UK Country Agreement - BP International Ltd. and Exult Ltd.
Dated 7 December 1999
BP INTERNATIONAL LIMITED
and
EXULT LIMITED
UK COUNTRY AGREEMENT
LINKLATERS
One Silk Street
London EC2Y 8HQ
Tel: (44-171) 456 2000
Ref: JPC/CXC
<PAGE> 2
TABLE OF CONTENTS
<CAPTION>
CONTENTS PAGE
1 Definitions and Interpretation.....................................................2
2 Term...............................................................................2
3 Services...........................................................................3
4 Exclusivity........................................................................7
5 Client Obligations including BPA Responsibilities..................................7
6 Transfer Arrangements..............................................................8
7 Third Party HR Contracts..........................................................10
8 Front End Consents................................................................13
9 Change Control Management Process.................................................14
10 Charges, Invoicing and Payment....................................................14
11 Taxes.............................................................................14
12 Audit.............................................................................16
13 Key Personnel.....................................................................18
14 Termination.......................................................................18
15 Suspension of a Process...........................................................20
16 Winding Up Assistance.............................................................21
17 Financial Consequences of Termination.............................................22
18 Transfer Arrangements on Termination..............................................25
19 Intellectual Property Rights......................................................27
20 Confidentiality...................................................................29
21 Data Protection and Security......................................................30
22 Contract and Service Management...................................................31
i
<PAGE> 3
23 Contract Minimums.................................................................33
24 Warranties........................................................................34
25 Limitation on Liability...........................................................35
26 Indemnities and Defence of Claims.................................................37
27 Insurance.........................................................................42
28 Recovery of Damage Awards.........................................................42
29 Dispute Resolution................................................................44
30 Force Majeure.....................................................................46
31 Assignment........................................................................46
32 Subcontracting....................................................................47
33 Participating Affiliates..........................................................48
34 General Terms.....................................................................48
ii
<PAGE> 4
PARTIES
THIS AGREEMENT is made on 7th December, 1999
BETWEEN:
(1) BP International Limited, a company incorporated under the laws of
England and Wales, whose principal office is at Britannic House, 1
Finsbury Circus, London EC2M 7BA ("CLIENT"); and
(2) Exult Limited, a company incorporated under the laws of England and
Wales whose principal office is at Regis House, 45 King William Street,
London, EC4R 9AN ("Exult Supplier").
WHEREAS:
(A) By an agreement (the "Framework Agreement") dated 7 December, 1999
between BPA Amoco p.l.c. ("BPA") a company incorporated under the laws
of England, and Exult, Inc. ("Exult"), a company incorporated under the
laws of the State of Delaware, a framework was agreed to enable Exult
and its Affiliates to provide certain human resource management services
to BPA and certain of its Affiliates.
(B) The purpose of this Agreement is to set out the terms on which Exult
Supplier is to supply the Services to the Client in the United Kingdom.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 The definitions applying to this Agreement are set out in
Schedule Z (Definitions).
1.2 A reference to any statute, enactment, order, regulation or
other similar instrument shall be construed as a reference to
the statute, enactment, order, regulation or instrument as
amended by any subsequent statute, enactment, order, regulation
or instrument or as contained in any subsequent re-enactment
thereof.
1.3 Headings are included in this Agreement for ease of reference
only and shall not affect the interpretation or construction of
this Agreement.
1.4 References to Clauses and Schedules are, unless otherwise
provided, references to clauses and schedules in or to this
Agreement.
1.5 References to the words "include(s)" or "including" shall be
construed without limitation to the generality of the preceding
words.
2 TERM
This Agreement shall take effect on the Commencement Date and, unless
the Client provides
2
<PAGE> 5
notice under Clause 14.4 (Termination on Notice after the Initial
Period) that it wishes to terminate the Agreement on notice after the
Initial Period, the Agreement shall continue thereafter subject to the
other provisions of Clause 14 (Termination).
3 SERVICES
3.1 The Services
3.1.1 Exult Supplier shall provide the Services to the Client
and the Participating Affiliates in accordance with the
Transition Plan, the Service Levels, the Controls, Good
Industry Practice and otherwise in accordance with the
terms and conditions of this Agreement.
3.1.2 Exult Supplier shall supply sufficient and appropriately
qualified and skilled Employees and Subcontractors to
provide the Services to the Client.
3.1.3 Exult Supplier shall be responsible for the management
and technical supervision of the performance of the
Services by Employees and Subcontractors under this
Agreement.
3.1.4 Except as otherwise provided in this Agreement, Exult
Supplier shall be responsible for ensuring it has all
the assets required to provide the Services.
3.1.5 In performing the Services Exult Supplier shall use
reasonable endeavours to perform its duties in such
manner and at such times so that no act, omission or
default of the Exult Supplier shall, to its knowledge,
constitute, cause or contribute to any breach by BPA,
the Client or any of the Participating Affiliates of any
contract, including, but not limited to, the Third Party
Contracts binding upon BPA, the Client or the
Participating Affiliates relating to the Client
Premises, the Client Assets or, the provision of the
Services.
3.2 CONTROLS
3.2.1 For the avoidance of doubt, the Client shall be
responsible for establishing and maintaining BPA
Controls, including, but not limited to, management
overview and determination of BPA Controls relating to
human resource management policies and practices. Exult
Supplier shall have no responsibility for the
establishment and maintenance of BPA Controls, but shall
comply with BPA Controls in accordance with the terms of
this Agreement .
3.2.2 As at the Commencement Date, the BPA Controls listed in
Part 1 of Schedule O, BPA Controls, have been provided
to Exult Supplier in writing and the parties have agreed
that Exult Supplier shall comply with such agreed BPA
Controls when fulfilling its obligations under this
Agreement.
3.2.3 During the 6 month period following the Commencement
Date, the parties shall work together in good faith to
review and evaluate the BPA Controls listed in
3
<PAGE> 6
Part 2 of Schedule O. Such review will involve an
assessment of the applicability of such BPA Controls to
the performance of Exult Supplier's obligations under
this Agreement and the impact, if any, of Exult's
compliance with such BPA Controls in terms of the scope
of Services, Service Levels, Charges or any other aspect
of this Agreement.
