of Client or any member of the BP
Group;
"RESOURCE UNITS" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"RESOURCE VOLUMES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"REST OF THE WORLD" means countries in which Client or the Client
Affiliates have operations other than Europe and North America;
"RETURN ON COSTS" or "R.O.C." has the meaning ascribed to it in
Schedule C (Charges and Invoicing);
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"SALES TAXES" means any federal, national, state, local, sales, use,
excise, utility, gross receipts, value added taxes, other similar
tax-related charges and surcharges levied by any authorised tax
authority, agency or government department;
"SENSITIVE SERVICES" means those services in the nature of the Services
which are considered by the Client, Client or Client Affiliates to be
of a sensitive nature in that they represent a significant risk to the
reputation or ongoing business of the Client, Client or Client
Affiliates or if the nature of the services are such that they could,
in the Client's, Client's or Client Affiliate's view, potentially
expose the Client, Client or Client Affiliate to particular legal
liability, including those relating to administration benefit plans
subject to the US Employee Retirement Income Security Act 1974 as
amended and are retained and provided internally by the Client, Client
or any Client Affiliates;
"SENSITIVE THIRD PARTY CONTRACTS" means those Third Party Contracts and
Exult Supplier Third Party Contracts which are considered by the Client
to be of a sensitive nature in that they represent a significant risk
to the reputation or ongoing business of the Client, Client or the
Participating Affiliates, or if the nature of the services provided
under the contracts are such that they could, in the Client's view,
potentially expose the Client, Client or the Participating Affiliate to
particular liability;
"SERVICE CREDIT" means an amount payable by Exult Supplier to the
Client in respect of a KPI Failure;;
"SERVICE DELIVERY DESCRIPTION" means the documentation to be prepared
by Exult Supplier and/or Exult Supplier in accordance with Clause 16.5
(Winding Up Assistance);
"SERVICE DELIVERY MODEL" means the method by which the Services, or in
the case of Client, the services equivalent to the Services, are
delivered.
"SERVICE LEVEL" means the level to which the Services are to be
provided to the Client as set out in Schedule B (Service Levels);
"SERVICE PERFORMANCE REPORTS" means the reports to be produced by the
Exult Supplier Country Representative in accordance with Clause 22.3
(Service Performance Reports);
"SERVICED EMPLOYEE" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"SERVICES" means the human resource management and related services
processes described in Schedule A (Scope of Services) as may be amended
from time to time in accordance with the Change Control Management
process.;
"SPECIAL SERVICES" means any services provided by Exult Supplier
relating to Benefit Plans (as defined in Schedule W) that are subject
to the Employment Retirement Income Security Act 1974, including
services comprising or in connection with Sensitive Services or
Sensitive Third Party Contracts;
"STANDARD RATES" means the rate to be charged by Exult Supplier to the
Client for the provision
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of Projects as determined in accordance with Schedule C (Charges and
Invoicing);
"SUBCONTRACTOR" means any subcontractor of Exult Supplier engaged from
time to time in accordance with Clause 32 (Subcontracting) for the
purposes of performing any part of Exult Supplier's obligations under
this Agreement;
"SUCCESSOR OPERATOR" means the entity (which may include Client or any
Client Affiliates) succeeding Exult Supplier in the provision or
operation of all or any of the Services;
"SYSTEMS" means computer programs, databases, the tangible media on
which they are recorded, and their supporting documentation, including
input and output format, program listings, narrative descriptions,
source code, object code, algorithms, logic and development tools,
operating instructions and user manuals;
"TAXES" means all federal, state, local or foreign income tax, duty,
charge, and any penalty or interest thereon and any of the costs and
charges whatsoever assessed or imposed by any competent legal or fiscal
authority in relation thereto, including Withholding Tax, but excluding
value added or other similar sales or use taxes;
"TERM VESTED ANNUITANTS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"THIRD PARTY CONTRACTS" means any contracts, including licences, but
excluding contracts relating to employment, entered into by Client, or
any Client Affiliates the benefit of which relates to, or which are
used in whole or in part for providing services equivalent to the
Services immediately prior to the Commencement Date as identified in
Schedule D (Third Party Contracts);
"THIRD PARTY HR CONTRACT" means a Third Party Contract pursuant to
which a third party provides the Client with services equivalent to the
Services;
"THIRD PARTY SYSTEMS" means any Systems in which the Intellectual
Property is owned by a third party which Client, or any Client
Affiliate has been granted a licence to use and which are required to
be used by Exult Supplier to provide the Services as identified in
Schedule F (Systems);
"TOTAL LABOUR RELATED COSTS" has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
"TRANSFER" and "TRANSFERRED" in respect to a Third Party Contract or
Sensitive Third Party Contract refers to the transfer of such contract
by assignment or novation as well as to, upon termination or expiry of
such Third Party Contract, the taking over by Exult Supplier of the
services provided thereunder as Services under the relevant Country
Agreement;
"TRANSFER/TRANSFORMATION COSTS" has the meaning ascribed to it in
Schedule C (Charges and Invoicing);
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"TRANSFERABLE THIRD PARTY CONTRACTS" means Third Party Contracts which
are identified during the Due Diligence Exercise or the Validation
Exercise or thereafter as being capable of being either terminated or
assigned to Exult Supplier at short notice and without incurring any
penalty; "VALIDATION EXERCISE" means the exercise to be carried out in
accordance with Part 2 of Schedule G (Transition Plan);
"TRANSITION PERIOD" means the period between the Commencement Date and
the Full Service Date;
"TRANSITION SCHEDULE" means the time line for the transition of all
Processes for a Country to Exult Supplier (in-situ and/or Leveraged
Operations) as defined in Section 9 of Schedule G (Transition Plan).
"TRIGGER EVENT" means an event which will enable Client to obtain
delivery of the relevant source code materials under the terms of the
Escrow Agreement;
"UNDERLYING TECHNOLOGY" means the Exult Supplier IT Domain dedicated to
supporting the provision of the Services.
"VALIDATION EXERCISE" means the exercise for each applicable Country
consisting of the validation of the Baseline, volumetrics, resource
requirements, costs, Services, Third Party Contracts and Service
Levels, conducted within 60 days following the Country Commencement
Date;
"WINDING UP ASSISTANCE" means the assistance to be given by Exult
Supplier to the Client as contained in a Winding Up Plan;
"WINDING UP ASSISTANCE COSTS" has the meaning ascribed to it in
Schedule C (Charges and Invoicing);
"WINDING UP PLAN" means the winding up plan to be developed in
accordance with the provisions of Clause 16 (Winding Up Assistance) to
provide for the orderly transitioning of the Services to the Successor
Operator on termination or expiry of the Agreement; and
"WITHHOLDING TAXES" means any Taxes required to be withheld or deducted
by the competent legal or fiscal authorities in the Country of the tax
residence of the Client or any sum payable by the Client to Exult
Supplier for the Charges under this Agreement.
"WORK PRODUCT" means any works, including documents or reports whether
or not in electronic form produced for delivery to the Client as part
of the Services and/or fulfilling the obligations of Exult Supplier
under this Agreement including the Service Delivery Description but
excluding Future Systems and the Exult Supplier Systems.
"YEAR 2000 COMPLIANT" means that all software, systems and hardware
comply with the British Standards Institute requirements set out in
DISC PD 2000-1 "A Definition of Year 2000 Conformity Requirements".
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UNITED STATES COUNTRY 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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SCHEDULE A
SCOPE OF SERVICES
1 INTRODUCTION
This Section describes certain duties, obligations and responsibilities
of Exult and of BPA in performing the Services.
Except where specifically set out in the applicable Country Transition
Plan, from the Commencement Date, Exult shall provide each process
included in the Services [***]*
For the purposes of this Schedule, Exult shall mean Exult Supplier where
appropriate; BPA shall mean the Client where appropriate.
2 EXULT SERVICES
Exult and BPA will perform the services as defined in this Schedule A.
For responsibilities where there is no quantification of the service to
be provided, Exult and BPA will provide the function [***]* Schedule T
identifies the BPA population, by Process, that shall receive the
Services identified in this Schedule.
The detailed scope is to be agreed before the applicable Process Take On
Date. Exult shall assume responsibility for each of the Processes set
out in this Schedule on the applicable Process Take On Date. For the
table included in each of the sections below, the following legend
applies:
<CAPTION>
Table Legend
X Performs Responsibility
A Approves
The parties recognise that there are third party agreements yet to be
evaluated that may be identified as Sensitive Third Party Agreements.
The current representation of process activities and responsibilities in
Schedule C of this Agreement reflects the intention of the parties in
the absence of Sensitive Third Party Agreements. Specific adjustment to
the responsibilities of BPA and Exult in any Process area affected by
Sensitive Third Party Agreements and/or Sensitive Services will be made
prior to the Process Take On Date to address the legal and operational
risks associated with the provision of Services by Exult, BPA and the
third parties associated with the above, for the period of time these
remain sensitive.
For the avoidance of doubt, adjustments of responsibilities in relation
to Section G, Benefits is anticipated in order to effectively manage
legal risk and ensure operational effectiveness of the Services.
A TRAINING
Training as a process includes training needs assessment,
course/materials development, logistics co-ordination, conduct of
training and training leader selection, training effectiveness
assessment and post training follow-up. Delivery of training
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Exchange Commission.
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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.
[***]*
E EXPATRIATE RELOCATION AND ADMINISTRATION
Expatriate relocation and administration establishes expatriate
policies, manages the
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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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. For the avoidance of doubt, BPA
shall have the sole responsibility to establish the business
requirements for vendors that have any fiduciary responsibility
to BPA employees. Exult shall administer/monitor the vendor for
conformity to the services contracted.
[***]*
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.
BPA shall define compensation strategies, policies and programs.
Exult shall provide
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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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 (except for
providers who have fiduciary responsibilities to BPA employees)
are administered by Exult to ensure acceptable quality and price.
Vendor selection, performance monitoring, service negotiation and
vendor certification are all critical efforts. The administration
of third party costs and allocation of these costs to the
appropriate business entities are also included here.
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 under vendor
administration.
[***]*
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
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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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.
[***]*
P PERFORMANCE MANAGEMENT
Performance management sets performance goal structures for BPA
and develops the
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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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 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.
[***]*
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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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UNITED STATES COUNTRY AGREEMENT
SCHEDULE B
SERVICE LEVELS
<PAGE> 80
TABLE OF CONTENTS
1 INTRODUCTION...................................................................................................1
2 PRINCIPLES GOVERNING SERVICE LEVELS............................................................................1
3 PROCESS........................................................................................................1
4 SERVICE CREDITS................................................................................................4
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SCHEDULE B
SERVICE LEVELS
1 INTRODUCTION
This Schedule defines the principles and parameters governing the
Service Levels which shall be measured. This Schedule also describes how
these Service Levels shall be established.
There are two types of Service Levels that shall be defined, measured
and reported for each Country Agreement:
1.1 Key Performance Indicators ("KPIs"):
(i) KPI Surveys - these measure the satisfaction of BPA
employees and management with the Services that are
provided by Exult ;
(ii) KPI Service Levels - Service Levels that must be met to
avoid a significant financial or Service impact to BPA;
1.2 Reporting Service Levels ("RSLs") - these measure Exult's
performance of the Services using a range of quantitative and
qualitative Service Levels.
Each Country Transition Plan shall define the process by which
the Services shall be transitioned from the BPA Service Delivery
Model to the Exult Service Delivery Model. The impact of the
transition to the Leveraged Operations shall be assessed and any
changes to Service Levels, including KPIs, shall be agreed in
accordance with Schedule L, Change Management.
The process for initially establishing these Service is
described in Section 3, Process.
2 PRINCIPLES GOVERNING SERVICE LEVELS
Principles governing Service Levels are documented in the Framework
Agreement, Schedule B, Service Levels.
3 PROCESS
Following the Commencement Date of each Country Agreement and before the
Process Take On Date, the parties shall determine and agree the Service
Levels that shall be included in Schedule B, Service Levels, of the
Country Agreement. In addition, the appropriate measurement tools and
reporting process for each Service Level shall be identified.
The timeframe to determine the Service Levels, the measurement tools and
the reporting process shall be documented in the applicable Country
Transition Plan.
3.1 KPI Surveys
3.1.1 An agreed upon Service Level metric shall be determined
and implemented in accordance with the Country
Transition Plan.
3.1.2 Surveys shall then be conducted and measured against the
KPI Survey metric and reported in accordance with the
Service Performance Report obligation under the Country
Agreement.
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3.1.2 KPI Surveys Service Level Table
[***]*
3.2 KPI Service Levels
3.2.1 With respect to the KPI Service Levels for Payroll and
HRIT, as identified in each applicable Country
Agreement, the parties shall agree on the applicable KPI
Service Level metric prior to the Process Take On Date.
Exult shall report on its performance of the Services in
accordance with such KPI Service Level thereafter.
3.2.2 With respect to the remaining KPI Service Levels, the
parties shall agree on the applicable provisional KPI
Service Level metric prior to the Process Take On Date.
Exult shall measure and report its performance of the
Services in accordance with such provisional KPI Service
Levels for an agreed period of time, [***]* in order to
determine the appropriate KPI Service Level metric.
After such period, the parties shall agree on the
applicable KPI ---- Service Level metric and Exult shall
report on its performance of the services in accordance
with such Service Level thereafter.
3.2.3 KPI Service Level Table
KPI Process Weighting for KPI Service Levels shall be
determined by the Client and identified within the
Country Agreement. [***]* Each KPI Service Level shall
be assigned a value of [***]*
3.3 [***]*
To the extent that a KPI Service Level is not achieved due to any
non-performance of or any other defect in any systems, hardware or other
technical infrastructure, other than those systems, hardware or other
technical infrastructure supplied or controlled by Exult under this
Agreement, Exult Supplier shall have no liability for such failure to
achieve the KPI Service Levels.
3.4 Reporting Service Levels
The following table of RSLs is illustrative of those that will be
adopted in each Country. The intention is to adopt a limited number of
meaningful RSLs to reflect key aspects of each Process. The parties
recognise that the illustrative RSLs set out below will need to be
amended by agreement before the Process Take On Date for each Process to
reflect the greater understanding of each Process that will be developed
during the Validation Exercise (and on an ongoing basis through the life
of the Agreement as the Service Delivery Model is enhanced).
The parties agree that the RSLs should wherever practicable and
appropriate be based on (i) information that is currently reported on at
the Process Take On Date; or (ii) information which can b generated from
the normal operation of the Service Delivery Model and Systems without
the need for extra development or modification to the Systems or Service
Delivery Model. Any proposals for additional RSLs beyond the numerical
limits set out above or for RSLs which do not fit into the category set
out in the
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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paragraph below shall be subject to Change Control Management and the
Parties recognise that an appropriate equitable adjustment may be
necessary to implement such RSLs. As noted in Section 3.4 below, the
parties shall review Service Level metrics and shall determine and
agree, through the Change Control Management process, revised Service
Level metrics to reflect the benefits of Leveraged Operations. Agreed
changes to RSLs resulting from this review will be implemented at Exult
Supplier's expense.
The number of RSLs shall me limited to [***]* for each Country and
wherever practicable and appropriate RSLs shall be standardised for like
Processes in each Country. Although it is recognised that because
requirements will vary between Countries and that there will sometimes
be a need for different RSLs to be applied on a Country by Country
basis, the intention is that the total number of active RSLs shall be no
greater that 50 on a global basis at any one time.
3.4.1 Once the measurement tools and the reporting process have been
determined, the RSLs shall be measured and reported on an
ongoing basis.
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* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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3.4.2 Reporting Service Levels Table (Illustrative)
[***]*
3.5 ANNUAL SERVICE LEVELS REVIEW
3.5.1 [***]* Processes being transformed to Leveraged
Operations, the Regional Governance Panel shall review
Service Level metrics and shall determine and agree,
through the Change Control Management process, revised
Service Level metrics to reflect the benefits of
Leveraged Operations.
3.5.2 These Service Levels shall be reviewed and revised,
through the Change Control Management process on an
annual basis thereafter.
4 SERVICE CREDITS
4.1 KPI Surveys and KPI Service Levels shall be subject to Service
Credits as set out in Schedule C.
4.2 Provisional KPI Service Levels and RSLs shall not be subject to
Service Credits.
4.3 A failure by the Exult Participating Affiliate to meet a KPI set
forth in the applicable Country Agreement shall entitle the BPA
Participating Affiliate to at its option (1) recover a service
credit as set forth in Schedule C and/or (2) seek any other
remedy set forth in the applicable Country Agreement.
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE C
CHARGES AND INVOICING
<PAGE> 86
TABLE OF CONTENTS
1 INTRODUCTION.........................................................................2
2 DEFINITIONS..........................................................................2
3 OVERVIEW.............................................................................4
4 CHARGING METHODOLOGY PRIOR TO THE GUARANTEED MINIMUM SAVINGS DATE....................9
5 CHARGING METHODOLOGY FOLLOWING THE GUARANTEED MINIMUM SAVINGS.......................10
6 TRANSITION/TRANSFORMATION COSTS.....................................................16
7 CLIENT SERVICE CENTRE COSTS (CSC)...................................................16
8 AGGREGATION OF TRANSITION/TRANSFORMATION AND CLIENT SERVICE CENTRE COSTS............17
9 CORPORATE OVERHEAD/CENTRE OF EXCELLENCE/DUE DILIGENCE TREATMENT.....................17
10 IT INVESTMENTS......................................................................17
11 GAIN SHARING........................................................................17
12 CLASSIFICATION OF EXPENSE ITEMS SUBJECT TO MARGIN VERSUS PASS-THROUGH...............19
13 THIRD PARTY REVENUE.................................................................19
14 INVOICING...........................................................................19
15 TRANSFER OF ASSETS..................................................................20
16 CONTRACT MINIMUMS...................................................................20
17 INFLATION...........................................................................20
18 EARLY TERMINATION PAYMENT...........................................................21
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SCHEDULE C
CHARGES AND INVOICING
1 INTRODUCTION
This Schedule describes the methodology for determining the charges to
be paid by BPA to Exult for the performance by Exult of its obligations
under this Agreement as well as the associated processes for invoicing
BPA for such charges.