3.2.4 It is the intention of the parties that through the
review process referenced in Clause 3.2.3, the BPA
Controls listed in Part 2 of Schedule O will be agreed
between the parties and included within Part 1 of
Schedule O and Exult Supplier's performance of its
obligations under this Agreement shall be subject to
compliance with such additional agreed BPA Controls.
3.2.5 In the event that the parties are unable to reach
agreement within [***]* of the review as to the
inclusion of any BPA Controls pursuant to Clause 3.2.4
then at the end of such [***]* period, those BPA
Controls shall be deemed to have been included in Part 1
and the Change Control Management process shall be
applied to implement such BPA Controls.
3.2.6 In addition to the provisions in Clauses 3.2.4 and 3.2.5
for inclusion of BPA Controls into this Agreement, the
parties shall procure the Regional Governance Panel to
review the BPA Controls periodically during the term of
this Agreement and to use reasonable endeavours to agree
and include:
(i) any improvements and updates to BPA Controls;
and
(ii) any additional BPA Controls established or
determined by the Client in relation to human
resource management or to its business
generally.
3.2.7 In the event that the parties are unable to reach
agreement as to the inclusion of any BPA Controls
pursuant to Clause 3.2.6 within [***]* of the review,
those BPA Controls shall be deemed to have been included
in Part 1 and the Change Control Management process
shall be applied to implement such BPA Controls.
3.2.8 Within [***]* following the Commencement Date and
consistent with the Process Take On Dates as set out in
the Country Transition Plan, Exult Supplier will develop
a Quality Control Document. The Quality Control Document
shall thereafter be reviewed periodically by the
Regional Governance Panel with a view to agreeing and
incorporating any improvements and updates thereto.
3.2.9 Any alleged or suspected violation of the BPA Controls
by any Employees in the performance of this Agreement
shall be promptly reported by the party with knowledge
of the alleged or suspected violation to the other
party. Exult Supplier shall permit the Client to conduct
an investigation into the matter and shall co-operate
with any investigation into such matter conducted by the
Client
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
4
<PAGE> 7
and shall take whatever Exult Supplier deems to be the
appropriate corrective action with respect to any such
violation by the Exult Personnel.
3.3 NON-PERFORMANCE AGAINST KPI'S
3.3.1 Exult Supplier's performance of the Services shall be
measured against Service Levels, including the KPIs.
3.3.2 If at any time after the applicable date determined in
accordance with Schedule B (Service Levels), there is a
KPI Failure, Exult Supplier shall credit the Client with
the applicable Service Credit in accordance with the
procedure set out in Schedule C (Charges and Invoicing)
and the Client may at its option seek any other remedy
set forth in this Agreement, provided that:
(i) the amount of such Service Credit shall be taken
into account when assessing any Award made to
the Client pursuant to any other remedy in
relation to the default resulting in the KPI
Failure; and
(ii) the Client shall provide Exult Supplier with
notice that it intends to pursue such
alternative remedy within [***]* of recovery of
the relevant Service Credit from Exult Supplier
in accordance with Schedule C (Charges and
Invoicing).
3.4 PROJECTS
The Client may from time to time request Exult Supplier by
written notice to undertake a Project in accordance with the
Change Control Management process and the procedures set out in
Schedule H (Projects). Projects included within the scope of
this Agreement at the Commencement Date, if any, are set out in
Schedule H. Unless otherwise agreed, Projects will be charged at
the Standard Rates.
3.5 DISASTER RECOVERY
3.5.1 In respect of each Process, Exult Supplier shall, from
the relevant Process Take On Date use and comply with
the existing BPA Disaster Recovery Plan (except to the
extent that Client has not provided Exult Supplier with
a copy of the existing BPA Disaster Recovery Plan) and
shall within [***]* of the Commencement Date develop and
implement an Exult Supplier Disaster Recovery Plan
appropriate to the provision of the Services. BPA makes
no representation that the BPA Disaster Recovery Plan is
adequate for these purposes and, therefore, Exult
Supplier shall have no liability for its failure to
reinstate any of the Services to the extent that it has
complied with such plan. The Exult Supplier Disaster
Recovery Plan shall cover critical personnel,
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
5
<PAGE> 8
operations, Systems and processing at facilities used in
the provision of the Services. Exult Supplier shall
maintain the Exult Supplier Disaster Recovery Plan and
shall conduct annual tests to ensure its effectiveness.
Exult Supplier shall consult with the Client in the
preparation and development of the Exult Supplier
Disaster Recovery Plan and the Regional Governance Panel
shall use its reasonable endeavours to agree any
improvements to it. In the event that such agreement is
not reached within [***]* of the proposal being made the
improvement will be deemed to be adopted and will be
implemented in accordance with the Change Control
Management process.
3.5.2 As part of the consultation process described in Clause
3.5.1, Exult Supplier shall provide the Client with
copies of the Exult Supplier Disaster Recovery Plan,
including any updates to such plan which are developed
by Exult Supplier.
3.6 COMPATIBILITY OF IT SYSTEMS
It is the intention of the parties that the Systems and IT
infrastructure, including the Exult IT Domain, Exult Systems and
Future Systems, to be developed to support the provision of the
Services shall be compatible with BPA's IT infrastructure and
systems architecture existing at the Commencement Date (the
"Existing IT Domain"). The parties will co-operate in good faith
to ensure that this can be achieved so that the Leveraged
Operations can be implemented with the minimum of disruption to
the Existing IT Domain, provided that if either party considers
that a change to the Existing IT Domain is necessary in order to
allow the provision of the Services to the Service Levels and
achieve Leveraged Operations then such change shall be
implemented by way of the Change Control Management process.
3.7 VALIDATION EXERCISE
3.7.1 Following the Commencement Date, Exult Supplier and the
Client will work in co-operation to complete the
Validation Exercise in accordance with Schedule G.
3.7.2 The costs of the Validation Exercise shall be dealt with
in accordance with Schedule C.
3.8 PROCESS DESCRIPTIONS
3.8.1 Exult Supplier shall maintain in an electronic format
(where possible) updated system documentation and
procedures providing a clear description of the Service
Delivery Model once the Services are delivered (the
"Process Descriptions").