2 DEFINITIONS
Any capitalised terms that are not defined in this Schedule shall have
the meanings assigned to them in the Agreement. The following terms
shall have the meanings set out below:
"ACTIVE SERVICED EMPLOYEE" shall mean any Serviced Employee who is
currently employed during the period when the Services are measured.
"ADDITIONAL RESOURCE CHARGES" or "ARCs" shall mean the incremental
charges payable by BPA, in addition to the Base Charge for resource
usage that exceeds the Resource Volumes.
"ANNUAL WORK UNITS" represents the annual total IT Work Units performed
by Work Type.
"BPA" shall mean BPA or the Client where appropriate
"BASE CHARGE" shall mean Exult's annual charge divided by 12 and
invoiced monthly for the period commencing [***]* from the Baseline
Validation and recalculated [***]*.
"BASELINE" shall mean the adjusted Initial Baseline as determined by
Baseline Validation.
"BASELINE GUARANTEE" means the minimum Initial Baseline and Baseline
related to each Process taken on by Exult prior to the Guaranteed
Minimum Savings Date as set out in Section 4.1. The Baseline Guarantee
is [***]*
"BASELINE VALIDATION" shall mean validation of the Initial Baseline to
be completed by [***]*
"BENEFITS" shall mean those benefits set out in Schedule A.
"CENTRE OF EXCELLENCE COSTS OR COE COSTS" shall mean the actual costs
related to the organisation within Exult identified as such which
include the Exult subject matter experts and support staff. Functions
staff will perform shall include:
(i) Supporting complex inquiries and problem resolutions on calls to
the Client Service Centre; or
(ii) Assisting with the management of third party vendors in defining
service levels and monitoring performance; or
(iii) Assisting in the implementation of policy modifications and
changes that come from BPA ; or
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(iv) Defining the continuous improvement and best practice trends per
Process that are requirements of the Country Agreement
"CHANGE REQUEST CHARGES" shall mean the charges relating to the
implementation of Changes authorised by BPA in accordance with Schedule
L.
"CLIENT HR COSTS" shall mean the Total Labour Related Costs required by
BPA to provide the Embedded Services and HR services [***]*
"CONTRACT MINIMUMS" shall mean the minimum monthly payments by BPA to
Exult as referenced in Clause 23 of the Country Agreement and in
accordance with this Schedule C.
"CONTRACT MINIMUM YEAR" means each period of 12 months following the
Guaranteed Minimum Savings Date.
"CORPORATE OVERHEAD" shall mean Exult's general and administration
costs.
"DECREASES" means the items set out in Section 3.4.2.
"DUE DILIGENCE COSTS" shall mean the costs incurred by Exult in
accordance with Clause 4.6 of the Framework Agreement in carrying out
the Due Diligence Exercise in the applicable Country.
"EMBEDDED SERVICES" shall mean those HR functions to be retained or
retained as the case may be by BPA.
"EXULT" shall mean Exult, the Exult Participating Affiliate or the Exult
Supplier where appropriate
"EXULT ACTUAL COST" shall mean the sum of [***]*
"GUARANTEED MINIMUM SAVINGS" shall mean the reduction to the Category A
costs included in the Baseline calculated in accordance with Section
5.1.1 and Table C-5.1.1.
"GUARANTEED MINIMUM SAVINGS DATE" shall mean [***]*
"HR IT SERVICES" shall mean the costs for information technology
services (as defined in Schedule A)
"INCREASES" means the items listed in Section 3.4.2.
"INITIAL BASELINE" shall mean [***]*
"INITIAL BASE CHARGES" shall mean the monthly charges calculated in
accordance with Section 4.1 for [***]*
"INITIAL RESOURCE VOLUMES" shall mean, with respect to the applicable
Country, the initial estimated amount of resources utilised by BPA (such
as the number of training classes or domestic relocations) and/or the
number of Active Serviced Employees supported by BPA in the 12 month
period prior to the Country Commencement Date.
"KPI CREDIT" means the percentage subtracted from the applicable Exult
gain share portion.
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"% OF KPI POOL" means the percentage used of the maximum Service Credits
per year.
"KPI PER EVENT CREDIT " means the percentage deducted for each missed
Service Level from the % of KPI Pool for a specific KPI.
"PASS THROUGH COSTS" shall mean those costs identified in the Country
Agreement [***],* including the cost of [***],* BPA charge-ins including
those relating to [***]*
"REDUCED RESOURCE CHARGES" or "RRCs" shall mean the incremental credits
payable to BPA for resource usage that is lower than the Resource
Volumes.
"RESOURCE UNITS" shall mean the units of measurement for the amount of
Resource Volumes used within each Process.
"RESOURCE VOLUMES" shall mean, with respect to the applicable Country,
the estimated amount of resources utilised by BPA (such as the number of
training courses, the number of attendees at training courses or
domestic relocations) and/or the number of Active Serviced Employees
required by BPA, annually from the Guaranteed Minimum Savings through
the term of the Country Agreement.
"RETURN ON COSTS" or "ROC" shall mean Exult's portion of gain share from
providing Services in a Country divided by the Exult Actual Cost for
[***]*.
"SERVICED EMPLOYEE" shall mean any BPA employee, former employee, or
contractor that is supported by the Services.
"TERM VESTED ANNUITANTS" means an individual, whom upon ceasing of
employment with BPA was less than age 55 and had five (5) or more years
of benefit accrual service under BPA's pension plan.
"TOTAL LABOUR RELATED COSTS" shall mean the costs incurred by BPA in
relation to HR employees or individual contractors including salaries
and wages, payroll benefits and BPA employee taxes, contractors fees,
pension, travel expenses, training, meetings and entertainment, office
space and utilities, office expenses supplies and dues, desktop and
communication services, relocation and expatriate expenses. Pension
costs are only included to the extent that BPA is at the relevant
Process Take On Date making contributions to the employees' pension
plans.
"TRANSFER/TRANSFORMATION COSTS" shall mean the costs set out in Section
6.
"WINDING UP ASSISTANCE COSTS" shall mean the following costs associated
with the transfer of the Services upon termination of the Country
Agreement to BPA or a third party:
[***]*
3 OVERVIEW
3.1 PRINCIPLES
The main principles underlying the charging mechanism are as
follows:
3.1.1 Subject to Sections 5.1.3 (ARCs/RRCs), 17 (Inflation)
and agreed Changes,
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Exult's charges shall not:
[***]*
3.1.2 Exult's charges shall be based upon BPA's [***]*, as
appropriate, as described in Sections 4.1 and 5 of this
Schedule C.
3.1.3 The Exult Actual Cost in any year following the
Guaranteed Minimum Savings Date [***]*, subject to the
following adjustments:
(i) ARCs/RRCs (see Section 5.1.3)
(ii) Inflation (see Section 17)
(iii) Charges for agreed Changes (see Section 5.1.9
and Schedule L)
(iv) Project Charges (see Section 5.1.9)
3.1.4 The Exult Actual Cost shall not [***]*
3.1.5 [***]*
3.1.6 During the [***]* the parties will work together to
ensure that all in-scope BPA employee costs are
identified so that the Initial Base Charges calculated
in accordance with Sections 4 and 5, [***]*
3.1.7 From the Guaranteed Minimum Savings Date, and subject to
agreed Changes, Force Majeure events, BPA performing its
responsibilities under the applicable Country Agreement
and the specific Process being taken on prior to the
Guaranteed Minimum Savings Date.Exult shall provide
Guaranteed Minimum Savings on the [***]* costs with
respect to those Processes which have been taken on by
the Guaranteed Minimum Savings Date and for subsequent
Processes when taken on.
3.1.8 It is Exult's intention to try to reduce the cost of
Third Party Contracts transferred to Exult [***]*
3.2 CATEGORIES OF COST
The charging mechanisms will be based on cost categories related
to the Services. [***]*
[***]* BPA shall receive Guaranteed Minimum Savings, shown in
Table C-5.1.1, from Exult on the [***]* costs to be determined
as part of Baseline Validation.
3.3 COUNTRY DUE DILIGENCE EXERCISE
The Initial Baseline will be determined during the Country Due
Diligence Exercise prior to signature of the relevant Country
Agreement. [***]* For Countries apart from the U.S. and U.K.,
Country Due Diligence Exercises shall determine whether the
Guaranteed Minimum Savings and Exult's Return can be achieved.
[***]* The impact of any Withholding Taxes
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shall also be included in Exult's Return as set out in Clause
2.10 of the Framework Agreement.
3.4 ESTABLISHING BASELINE COSTS
3.4.1 Client HR Costs
During the [***]*, BPA shall establish its total Client
HR Costs including HR IT Services. For Countries other
than the U.S. and U.K, the Client HR Costs shall be
established by BPA during each Due Diligence Exercise.
The Client HR Costs will be used to determine the actual
[***]* cost savings realised by BPA as the result of the
Process being taken on by Exult. [***]*, BPA will
establish the numbers of HR staff and designate each
staff member with the following categories:
- In-Scope employees.
- Embedded Services HR staff.
- Staff associated with the merger and
harmonisation of BP and Amoco.
- Staff whose status is still to be determined.
- Other staff associated with identified projects
In order to establish the Total Labour Related Costs no
HR personnel can be removed by BPA from the Client HR
Cost without first being designated within one of the
above five categories. Any dispute relating to the
classification of HR personnel shall be determined by an
Expert in accordance with Clause 24.2 of the Framework
Agreement (Dispute Resolution Procedure).
[***]*
For Countries other than the US and UK, the Client HR
Cost shall be established during the Country Due
Diligence Exercise and each member of staff designated
within the above four categories.
3.4.2 Adjustments to Client HR Costs
Once the Client HR Costs are established, BPA shall put
in place financial controls and tracking mechanisms to
allow BPA to track costs and for Exult to verify such
costs on a monthly basis. The Client HR Costs shall be
adjusted to take into account "Increases" or "Decreases"
as set out below:
A Increases
Increases in costs shall include the following
activities:
- An increase in compensation or other
Total Labour Related Costs.
- Temporary staff required to replace
staff included as Client HR
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Costs.
- Replacement (either temporary or
full-time) staff to fill vacant
positions for HR personnel initially
included as Client HR Costs who leave
BPA (or take a non-HR job within BPA)
and who do not transfer to Exult prior
to the applicable Process Take On Date.
- Additional HR resources to handle
expansions and/or changes to BPA's
business requirements and or activities.
- Anticipated adjustments agreed by
parties.
B Decreases
Decreases in costs shall include decreases not
caused by Exult taking on the Services:
- Savings in providing Embedded Services
resulting from non-Exult activities such
as using one HR advisor across more than
one business unit where two or more
advisors were used previously.
- Savings as a result of a reduction in
services provided by Embedded Services
staff such as the elimination of
Organisational Developmental services at
a particular business unit.
- Continuous improvement in the way
Embedded Services are provided such as
the restructuring of functions to
consolidate staff.
- Divestitures.
- Replacement of Embedded Services staff
with less expensive staff.
- Savings related to the harmonisation and
merger of BP and Amoco. Such savings
include, but are not limited to, the
transition to a single US payroll
system.
In the event of a dispute arising out of the
classification of a Decrease in cost as not
having been caused by Exult taking on the
Services, the matter shall be referred to an
Expert pursuant to Clause 24.2 of the Framework
Agreement (Dispute Resolution Procedure). Unless
the parties agree otherwise, all cost Decreases
not classified as Decreases not caused by Exult
taking on the Services shall form part of the
[***]* cost savings realised by BPA as the
result of Exult taking on the Process.
The remaining Client HR Costs [***]* shall be
considered to be the cost of providing Embedded
Services.
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3.4.3 Baseline Validation
Baseline Validation will commence once the final Process
Take On Date has occurred and prior to [***]* to
establish the actual Baseline to be used for the
remaining term of the Country Agreement. Baseline
Validation will establish the Baseline and resultant
Base Charge to be applied following the Guaranteed
Minimum Savings Date.
The Baseline Validation shall cover those items included
in the Due Diligence Exercise as well as other costs or
items the are identified subsequent to the Due Diligence
Exercise. Baseline Validation shall also include
validation of the remaining Client HR Costs including
the merger and harmonisation costs associated with BP
and Amoco. Exult shall have the option to carry out an
audit at its own cost on the Client HR Costs established
during Baseline Validation. Any disagreements about the
findings of this audit may be referred to an Expert
pursuant to Clause 24.2 of the Framework Agreement
(Dispute Resolution Procedure).
3.4.4 [***]* Cost Validation
(i) Principles relating to costs
The principles underlying the Exult Actual Cost
[***]* are:
(a) Exult will use technology to assist it
in providing the Guaranteed Minimum
Savings
(b) Exult intends to automate relevant
transactional processes and allow BPA
employee access through the
implementation of internet-enabled HR
support by using Client Service Centres
(including the integration of HR
transactional processing support),
knowledge and case management, workflow
and data warehousing technology;
(c) Exult's use of technology will continue
to evolve as opportunities to use
technology effectively are identified
during the term of the Country
Agreement;
(d) Exult shall not unreasonably be
prevented from using technological
innovations;
(e) as a result of Section (a) to (e) above,
[***]*
3.4.5 [***]* Charges
[***]*
3.4.6 [***]* Validation
The [***]* costs for BPA (which are based upon the
budget provided by BPA) and Exult's budgeted [***]*
costs shall be validated as part of the Baseline
Validation. To the extent that the merger and
harmonisation of BP and Amoco has not been
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completed by the completion date for the Baseline
Validation an estimate for the anticipated impact of any
remaining merger and harmonisation activity will be
agreed and included in the Baseline Validation and such
estimate will be subject to further validation on the
completion of the merger and harmonisation activity.
Both parties shall make reasonable efforts to validate
these actual and budgeted costs. This shall include,
where possible, the parties comparing individual cost
items on a like-for-like basis. BPA's [***]* costs will
need to be adjusted to match the changes in technology
used by Exult to deliver the Services in order to
achieve this like-for-like comparison.
If the parties disagree with this comparison of [***]*
costs, the matter shall be referred to an Expert
pursuant to Clause 24.2 of the Framework Agreement
(Dispute Resolution Procedure).
3.4.7 Resource Volumes
Prior to the Process Take On Date the Resource Volumes
for the relevant process shall also be established.
3.4.8 [***]* Costs
[***]* Costs shall also be validated as part of the
Baseline Validation. The [***]* Costs shall go through a
review process to establish an agreed cost projection
from the third month following the Country Commencement
Date until the end of month fourteen. [***]* Costs shall
be tracked by Exult and reconciled with BPA [***]*
following the Country Commencement Date.
4 CHARGING METHODOLOGY PRIOR TO THE GUARANTEED MINIMUM SAVINGS DATE
Prior to the Guaranteed Minimum Savings Date and following the first
Process Take On Date, charges from Exult shall be based on the Initial
Base Charges.
4.1 CALCULATION OF THE INITIAL BASE CHARGES
Prior to the signature of each Country Agreement, Exult shall
provide the Baseline Guarantee for each Process. BPA shall pay
to Exult following each Process Take On Date the Initial Base
Charges which shall be an amount equal to [***]*
During Baseline Validation, the parties will reconcile the
amounts invoiced in relation to each Process and the actual
[***]* cost savings realised by BPA relating to that Process
being taken on by Exult. If such actual costs are found to be:
(i) greater than the amounts invoiced by Exult, Exult shall
submit an invoice for the difference (actual [***]* cost
savings less the invoiced amount) .
(ii) less than the amounts invoiced by Exult, but greater
than the Baseline Guarantee, Exult shall issue BPA a
credit on the following month's invoice for the
difference (invoiced amount less the actual [***]* cost
savings).
(iii) less than the amount invoiced by Exult and the Baseline
Guarantee, Exult shall issue BPA a credit on the
following month's invoice for an amount equal to the
difference between the invoice amount and the Baseline
Guarantee.
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TABLE C-4.1
BASELINE GUARANTEE FOR THE US AND UK
IN USD
[***]*
Where the parties agree, the Baseline Guarantee for each Process may be
changed to reflect actual cost so long as the aggregate of all Processes
within the Baseline Guarantee for the U.S. and U.K. is equal to [***]*
If a Process is taken on prior to the completion of the Client HR Costs,
the Initial Base Charges shall be equal to the Baseline Guarantee and
reconciled at the end of the year for applicable costs exceeding the
Baseline Guarantee.
If a Process Take On Date is extended for more than 30 days, the parties
shall establish a panel with equal number of members from each party to
meet over a period of 30 days in order to decide the cause for such
delay. [***]*
Where the parties cannot agree which party caused a particular Process
Take On Date to be delayed, a payment or credit can still be agreed by
the panel although either or both parties may reserve the right to
review the cause for any such delays during Baseline Validation and to
refer any such disputes to the Informal Dispute Resolution Procedure
pursuant to Clause 24.1 of the Framework Agreement, and if the parties
are still unable to resolve such dispute, the matter shall be referred
to an Arbitrator pursuant to Clause 24.3 of the Framework Agreement.