3.8.2 Exult Supplier shall provide the Client with access to
such Process Descriptions as reasonably requested by the
Client.
6
<PAGE> 9
4 EXCLUSIVITY
The parties acknowledge that Exult Supplier will have an exclusive right
to offer to provide Services and Underlying Technology to the Client in
United Kingdom save that the Client has the right to obtain human
resources services (including the Services) directly from itself, from
BPA, from a BPA Affiliate or from a third party in respect of:
4.1 [***]*
4.2 services received by the Client under Third Party Contracts
which are not Transferred to Exult Supplier pursuant to Clause 7
(Third Party HR Contracts);
4.3 services received by the Client under Sensitive Third Party
Contracts pursuant to Clause 7 (Third Party HR Contracts);
4.4 [***]*
4.5 [***]*
4.6 any Affected Process in relation to which the Client has
terminated this Agreement pursuant to Clause 15.5.1 (Suspension
of a Process).
5 CLIENT OBLIGATIONS INCLUDING BPA RESPONSIBILITIES
5.1 The Client shall perform its obligations under this Agreement,
including, but not limited to, the BPA Responsibilities, in
accordance with this Agreement.
5.2 The Client shall arrange for the giving of timely approvals,
management input, information and management review of issues as
and when they are requested by Exult Supplier. The Client will
provide Exult Supplier and its Employees and Subcontractors full
and timely access to all staff relevant to the provision of the
Services to the extent reasonably needed by Exult Supplier to
make decisions in relation to, or to perform the Services. In
the event that such access is not provided, Exult's Country
Representative will advise the Client's Country Representative.
5.3 The Client shall be responsible for establishing and maintaining
its management policies and strategies, including, but not
limited to, policies relating to the Client's human resources
function. Exult Supplier shall have no responsibility for the
establishment or maintenance of such policies.
5.4 Exult Supplier shall not be liable for any delay or failure on
its part to provide all or any of the Services or failure to
perform its other obligations under this Agreement to the extent
that this results from:
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
7
<PAGE> 10
5.4.1 a failure by the Client to meet any of the Client's
obligations under this Agreement, including, but not
limited to, BPA Responsibilities;
5.4.2 errors, omissions or inadequacies in data, information
or instructions provided by the Client which Exult
Supplier relies on to provide the Services, but only to
the extent that Exult Supplier ought not to have been
aware of any such errors, omissions or inadequacies;
5.4.3 the negligent acts or negligent omissions of the Client
in connection with this Agreement; or
5.4.4 the Client preventing Exult Supplier from implementing
the agreed Exult Service Delivery Model by failing to
fulfil its obligations in respect of such implementation
as set out in this Agreement or as otherwise agreed
between the parties.
5.5 Exult Supplier shall notify the Client on becoming aware of the
occurrence of any of the circumstances in Clause 5.4.1 to Clause
5.4.4 that may cause a delay or failure and shall use reasonable
endeavours to continue to provide the Services. To the extent
that either party believes consequential changes to Services,
Charges, Service Levels or any other obligations arising under
the Agreement are necessary as a result of the Client's failure
to meet its obligations, the matter shall be referred to the
Regional Governance Panel which shall determine the changes, if
any, that should be implemented in accordance with the Change
Control Management process. If the Regional Governance Panel is
unable to resolve this issue the matter shall be referred to an
Arbitrator appointed pursuant to Clause 29.3 (Dispute
Resolution).
6 TRANSFER ARRANGEMENTS
6.1 CLIENT PREMISES
6.1.1 The Client shall use its reasonable endeavours to make
available, or to procure that there is made available,
should Exult Supplier so reasonably request, Client
Premises to enable Exult Supplier to perform the
Services.
6.1.2 Exult Supplier shall occupy the Client Premises made
available to Exult Supplier in accordance with terms and
conditions of this Agreement and other terms which are
appropriate for those Client Premises as agreed between
the parties.
6.1.3 Any charges charged by the Client to Exult Supplier for
the use of Client Premises shall be charged back to the
Client as Pass Through Costs. Any reasonable costs
incurred by Exult Supplier in vacating Client Premises
and in establishing alternative premises shall be
charged to the Client as Pass Through Costs.
6.2 CLIENT ASSETS
8
<PAGE> 11
6.2.1 Without prejudice to Clause 19 (Intellectual Property),
the Client shall use its reasonable endeavours to
transfer, license, lease or otherwise make available, to
the extent it has the power to do so, the Client Assets
(as agreed between the parties pursuant to the Due
Diligence Exercise and/or Validation Exercise) to enable
Exult Supplier to perform the Services.
6.2.2 Exult Supplier shall use Client Assets in accordance
with terms and conditions which are appropriate for
those Client Assets as agreed by the parties.
6.2.3 Any Charges charged by the Client to Exult Supplier for
the use of Client Assets shall be charged back to the
Client as Pass Through Costs.
6.3 EXULT SYSTEMS
6.3.1 Licences in respect of Exult Systems shall be dealt with
in accordance with Clause 19.
6.3.2 Subject to Clause 6.3.3 and Clause 19.6 (Licences of
Exult Supplier Intellectual Property on Termination),
the licences granted under Clause 6.3.1 shall be royalty
free.
6.3.3 Where the Exult Systems or Future Systems include
software or other material licensed from a third party
for which such third party generally charges a royalty
to licensees, Exult Supplier reserves the right to
charge the Client such royalty in respect of such
software or materials. Any such royalty will be
equivalent to the royalty sum Exult Supplier pays to the
third party in respect of the licence. Any such royalty
charged to the Client shall be charged as a Pass Through
Cost.
6.3.4 Subject to Clause 6.3.5, Exult Supplier and the Client
agree to be bound by the terms of the Escrow Agreement
in respect of source code materials relating to the
Exult Systems and Future Systems other than standard
commercially available Third Party Systems, and Exult
Supplier agrees to update where possible the relevant
source code materials held in escrow, in accordance with
the Escrow Agreement.
6.3.5 In respect of those Systems to which Clause 6.3.4
applies and which are licensed to Exult Supplier from a
third party, Exult Supplier shall before using such
Systems in the provision of the Services take reasonable
steps to:
(i) obtain the source code materials relating to
such Systems and place such materials in escrow
in accordance with Clause 6.3.4;
(ii) if this is not reasonably practicable, procure
that the source code materials be made available
to the Client, including in an escrow account on
substantially the same terms to those contained
in Clause 6.3.4;
9
<PAGE> 12
If (i) and (ii) are not reasonably practicable, the
parties shall discuss and agree on alternative
arrangements to obtain appropriate rights of access to
the source code materials.
6.3.6 The parties agree that the Escrow Agreement referred to
in Clause 6.3.4 shall be entered into with NCC Escrow
International Limited ("NCC") and that the Escrow
Agreement should be based on the standard model Single
Licensee (UK), amended to reflect the parties
requirements pursuant to fulfilling the respective
obligations under this and the other Country Agreements.
The parties intend the form of the agreement should be
substantially similar to that contained in Schedule U
and that if it is not possible to obtain such agreement
with NCC, the parties shall agree on a suitable
alternative escrow agent.
6.3.7 Any costs associated with Exult Supplier's compliance
with Clauses 6.3.4, 6.3.5 and 6.3.6 shall be charged to
the Client as a Pass Through Cost.
6.4 MISCELLANEOUS PROVISIONS RELATING TO THIRD PARTY CONTRACTS
6.4.1 The Client shall procure, so far as is reasonably
practicable and subject to the provisions of Clause 8
(Front End Consents), that Exult Supplier shall be
entitled to the benefit, subject to the burden, of the
Client's or BPA's interest in Third Party Contracts
other than Third Party HR Contracts which shall be dealt
with in accordance with Clause 7.
6.4.2 All charges and expenses arising from the Third Party
Contracts transferred to Exult Supplier (including Third
Party HR Contracts) (to the extent that the same relate
to the Services) shall, subject to Clause 8 (Front End
Consents), be equitably apportioned between the Client
and Exult Supplier as at the date of the Transfer.
7 THIRD PARTY HR CONTRACTS
7.1 THIRD PARTY HR CONTRACTS
Those contracts identified during the Due Diligence Exercise as
potential Third Party HR Contracts are set out in Schedule D.
The parties acknowledge that more potential Third Party HR
Contracts may be identified during the term of the Agreement in
which case such Third Party HR Contracts shall be added to
Schedule D and be subject to the provisions of this Clause 7. It
is the intention of the parties that, subject to the other
provisions of this Clause, where practicable the responsibility
for the provision of the services provided under Third Party HR
Contracts should be Transferred to Exult Supplier either by
termination of such Third Party HR Contracts or by an assignment
or novation of such Third Party HR Contracts to Exult Supplier,
and in any event upon the expiry of such Third Party HR
Contracts. However, the parties recognise that this may not be
practicable in all circumstances and have agreed that the
following procedure shall apply to Third Party HR Contracts.
10
<PAGE> 13
7.2 THIRD PARTY CONTRACTS IN SCOPE
7.2.1 As soon as practicable after any potential Third Party
HR Contracts are identified, the Regional Governance
Panel:
(i) shall consider and agree whether each such
contract falls within the scope of Services and
is therefore a Third Party HR Contract; and
(ii) [***]*
7.2.2 Any disagreement between the parties in relation to
Clause 7.2.1(i) shall be if possible resolved in
accordance with the provisions of Clause 7.8.
7.2.3 [***]*
7.2.4 Any Third Party HR Contract categorised by the Client as
a Sensitive Third Party Contract shall be retained
within Schedule D and dealt with in accordance with the
following provisions of this Clause 7.
7.3 TRANSFER OF THIRD PARTY HR CONTRACTS
7.3.1 On the expiry of any Third Party HR Contract other than
a Sensitive Third Party Contract (which shall be dealt
with under Clause 7.6), Exult shall take on
responsibility for the provision of the Services
equivalent to the services previously provided under
such Third Party HR Contract, and the provisions of
Clause 7.3.4, Clause 7.3.5 and Clause 7.7 will apply
thereto.
7.3.2 [***]*
7.3.3 In the event of failure to agree pursuant to Clause
7.3.2, the matter shall be referred to and if possible
resolved in accordance with the provisions of Clause
7.8.
7.3.4 If the parties agree pursuant to Clause 7.3.2 or if it
is resolved pursuant to Clause 7.3.3 that the Third
Party HR Contract should be Transferred to Exult
Supplier or if the services previously provided by such
Third Party HR Contract are Transferred to Exult
Supplier pursuant to Clause 7.3.1 then:
(i) the parties shall agree on which category of
cost (being either Category A, B or C) the Third
Party HR Contract should be allocated to in
accordance with Schedule C and shall agree a
suitable Contract Transfer Plan; and
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
11
<PAGE> 14
(ii) shall ensure that the Third Party HR Contract is
Transferred to Exult Supplier in accordance with
such Contract Transfer Plan in the most
practical and efficient manner and with the
minimum of disruption to the Client, the
Participating Affiliates and to the provision of
the Services.
7.3.5 Where the parties fail to agree whether a Third Party HR
Contract should be Transferred to Exult Supplier under
Clause 7.3.2 to Clause 7.3.5 inclusive, and Services
equivalent to the services previously provided by such
Third Party HR Contract are not Transferred to Exult
Supplier pursuant to Clause 7.3.1, such Third Party HR
Contract shall be retained by the Client until its
expiry or earlier termination and on the occurrence of
either event the provisions of Clause 7.3.1 shall apply.
7.4 ADMINISTRATION OF THIRD PARTY HR CONTRACTS
Where the parties agree pursuant to Clause 7.3.2 or Clause 7.3.3
that a Third Party HR Contract should be administered by Exult
Supplier the parties shall agree a suitable Contract Transfer
Plan and shall ensure that Exult Supplier takes over
administration of the Third Party HR Contract in accordance with
Clause 7.3.1 and such Contract Transfer Plan, in the most
practicable and efficient manner and with the minimum of
disruption to the Client, BPA, the Participating Affiliates and
to the provision of the Services. The Contract Transfer Plan
shall include the scope of Exult Suppliers' responsibilities
relating to its administration role together with the Client's
role and responsibilities.