5 CHARGING METHODOLOGY FOLLOWING THE GUARANTEED MINIMUM SAVINGS
From the Guaranteed Minimum Savings Date until the termination or expiry
of the Country Agreement, BPA shall pay to Exult the greater of the
Baseline Guarantee and the Baseline (both of which shall be subject to
Guaranteed Minimum Savings). The Baseline Guarantee and Baseline charges
shall be subject to Contract Minimums in each Country.
[***]*
BPA's actual usage/counts of the Resource Volumes shall be measured and
reported by Exult [***],* Exult shall calculate and apply the ARC/RRC
adjustments, Service Credits and gain sharing adjustments.
5.1 GUARANTEED MINIMUM SAVINGS CALCULATION
5.1.1 The Guaranteed Minimum Savings shall apply to the [***]*
charges in the Baseline in accordance with Table
C-5.1.1. The Guaranteed Minimum Savings for [***]* items
will be calculated [***]* during Baseline Validation.
GUARANTEED MINIMUM SAVINGS
TABLE C-5.1.1
[***]*
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For the Guaranteed Minimum Savings to apply in respect of a
Country, and provided that Exult has not delayed BPA, BPA must
give notice [***]* to Exult that it wishes to receive the
Services in that Country.
[***]*
5.1.2 Adjustments to Base Charge
(i) The Base Charge shall be adjusted during the
last month of each Contract Minimum Year to
determine:
[***]*
(ii) During the last month of each Contract Minimum
Year the Base Charge shall be adjusted prior to
the gain share calculation as follows:
(a) any increase or decrease in the Resource
Volumes and the IT Work Unit Volumes
that has occurred during the Contract
Minimum Year; and
(b) to reflect an increase or decrease in
the cost of providing any new services
or modifying the Services agreed in
accordance with the Change Control
Management process.
(iii) The Base Charge for the following Contract
Minimum Year shall be calculated by adjusting
the Base Charge as follows:
[***]*
5.1.3 ARCs/RRCs
ARCs will be used when the actual Resource Volumes in
the current year exceed the upper threshold for Resource
Volumes for the previous year. ARCs will be calculated
by [***]*
RRCs will be used when the actual Resource Unit in the
current year is less than the lower threshold for
Resource Volumes for the previous year. RRCs will be
calculated by [***]*
The ARC and RRC thresholds shall be established as part
of the Baseline Validation.
ARCs and RRCs will be reconciled and invoiced on an
annual basis. ARCs and RRCs unit rates will be subject
to inflation adjustments in accordance with Section 16.
The ARC unit rates shall be agreed between the parties
no later than the commencement of the Guaranteed Minimum
Savings Date and will be [***]* The RRC unit rates will
be agreed between the parties no later than the
commencement of the Guaranteed Minimum Savings Date and
will be [***]* For example, [***]*
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5.1.4 Resource Units
The Resource Units identified below are intended to
provide the proper measurement of usage for the Services
and allow for a reasonable means to gather data. The
Resource Units may be changed based on agreement between
the parties at any time during the term of the Country
Agreement.
[***]*
5.1.5 Charges Based on the Average Number of Active Serviced
Employees or Term Vested Annuitants and number of Active
Serviced Employees
Charges based on the average number of Active Serviced
Employees include the following functions:
[***]
Charges based on the average number of Active Serviced
Employees and Term Vested Annuitants shall include
Benefits.
The relevant employee database will be used to track
Active Serviced Employees and Term Vested Annuitants as
the master repository for Active Serviced Employee and
Term Vested Annuitants information. When an Active
Serviced Employee or Term Vested Annuitants is added or
removed, the relevant employee database will be updated
with this information. Charges based on the average
number of Active Serviced Employees and Term Vested
Annuitants will be derived from the weighted average
number of Active Serviced Employees supported in BPA.
Weighted average will be calculated by taking the number
of Active Serviced Employees and Term Vested Annuitants
(where applicable) for both the first and last day of
the month and dividing by two (2).
In addition to the Resource Volumes for Active Serviced
Employee, HR Information Services will have limitations
on the number of reports (as these requests will come
through HR Information Services in support of multiple
Processes). This will be dependent upon the level of
staffing. Reports shall be included in the IT Work Units
structure (as defined in Section 5.2.4 below) determined
during Baseline Validation.
In order to ensure that Exult can implement desired
Process improvements and gain sharing while still
providing flexibility in meeting BPA's needs, Payroll
will be subject to two additional measurements beyond
the Active Serviced Employee measurement. Manual cheques
will be subject to a surcharge of [***]* per cheque and
off-cycle Payroll runs shall be subject to an agreed
surcharge.
5.1.6 Service Charge Adjustments Based on the Average Number
of Active Serviced Employees and Term Vested Annuitants
If the weighted average actual number of Active Serviced
Employees or Term Vested Annuitants varies above the
Resource Volumes by [***]* then an adjustment to the
Base Charge shall be calculated. ARCs and RRCs shall be
based on the entire variance from the Resource Baseline
Volumes. Should the actual Active Serviced Employees and
Term Vested Annuitants (where
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applicable) vary from the Resource Volume by [***],* the
parties will agree upon an equitable adjustment to the
Base Charge.
5.1.7 Charges Based on Direct Usage
Charges based on the direct usage of each Process
include the following functions:
[***]*
5.1.8 Adjustments to the Charges Based on Direct Usage
Should the direct usage count vary from the Resource
Volumes by [***]*, then an adjustment to the Base Charge
shall be calculated. ARCs and RRCs adjustments shall be
based on the entire variance from the Resource Volumes.
If the parties agree [***]* is not the appropriate
threshold to trigger an ARC or RRC adjustment, the
threshold may change subject to agreement by both
parties. Should the actual usage vary from the Resource
Volume by [***]*, the parties will agree upon an
equitable adjustment to the Base Charge. For those
Processes based on number of standard reports, these
Processes will be grouped together for ARC and RRC
adjustments as they will not be identified by Process
when a request for a report is placed by BPA.
5.1.9 Project Charges
For each Project identified in Schedule H, the charges
for such Project will be agreed by the parties and set
out in the applicable Project Statement. Unless
otherwise agreed, Project Charges shall be based on
[***]* For services added that are not part of this
Country Agreement and that continue for the duration of
the Country Agreement, these services shall be handled
through Change Control Management.
5.1.10 Out-Of-Pocket Expenses
BPA will reimburse Exult for out-of-pocket expenses as
part of requests outside of Services. These
out-of-pocket are:
(i) Project related travel expenses approved by BPA.
(ii) Any other expenses approved by BPA.
5.2 [***]*
In addition to the charges shown in Section 5.2, other [***]*
items which Exult and BPA determine may be classified as [***]*
during the term of the Country Agreement through the Change
Control Management procedure.
5.2.1 [***]*
5.2.2 [***]*
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5.2.3 [***]*
5.2.4 Information Technology Work Units (IT Work Units)
Exult shall, in accordance with the IT Work Unit
methodology perform modifications, enhancements,
changes, and installations to comply with regulatory or
trade union requirements and changes as disclosed to
Exult by BPA. Exult shall support regulatory reviews,
audits, compliance assessments, and related data
gathering in a responsive time frame as required by
regulators. BPA acceptance testing and final approval
shall be required prior to implementation of such
regulatory compliance.
Exult shall, in accordance with the IT Work Unit
methodology, perform installation of upgrades and new
releases issued by the vendors of third party
applications software. Unless BPA directs otherwise,
Exult shall install and upgrade such software so as to
remain within one generation of the then-current
maintenance release. Exult shall notify BPA in writing
within a reasonable time prior to undertaking any such
upgrade or installation. Exceptions to this approach
shall be mutually agreed and shall be based on an
assessment of risk and value associated with
implementing the new release. Exult shall not upgrade
third party applications software if Exult notifies BPA
that such an upgrade shall have no value or an adverse
impact on BPA and, after receiving such notification,
BPA decides not to proceed with such upgrade.
Exult shall, in accordance with the IT Work Unit
methodology, perform small enhancements to the computer
applications. Exult shall perform small enhancement as
requested and priortized by BPA. Exult shall perform
small enhancements to the computer applications
portfolio.
5.2.5 IT Work Unit Volumes
Exult and BPA shall consider [***]* as the period to
develop the IT Work Unit algorithm and underlying
assumptions. During this period the natural rate/size
unit and the size requested metrics shall be collected.
The parties intend that the basis shall reflect the
quantity of regulatory changes, trade union contract
changes, upgrades and small enhancement work required to
be performed by Exult [***]* To the extent that any
review of the IT Work Unit calculation algorithm
generally determines that this intention is not being
effectuated, the algorithm (or other aspects of the
approach, as applicable) shall be adjusted as necessary.
The reviews in subsequent years shall use each preceding
year as the baseline.
The format for representing the volume of IT Work Units
is represented in the following table. This catalogue is
subject to mutually agreed upon adjustments resulting
from the IT Work Unit review process described above.
CATALOGUE OF BPA WORK TYPES
---------------------------------------------------------------------------------
NATURAL NUMBER WORK UNIT / ANNUAL WORK
WORK TYPE SIZE UNIT REQUESTED SIZE UNIT UNITS
---------------------------------------------------------------------------------
Regulatory
---------------------------------------------------------------------------------
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---------------------------------------------------------------------------------
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.
5.3 [***]*
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[***]* Costs will be subject to an annual review between BPA and
Exult. The specific contracts will be identified and projections
for the subsequent 12 months will be made for each contract.
Both parties shall agree to the projected costs. [***]*
6 TRANSITION/TRANSFORMATION COSTS
Costs relating to the transfer of the Services from BPA to Exult
incurred by Exult after the relevant Country Commencement Date and prior
to the relevant Process Take On Date [***]*
7 CLIENT SERVICE CENTRE COSTS (CSC)
Client Service Centre costs are included in the [***]* charges as set
out below.
On an annual basis following the Guaranteed Minimum Savings Date through
the term of the applicable Country Agreement, the charges will be based
on [***]*
The Client Service Centre costs will include all staffing expenses,
facility related expenses, management expenses related directly to the
Client Service Centre, hardware and software expenses, lease expenses,
finance charges, amortisation and depreciation, supplies and third party
services related to the Service Centres. IT related costs that support
multiple customers shall be included as well in the aforementioned
categories. Client Service Centre costs will be allocated to the
appropriate [***]* Processes.
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TABLE C-7.1
CLIENT SERVICE CENTRE COSTS MAXIMUM ALLOCATION
IN USD
[***]*
8 AGGREGATION OF TRANSITION/TRANSFORMATION AND CLIENT SERVICE CENTRE COSTS
By agreement at the time not to be unreasonably withheld, with respect
to the maximum allowed costs for Transition/Transformation in Section 6
and Client Service Centres in Section 7, Exult shall be allowed to
[***]*
9 CORPORATE OVERHEAD/CENTRE OF EXCELLENCE/DUE DILIGENCE TREATMENT
Corporate Overhead costs will be recovered from available gain share
before gain share is distributed. Following the Guaranteed Minimum
Savings Date, Corporate Overhead for the U.S. and U.K. will be allocated
at the lesser of:
- [***]*
For the U.S. and U.K. Due Diligence, [***]*
Exult Centre of Excellence (COE) costs [***]* recovered from available
gain share before gain share is distributed. Following the Guaranteed
Minimum Savings Date, indirect COE for the U.S. and U.K. will be
allocated at the lesser of:
[***]*
The Corporate Overhead/COE/Due Diligence costs allocation methodologies
on actuals may be changed subject to agreement between the parties.
10 IT INVESTMENTS
IT Investments shall fall into two types. The first type shall consist
of those IT investments authorised by BPA. [***]* The second type shall
consist of those IT investments that are intended to be for the benefit
of multiple Exult clients. [***]*
If the second type of investment will result in the Exult Actual Cost
for [***]* exceeding the [***]* cost in the Baseline, Exult shall obtain
approval from BPA, such approval not to be unreasonably withheld, prior
to making such investment.
[***]*
11 GAIN SHARING
BPA and Exult shall participate in a gain sharing exercise for [***]*
Gain sharing can only apply to [***]* once Guaranteed Minimum Savings
have been realised. The Base Charge and Exult's actual costs for [***]*
shall be used in quantifying the total amount of gain sharing to be
allocated between BPA and Exult. Each charge Category will be handled
differently under this gain sharing
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arrangement. [***]*
11.1 GAIN SHARING METHOD BY CATEGORIES
To determine the applicable gain share, Exult's Actual Costs for
[***]* items will be subtracted from the applicable Base Charge
[***]* 12 months. Exult's, costs for Corporate Overhead,
Charge-Ins from BPA, COE and Amortisation of Due Diligence will
be subtracted from the amount available for gain share. The
remaining amount will be subject to gain share distribution.
Gain sharing [***]* will start from [***]* and at the end of
every 12-month period thereafter to determine the applicable
gain share.
[***]* Following the Guaranteed Minimum Savings Date, [***]*
share will be subject to gain share distribution.
The method for gain sharing calculation shall be as follows:
(i) If the Exult Actual Cost for [***]* is less than the
Base Charge for [***],* then those savings (Base Charge
minus Exult Actual Costs [***])* will be subject to
adjustments and subsequently the Gain Sharing
Distribution Matrix shown below in Tables C-11.2.1 and
C-11.2.2. The levels of distribution that determine the
proportion of gain share are shown as part of the
Distribution Matrices.
(ii) If the actual [***]* costs are less than the budgeted
[***]* costs (Budgeted [***]* cost - Actual [***]* cost)
then those savings shall be subject to the Gain Sharing
Distribution Matrix shown below in Tables C-11.2.1 and
C-11.2.2
11.2 GAIN SHARING DISTRIBUTION MATRIX
The Gain Sharing Distribution Matrix will be used to determine
the proportion of savings to be split between BPA and Exult
resulting from the calculation of the amount available for gain
sharing. [***]* The gain share will begin with the first level
of distribution and proceed to the next level until the amount
available for gain share has been fully distributed.
GAIN SHARING DISTRIBUTION MATRIX-NO SERVICE CREDITS TO BPA
[***]*
11.3 GAIN SHARING EXAMPLE
Table C-11.3 below is an example of the gain sharing calculation
amount and distribution.
[***]*
11.4 SERVICE CREDITS CALCULATION
KPIs are Service Levels that, when missed, are subject to
Service Credits. Service Credits for KPIs will be weighted in
accordance with Schedule B of this Agreement and will adjust the
gain sharing distribution between BPA and Exult. The Service
Credits shall be calculated on a Client Service Centre basis as
part of gain sharing and credited to the respective Countries
(as advised by BPA) on an annual basis.
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The formula for calculating the Service Credits for Exult's
failure to achieve any one of the seven KPIs is set out below.
The total amount determined from the service credit calculations
for all KPIs shall be subtracted from Exult's gain share portion
prior to Service Credits. The net result shall equal Exult's
gain share portion after Service Credits. [***]*
The calculation of Service Credits will be by KPI Process. Any
unutilised credits in the KPI Pool at the end of any year
following the Guaranteed Minimum Savings Date cannot be carried
forward to the succeeding year. [***]*
SERVICE CREDITS CALCULATION METHOD EXAMPLE
TABLE C-11.4
[***]*
12 CLASSIFICATION OF EXPENSE ITEMS SUBJECT TO MARGIN VERSUS PASS-THROUGH
12.1 EXULT ACTUAL COST
The following costs shall be subject to margin as part of gain
sharing:
[***]*
12.2 OTHER COSTS
The following costs shall not be included in the Exult Actual
Cost:
[***]*
13 THIRD PARTY REVENUE
Where the parties agree that third parties are permitted to market
services to BPA employees using Exult's Web-enabled HR services portal,
the [***]*
14 INVOICING
14.1 Invoices for Base Charge and the Initial Base Charges as
applicable will be submitted monthly in advance on the first day
of each month. All other charges including [***]* will be
invoiced in arrears on the first day of the subsequent month.
Invoices will provide details of each Base Charge and such
supporting information as BPA may reasonably require and will be
in the Country's local currency. For those Processes delivered
in a Client Service Centre not sited in the Country being
invoiced, Exult will convert the cost of those items not
invoiced in the local currency using a fixed exchange rate
established on each anniversary of the Country Commencement
Date. At the end of each year of the Agreement, the invoice
amounts will be recalculated using the actual month end exchange
rates for the period and a credit or invoice, as appropriate,
will be issued to BPA. In addition, at the end of the year, all
adjustments including ARCs and RRCs, gain sharing and Service
Credits will be made and invoiced or credited in the subsequent
month. BPA shall inform Exult how gain sharing and Service
Credits are to be distributed between Countries.
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14.2 The ARC and RRC adjustments, inflation adjustments, and BPA's
portion of gain share from the previous year will be used going
forward to calculate Base Charge for the following year subject
to end of year reconciliation in accordance with Section 5.1.2
14.3 Payments are due within [***]* of receipt of any invoice by BPA.
Interest for late payments will be charged at the rate of
[***].*
14.4 If as a result of any audit carried out in accordance with the
terms of a Country Agreement it is discovered that BPA has been
overcharged, Exult shall pay an amount equal to:
[***]*
15 TRANSFER OF ASSETS
As agreed between BPA and Exult, BPA's existing assets and management of
these assets may transfer to Exult as part of the Services that Exult
will provide to BPA. [***]*
16 CONTRACT MINIMUMS
16.1 Contract Minimums for each Contract Minimum Year shall be
established in accordance with Clause 17 of the Framework
Agreement.
16.2 The Contract Minimum for the initial Contract Minimum Year shall
be a sum equivalent to [***]*.
16.3 Within [***]* BPA may give Exult [***]* written notice of a
proposed reduction in the Contract Minimum to take account of
specified reductions in BPA's requirements for Services. These
reductions shall reflect material changes in BPA's business
operations or structure including those caused by Significant
Changes.
16.4 This Section 16 applies to situations which result in an actual
reduction in BPA's requirement for Services and, for the
avoidance of doubt, BPA may not assume responsibility internally
for services equivalent to the Services or appoint a third party
to provide services equivalent to the Services pursuant to the
terms of this Section 16.
16.5 [***]* prior to the end of each Contract Minimum Year, the
Regional Governance Panel shall meet to assess the impact,
including the impact on the Charges for the then current
Contract Minimum Year, of the reductions in BPA's requirements
for Services arising from the events identified in a notice
served in accordance with Section 16.3 above. As appropriate,
and subject always to Section 16.6 below, the Regional
Governance Panel shall agree a decrease in the Contract Minimum
for the succeeding Contract Minimum Year which is proportionate
with the actual reduction in Charges arising from the events.
16.6 [***]*
TABLE C-16.1
CONTRACT MINIMUMS EXAMPLE
[***]*
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17 INFLATION
All Base Charges shall be adjusted annually in arrears by a recognised
index in each Country for [***]*
For the USA, inflation will be measured by the Bureau of Labor and
Statistics (not seasonally adjusted) employment Cost Index (ECJ) for
total compensation, private industry workers, service producing
industries increases from the previous year.
The adjustment for inflation for [***]* charges and associated ARCs and
RRCs unit rates shall be subject to the percentage of Total Labour
Related Costs going to Exult as shown in Table C-5.1.1.
[***]*
Exult's Actual Cost for [***]* for allowing increases with respect to
cost increases greater than inflation, shall be set and measured at 90
days following the final Process Take On Date.
18 EARLY TERMINATION PAYMENT
18.1 Termination for convenience shall be calculated as:
- [***]*; and
- Winding Up Assistance Costs; and
- Remaining amortisation of Exult's Due Diligence Costs;
and
- the remaining book value for the Assets as follows:
[***]*; and
- Redeployment costs of staff and equipment (to remove
from BPA's sites) that have not been transferred to BPA;
and
- Remaining obligations for Third Party Contracts
including but not limited to outstanding loans and
financing costs related to such contracts as follows:
[***]*
18.2 Termination for Change of Control shall be calculated as:
- Winding Up Assistance Costs; and
- Remaining amortisation of Exult's Due Diligence Costs;
and
- The remaining book value for the Assets as follows:
[***]*; and
- Redeployment costs of staff and equipment (to remove
from BPA's sites) that have not been transferred to BPA;
and
- Remaining obligations for Third Party Contracts
including but not limited to outstanding loans and
financing costs related to such contracts as follows:
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<PAGE> 107
[***]*
18.3 Termination for Cause by BPA shall be calculated as follows:
- Winding Up Assistance Costs; and
- [***]*
18.4 Termination for a Key Country (U.S. or U.K.) - the payments for
the remaining Countries shall be calculated as follows:
- Winding Up Assistance Costs; and
- Remaining amortisation of Exult's Due Diligence Costs;
and
- The remaining book value for the Assets as follows:
[***]*; and
- Redeployment costs of staff and equipment (to remove
from BPA's sites) that have not been transferred to BPA;
and
- Remaining obligations for Third Party Contracts
including but not limited to outstanding loans and
financing costs related to such contracts as follows:
[***]*
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE D
THIRD PARTY CONTRACTS
<PAGE> 109
SCHEDULE D
THIRD PARTY CONTRACTS
This schedule sets forth the Third Party Contracts and designates whether such
contract is intended to be "Administered", "Transferred" or "Retained" by BPA.
This schedule shall be completed following the Commencement Date.
[***]*
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE E
ASSETS
<PAGE> 111
SCHEDULE E
ASSETS
This schedule sets forth the Client Assets which may be used by Exult to provide
the Services. This schedule shall be completed following the Country
Commencement Date.
[***]*
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE F
SYSTEMS
<PAGE> 113
SCHEDULE F
SYSTEMS
This schedule sets forth the Third Party Systems which may be used by Exult to
provide the Services. This schedule shall be completed following the Country
Commencement Date.
[***]*
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE G
TRANSITION PLAN
<PAGE> 115
TABLE OF CONTENTS
1 INTRODUCTION......................................................................... 1
2 VALIDATION EXERCISE.................................................................. 1
3 DETAILED WORK PLAN................................................................... 1
4 TRANSITION APPROACH.................................................................. 1
5 PROCESS CHANGE MANAGEMENT AND COMMUNICATIONS......................................... 2
6 TRANSITION PLAN SET UP PHASE......................................................... 2
7 IN SITU PROCESS TAKE ON.............................................................. 2
8 LEVERAGED PROCESS TAKE ON............................................................ 3
9 US COUNTRY TRANSITION SCHEDULE....................................................... 5
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SCHEDULE G
TRANSITION PLAN
1 INTRODUCTION
This Schedule sets forth the Country Transition plan for conducting the
Validation Exercise, the plan for the transition of the Services from
the Client to the Exult Supplier and the approach to transition that
shall be followed.
2 VALIDATION EXERCISE
The Validation Exercise for each Process shall be conducted following
the Commencement Date and conclude prior to the Process Take On Date.
The Validation Exercise shall consist of validation of the Baseline,
volumetrics, resource requirements, cost, Services, Third Party
Contracts and Service Levels. This data shall be verified and adjusted,
as agreed by both parties, for each Process prior to the relevant
Process Take On Date in accordance with the Country Transition Schedule.
In the event that the Country Representatives fail to reach agreement,
such failure shall be resolved in the informal dispute resolution
process as detailed in Clause 29.1 of the Country Agreement.
3 DETAILED WORK PLAN
The final form of the Transition Schedule and the Detailed Work Plan
will be developed and agreed between the parties, [***]*
In the event that the Country Representatives fail to reach agreement,
such failure shall be resolved in the informal dispute resolution
process as detailed in Clause 29.1 of the Country Agreement.
4 TRANSITION APPROACH
4.1 Two Path Transition Approach
The purpose of transition is to move the Services to a Leveraged
Operations delivery model as efficiently as possible, with the
minimum of disruption to BPA operations. The Client and Exult
Supplier have agreed to two distinct paths through the transition
Process. The goals of the two path approach are to allow the
Client and Exult Supplier the opportunity to manage the risk of
transition and, [***]*
4.2 Transition Path One
For those Processes (or discrete parts of Processes) that follow
path one through the transition process, Exult Supplier shall
first assume responsibility for these Processes in-situ, referred
to as "In-Situ Process Take On". Once Exult Supplier is
successfully providing these Processes in-situ, Exult Supplier
shall transform these Processes to Leveraged Operations.
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4.3 Transition Path Two
Processes in this category shall be transformed directly to
Leveraged Operations and, therefore, Exult Supplier shall not
assume operation responsibility for such Processes in-situ prior
to Transformation.
4.4 Path Selection
Exult Supplier and the Client shall agree to either path one or
path two for each Process based on an assessment of risk, the
degree of centralisation of the staff currently performing the
Processes, and the cyclical nature of the Processes. The
provisional allocation is set out in the Transition Schedule in
Section 9 of this Schedule.
5 PROCESS CHANGE MANAGEMENT AND COMMUNICATIONS
5.1 Process Change Management and Communications Approach
The establishment and maintenance of the process-change management
& communications infrastructure shall be managed through Exult
Supplier's project management office in concert with Client
Regional Project Leaders. The primary outcomes of these activities
shall be to:
[***]*
5.2 Process-Change Management and Communications Activities
For each Process that Exult Supplier shall take responsibility for
in-situ:
[***]*
6 TRANSITION PLAN SET UP PHASE
The set-up phase of the Transition Plan deals with the project
infrastructure necessary to support the successful completion of the
transition. This is the phase of the transition during which the Client
and Exult Supplier agree to the overall approach and schedule, the plan
to complete the work, and the staffing levels and commitments from both
organizations and the Detailed Work Plan. In addition, the Client and
Exult Supplier shall agree the process-change management program and
communications plan for the transition process. When the change
management actions are agreed, these are added to the details of the
Transition Schedule and Detailed Work Plan. Finally, the project
reporting and governance is agreed and put in place.
7 IN SITU PROCESS TAKE ON
The following steps shall be conducted prior to the Process Take On Date
for each Process.
7.1 Current Situation Assessment Phase
Exult Supplier shall collect data through a series of workshops,
structured interviews and field work, as well as reference to all
data collected during the contract due diligence
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phase. The scope of the data collection shall answer the following
questions:
- [***]*
Exult Supplier shall document the Processes to the level necessary
to clearly identify how Exult Supplier shall provide the Processes
in-situ.
7.2 Operational Plan
[***]*
7.3 Readiness Test
The Client and Exult Supplier shall agree to a specific set and
schedule of Readiness Tests to be satisfied prior to Exult
Supplier assuming responsibility for a Process. These tests shall
be specific to each Process and shall be designed to assure the
Client and Exult Supplier of the readiness of both parties to
transition the Process to Exult Supplier. Each Readiness Test plan
shall document the objective and measurable criteria to be tested,
the expected outcomes, the governance of the test, and the
results. Typical items that would appear in a Readiness Test
include:
[***]*
In the event that either party believes that there has been a
failure to complete a Readiness Test in all material respects, it
shall provide the other party with a written notice specifying the
grounds on which it believes the Readiness Test has been failed,
within [***]* of the completion of the Readiness Test. As soon as
reasonably practicable following the receipt of such notice, the
parties shall meet to discuss, and if possible, agree whether and
in what respects the Readiness Test has failed, and to agree a
plan to conduct a further Readiness Test.
7.4 Transfer of Responsibility
Exult Supplier shall assume responsibility for the Process on
successful completion of the Readiness Test. Once the Process has
transitioned to Exult Supplier, Exult Supplier shall measure its
performance to the Service Levels in accordance with Schedule B.
8 LEVERAGED PROCESS TAKE ON
8.1 Global Process Rationalisation Phase
This is the phase of the project where the Client and Exult
Supplier finalise the list of Processes that shall have a global
or cross-region approach and which Processes shall be specific to
the Country. Exult Supplier and the Client shall agree to grouping
of Processes, where appropriate, and Exult Supplier shall conduct
the overall design session for Process groups. The parties shall
agree to the timeline and sequencing of the
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Processes for transformation. The Client and Exult Supplier shall
finalise the plan to transform to Leveraged Operations and agree
to the staff resource levels in the plan.
8.2 Design
Design shall be conducted cross-region and by Process group where
applicable. Exult Supplier shall conduct Process design workshops
with the Client and shall design and agree to changes to the
Processes.
Exult Supplier shall document the new Process flows, the Service
Delivery Model to be used to support the new Process, and the
workforce requirements to support the new Process for both the
Client and Exult Supplier, and the parties shall agree to new
service levels based on the new Process.
8.3 Service Delivery Build
Exult Supplier shall develop and execute a plan to build the
delivery model for the newly designed Processes. The plan shall
identify:
[***]*
8.4 Readiness Test
The Client and Exult Supplier shall agree to a specific set and
schedule of Readiness Tests to be satisfied prior to the Client
migrating to a transformed Process. These tests shall be specific
to the Process and shall be designed to assure the Client and
Exult Supplier of the readiness of both parties. The test plan
shall document the objective and measurable criteria to be tested,
the expected outcomes, the governance of the test, and the
results. Typical items that would appear in a Readiness Test
include:
[***]*
At the request of the Client, Readiness Tests can be grouped with
the requirement that all grouped Processes pass the Readiness
Tests before Exult Supplier assumes responsibility for any one of
such Processes.
In the event that either party believes that there has been a
failure to complete a Readiness Test in all material respects, it
shall provide the other party with a written notice specifying the
grounds on which it believes the Readiness Test has been failed,
[***]* of the completion of the Readiness Test. As soon as
reasonably practicable following the receipt of such notice, the
parties shall meet to discuss, and if possible, agree whether and
in what respects the Readiness Test has failed, and to agree a
plan to conduct a further Readiness Test.
8.5 Transfer of Responsibility
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When the Readiness Test for a Process or Process group has been
completed, Exult Supplier shall commence delivering services using
the new Process or group of Processes. If applicable, the service
level measurement period shall commence for that Process or group
of Processes as defined in the Country Agreement, Schedule B,
Service Levels. On completion of the measurement period, Exult
Supplier shall document the Service Levels and measure its
performance to such Service Levels.
8.6 Post Implementation Review
Conduct post implementation review and document lessons learned
for incorporation in subsequent planning efforts. Implement any
required remediation.
9 US COUNTRY TRANSITION SCHEDULE
See attached Gant Chart
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<PAGE> 121
UNITED STATES COUNTRY AGREEMENT
SCHEDULE H
PROJECTS
<PAGE> 122
TABLE OF CONTENTS
1 PROJECTS INCLUDED AS AT COUNTRY COMMENCEMENT DATE.................................... 1
2 COUNTRY AGREEMENT PROCESS FOR AGREEING NEW PROJECTS AND CHANGES TO AGREED PROJECTS... 1
3 PRO FORMA ISSUES LIST RE PROPOSED PROJECTS........................................... 1
<PAGE> 123
SCHEDULE H
PROJECTS
1 PROJECTS INCLUDED AS AT COUNTRY COMMENCEMENT DATE
As of the Commencement Date, Exult Supplier and the Client have
identified the following projects as being in-scope:
1.1 Peoplesoft and Payroll Integration Project - This project is in
progress. The primary objective is to assist in successfully
completing this project. Within [***]* of the Commencement Date of
the Framework Agreement, Exult Supplier and the Client shall agree
on an appropriate Project Statement; and
1.2 ARCO Integration Project - The ARCO Integration Project primary
objective will be to perform the activities and make the changes
necessary to integrate the ARCO employees and management into the
Services. Subject to regulatory approval of the acquisition of
ARCO by the Client, and [***]* of the Commencement Date or as
otherwise agreed, Exult Supplier and the Client shall agree to a
Project Statement for this project.
2 COUNTRY AGREEMENT PROCESS FOR AGREEING NEW PROJECTS AND CHANGES TO
AGREED PROJECTS
Client may at any time during the term of this Agreement propose to
Exult Supplier that it undertakes a new Project pursuant to the Change
Control Management process. Any such requests will be made and evaluated
in accordance with the Change Control Management process in Schedule L.
3 PRO FORMA ISSUES LIST RE PROPOSED PROJECTS
3.1 The terms applicable to a Project shall be set out in a Project
statement to be signed by both parties. Once signed a Project
statement will, unless agreed otherwise in writing by the parties,
form part of this Agreement.
3.2 Content of Project statement
o Scope of work
o Service Level Impact
o Impact Analysis including priority
o Deliverables [as applicable]
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and Exchange Commission.
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o Acceptance criteria, timeframe & process [ as applicable]
o Project Timetable (including start and end dates, activity
duration and critical dependencies
o Responsibilities
o Staffing (implementation and ongoing)
o Assumptions
o Charges and Payment Terms
o Project Manager Contacts
o Other Terms and Conditions [to detail variations and/or
additions to the Country Agreement Clauses and/or Schedules
applicable in relation to the Project].
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* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE I
EMPLOYEES
<PAGE> 126
TABLE OF CONTENTS
1 INTRODUCTION......................................................................... 1
2 KEY EMPLOYEES........................................................................ 1
3 EMPLOYEES TO BE TRANSFERRED FROM THE CLIENT TO EXULT SUPPLIER........................ 2
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SCHEDULE I
EMPLOYEES
1 INTRODUCTION
This schedule sets forth the Key Employees and the employees to be
transferred from the Client to Exult Supplier in accordance with
Schedule J.
2 KEY EMPLOYEES
As of the Commencement Date each of the parties shall identify the
individuals for each of the following positions.
Key Employees for the Client:
o BPA Global Project Leader
o BPA Regional Project Leader for the UK/Europe
o BPA Regional Project Leader for North America
o Chemical Stream Lead
o Down Stream Lead
o Up Stream Lead
o Gas Stream Lead (To be added at a later date)
Key Employees for Exult Supplier:
o Exult Global Project Leader
o Exult Regional Project Leader for the UK/Europe
o Exult Regional Project Leader for North America
o UK/Europe Transition Lead
o North America Transition Lead
o IT Lead
For each of the Client and Exult Supplier the responsibilities for the
Key Employees shall include the following:
o Regional and Global Project Leaders: [***]*
o Stream Leads: [***]*
o Transition/Service Delivery Leads: [***]*; and
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redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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o IT Lead: [***]*
Individuals identified as Key Employees will be confirmed in their
positions within 30 days of the Commencement Date of the Framework
Agreement. Each will serve in their positions for a minimum of [***]*
and up to [***]* unless otherwise agreed between the parties.
At anytime after [***]* one of the parties may request to reassign a Key
Employee. Reassignment may take place with [***]* and agreement between
the parties. The parties will make a reasonable effort to accommodate
and achieve the reassignment and the timing of the reassignment as
requested.
[***]*
3 EMPLOYEES TO BE TRANSFERRED FROM THE CLIENT TO EXULT SUPPLIER
The table below lists the Client employees that shall be transferred
from the Client to Exult Supplier in accordance with Schedule J. This
table shall be completed following the Country Commencement Date.