7.5 MONITORING AND REVIEW OF THIRD PARTY HR CONTRACTS
In the event that a Third Party HR Contract is not Transferred
to Exult Supplier or administered by Exult Supplier, the
parties, through the Regional Governance Panel, shall continue
to monitor the Third Party HR Contract and work towards
integrating Exult Supplier into the relationship with the third
party with a view to Transferring the Third Party HR Contract or
its administration to Exult Supplier when the parties agree it
is appropriate to do so.
7.6 SENSITIVE THIRD PARTY CONTRACTS
7.6.1 [***]*
7.6.2 In the case of Sensitive Third Party Contracts
Transferred by assignment or novation to Exult Supplier
pursuant to Clause 7.3.1 to Clause 7.3.5 inclusive,
Exult Supplier shall:
(i) not terminate any such Sensitive Third Party
Contract without the prior written consent of
the Client; and
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
12
<PAGE> 15
(ii) not enter into a new contract with a third party
in relation to Services provided under any such
Sensitive Third Party Contract without the prior
written consent of the Client.
7.7 USE OF CHANGE CONTROL
Any changes to this Agreement, including the relevant Schedules
which are required as a result of the Transfer, termination or
expiry of any Third Party Contract or required as a result of
Exult Supplier assuming or ceasing administration
responsibilities in relation to any Third Party Contract, shall
be dealt with in accordance with the Change Control Management
process.
7.8 FAILURE TO REACH AGREEMENT
If the parties fail to reach agreement pursuant to Clause 7.2 to
Clause 7.5 inclusive, the matter shall be referred to the
Regional Governance Panel in accordance with Clause 29.1.2
(Dispute Resolution) and thereafter, if possible, resolved in
accordance with the provisions of Clause 29.1.3, provided that
the matter shall not be referred to an Expert or an Arbitrator
in the event the BPA Vice President Group HR and Exult Chief
Executive Officer have not been able to resolve the matter.
8 FRONT END CONSENTS
8.1 Where the consent of any third party is required to provide to
Exult Supplier the benefit of the arrangements under which the
Client holds or uses any of the Client Assets, Third Party
Systems or Third Party Contracts or such a consent is otherwise
required to enable Exult Supplier to perform the Services in the
manner contemplated by this Agreement, the Client shall use
reasonable endeavours, to procure that such consent is granted
or at the Client's option procure suitable alternative rights or
services are provided to Exult Supplier to enable it to perform
the Services. Exult Supplier shall use reasonable endeavours to
cooperate in obtaining such consents or obtaining suitable
alternative rights, including where necessary entering into new
agreements or agreeing to comply with the terms of the relevant
existing agreements. The use of reasonable endeavours shall not
include the payment of any monies by any party, but where
consent can only be obtained in return for the payment of an
additional sum, the parties shall consider paying such sum if it
appears the most cost effective way of proceeding. Any such
payment shall be charged as a Pass Through Cost.
8.2 Subject to Clause 8.1, if Exult Supplier does not have the right
to use the Client Assets, Third Party Systems, or the benefit of
the Third Party Contracts or any suitable alternative, Exult
Supplier shall not be liable for any failure to provide that
part of the Services to the extent that such failure results
from the lack of such right or benefit, provided that Exult
Supplier shall use reasonable endeavours to minimise the extent
of such failure.
13
<PAGE> 16
9 CHANGE CONTROL MANAGEMENT PROCESS
Any changes to this Agreement shall be dealt with in accordance with the
Change Control Management process set out in Schedule L.
10 CHARGES, INVOICING AND PAYMENT
10.1 The Client shall pay the Charges to Exult Supplier in accordance
with the provisions of this Agreement, including Schedule C. The
Client shall pay all Charges invoiced by Exult Supplier
regardless of, and without prejudice to, whether it disputes all
or any of such invoice.
10.2 Exult Supplier shall, on the Client's request, provide copies of
all relevant accounts and records on which the calculations are
based to demonstrate that the amounts invoiced have been
properly calculated in accordance with the methodology set out
in Schedule C and such other information as the Client may
reasonably require to enable the Client to assess the legitimacy
of the Charges made pursuant to the provisions of Schedule C.
10.3 The Client shall have the right to conduct an audit pursuant to
Clause 12 (Audit) to verify the amount paid to Exult Supplier
under Clause 10.1 and if the Audit reveals that any over payment
has been made, the provisions of Section 14 of Schedule C
(Charges and Invoicing) shall apply.
11 TAXES
11.1 RESPONSIBILITY FOR TAXES
11.1.1 Each party shall be solely responsible for all Taxes
which shall be properly and lawfully assessed or imposed
on it by any competent legal or fiscal authority in
connection with the carrying out of or receiving of the
Services or otherwise under this Agreement.
11.1.2 Exult Supplier shall retain all necessary and reasonable
Tax information and documents as shall enable Exult
Supplier to comply with its obligations under Clause
11.1.1 for such a period as may be required in the
relevant jurisdiction, and in any event not to be a
period of less than 6 years.
11.1.3 Exult Supplier shall be liable for all income Taxes
which shall be properly and lawfully assessed or imposed
on Exult Supplier by any competent authority in
connection with the carrying out of the Services under
this Agreement. Exult Supplier acknowledges that the
Client is not and shall not become liable to any taxes
referred to in this Clause 11.1.3.
11.1.4 Each party shall indemnify and keep indemnified the
other against all liabilities incurred by the other as a
consequence of its breach of any of the obligations
under Clause 11.1.1 and (in the case of Exult Supplier)
under Clauses 11.1.2 and 11.1.3.
14
<PAGE> 17
11.2 GROSSING UP FOR SALES TAXES
11.2.1 Notwithstanding the provisions of Clause 11.1, all sums
due to Exult Supplier under this Agreement are exclusive
of any VAT, sales and use tax, and any other similar
taxes which apply or may from time to time be
introduced, which shall be charged thereon in accordance
with the relevant regulations in force at the time of
making the taxable supply, and shall be paid by [***]*
11.2.2 Where required by the relevant fiscal regulations,
invoices shall show the relevant currency and any
conversion of the VAT, sales and use tax, or other
similar taxes, into any currency required to be shown in
accordance with the relevant fiscal regulations of the
Country, or Countries concerned.