<CAPTION>
NAME OF EMPLOYEE BPA STAFF NUMBER FULL/PART TIME
----------------------------- ------------------------ ----------------------------
----------------------------- ------------------------ ----------------------------
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redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE J
EMPLOYEE TRANSFER ARRANGEMENTS
<PAGE> 130
TABLE OF CONTENTS
1 DEFINITIONS; RULES OF APPLICATION.................................................... 1
2 COLLECTIVE BARGAINING EMPLOYEES...................................................... 2
3 ASSIGNMENT OF EMPLOYEES.............................................................. 2
4 INDEMNITIES.......................................................................... 5
5 OFFER OF EMPLOYMENT.................................................................. 6
6 EMPLOYEE INFORMATION ON TERMINATION OR EXPIRATION.................................... 7
7 EMPLOYMENT PROVISIONS ON TERMINATION................................................. 7
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SCHEDULE J
EMPLOYEE TRANSFER ARRANGEMENTS
1 DEFINITIONS; RULES OF APPLICATION
In this Schedule:
"ADDITIONAL ASSIGNED EMPLOYEES" means an employee of the Client or a BPA
Affiliate assigned to Exult Supplier pursuant to Section 3.10.
"AFFECTED EMPLOYEE" means any employee of the Client or an Appropriate
Affiliate employed wholly or mainly in providing one or more of the
Services immediately before the Commencement Date or who is employed
after the Commencement Date pursuant to Section 3.1.2 and would have
been an Affected Employee if such person had been employed immediately
before the Commencement Date.
"APPROPRIATE AFFILIATE" means, in relation to an Affected Employee, the
BPA Affiliate which employs that employee immediately prior to the
relevant In Situ Process Take On or Leveraged Process Take On, as
appropriate, each as defined in Section 4.2 of Schedule G.
"ASSIGNED EMPLOYEE" means an Affected Employee in the US who has been
placed on assignment by the Client or the Appropriate Affiliate to
perform Services under the direction and control of the Exult Supplier
at the time of an In Situ Process Take On.
"ASSIGNMENT" means the period of time during which an Assigned Employee
is assigned to perform Services under the general supervision and
control of Exult Supplier pursuant to Section 3.
"ASSIGNMENT DATE" means the date an Affected Employee becomes an
Assigned Employee in connection with the relevant In Situ Process Take
On under Section [4.2] of Schedule G.
"CURRENT EXULT EMPLOYEE" means an employee of Exult Supplier who is
[***]*
"EMPLOYEE OFFERED EMPLOYMENT" means an Affected Employee who is offered
employment with an Exult Supplier on or after the Commencement Date.
"EXULT EMPLOYMENT DATE" means the date of hire of a New Exult Employee.
"NEW EXULT EMPLOYEE" means an Affected Employee who accepts employment
with an Exult Supplier pursuant to Section 5.1 of this Schedule on or
after the date of the Commencement Date.
"REPRESENTED EMPLOYEE" means an Affected Employee who is represented by
a labor organization under the terms of a written collective bargaining
agreement with the Client or Appropriate Affiliate.
"STAFF COSTS" means any and all compensation, benefit costs, damages,
interest, legal costs, penalties, fines or other liabilities whatsoever,
arising from any claim by one or more Affected Employees, the Internal
Revenue Service and state and local taxing agencies with respect to or
resulting from any employment contract, employment relationship or
collective bargaining agreement or termination of such relationship with
an Affected Employee.
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redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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"TERMINATION DATE" means 23.59 local time on the date when this
Agreement expires or terminates.
In this Schedule, any reference to an obligation or duty of an
Appropriate Affiliate shall be treated as an obligation by the Client to
undertake such obligation itself or cause the Appropriate Affiliate to
do so.
2 COLLECTIVE BARGAINING EMPLOYEES
Except for employees who may be represented by the Central States
Petroleum Union, no Affected Employee is a Represented Employee. The
Client or the Appropriate Affiliate shall have any and all duties and
obligations, imposed by terms of the collective bargaining agreement or
by law, to negotiate with the labor organization that represents the
Represented Employees with respect to the effects of the transactions
contemplated by this Agreement on the Represented Employees. The Client
or the Appropriate Affiliate shall indemnify and hold the Exult Supplier
harmless from all liability, cost and expense with respect to the
foregoing duties and obligations to Represented Employees and any
additional Staff Costs resulting from such negotiations.
3 ASSIGNMENT OF EMPLOYEES
3.1 RESPONSIBILITY OF THE CLIENT AND APPROPRIATE AFFILIATE.
3.1.1 As of the relevant In Situ Process Take On Date as set forth
in Section 4.2 of Schedule G, the Client and/or Appropriate
Affiliate will in accordance with an Affected Employee's
individual transition plan agreed to by Exult Supplier and
the Client or Appropriate Affiliate place on Assignment to
the appropriate Exult Supplier those Affected Employees with
respect to the Services to be managed by Exult Supplier In
Situ immediately prior to the In Situ Take On Date.
3.1.2 The Client shall not and shall procure that no Appropriate
Affiliate shall employ or engage further employees wholly or
mainly in providing one or more of the services similar to
the Services after the Process Take On Date for such
Services without consultation with Exult Supplier.
3.2 DURATION
An Assigned Employee's assignment to Exult Supplier will commence
on the relevant In Situ Process Take On Date and continue until
the earlier of (a) the period of the Assigned Employee's
Assignment ends in accordance with such Assigned Employee's
individual transition plan, (b) the Assigned Employee's assignment
is terminated in accordance with Section 3.6, (c) the Assigned
Employee becomes a New Exult Employee or (d) such other date
agreed between Exult Supplier and the Client .
3.3 TERMS AND CONDITIONS OF ASSIGNMENT
3.3.1 During the Assignment, the Assigned Employees will remain
employed by the Client or the Appropriate Affiliate and will
be assigned to Exult Supplier on the same terms and
conditions of employment as were in effect immediately prior
to the Assignment Date, as modified from time to time by the
Client or Appropriate Affiliate, provided that notice of
such modifications shall be provided to Exult Supplier in
sufficient time for Exult Supplier to comply with its
obligations in Section 3.3.5.
3.3.2 During the Assignment, the Assigned Employees will perform
the services under the general supervision and control of
the Exult Supplier.
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3.3.3 Prior to the commencement of any Assignment and in
sufficient time for Exult Supplier to comply with its
obligations under Sections 3.3 and 3.8 the Client or
Appropriate Affiliate shall deliver to Exult Supplier copies
of the terms and conditions of employment of the Assigned
Employees and its relevant non-discrimination,
non-harassment and health and safety obligations.
3.3.4 Subject to Section 3.3.1 and 3.3.3, Exult Supplier will
comply with the Assigned Employees' terms and conditions of
employment with the Client or Appropriate Affiliate.
3.3.5 Exult Supplier will maintain a record in a form specified by
the Client and/or the Appropriate Affiliate of each Assigned
Employee's absences and will notify the Client or the
Appropriate Affiliate of such absences and provide a copy of
such records to the Client or the Appropriate Affiliate at
its request.
3.4 EMPLOYEE RECORDS FOR ASSIGNED EMPLOYEES
3.4.1 As soon as reasonably practicable after the Commencement,
the Client and the Appropriate Affiliates, subject to any
restrictions imposed by law, will deliver to Exult Supplier
employment information containing the identity of, job
descriptions and skill qualifications of the Assigned
Employees, and such other employment information as Exult
Supplier shall reasonably request with respect to an
Assigned Employee and which the Client or Appropriate
Affiliate mutually agrees to provide.
3.4.2 Exult Supplier shall maintain comprehensive, accurate and up
to date employee records in a form to be specified by the
Client or Appropriate Affiliate in relation to the Assigned
Employees.
3.5 PAYMENT FOR SERVICES
3.5.1 As soon as practicable after the Commencement Date and in
any event prior to the first Assignment Date the Client
and/or each Appropriate Affiliate shall provide Exult
Supplier with details of the costs incurred by the
Appropriate Affiliate of employing Affected Employees.
3.5.2 Neither the Client nor the Appropriate Affiliate will
increase those costs other than in the ordinary course of
business.
3.5.3 The Client shall advise Exult Supplier of the costs incurred
by the Client or Appropriate Affiliates of employing the
Assigned Employees on a monthly basis, and such costs [***]*
3.6 EARLY TERMINATION
3.6.1 Either party may terminate any Assigned Employee's
Assignment immediately by giving written notice to the other
if:
(i) the Assigned Employee does or omits to do anything
(whether in connection with the Assignment or not)
which would allow the Client or the Appropriate
Affiliate to terminate his or her employment summarily;
or
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redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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(ii) the Assigned Employee discloses or misuses any
confidential information or material, is convicted of a
felony, or engages in conduct related to the Assigned
Employee's services for which criminal or civil
penalties may be sought .
3.6.2 Exult Supplier may terminate any Employee on Assignment's
Assignment at any time on giving two week's written notice
to the other party, provided that in this case only, Exult
Supplier's obligation to deduct from charges invoiced to the
Client the costs of employing such Assigned Employee on
Assignment incurred by the Client or Appropriate Affiliate,
shall not cease until the earlier of the end of the
Assignment period or the date on which the Assigned
Employee's employment with the Appropriate Affiliate ceases.
3.6.3 An Assigned Employee's Assignment will automatically
terminate on the termination of the Assigned Employee's
employment with the Client or Appropriate Affiliate.
3.7 DISCIPLINARY MATTERS AND EMPLOYEE COMPLAINTS
3.7.1 If a dispute arises between an Assigned Employee and Exult
Supplier as to the interpretation or application of any of
the Assigned Employee's terms and conditions of employment,
Exult will consult with the appropriate managers of the
Client or Appropriate Affiliate and will abide by their
decision. The Assignment shall not preclude an Assigned
Employee from utilizing any applicable grievance or
complaint procedure available to similarly situated
employees of the Client or BPA Affiliate.
3.7.2 If any disciplinary or grievance matter arises in relation
to any of the Assigned Employees during the Assignment,
Exult Supplier will notify the Client or the Appropriate
Affiliate as soon as reasonably possible. The Client or the
Appropriate Affiliate will deal with the matter in
accordance with its disciplinary or grievance procedure.
Exult Supplier will provide whatever assistance is
necessary.
3.8 NON-DISCRIMINATION, NON-HARASSMENT AND HEALTH AND SAFETY
Subject to Section 3.3.1 and 3.3.4, Exult Supplier will comply
with the Client's non-discrimination, non-harassment and health
and safety obligations in relation to the Assigned Employees,
provided that Assigned Employees shall comply with Exult
Supplier's health and safety rules with respect to services
performed on the Exult Supplier's premises. Exult Supplier will
co-operate with the Client or the Appropriate Affiliate in respect
of any action which it wishes to take in respect of the Employee
on Assignment in order to fulfil such obligations.
3.9 INTELLECTUAL PROPERTY
During the Assignment any invention, design, copyright or other
intellectual property made by any of the Assigned Employees,
[***]*
3.10 ADDITIONAL ASSIGNED EMPLOYEES
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redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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3.10.1 The Client may assign, for a period to be mutually agreed by
the parties, which period shall be at least 12 months from
the Commencement Date. , Additional Assigned Employees to
Exult Supplier of up to one employee of its choice in Grade
20 or above or Brand G or above per 5,000 employees in
respect of whom Exult Supplier is providing Services to
perform the Services for at least 12 months.
3.10.2 Assignments under Section 3.10.1 shall be on the same terms
and conditions as those set out in Sections 3.1 through
3.10, provided, however, that Exult Supplier shall not be
required to pay the Client or Appropriate Affiliate for the
services of such Additional Assigned Employees and Sections
3.2, 3.5 and 3.6.2 shall not apply to such Additional
Assigned Employees.
4 INDEMNITIES
4.1 The Client and each Appropriate Affiliate will indemnify, keep
indemnified and reimburse Exult Supplier for any Staff Costs
incurred by Exult Supplier (other than Staff Costs which result
from an act or deliberate failure to act by Exult Supplier in its
dealing with an Affected Employee) with respect to an event
occurring before the Affected Employee becomes a New Exult
Employee irrespective of when such claim is made, or which relate
to, arise out of or are connected with any act or omission by the
Client or the Appropriate Affiliate, or which arise from any
claims by any Affected Employees pursuant to any employee benefit
plan or program of the Client or BPA Affiliate;
4.2 Subject to Section 4.1, Exult Supplier will indemnify the Client
and each Appropriate Affiliate and keep the Client and each
Appropriate Affiliate, indemnified against any Staff Costs which
relate to, arise out of or are connected with any act or
deliberate failure to act by Exult Supplier having its origin on
or after the commencement of an Assignment and which the Client or
Appropriate Affiliate incurs in relation to any contract of
employment, employment relationship or collective agreement
(except to the extent such cost relates to the Client's duty of
effects bargaining under Section 2) concerning one or more of the
Assigned Employees.
4.3 To the extent permitted by law, neither party shall bring any
claims against the other for any negligent acts or omissions of
Assigned Employees.
5 OFFER OF EMPLOYMENT
5.1 At any time after the Commencement Date, Exult Supplier may offer
to employ an Affected Employee on such terms and conditions as the
Exult Supplier shall determine.
5.2 As soon as reasonably practicable after the Commencement Date, the
Client and the Appropriate Affiliates, subject to any restrictions
imposed by law, will deliver to Exult Supplier employment
information containing the identity of, job descriptions and skill
qualifications of the Affected Employees, and such other
employment information as Exult Supplier shall reasonably request
with respect to an Affected Employee and which the Client or
Appropriate Affiliate mutually agrees to provide. As soon as
reasonable practicable after delivery to the Client or Appropriate
Affiliate of a written release agreement from an Affected
Employee, the Client or Appropriate Affiliate shall also deliver
to Exult Supplier such additional employment information the
release of which is authorized by such Affected Employee's release
agreement. The Client and Exult Supplier shall provide reasonable
cooperation with Exult Supplier's collection of employment
information for the Affected Employees, including the
establishment of the form of any release agreements and the
procedures for requesting Affected Employees to provide such
releases agreements.
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5.3 The Client or Appropriate Affiliate shall cause each New Exult
Employee to be fully vested in such Assigned Employees' accrued
benefits under the Client's or Appropriate Affiliates' retirement
and savings plans.
5.4 Exult Supplier shall permit each New Exult Employee to enroll in
Exult Supplier's benefit plans and programs under [***]*
5.4.1 [***]*
5.4.2 Exult Supplier will offer coverage under Exult Supplier's
health and welfare benefit plans to New Exult Employees and
their dependents in accordance with the terms of the Exult
Supplier's health and welfare benefit plans; [***]* The
Client or Appropriate Affiliate shall be responsible for
all health and welfare claims that are incurred by employees
prior to the date they become employees of Exult Supplier.
The Exult Supplier's health and welfare plans shall be
responsible for all health and welfare claims that are
incurred by employees after the effective date of their
coverage by the Exult Supplier's plan.
5.4.3 [***]* The Client or Appropriate Affiliate will be
responsible for all vacation benefits accrued by employees
up to the effective date of their employment by the Exult
Supplier. The Client or Appropriate Affiliate will pay out
all accrued but unused vacation pay to its employees who
accept employment with Exult Supplier according to the
Client or Appropriate Affiliate's practices. Exult Supplier
shall provide vacation according to Exult Supplier's
vacation policies, [***]* Except as specifically provided
for in Section 4.4, Exult Supplier shall not be required
to provide a New Exult Employee with credit under my benefit
plan or program or payroll practice for service with the
Client or the Appropriate Affiliate.
5.4.4 The Client or Appropriate Affiliate shall be responsible for
all workers' compensation claims of an Affected Employee
timely filed, either prior to or subsequent to the date an
Affected Employee becomes a New Exult Employee for instances
of injury or illness, arising from or incurred in the course
of employment, that occur prior to the date the Affected
Employee becomes a New Exult Employee. Exult Supplier shall
be responsible for all workers' compensation claims of a New
Exult Employee for instances of injury or illness, arising
from or incurred in the course of employment, that occur on
and after the date an individual becomes a New Exult
Employee.
5.5 The Client or Appropriate Affiliate shall provide COBRA health
care continuation coverage under the Client's or Appropriate
Affiliate's group health benefit plans (as amended from time to
time) to each qualified beneficiary under such plans. The Client
or Appropriate Affiliate shall not terminate its sponsorship of a
group health plan in connection with the transactions contemplated
by this Agreement and shall continue to maintain a group health
benefit plan and provide COBRA coverage for the maximum COBRA
coverage period applicable to each qualified beneficiary under the
Client or Appropriate Affiliate's group health plans who is, or
whose qualifying event occurred in connection with, an Affected
Employee.
5.6 The Client or the Appropriate Affiliate will be responsible for
compliance with all laws, rules, ordinances and regulations
respecting termination of any Affected Employees, including,
without limitation, the Worker Adjustment, Notification and
Training Act, 29 U.S.C. Section 2101 et. seq. ("WARN") and any
similar state or local laws. Exult Supplier will
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provide such reasonable cooperation as is requested by the Client
or the Appropriate Affiliate to comply with such laws, rules,
ordinances and regulations.
6 EMPLOYEE INFORMATION ON TERMINATION OR EXPIRATION
Two months before the expiration of this Agreement, or if this Agreement
has been terminated earlier for any reason within two weeks of being
requested to do so by the Client, Exult Supplier will provide to the
Client the following information in relation to all Current Exult
Employees who are employed exclusively in providing the Services:
6.1 the total number of the Current Exult Employees by name and
geographic location (including those on a leave of absence and who
have a statutory or contractual right to return to work);
6.2 details of all collective bargaining agreements and arrangements
entered into in relation to the Current Exult Employees who are
represented by a labor union with any collective bargaining group.
7 EMPLOYMENT PROVISIONS ON TERMINATION
On termination or expiration of this Agreement, the following provisions
will apply:
7.1 The Client, Appropriate Affiliate, any other BPA Affiliate, Exult
Supplier or a Successor Operator may, at its absolute discretion,
offer to employ one or more of the Current Exult Employees after
the Transfer Date. The Exult Supplier will not discourage a
Current Exult Employee from accepting such offer and the Exult
Supplier shall release any Current Exult Employee who accepts such
offer of employment from its employment obligations to the Exult
Supplier (other than confidentiality obligations).