11.2.3 Exult Supplier shall (if required by the relevant fiscal
regulations of the Country concerned) in respect of this
Agreement be duly registered in the jurisdiction where
the Services are performed for the purposes of VAT or
other similar sales taxes where such registration is
required.
11.2.4 Exult Supplier shall indemnify the Client in respect of
any penalties and/or interest charges imposed by a
competent tax authority on the Client arising out of
error or omission by Exult Supplier in relation to VAT
or other similar sales taxes, provided that the Client
notifies Exult Supplier within 30 calendar days of such
penalties and/or interest charges being brought to the
Client's attention by the competent tax authority.
11.2.5 WITHHOLDING TAXES
(i) If the Client is properly and lawfully required
by any competent legal or fiscal authority in
the Country to withhold or deduct Withholding
Tax on any amounts payable under this Agreement
to Exult Supplier it shall cooperate reasonably
with Exult Supplier, including by forwarding the
relevant withholding or deducting certificate or
certificates as soon as reasonably practicable
to Exult Supplier in respect of such withholding
or deduction so that Exult Supplier is able to
seek to recover from the relevant competent
legal or fiscal authority the amount so withheld
or deducted.
(ii) Exult Supplier shall use reasonable endeavours
to mitigate the effect of any Withholding Tax
imposed on any payment under this Agreement by
seeking to reduce the rate of Withholding Tax by
credit, off-set, deduction, repayment or
otherwise, or by eliminating such Withholding
Tax by making use of any applicable double
taxation treaties or similar provisions.
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
15
<PAGE> 18
(iii) If the Client withholds or deducts Withholding
Tax in accordance with Clause 11.2.5(i) and
Exult Supplier is unable to mitigate the effect
of any Withholding Tax as set out in Clause
11.2.5(ii), the Client and Exult Supplier shall
agree an additional amount ("Additional Amount")
of cost to be included in Exult Return and ROC.
Such Additional Amount may be any amount
(including zero) agreed as reasonable by Exult
Supplier and the Client on a case by case basis
(taking account, inter alia, Exult Supplier's
overall Tax position in the Country or, if
different, in its Country of Tax residence) but
shall not exceed such additional amount as will
result in receipt by Exult Supplier of more than
the full sum payable under this Agreement.
(iv) If there is any dispute in relation to any
matter under this Clause 11.2.5, the matter
shall be referred to an Expert appointed
pursuant to Clause 29.2 (Dispute Resolution).
The costs of such Expert shall be borne equally
by the parties.
12 AUDIT
12.1 The Client shall have the right at all reasonable times (in
accordance with Clause 12.2) and on reasonable notice to audit
(which for the avoidance of doubt includes inspection) Exult
Systems, procedures, supporting documentation, financial and
other books and records to the extent that they relate to the
provision of the Services as shall be necessary in the
reasonable opinion of the Client, to verify:
12.1.1 that the methodology in Schedule C has been correctly
applied in determining the Charges to be allocated to
the Client;
12.1.2 that the actual level of performance of the Services is
the same as the level of performance reported to the
Client;
12.1.3 that Exult Supplier has adequate Internal Controls in
place;
12.1.4 that the costs incurred and charged by Exult Supplier in
connection with the Winding Up Plan, the General Winding
Up Plan and the Validation Exercise are accurate;
12.1.5 that the amount claimed by Exult Supplier in respect of
any Early Termination Payment is in accordance with
Clause 17.2 (Termination for Convenience Payment); and
12.1.6 Exult Supplier's compliance with any other obligation
under this Agreement.
12.2 The audits referred to in Clause 12.1 may be carried out by the
Client or its authorised
16
<PAGE> 19
representatives (the "AUDITOR"), including BPA, and may be
undertaken [***]* at such time as the Client, reasonably
requests or more frequently in exceptional circumstances as
determined by the Regional Governance Panel. The Client, shall
use reasonable endeavours to conduct any such audits in a manner
which will result in the minimum of inconvenience to Exult
Supplier including, but not limited to, conducting such audit in
conjunction with Exult Supplier's own internal and/or external
audits where practicable.
12.3 Where the Client exercises its rights under Clause 12.1, and
where the Auditor has access to any Exult Confidential
Information or third party confidential information, the Auditor
shall enter into a separate confidentiality agreement with
respect to that confidential information with Exult Supplier
and/or, at Exult Supplier's election, with the third party prior
to such exercise by the Client. No Auditor shall be selected
without the prior written consent of Exult Supplier as to the
identity of the Auditor, such consent not to be unreasonably
withheld or delayed.
12.4 Exult Supplier shall provide the Auditor reasonable access to
Employees, Subcontractors, documents, records and systems
relating to the provision of the Services and shall provide the
Auditor with routine assistance in connection with the audits.
The Auditor shall have the right to copy and retain copies of
any relevant records solely for the purposes of conducting the
audit and subject to the applicable confidentiality obligations.
12.5 Any amounts agreed as a result of the audit to have been
incorrectly charged by Exult Supplier shall be adjusted in the
next regular payment by the Client in accordance with Schedule C
(Charges and Invoicing).
12.6 In the event that there is any Dispute relating to any report
produced pursuant to any audit carried out under the provisions
of Clause 12.1, the matter shall be referred to an Expert
appointed pursuant to Clause 29.2 (Dispute Resolution). [***]*
12.7 Exult Supplier shall use reasonable endeavours to seek to obtain
for the Client the right to audit on terms equivalent to those
contained in this Clause 12 the relevant documents, records and
Systems of Exult, Exult Affiliates and any Subcontractors.
12.8 Exult Supplier and the Client shall each [***]* with respect to
any audits carried out pursuant to this Clause 12.
12.9 Exult Supplier shall make available all books of account and
records held on behalf of the Client and relating to the
provision of the Services by Exult Supplier to the internal and
external auditors of the Client for the purposes of performing
any statutory or regulatory audit in relation to the Client.
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
17
<PAGE> 20
12.10 The audit rights contained in this Clause 12 shall survive the
termination or expiry of this Agreement for a period of [***]*
from the date of such expiry or termination.
13 KEY PERSONNEL
13.1 Exult Supplier shall ensure, to the extent that it is within its
reasonable control, that the Key Employees are actively involved
in supplying the Services for the minimum period specified in
Schedule I (Employees) in relation to each Key Employee and
shall not replace any Key Employees with another person during
that period unless the parties agree that the relevant Key
Employees need no longer be actively involved in the provision
of the Services.
13.2 The Client shall, to the extent that it is within its reasonable
control, ensure that the BPA Key Employees are actively involved
in fulfilling the Client's obligations under this Agreement for
the minimum period's specified in Schedule I (Employees) in
relation to each BPA Key Employee. The Client shall not replace
any BPA Key Employees with another person during that period
unless the parties agree that the relevant BPA Key Employees no
longer needs to be actively involved in the performance of this
Agreement.
14 TERMINATION
14.1 TERMINATION ON WINDING UP OR DEFAULT
Either the Client or Exult Supplier may at any time by notice in
writing terminate this Agreement as from, subject to Clause
14.7, the date of giving such notice to terminate if:
14.1.1 in the case of the Client, Exult Supplier or in the case
of Exult Supplier, the Client passes a resolution or the
court makes an order that it be wound up otherwise than
for the purposes of a reconstruction or amalgamation, or
a receiver manager or administrator on behalf of a
creditor is appointed in respect of the other party's
business, or circumstances arise which would entitle a
creditor to request that a court appoint a receiver,
manager or administrator or which would entitle the
court otherwise than for the purpose of a bona fide
reconstruction or amalgamation to make a winding-up
order, or the other party is unable to pay its debts
within the meaning of Section 123 of the UK Insolvency
Act 1986 or its relevant foreign jurisdiction;
14.1.2 in the case of the Client, Exult Supplier or in the case
of Exult Supplier, the Client, is in Default and the
party in Default fails to remedy or compensate for the
Default [***]* of a written notice from the other party
specifying the Default and requiring its remedy; or
14.1.3 in the case of the Client if there are:
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
18
<PAGE> 21
(i) [***]*
(ii) [***]*
14.2 TERMINATION FOR CONVENIENCE
The Client may, subject to Clause 17.2 (Termination for
Convenience Payment), terminate this Agreement by giving Exult
Supplier [***]* prior written notice, such notice not to take
effect [***]* where no Winding Up Plan is implemented or on such
later date as is determined in accordance with Clause 14.7.
14.3 TERMINATION ON TERMINATION OF FRAMEWORK AGREEMENT
This Agreement shall, subject to Clause 14.7, terminate upon the
termination or expiry of the Framework Agreement.
14.4 TERMINATION ON NOTICE AFTER THE INITIAL PERIOD
The Client may terminate this Agreement by giving [***]* notice
to Exult Supplier such notice to take effect, subject to Clause
14.7, on the expiry of the Initial Period.
14.5 TERMINATION FOR FORCE MAJEURE
If an event of Force Majeure arises which cannot be readily
resolved and continues for a period of 6 months which materially
prevents or hinders the performance of material obligations
under this Agreement in relation to one or more Processes then
either party may at any time by notice terminate this Agreement
in relation to the Process or Processes affected by the Force
Majeure event as from, subject to Clause 14.7, the date of
giving such notice. In the event of a partial termination of
this Agreement in accordance with this Clause 14.5, the
provisions of this Agreement relating to termination for Force
Majeure and the consequences of termination, including Winding
Up Assistance shall apply (but only to the extent of the Process
or Processes affected by the Force Majeure event).
14.6 TERMINATION FOR CHANGE OF CONTROL
The Client may at any time by notice terminate this Agreement as
from, subject to Clause 14.7, the date of giving such notice if
there is a Change of Control of Exult Supplier, provided that
such notice is given [***]* of Exult Supplier notifying the
Client of such Change of Control.
14.7 EXTENSION OF TERM FOR WINDING UP PLAN
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
19
<PAGE> 22
Any date for the termination of this Agreement provided in this
Clause 14 shall be subject to any extension agreed or determined
by the parties pursuant to the Winding Up Plan.
14.8 NOTIFICATION TO REGIONAL REPRESENTATIVES
The Client or Exult Supplier, as the case may be, will wherever
practicable inform the Regional Representatives in writing
[***]* prior to giving notice under Clause 14.1 or 14.2,
provided that failure to give such notice shall not affect the
Client's or Exult Supplier's right to terminate the Agreement.
14.9 PRESERVATION OF RIGHTS OF ACTION
Any termination or expiry of this Agreement shall, subject to
Clause 34.12 (Legal Proceedings), be without prejudice to and
shall not affect any right of action or remedy which shall have
accrued or shall thereafter accrue under the terms of this
Agreement.
15 SUSPENSION OF A PROCESS
15.1 [***]*
15.2 [***]*
15.3 [***]*
15.4 As soon as it can be demonstrated to the reasonable satisfaction
of the Regional Governance Panel that the Default has been
remedied and a plan has been agreed between the parties for
reinstatement of the Affected Process, the Client will by notice
terminate the suspension and reinstate Exult Supplier's
provision of the Affected Process.
15.5 If, at the end of the suspension period, it has not been
demonstrated to the reasonable satisfaction of the Regional
Governance Panel that the Default has been remedied the Client
shall either:-
15.5.1 serve written notice on Exult Supplier to terminate this
Agreement in relation to the Affected Process with
immediate effect; or
15.5.2 reinstate Exult Supplier's provision of the Affected
Process in accordance with an agreed plan for
reinstatement and resume the payment of Charges relating
to the Affected Process.
15.6 In the event that Exult Supplier's provision of the Affected
Process is reinstated in accordance with Clauses 15.4 and
15.5.2, Exult Supplier shall only be responsible for meeting
Service Levels, including KPIs, applicable to the Affected
Process once Exult
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
20
<PAGE> 23
Supplier has resumed the provision of the Affected Process for a
period in excess of [***]*
15.7 In the event of a partial termination of this Agreement in
accordance with Clause 15.5.1, the provisions of this Agreement
relating to termination for Default and consequences of
termination, including Winding Up Assistance shall apply (but
only to the extent of the Affected Process), and [***]*
(Exclusivity) of this Agreement with respect to the Affected
Process.