7.2 The Client and Appropriate Affiliate shall not for a period of
[***]* solicit or induce any employee of an Exult Supplier other
than a Current Exult Employee to terminate his or her employment
with the Exult Supplier. The Client or Appropriate Affiliate shall
cause its agreement with a Successor Operator to provide that
Successor Operator will not solicit or induce any employee of an
Exult Supplier other than a Current Employee to terminate his or
her employment with the Exult Supplier.
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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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UNITED STATES COUNTRY AGREEMENT
SCHEDULE L
CHANGE CONTROL MANAGEMENT
<PAGE> 139
TABLE OF CONTENTS
1 CHANGE REQUESTS...................................................................... 1
2 CLASSIFICATION OF THE CHANGE REQUEST................................................. 1
3 EVALUATION OF THE PROPOSED CHANGE.................................................... 2
4 IMPACT ANALYSIS...................................................................... 3
5 APPROVAL............................................................................. 4
6 REPORTING............................................................................ 4
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SCHEDULE L
CHANGE CONTROL MANAGEMENT
This Schedule sets out the procedure to be followed for any Proposed Change to
the Framework Agreement or any Country Agreement.
1 CHANGE REQUESTS
1.1 Either party may request a Proposed Change by submitting a Change
Request in accordance with the following process.
1.2 The Change Request shall be divided into two (2) sections. Section
One shall contain the general information regarding the Proposed
Change and shall be completed by the Country Representative of the
submitting party. Section Two shall contain the impact analysis
for the Proposed Change, which shall be completed by the Exult
Supplier Country Representative.
1.3 In each Country, Change Requests shall be presented by the Country
Representative of the submitting party to the other party's
Country Representative or designee who shall acknowledge receipt
by signature of the Change Request.
1.4 Any Proposed Change which has a potential impact on more than one
Country shall have a Change Request completed for each impacted
Country.
2 CLASSIFICATION OF THE CHANGE REQUEST
The Exult Supplier Country Representative and the Client Country
Representative shall agree to the classification of the Change Request
as follows:
2.1 Where it is determined that the Proposed Change is an Operational
Change, the Proposed Change shall be evaluated as set out in
Section 3.1.
2.2 Where it is determined that the Proposed Change is a change to the
Client's Policies and Procedures, the proposed change shall be
evaluated as set out in Section 3.2.
2.3 Where it is determined that the Proposed Change is a Project, the
Proposed Change shall be evaluated as set out in Section 3.3.
2.4 Where it is determined that the Proposed Change is a change to the
terms and conditions of the Country Agreement or a change related
to the Schedules of the Country Agreement which is not related to
a specific Project or to a change to Client's Policies and
Procedures, the Proposed Change shall be evaluated as set out in
Section 3.4.
2.5 Where it is determined that the Proposed Change should not
proceed, the Change Request shall be rejected and returned to the
submitting party.
If the Exult Supplier's Country Representative and the Client's Country
Representative cannot agree to the classification of the Change Request,
then the Change Request shall be referred to the Regional Governance
Panel for classification.
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3 EVALUATION OF THE PROPOSED CHANGE
The Proposed Change shall be evaluated, by classification, as described
below:
3.1 Operational Changes
3.1.1 Operational Changes shall be implemented in accordance with
the operational change control procedures and approved
subject to Section 5 of this Schedule.
3.2 Changes to Client's Policies and Procedures
3.2.1 Exult Supplier shall perform the impact analysis as
described in Section 4.
3.2.2 The Exult Supplier Country Representative shall submit the
Proposed Change, including the Impact Analysis, to the
Client Country Representative.
3.2.3 Based on the results of the impact analysis, the Client
Country Representative shall, within a reasonable timeframe:
(i) approve the Proposed Change and proceed to its
implementation subject to Section 5 of this Schedule;
or
(ii) request Exult Supplier in writing to re-submit the
Proposed Change stating which items of information it
is dissatisfied with, in which case Exult Supplier
shall re-submit the Proposed Change within a reasonable
timeframe; or
(iii) reject the Change Request in which case the Agreement
shall continue un-amended.
3.3 Projects
3.3.1 Exult Supplier shall perform the impact analysis as
described in Section 4.
3.3.2 Exult Supplier shall prepare a Project Statement as set out
in Schedule H.
3.3.3 The Exult Supplier Country Representative shall submit the
Proposed Change, including the Project Statement, to the
Client Country Representative
3.3.4 Based on the results of the impact analysis, the Client
Country Representative shall, within a reasonable timeframe:
(i) approve the Proposed Change and the Project Statement
and proceed to its implementation subject to Section 5
of this Schedule; or
(ii) request in writing that Exult Supplier re-submit the
Proposed Change and Project Statement stating which
items of information it is dissatisfied with, and Exult
Supplier shall re-submit the Proposed Change and
Project Statement within a reasonable timeframe; or
(iii) reject the Change Request in which case Exult Supplier
will not implement the Project.
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3.4 Changes to the Agreement (as described in Section 2.4)
3.4.1 Exult Supplier shall perform the impact analysis as
described in Section 4.
3.4.2 The Exult Supplier Country Representative shall submit the
Proposed Change, including the impact analysis, to the
Client Country Representative for approval subject to
Section 5 of this Schedule.
4 IMPACT ANALYSIS
4.1 Upon determination of the classification of the Proposed Change,
Exult Supplier shall provide, at its expense, within [***]* or as
otherwise agreed, an estimate of the time and cost that Exult
Supplier proposes to charge to the Client to complete the impact
analysis. The Client shall provide Exult Supplier, within 10
business days or as otherwise agreed, a decision as to whether to
proceed with the impact analysis as estimated.
4.2 If the Client Country Representative determines that the Proposed
Change should not proceed, the Change Request shall be rejected
and returned to the submitting party.
4.3 If the Client Country Representative decides to proceed, Exult
Supplier shall, as soon as reasonably practicable and acting in
good faith, conduct an impact analysis to assess and evaluate the
impact of the Proposed Change having regard to all relevant
factors including the following:
[***]*
4.4 In the case of Proposed Changes relating to Projects, Exult
Supplier, in addition to the impact analysis shall, acting in good
faith, provide the Client with the following information:
4.4.1 whether Exult Supplier considers the Project to be
technically feasible, and, if so, the estimated number,
grade, qualification and experience of personnel required to
provide the Project;
4.4.2 the estimated number of days that would be required to be
spent by each such person in order to provide the Project;
4.4.3 the estimated cost and timetable for implementation of the
Project including the date of its completion;
4.4.4 the anticipated impact, if any, on other aspects of the
Services and operation of the Systems by the Client;
4.4.5 the terms and conditions on which Exult Supplier is willing
to provide the Project, which shall so far as reasonably
appropriate shall be consistent with the terms and
conditions on which the Services are provided under this
Agreement; and
4.4.6 any other information the Client may reasonably require in
relation to the Project.
[***]*
--------
* 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 APPROVAL
Subject to the delegated financial authority limits provided by the
relevant Client Global Commercial Contract Leader and Client Regional
Commercial Contract Leader, the following approval levels shall apply.
5.1 Change Requests that are classified as Operational Changes shall
be approved by the Client's Country Representative and Exult
Supplier's Country Representative or their designees except where
Operational Changes do not impact Client activities or costs, in
which case the Exult Country Representative or its designee may
approve the change.
5.2 Change Requests that are classified as changes to the Client's
Policies and Procedures shall be approved by the Client Country
Representative.
5.3 Change Requests that are classified as Projects shall be approved
by the Client's Country Representative.
5.4 Change Requests that are classified as changes to the terms and
conditions of the Country Agreement or as changes related to the
Schedules of the Country Agreement which are not related to a
specific Project or to a change to the Client's Policies and
Procedures, shall be approved by the Regional Governance Panel. In
the event that such changes have global implications, the Change
Request shall be approved by the Global Governance Panel.
Neither party shall be obliged to comply with any Proposed Changes
unless and until approval has been given in accordance with this Change
Control Management process and, pending approval, no Change shall be
made to the Services or to the Framework and Country Agreements.
6 REPORTING
A consolidated report of all Change Requests shall be presented by the
Exult Supplier Country Representative to the Regional Governance Panel
on a monthly basis. The Regional Governance Panel shall report Change
Requests on a quarterly basis to the Global Governance Panel.
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE M
APPROVED EXULT SUBCONTRACTORS
<PAGE> 145
SCHEDULE M
APPROVED EXULT SUBCONTRACTORS
This schedule sets forth those subcontractors that have been approved by BPA.
[***]*
--------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE O
BPA POLICIES AND CONTROLS
1
<PAGE> 147
SCHEDULE O
BPA POLICIES AND CONTROLS
1 PART 1
The following Controls have been submitted to Exult in writing and Exult
shall fulfil its obligation under this Agreement in accordance with such
Controls.
[***]*
2 PART 2
The following Controls shall be reviewed and evaluated by BPA and Exult
in accordance with this Agreement.
[***]*
--------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities
and Exchange Commission.
<PAGE> 148
UNITED STATES COUNTRY AGREEMENT
SCHEDULE P
GLOBAL GOVERNANCE ARRANGEMENTS
<PAGE> 149
TABLE OF CONTENTS
1 INTRODUCTION....................................................................................................1
2 GLOBAL GOVERNANCE PANEL.........................................................................................1
3 REGIONAL GOVERNANCE PANEL.......................................................................................2
4 COUNTRY REPRESENTATIVES.........................................................................................3
5 EXECUTIVE STEERING COMMITTEE....................................................................................4
6 REGIONAL STEERING COMMITTEES....................................................................................5
7 CONTRACT ADMINISTRATION DOCUMENTS...............................................................................6
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SCHEDULE P
GLOBAL GOVERNANCE ARRANGEMENTS
1 INTRODUCTION
For the purposes of this Schedule, Exult shall mean Exult Supplier where
appropriate; BPA shall mean the Client, where appropriate.
2 GLOBAL GOVERNANCE PANEL
2.1 As soon as reasonably practicable following the Commencement
Date a Global Governance Panel will be established by the
parties to focus primarily on global strategic issues. It is
agreed that the Global Governance Panel should not be involved
in day-to-day issues.
2.2 The Global Governance Panel will be comprised of 4 voting
members as follows:
2.2.1 one Global Project Leader from each of Exult and BPA
(who will also be members of the Executive Steering
Committee); and
2.2.2 one Global Commercial Contract Leader from each of Exult
and BPA.
2.3 The initial members of the Global Governance Panel are:
BPA Global Project Leader
Exult Global Project Leader
BPA Global Commercial Contract Leader
Exult Global Commercial Contract Leader
Each party shall wherever reasonably practicable give the other
3 months written notice in the event it wishes to change its
representatives on the Global Governance Panel.
2.4 The Global Governance Panel shall be chaired alternately by a
BPA representative and an Exult representative.
2.5 The Global Governance Panel will meet no less than quarterly,
and at other times as agreed between the parties. The meetings
will be arranged to synchronise with those of the Regional
Governance Panels and will take place approximately two weeks
after meetings of the Regional Governance Panels.
2.6 Voting will be on a unanimous basis and a full quorum will be
required for voting purposes.
2.7 The responsibilities of the Global Governance Panel will
include:
2.7.1 reviewing the overall performance of the parties'
respective roles and responsibilities under this
Agreement and of their respective Affiliates under the
Country Agreements;
2.7.2 reviewing significant recommendations and suggestions
made by the Executive Steering Committee relating to the
Services and/or this Agreement or any Country Agreement
and initiate appropriate actions;
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2.7.3 submitting quarterly performance review reports to the
Executive Steering Committee for its guidance and
recommendations;
2.7.4 when referred to it by any of the Regional Governance
Panels, considering and agreeing changes in accordance
with the Change Control Management procedure;
2.7.5 seeking to resolve any Dispute referred to it in
accordance with the Dispute Resolution Procedure.
2.8 The parties shall procure that the members of the Global
Governance Panel shall, at all times, act reasonably and in good
faith having due regard to the interests of all parties.
3 REGIONAL GOVERNANCE PANEL
3.1 As soon as reasonably practicable at the time of contracting the
first Country in a region a Regional Governance Panel will be
established by the parties for that Region to focus primarily on
regional strategic issues. It is agreed that the Regional
Governance Panels should not be involved in day-to-day issues.
3.2 Each Regional Governance Panel will be comprised of 4 voting
members as follows:
3.2.1 one Regional Project Leader from each of Exult and BPA;
and
3.2.2 one Regional Commercial Contract Leader from each of
Exult and BPA.
3.3 The Regional Governance Panel shall be chaired alternately by a
BPA representative and an Exult representative.
3.4 The Regional Governance Panel will meet monthly, and at other
times as agreed between the parties. The meetings will be
arranged to synchronise with those of the Global Governance
Panel as appropriate and will take place approximately two weeks
before the meetings of the Global Governance Panel.
3.5 Voting will be on a unanimous basis and a full quorum will be
required for voting purposes.
3.6 The responsibilities and authorities of the Regional Governance
Panel will be determined and delegated in each case by the
Global Governance Panel and may include matters within the
relevant Region such as:
3.6.1 agreeing an efficient and effective Due Diligence
Exercise in each relevant Country;
3.6.2 managing the internal interfaces with the Participating
Affiliates and the Exult Participating Affiliates in
relation to the Framework Agreement and the relevant
Country Agreements;
3.6.3 addressing, co-ordinating and prioritising with issues
affecting the provision of the Services to Participating
Affiliates under the Country Agreements as referred to
it by the Country Representatives;
3.6.4 reviewing the overall performance of the parties'
respective Affiliates under the relevant Country
Agreements;
3.6.5 reviewing significant recommendations and suggestions
made by Regional Steering Committee relating to the
Services and/or any relevant Country Agreements and
initiate appropriate actions;
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3.6.6 submitting quarterly performance review reports to the
Regional Steering Committee for its guidance and
recommendations;
3.6.7 submit quarterly performance review reports to the
Global Governance Panel.
3.6.8 managing Change Requests outside the authority of the
relevant Country Representative and otherwise in
accordance with the Change Control Management procedure;
3.6.9 seeking to resolve any Disputes referred to in
accordance with the Dispute Resolution Procedure;
3.6.10 referring matters outside its authority to the Global
Governance Panel;
3.6.11 identifying issues which may have an impact outside the
relevant Region and referring these to the Global
Governance Panel as required; and
3.6.12 monitoring and reviewing the ongoing status of Third
Party Contracts which are not Transferred to Exult
Supplier.
3.7 The parties shall procure that the members of the Regional
Governance Panel shall, at all times, act reasonably and in good
faith having due regard to the interests of all parties.
4 COUNTRY REPRESENTATIVES
4.1 As soon as reasonably practicable following a Country
Commencement Date, BPA and Exult shall procure that, the
relevant Affiliates each appoint a Country Representative in
respect of that Country.
4.2 The Country Representatives will have day-to-day responsibility
for managing the operation of the Country Agreement and
supervising the co-operation and other matters between the
parties.
4.3 The responsibilities and authorities of each Country
Representative will be determined and delegated in each case by
the relevant Regional Governance Panel and may include matters
such as:
4.3.1 reviewing the overall performance of the parties'
respective Affiliates under the relevant Country
Agreement;
4.3.2 interpretation of the Agreement;
4.3.3 ensuring efficient flow of documentation under the
Agreement;
4.3.4 handling of Disputes within the authority of the Country
Representative and referring others to the Regional
Governance Panel in accordance with the Dispute
Resolution Procedure;
4.3.5 handling of Change Requests within the authority of the
Country Representative and referring others to the
Regional Governance Panel in accordance with the Change
Control Procedure;
4.3.6 submitting issues concerning the relationship between
the parties to the Regional Steering Committee for its
guidance and recommendations;
4.3.7 submit [monthly/regular] performance review reports to
the Regional Governance Panel;
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<PAGE> 153
4.3.8 generally dealing with any matter or issue arising out
of or in connection with the Country Agreement within
the delegated authority of, the Country Representative;
4.3.9 identifying and referring matters outside the Country
Representative authority to the Regional Governance
Panel; and
4.3.10 identifying issues which may have an impact outside the
relevant Country and referring these to the Regional
Governance Panel for their attention.
4.4 The parties shall procure that the Country Representatives
shall, at all times, act reasonably and in good faith having due
regard to the interests of all parties.
5 EXECUTIVE STEERING COMMITTEE
5.1 As soon as reasonably practicable following the Commencement
Date an Executive Steering Committee will be established by the
parties to focus primarily on global relationship issues. It is
agreed that the Executive Steering Committee should not be
involved in day-to-day issues.
The Executive Steering Committee will be comprised as follows:
For BPA:
5.1.1 the Executive Steering Committee shall be chaired by a
BPA Group representative;
5.1.2 one Global Project Leader from BPA (who will also be a
member of the Global Governance Panel);
5.1.3 four business stream representatives; and
5.1.4 one IT representative.
For Exult:
5.1.5 one Exult corporate executive representative;
5.1.6 one Global Project Leader who will also be a member of
the Global Governance Panel; and
5.1.7 IT/e-commerce/services representation.
Each party shall wherever reasonably practicable give the other
3 months written notice in the event it wishes to change its
representatives on the Global Governance Panel.
5.2 The Executive Steering Committee will meet quarterly, and at
other times as agreed between the parties.
5.3 The Executive Steering Committee shall be a non-voting body.
5.4 The responsibilities of the Executive Steering Committee will
include:
5.4.1 reviewing the global relationship issues arising out of
the Framework Agreement and the Country Agreements;
5.4.2 reviewing significant recommendations and suggestions
made by the Regional Steering Committee relating to
issues affecting the relationships between the parties
and relationships between the stakeholders;
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<PAGE> 154
5.4.3 reviewing performance and providing advice and guidance
to the Global Governance Panel for Performance
improvement and making recommendations directly to BPA
and Exult on issues affecting the relationships between
the parties and relationships between the stakeholders.
5.5 The parties shall procure that the members of the Executive
Steering Committee shall, at all times, act reasonably and in
good faith having due regard to the interests of all parties.
6 REGIONAL STEERING COMMITTEES
6.1 At the same time as a Regional Governance Panel is established a
Regional Steering Committee will be established by the parties
for that Region to focus primarily on issues effecting
relationships between the parties and between the stakeholders
in the relevant Region. It is agreed that the Regional Steering
Committees should not be involved in day-to-day issues.
6.2 The Regional Steering Committee will be comprised as follows:
6.2.1 one member of the relevant Regional Governance Panel
from each of Exult and BPA;
6.2.2 two other appropriate representatives from Exult such as
the IT manager, the Service Centre Manager or
representatives from equivalent roles; and
6.2.3 up to four other representatives from BPA.
6.3 The Regional Steering Committees shall be chaired by a BPA
representative.
6.4 The Regional Steering Committees will meet quarterly or
otherwise, at times as agreed between the parties and will be
synchronised to precede the Executive Steering Committee
meetings.
6.5 The Regional Steering Committees shall be non-voting bodies.
6.6 The responsibilities and authorities of the Regional Steering
Committees will be determined and delegated in each case by the
Executive Steering Committee and may include matters such as;
6.6.1 reviewing the Regional relationship issues arising out
of the Framework Agreement and of the relevant Country
Agreements;
6.6.2 reviewing significant recommendations and suggestions
made by the Country Representatives relating to issues
affecting the relationships between the parties and
relationships between the stakeholders in the relevant
Region;
6.6.3 reviewing performance and providing advice and guidance
to the Regional Governance Panel for performance
improvement and making recommendations directly to the
Executive Steering Committee on issues affecting the
relationships between the parties [and relationships
between the Stakeholders];
6.6.4 submitting quarterly reviews to the Executive Steering
Committee.
6.7 The parties shall procure that the members of the Regional
Steering Committees shall, at all times, act reasonably and in
good faith having due regard to the interests of all parties.
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7 CONTRACT ADMINISTRATION DOCUMENTS
7.1 All contract administration documents shall be in English unless
required otherwise by any law of a Country, in which case
contract administration documents shall be prepared in both
English and the language required by law of the relevant
Country.
6
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE Q
DATA PROTECTION
<PAGE> 157
TABLE OF CONTENTS
1 DEFINITIONS............................................................................................1
2 PROCESSOR'S OBLIGATIONS AND WARRANTIES.................................................................2
3 DATA EXPORT............................................................................................4
4 WARRANTY...............................................................................................5
5 BPA'S OBLIGATIONS......................................................................................5
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SCHEDULE Q
DATA PROTECTION
PART I
DATA PROCESSING OBLIGATIONS
1 DEFINITIONS
For the purposes of this Schedule, the following terms shall have the
following meanings:
"AGREEMENT" means this Agreement and each Country Agreement;
"APPROPRIATE TECHNICAL AND ORGANISATIONAL MEASURES" means such necessary
measures that need to be taken in order to guarantee the security of the
personal data and to avoid unauthorised, accidental or unlawful
alteration, loss, disclosure, access to and processing of the personal
data, taking account of the state of technology and the cost of their
implementation, the nature of the personal data stored, and the risks
posed by the processing whether they arise from human action or from
physical or natural means. Specific regard shall be had to any relevant
guidance, if any, provided by the Authority in each Country;
"AUTHORITY" means the relevant data protection authority in the Country;
"AUTOMATED DECISION" means a decision which produces legal effects or
significantly affects a data subject and which is based solely on
automated processing of data intended to evaluate certain personal
aspects such as performance at work, creditworthiness, reliability and
conduct etc;
"BPA" means BPA and each BPA Participating Affiliate;
"CLIENT PERSONAL DATA" means any personal data Processed by Exult
Supplier for or on behalf of BPA in the context of the provision of the
Services;
"DATA SUBJECT" is one who can be identified, directly or indirectly, in
particular by reference to an identification number or to one or more
factors specific to his physical, physiological, mental, economic,
cultural or social identity from any personal data;
"DIRECTIVES" means the European Union Directive entitled "Directive
95/46/EC of the European Parliament and of the Council of 24 October
1995 on the protection of individuals with regard to the processing of
personal data and on the free movement of such data" and the European
Union Directive entitled "Directive 97/66/EC concerning the processing
of personal data and the protection of privacy in the telecommunications
sector";
"EXULT" means Exult and each Exult Participating Affiliate;
"IMPLEMENTING LEGISLATION" means the legislation and any guidance,
policy or recommendations providing by the Authority (if any) in the
Country which implements the Directives;
"PERSONAL DATA" means any information relating to an identified or
identifiable natural person. For the purposes of this definition, an
identifiable person is one who can be identified, directly or
indirectly, in particular by reference to an identification number or to
one or more factors specific to his physical, physiological, mental,
economic, cultural or social identity;
"PROCESS" or "PROCESSING" means any operation or set of operations which
is/are performed upon personal data, whether or not by automatic means,
including collection, recording, organisation, storage, adaptation or
alteration, retrieval, consultation, use, disclosure by
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transmission, dissemination or otherwise making available, alignment or
combination, blocking, erasure or destruction;
"PURPOSES" means the purposes for which BPA personal data is to be
Processed, as may be amended from time to time by the parties, and as
currently set out in Schedule A (Scope of Services);
"SENSITIVE DATA" means personal data revealing racial or ethnic origin,
political opinions, religious or philosophical beliefs, trade-union
membership, or health or sex life;
"THIRD COUNTRY" means any country outside the European Economic Area.
2 PROCESSOR'S OBLIGATIONS AND WARRANTIES
2.1 GENERAL OBLIGATIONS
Exult hereby agrees during the term of the Agreement:
2.1.1 to act only solely on the instructions of BPA and in so
doing to process BPA personal data on behalf of BPA
solely for the Purposes;
2.1.2 to process BPA personal data in accordance with the
Directives and Implementing Legislation if the personal
detail is subject to the Directives; and
2.1.3 to process BPA personal data in accordance with the
provisions of this Agreement.
2.2 SPECIFIC OBLIGATIONS
Without limiting the generality of Section 2.1, Exult shall;
2.2.1 REGISTRATION AND AUTHORITY
Ensure that it has the necessary legal authority for the
purpose of processing BPA personal data for the Purposes
in accordance with the terms of this Agreement;
2.2.2 SECURITY
Prior to any processing of BPA personal data:
(i) put in place appropriate technical and
organisational measures to protect BPA personal
data (including suitable measures to protect
Sensitive Data) against accidental or unlawful
destruction or accidental loss, alteration,
unauthorised disclosure or access and against
all other unlawful forms of processing;
(ii) put in place adequate security programmes and
procedures to ensure that unauthorised persons
will not have access to the equipment used to
process BPA personal data, and that any persons
it authorises to have access to BPA personal
data will respect and maintain the
confidentiality and security of BPA personal
data; and
(iii) have reviewed and to continue to review its
security programmes and procedures to ensure
that they are adequate, having regard to
industry good practice and the cost of their
implementation at that time; and
(iv) once processing has commenced in accordance with
this Agreement, if at any time Exult becomes
aware of any breach in security advise
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BPA forthwith of the nature and extent of the
breach and shall take all necessary remedial
action and shall indemnify BPA against all
costs, damages or other losses arising out of
such breach, except to the extent such loss
results from BPA failing to perform its
obligations in Section 5 below.
2.2.3 ASSISTANCE AND ENQUIRIES
(i) without limitation to the other provisions of
this Agreement, take all reasonable steps to
enable BPA to comply with its obligations under
the Directives and relevant Implementing
Legislation in relation to BPA personal data,
promptly upon being notified of such steps by
BPA;
(ii) upon receiving any request for information or
assistance in relation to BPA personal data,
from BPA, the Authority, other regulatory body
in which has jurisdiction or a data subject,
Exult will promptly provide all relevant
information to BPA or the Authority as requested
by BPA;
(iii) promptly appoint an individual (a "Data
Protection Officer") within its organisation
authorised to respond to any enquiries made
pursuant to this Section 2.2.3 or otherwise in
relation to this Agreement and with such other
roles, responsibilities and powers (if any) as
may be required by the laws implementing the
Directives in the jurisdiction of BPA and shall
promptly notify the details of this individual
to BPA.
2.2.4 ENFORCEMENT
Recognise and agree BPA employees may enforce against
Exult any of their rights as Data Subjects under the
Directives or Implementing Legislation in relation to
the processing by Exult of the BPA personal data;
2.2.5 DATA QUALITY
Subject to Section 2.1.1 above, to, where necessary,
maintain the accuracy of BPA personal data and keep it
up to date. Exult shall comply with all instructions
from BPA or any data subject to whom BPA personal data
relates to rectify, delete and update any BPA personal
data and, if so requested by BPA, shall notify in
writing BPA and/or the data subject as appropriate
within a reasonable time that it has done so.
2.2.6 DATA EXPORT
Not export from any Country within the European Economic
Area any BPA personal data to any Third Country without
BPA's prior written consent such consent not to be
unreasonably withheld or delayed provided that BPA has
given such consent in relation to the USA;
2.2.7 ACCESS
If the personal data is subject to the Directives,
provide the data subject with the same rights of access,
correction, blocking, suppression or deletion available
to such individual in the relevant Countries which are
subject to the Directives;
2.2.8 DISCLOSURE
(i) not to disclose, either free of charge or in
return for payment, not even for its
preservation, any BPA personal data to any other
legal or natural person other than where BPA has
given its prior written consent to such
disclosure or where there is a legal obligation
or there
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<PAGE> 161
is a regulatory obligation or where Exult is
responding to a request from the Authority or
other authorial regulatory body, in which case
BPA must, where this is permitted by law, be
informed where practicable prior to such
disclosure; and
(ii) where BPA has consented to a disclosure in
accordance with 2.2.6(i) above, BPA may require
Exult to procure any disclosee to whom BPA
personal data is disclosed pursuant to such
clause to enter into an agreement for the
protection of personal data in similar terms to
this Agreement.
2.2.9 RETENTION AND DESTRUCTION
Keep BPA personal data in such form as shall permit the
identification of data subjects for no longer than is
necessary for the Purposes of providing the Services or
as instructed by BPA;
2.2.10 AUDIT
Submit its facilities used to process personal data,
data files and documentation needed for processing for
auditing and/or certification by BPA (or other duly
qualified auditors of inspection authorities not
reasonably objected to by Exult and approved by BPA) on
reasonable notice and at reasonable times to ascertain
compliance with the obligations and warranties in this
Schedule; and
2.2.11 EMPLOYEE COMPLIANCE
Ensure the compliance of its employees from time to time
with the terms of this Schedule.
3 DATA EXPORT
3.1 If BPA consents to the export of BPA personal data in accordance
with Section 2.2.6 of this Schedule and if the personal data is
subject to the Directives it shall ensure that the party to whom
BPA personal data is exported shall:
3.1.1 process BPA personal data in accordance with any industry or
other codes of practice to which it subscribes and in accordance
with the data protection principles set out in the Directive,
including without limitation the principles in Article 6 of the
Directive relating to data quality and Article 17 of the
Directive relating to security;
3.1.2 provide the data subject with the same rights of access,
correction, blocking, suppression or deletion available to such
individual Countries in which the personal data is subject to
the Directives;
3.1.3 process BPA personal data purposes of and to the extent required
to provide the Services;
3.1.4 maintain the accuracy of the data and keep it up to date;
3.1.5 comply with all instructions from BPA to rectify, delete and
update any personal data and confirm to BPA within a reasonable
time that it has done so;
3.1.6 appoint, and identify to BPA and, if requested by BPA to the
Authority, an individual within its organisation authorised to
respond to enquiries from the Authority or a data subject
concerning its processing of his or her personal data;
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4 WARRANTY
Exult warrants that it will process BPA personal data only:
4.1 for the purposes of and to the extent required to provide the
Services;
4.2 to the extent they are applicable, in accordance with the
Directives and the provisions of the Implementing Legislation;
and
4.3 in accordance with the provisions of this Agreement.
5 BPA'S OBLIGATIONS
5.1 BPA warrants that:
5.1.1 it will obtain the written consent of all Data Subjects
whose personal data may be processed by Exult as part of
the Services under this Agreement;
5.1.2 it will indemnify and hold harmless Exult against all
costs, damages or other losses caused by any inaccuracy
in the personal data which BPA provides to Exult and
which results in Exult having any enforcement
proceedings taken by BPA employees and/or Authorities;
5.1.3 it shall ensure that it is permitted under its
registrations with the Authorities in all Countries to
transfer personal data to third party suppliers such as
Exult;
5.1.4 it will co-operate with Exult to ensure that all
personal data is accurate and that the Directives and
Implementing Legislation are complied with in the
applicable Countries.
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE R
BPA PARTICIPATING AFFILIATES
<PAGE> 164
SCHEDULE R
BPA PARTICIPATING AFFILIATES
This schedule sets forth the BPA Affiliates that shall receive the Services
under the applicable Country Agreement. This table shall be completed following
the Country Commencement Date.
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REGISTERED OFFICE OR
COUNTRY PARENT IF NOT PRINCIPAL OR PLACE OF
COMPANY THE CLIENT BUSINESS
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UNITED STATES COUNTRY AGREEMENT
SCHEDULE T
PROCESS LINE POPULATION
<PAGE> 166
SCHEDULE T
PROCESS LINE POPULATION
This schedule sets forth the populations that shall receive the Services for
this County Agreement. The table below shall be completed prior to the Process
Take On Date for each Process. The Client shall provide both initial data and
monthly updates for this table until such time as the systems are available to
automatically report on this data.
PROCESS LINE POPULATION TABLE
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BUSINESS
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<PAGE> 172
UNITED STATES COUNTRY AGREEMENT
SCHEDULE U
ESCROW AGREEMENT
<PAGE> 173
TABLE OF CONTENTS
1 DEFINITIONS..............................................................................................1
2 OWNER'S DUTIES AND WARRANTIES............................................................................2
3 LICENSEE'S RESPONSIBILITIES..............................................................................2
4 ESCROW AGENT DUTIES......................................................................................2
5 PAYMENT..................................................................................................3
6 RELEASE EVENTS...........................................................................................3
7 CONFIDENTIALITY..........................................................................................4
8 INTELLECTUAL PROPERTY RIGHTS.............................................................................4
9 VERIFICATION.............................................................................................4
10 ESCROW AGENT'S LIABILITY.................................................................................4
11 TERMINATION..............................................................................................5
12 GENERAL..................................................................................................5
i
<PAGE> 174
SCHEDULE U
ESCROW AGREEMENT
BETWEEN:
(1) Exult, Inc. whose registered office is at 4 Park Plaza, Suite 350,
Irvine, California 92614 (the "Owner");
(2) BP Amoco plc whose registered office is at Britannic House, 1 Finsbury
Circus, London, EC2M 7BA (the "Licensee"); and
(3) NCC Escrow International Limited whose registered office is at Oxford
House, Oxford Road, Manchester, M1 7ED (the "Escrow Agent")
PRELIMINARY:
(A) The Licensee has been granted a license to use a software package
comprising computer programs.
(B) Certain technical information and documentation describing the software
package and other process flowcharts describing the way in which the
Owner provides certain services to the Owner and its affiliates, are the
confidential property of the Owner and are required for understanding,
maintaining and correcting the software package and the provision of the
services respectively.
(C) The Owner acknowledges that in certain circumstances the Licensee may
require possession of the technical information and documentation held
under this Agreement.
(D) Each of the parties to this Agreement acknowledges that the
considerations for their respective undertakings given under it are the
undertakings given under it by each of the other parties.
IT IS AGREED THAT:
1 DEFINITIONS
In this Agreement the following terms shall have the following meanings:
1.1 "FULL VERIFICATION SERVICE" means those bespoke tests agreed
between the Licensee and Escrow Agent for the verification of
the Material;
1.2 "INTELLECTUAL PROPERTY RIGHTS" means copyright, trade secret,
patent, and all other rights of a similar nature;
1.3 "SERVICES AGREEMENT" means the agreement pursuant to which the
Owner grants a licence to the Licensee for the Package;
1.4 "MATERIAL" means the source code of the Package comprising the
latest technical information and documentation described in
Schedules 1 and 2;
1.5 "PACKAGE" means the software package licensed to the Licensee
under the Services Agreement; and
1.6 "STANDARD VERIFICATION SERVICE" means those tests detailed in
the Standard Verification Service published by Escrow Agent from
time to time.
1
<PAGE> 175
2 OWNER'S DUTIES AND WARRANTIES
2.1 The Owner shall:
2.1.1 deliver a copy of the Material to Escrow Agent within 30
days of the date of this Agreement;
2.1.2 at all times ensure that the Material as delivered to
Escrow Agent is capable of being used to generate the
latest version of the Package issued to the Licensee and
shall deliver further copies of the Material as and when
necessary;
2.1.3 deliver to Escrow Agent a replacement copy of the
Material within 12 months of the last delivery;
2.1.4 deliver a replacement copy of the Material within 14
days of receipt of a notice served upon it by Escrow
Agent under the provisions of Section 4.1.5; and
2.1.5 deliver with each deposit of the Material the
information detailed in Schedule 2.
2.2 The Owner warrants that:
2.2.1 it owns the Intellectual Property Rights in the Material
and has authority to enter into this Agreement; and
2.2.2 the Material lodged under Section 2.1 shall contain all
information in human readable form and on suitable media
to enable a reasonably skilled programmer or analyst to
understand, maintain and correct the Package and to
enable a suitably skilled person to understand and
maintain the provision of services under the Services
Agreement without the assistance of any other person.
3 LICENSEE'S RESPONSIBILITIES
It shall be the responsibility of the Licensee to notify Escrow Agent of
any change to the Package that necessitates a replacement deposit of the
Material.
4 ESCROW AGENT DUTIES
4.1 Escrow Agent shall:
4.1.1 hold the Material in a safe and secure environment;
4.1.2 inform the Owner and the Licensee of the receipt of any
copy of the Material;
4.1.3 in accordance with the terms of Section 9 perform those
tests that form part of its Standard Verification
Service form time to time;
4.1.4 at all times retain a copy of the latest verified
deposit of the Material; and
4.1.5 notify the Owner if it becomes aware at any time during
the term of this Agreement that the copy of the Material
held by it has been lost, damaged or destroyed.
4.2 Escrow Agent shall not be responsible for procuring the delivery
of the Material in the event of failure by the Owner to do so.
2
<PAGE> 176
5 PAYMENT
Escrow Agent's fees are payable in accordance with Schedule 4.
6 RELEASE EVENTS
6.1 Subject to the provisions of Sections 6.2 and 6.3, Escrow Agent
will release the Material to a duly authorised officer of the
Licensee if any of the following events occur:
6.1.1 the Owner enters into any composition or arrangement
with its creditors or (being a company) enters into
liquidation whether compulsory or voluntary (other than
for the purposes of solvency reconstruction or
amalgamation) or has a receiver or administrative
receiver appointed over all or any party off its assets
or undertaking or a petition is presented for an
Administration Order or (being an individual or
partnership) becomes bankrupt, or an event occurs within
the jurisdiction of the country in which the Owner is
situated which has a similar effect to any of the above
events in the United Kingdom; or
6.1.2 the Owner ceases to trade; or
6.1.3 the Owner assigns copyright in the Material and the
assignee fails within 60 days of such assignment to
offer the Licensee substantially similar protection to
that provided by this Agreement without significantly
increasing the cost to the Licensee; or
6.1.4 the Owner has defaulted in any obligation to provide the
Material under the Services Agreement and has failed to
remedy such default notified by the Licensee to the
Owner.
6.2 The Licensee must notify Escrow Agent of the event(s) specified
in Section 6.1 by delivering to Escrow Agent a declaration (the
"Declaration") made by an officer of the Licensee attesting that
such event has occurred exhibiting:
6.2.1 such documentation in support of the Declaration as
Escrow Agent shall reasonably require;
6.2.2 a copy of the Services Agreement;
6.2.3 a signed confidentiality undertaking as detailed in
Schedule 3
then Escrow Agent will release the Source Code to the Licensee
upon receipt of the release fee stated in Schedule 3.
6.3 Upon receipt of a Declaration from the Licensee claiming a
release event under Section 6.1.4 then Escrow Agent will release
the Material to the Licensee upon receipt of the release fee
stated in Schedule 4.
6.4 Where there is any dispute as to the occurrence of any of the
events set out in Section 6 or the fulfilment of any obligations
detailed therein, such dispute will be referred at the request
of either the Owner or the Licensee to the dispute resolution
procedure set out in the Services Agreement.
3
<PAGE> 177
7 CONFIDENTIALITY
7.1 The Material shall remain the confidential property of the Owner
and in the event that Escrow Agent provides a copy of the
Material to the Licensee, the Licensee shall be permitted to use
the Material only in accordance with a confidentiality
undertaking in the form contained in Schedule 3 of this
Agreement.
7.2 Escrow Agent agrees to maintain all information and/or
documentation coming into its possession or to its knowledge
under this Agreement in strictest confidence and secrecy. Escrow
Agent further agrees not to make use of such information and/or
documentation other than for the purposes of this Agreement and
will not disclose or release it other than in accordance with
the terms of this Agreement.
7.3 Termination of this Agreement will not relieve Escrow Agent or
its employees or the Licensee or its employees from the
obligations of confidentiality contained in this Section 7.
8 INTELLECTUAL PROPERTY RIGHTS
The release of the Material to the Licensee will not act as an
assignment of any Intellectual Property Rights that the Owner possesses
in the Material.
9 VERIFICATION
9.1 Subject to the provisions of Sections 9.2 and 9.3, Escrow Agent
shall bear no obligation or responsibility to any person, firm,
company or entity whatsoever to determine the existence,
relevance, completeness, accuracy, effectiveness or any other
aspect of the Material.
9.2 Upon the Material being lodged with Escrow Agent, Escrow Agent
shall perform those tests in accordance with its Standard
Verification Service and shall provide a copy of the test report
to the parties to this Agreement.
9.3 The Licensee shall be entitled to require that Escrow Agent
carries out a Full Verification. Any reasonable charges and
expenses incurred by Escrow Agent in carrying out the Full
Verification will be paid by the Licensee save that if in the
opinion of the expert appointed by the Managing Director of
Escrow Agent, the Material is substantially defective in content
any such reasonable charges and expenses will be paid by the
Owner.
10 ESCROW AGENT'S LIABILITY
10.1 Escrow Agent shall not be liable for loss caused to the Owner or
the Licensee either jointly or severally except for loss or
damage to the Material to the extent that such loss or damage is
caused by the negligent acts or omissions of Escrow Agent, its
employees, agents or sub-contractors and in such event Escrow
Agent's total liability in respect of all claims arising under
or by virtue of this Agreement shall not (except in the case of
claims for personal injury or death) exceed the sum of
(pound)500,000.
10.2 Escrow Agent shall in no circumstances be liable to the Owner or
the Licensee for indirect or consequential loss of any nature
whatsoever whether for loss of profit, loss of business or
otherwise.
10.3 Escrow Agent shall be protected in acting upon any written
request, waiver, consent, receipt or other document furnished to
it pursuant to this Agreement, not only in assuming its due
execution and the validity and effectiveness of its provisions
but also as to the
4
<PAGE> 178
truth and acceptability of any information contained in it,
which Escrow Agent in good faith believes to be genuine and what
it purports to be.
11 TERMINATION
11.1 Escrow Agent may terminate this Agreement after failure by the
Owner or the Licensee to comply with a 30 day written notice
from Escrow Agent to pay any outstanding fee. If the failure to
pay is on the part of the Owner, the Licensee shall be given the
option of paying such fee itself. Such amount will be
recoverable by the Licensee direct from the Owner.
11.2 Escrow Agent may terminate this Agreement by giving 60 days
written notice to the Owner and the Licensee. In that event the
Owner and the Licensee shall appoint a mutually acceptable new
custodian on terms similar to those contained in this Agreement.
11.3 If a new custodian is not appointed within 30 days of delivery
of any notice issued by Escrow Agent in accordance with the
provisions of Section 11.2, the Owner or the Licensee shall be
entitled to request the President for the time being of the
British Computer Society to appoint a suitable new custodian
upon such terms and conditions as he shall require. Such
appointment shall be final and binding on all parties.
11.4 The Licensee may terminate this Agreement at any time by giving
written notice to the Owner and Escrow Agent.
11.5 The Owner may only terminate this Agreement with the written
request of the Licensee.
11.6 This Agreement shall terminate upon release of the Material to
the Licensee in accordance with Section 6.
11.7 Upon termination under the provisions of Sections 11.2, 11.4,
11.5 or 11.6, Escrow Agent will deliver the Material to the
Owner. IF Escrow Agent is unable to trace the Owner, Escrow
Agent will destroy the Material.
11.8 Upon termination under the provisions o Section 11.1 the
Material will be available for collection by the Owner from
Escrow Agent for 30 days from the date of termination. After
such 30 day period Escrow Agent will destroy the Material.
11.9 Escrow Agent may forthwith terminate this Agreement and destroy
the Material if it is unable to trace the Owner having used all
reasonable endeavours to do so.
12 GENERAL
12.1 This Agreement shall be governed by and construed in accordance
with the laws of England and Wales.
12.2 This Agreement represents the whole agreement relating to the
escrow arrangements between the parties for the Package and
supersedes all prior arrangements, negotiations and
undertakings.
12.3 All notices to be given to the parties under this Agreement
shall be deemed to have been duly given or made when delivered
personally or 7 days after posting or if sent by facsimile, 12
hours after despatch to the party to which such notice is
required to be given or made under this Agreement address to the
principal place of business or for companies based in the UK,
the registered office.
5
<PAGE> 179
SCHEDULE 1
MATERIAL: TECHNICAL INFORMATION
The source code of the Package known as [ ]
1
<PAGE> 180
SCHEDULE 2
MATERIAL: TECHNICAL INFORMATION
The Material shall be supplied with details of the following:
1. Details of the deposit; full name and version details, number of
media items, media type and density, file or archive format,
list or retrieval commands, archive hardware and operating
system details.
2. Name and functionality of each module/application of the
Material.
3. Names and versions of development tools etc.
4. Documentation describing the procedures for
building/compiling/executing/using the software (technical
notes, user guides).
5. Hardcopy directory listings of the contents of the media.
6. Name and contact details of employee(s) with knowledge of how to
maintain and support the Material.
1
<PAGE> 181
SCHEDULE 3
CONFIDENTIALITY UNDERTAKING
This undertaking is given on release of the Material pursuant to an Escrow Agent
dated [date] between:
(1) ("the Owner");
(2) ("the Licensee"); and
(3) Escrow Agent
1. Definitions contained in the Escrow Agent will apply to this
undertaking.
2. In consideration of Escrow Agent delivering the Materials to the
Licensee, the Licensee undertakes with the Owner and Escrow Agent.
2.1 to use the Material only for the purpose of understanding,
maintaining, developing, enhancing and correcting the Package
exclusively on behalf of the Licensee;
2.2 not to use the Material for any other purpose nor disclose it to
any person save such of its employees or contractors who need to
know the same in order to understand, maintain, develop, enhance
and correct the Package exclusively on behalf of the Licensee;
2.3 to hold all media containing the Material in a safe and secure
environment when not in use; and
2.4 forthwith to destroy the same should the Licensee cease to be
entitled to use the Package.
1
<PAGE> 182
SCHEDULE 4
ESCROW AGENT'S FEES (STL)
1. Initial Fee
2. Annual Fee
(payable on completion of this Agreement and on each anniversary
thereafter)
1. Update Fee
(per update after the first 4 updates per annum)
1. Storage Fee
(per annum, per cubic foot payable if the source exceeds 1 cubic foot)
1. Release Fee
(plus Escrow Agent's reasonable expenses)
(i) All fees are subject to VAT where applicable(1)
(ii) All fees are reviewed by Escrow Agent from time to time
---------------------
(1) Only applicable to countries within the EU.
1
<PAGE> 183
Signed on behalf of Exult, Inc.
Name:
------------------------------------
Position:
--------------------------------
(Authorised Signatory)
Signed on behalf of BP Amoco plc
Name:
------------------------------------
Position:
--------------------------------
(Authorised Signatory)
Signed on behalf of Escrow Agent
Name:
------------------------------------
Position:
--------------------------------
(Authorised Signatory)
1
<PAGE> 184
UNITED STATES COUNTRY AGREEMENT
SCHEDULE W
MATTERS TO BE TAKEN INTO ACCOUNT WHEN CONSIDERING CHANGES TO AGREEMENT OR ANY
SCHEDULE TO REFLECT ANY SPECIAL SERVICES PROVIDED BY EXULT SUPPLIER
<PAGE> 185
TABLE OF CONTENTS
1 SERVICES TO BE PERFORMED...........................................................................................1
2 SERVICE STANDARDS..................................................................................................1
3 COMPLIANCE AND LIABILITY...........................................................................................2
4 AUDIT RIGHTS.......................................................................................................2
i
<PAGE> 186
SCHEDULE W
MATTERS TO BE TAKEN INTO ACCOUNT WHEN CONSIDERING CHANGES TO AGREEMENT OR ANY
SCHEDULE TO REFLECT ANY SPECIAL SERVICES PROVIDED BY EXULT SUPPLIER
1 SERVICES TO BE PERFORMED
In respect of Special Services relating to any Client or Participating
Affiliate employee benefit plan within the United States of America
("Benefit Plan"), this Agreement will be amended to provide:
1.1 that the Client and any of its Affiliates sponsoring any Benefit
Plan covered by this Agreement expressly acknowledge that Exult
Supplier and each Exult Participating Affiliate is not the
"administrator" or "plan administrator" as defined in Section
3(16)(a) of ERISA and Section 414(g) of the Code, respectively,
nor is Exult Supplier a "fiduciary" within the meaning of ERISA
Section 3(21), and the Client and Participating Affiliates shall
not request or otherwise require Exult Supplier or any Exult
Participating Affiliate to act as such with respect to any
Benefit Plan. Exult Supplier shall not exercise any
discretionary authority or discretionary control respecting
management of any Benefit Plan or management or disposition of
any Benefit Plan assets. Exult Supplier or any Exult
Participating Affiliate shall not render investment advice for a
fee or other compensation, direct or indirect, with respect to
any monies or other property of any Benefit Plan, nor does Exult
Supplier or any Exult Participating Affiliate have any authority
or responsibility to do so. Exult Supplier has no discretionary
authority or discretionary responsibility in the administration
of the Benefit Plans; and
1.2 a warranty from the Client to Exult Supplier that its nominated
employees have, and shall at all times have, the requisite
authority to transmit information, directions and instructions
on behalf of Client and Participating Affiliates, each "plan
administrator" (as defined in Section 3(16)(A) of ERISA and
Section 414(g) of the Code) and, if applicable, each "fiduciary"
(as defined in Section 3(21) of ERISA) of each separate Benefit
Plan.
2 SERVICE STANDARDS
2.1 Subject to paragraph 2.4, Special Services are to be performed
in accordance with professional standards applicable in
compliance with BPA Controls, and with industry level standards
for vendors providing employee benefit plan administration
services.
2.2 Exult Supplier will cause Exult Personnel engaged in carrying
out Special Services to comply with such BPA Controls, standards
and procedures referred to in paragraph 2.1.
2.3 Exult Supplier and Client will develop mutually acceptable
written performance standards for Special Services to measure
performance levels for the delivery thereof to reflect the
matters referred to in paragraphs 2.1 and 2.2 above. Exult
Supplier's actual performance will be reviewed in quarterly
meetings of the Regional Governance Panel in order (i) to
discuss performance and performance standards; and (ii) problem
solve any issues that have arisen in the delivery of the Special
Services; and (iii) discuss any proposed improvements in
delivery of the Special Service.
2.4 Exult Supplier's performance of Special Services with respect to
each Benefit Plan shall be in accordance with and subject to the
documents, policies, interpretations, directives, rules,
practices and procedures for such administration (the "Client
Benefit Plan Procedures") provided in writing to Exult Supplier
by the Client. In the event Exult Supplier shall have any
questions relating to the application of the Client Benefit Plan
Procedures to a particular set of facts, or if a participant or
beneficiary of a Benefit Plan notifies Exult Supplier of his or
her objection to Exult Supplier's interpretation or application
of the Client
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Benefit Plan procedures, then Exult Supplier shall notify the
Client Contract Representative in writing of such questions or
objections The Client Contract Representative shall have the
responsibility to promptly provide answers to any such questions
or objections and Exult Supplier shall be entitled to rely upon
such answers and to follow any directions communicated by the
Client Contract Representative. The Client authorises Exult
Supplier to release employment-related confidential data and
information to health care providers or other third party
vendors of Client or Participating Affiliates as are designated
by Client or Participating Affiliates from time to time.
2.5 To reflect the matters referred to in paragraphs 2.1 to 2.4, the
Client's agreement to the provision by Exult Supplier of any
Special Services may necessitate amendment to provisions in this
Agreement including those relating to "Benchmarking", "Service
Performance Reports", "KPIs", "Key Incident Reporting",
"Satisfaction Surveys" and "Continuous Improvement".
3 COMPLIANCE AND LIABILITY
3.1 Subject to paragraphs 3.2 and 3.3, the Client and the
Participating Affiliates shall be solely responsible for (a) the
preparation, approval and submission of all Benefit Plans and
related amendments for Internal Revenue Service determination,
(b) each Benefit Plan's compliance with state and federal law
(including applicable provisions of the Code and ERISA and
regulations promulgated thereunder) and all other applicable
laws and regulations and (c) all measures required under state
and federal law (including applicable provisions of the Code and
ERISA and regulations promulgated thereunder) and all other
applicable laws and regulations, to assure, the qualification
and compliance of the Benefit Plans with such laws. Exult
Supplier shall be under no duty to question terms of the Benefit
Plans and the measures taken by the Client.
3.2 Notwithstanding paragraph 3.1, the Client may (as a condition of
agreeing to the Exult Supplier carrying out any Special
Services) in respect of Special Services generally, and those
relating to Benefit Plans specifically, require Exult Supplier
to provide inter alia increased levels of insurance cover under
Clause 22 of the Framework Agreement, provided that the cost of
such insurance shall be a Pass Through Cost.
4 AUDIT RIGHTS
With respect to Special Services, the Client's right of audit under
Clause 12 of this Agreement may be modified to allow:
(a) a right for Client's designated representative to inspect books
and records relating to the Client Service Centre operations and
Benefit Plan data during normal business hours at any time or
times as may be requested by the Client by prior written notice
to Exult Supplier; and
(b) an audit on a quarterly basis or more frequently if upon
reasonable grounds the Client requests the same of the Exult
Supplier by prior written notice.
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