15.8 In the event of suspension pursuant to Clause 15.2, Exult
Supplier shall offer to grant or to procure the grant of a
licence in the terms set out in Clause 19.6 and shall give the
Client, BPA and its Affiliates and its contractors such access
to and use of the Client Assets, Exult Proprietary Systems and
Future Systems and any other resources then being used to
provide the Affected Process as the Client may reasonably
require in order to provide for itself or procure the Affected
Process through a third party in accordance with Clause 15.2;
provided that in exercising its rights, the Client shall seek to
minimise the disruption to Exult Supplier's other business. In
this Clause 15.8, any contractor employed by the Client during
the suspension period shall be deemed to be a Successor Operator
for the purposes of the application of Clause 19.6. Any licence
and/or access rights granted pursuant to this Clause 15.8 shall
apply solely for the suspension period.
15.9 The remedies of the Client under this Clause 15 may be exercised
in respect of any one or more Defaults of this Agreement by
Exult Supplier.
16 WINDING UP ASSISTANCE
16.1 [***]* prior to the Framework Expiry Date or on notice of
termination of this Agreement at the request of BPA:
16.1.1 the parties will promptly meet and develop and agree the
Winding Up Plan to provide an orderly transitioning of
the Services provided under the Agreement to the
Successor Operator(s), including, but not limited to,
the orderly transitioning of support and maintenance in
respect of Exult Systems and Future Systems; and
16.1.2 Exult Supplier shall co-operate fully with the Client,
BPA and the Participating Affiliates to implement the
Winding Up Plan, to minimise the cost and disruption of
termination to the Client, BPA and the Participating
Affiliates and to facilitate the orderly transitioning
of the Services from Exult Supplier to Successor
Operator in accordance with the provisions of this
Agreement.
16.2 The Winding Up Plan is to cover the period up to [***]* from the
earlier of (i) the Expiry Date; and (ii) the date of giving
notice of termination of this Agreement.
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
21
<PAGE> 24
16.3 In the event that the parties fail to agree the Winding Up Plan
within [***]* of first meeting in accordance with Clause 16.1,
the matter shall be referred to the informal Dispute Resolution
Procedure pursuant to Clause 29.1, and, if necessary, to an
Expert in accordance with Clause 29.2. The costs of such Expert
shall be borne equally by the parties.
16.4 Exult Supplier shall provide all assistance reasonably required
by the BPA Regional Project Leader or the Client for, or in
connection with, the Winding Up Plan and/or to ensure an orderly
migration of the obligations of Exult Supplier (including the
provision of the Services) to a Successor Operator for the
period of the Winding Up Plan.
16.5 Exult Supplier shall develop a Service Delivery Description and
shall deliver it to the BPA Regional Representatives and the
Client as soon as reasonably practical after first meeting to
develop and agree the Winding Up Plan. It will include
up-to-date process flowcharts and any other documentation
reasonably necessary to provide the BPA Regional Representatives
and the Client with a clear understanding of how the Services
are delivered and to enable the Client or Successor Operator to
take over the provision of the Services and to maintain and
develop the Service Delivery Model.
16.6 BPA and the Client shall have the right, through their employees
and/or Successor Operator, if applicable, to interface with
Exult Supplier, Employees and Subcontractors to gain such an
understanding of and familiarity with the systems documentation
and processes used in providing the Services to enable their
employees or a Successor Operator to provide services equivalent
to the Services.
16.7 In the event of a termination pursuant to Clause 14.3
(Termination of the Framework Agreement), the Winding Up Plan
will be subject to and determined by the General Winding Up
Plan.
16.8 The parties shall continue to perform their obligations in
accordance with this Agreement during the period of the Winding
Up Plan except as expressly provided in the Winding Up Plan,
provided, however, that the obligations set forth in the
following Clauses shall not apply during the period of the
Winding Up Plan: Clauses 4, 7, 13 and 22.
17 FINANCIAL CONSEQUENCES OF TERMINATION
17.1 WINDING UP ASSISTANCE
17.1.1 The Client shall bear it's own costs and the reasonable
charges and expenses of Exult Supplier (which shall be
based on the Standard Rates) incurred in connection with
the Winding Up Assistance, including the preparation and
production of the Service Delivery Description, provided
that, for the avoidance of doubt, this will not prevent
the Client from seeking to recover damages in respect of
any loss it suffers pursuant to any termination of this
Agreement (i)
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
22
<PAGE> 25
as a result of Exult Supplier's Default, pursuant to
Clause 14.1; or (ii) pursuant to Clause 14.3 on the
termination of the Framework Agreement as a result of
Exult's Default.
17.1.2 Exult Supplier shall invoice in respect of charges and
expenses due pursuant to Clause 17.1.1 on a monthly
basis and such invoices shall be paid within 30 days of
receipt of an invoice in respect of such costs.
17.2 TERMINATION FOR CONVENIENCE PAYMENT
17.2.1 In the event of the termination of this Agreement by the
Client pursuant to Clause 14.2 (Termination for
Convenience), the Client shall pay to Exult Supplier the
Early Termination Payment [***]* of an invoice together
with copies of all relevant accounts and records on
which the calculations are based to demonstrate that the
amount has been properly calculated in accordance with
the methodology in Schedule C.
17.2.2 The Client shall have the right to conduct an audit
pursuant to Clause 12 (Audit) to verify the amount paid
to Exult Supplier under Clause 17.2.1 and if the audit
reveals that any over payment has been made, the
provisions of Section 14 of Schedule C shall apply.
17.2.3 Notwithstanding Clauses 17.2.1 and 17.2.2, if the Client
reasonably disputes the amount claimed by Exult Supplier
under Clause 17.2.1, then the dispute will be referred
to the informal Dispute Resolution Procedure in
accordance with Clause 29.1 and in the event the parties
fail to agree the Dispute shall be referred to an Expert
for resolution, such Expert to be appointed in
accordance with Clause 29.2.
17.3 THIRD PARTY CONTRACTS
17.3.1 GENERAL
Notwithstanding the other provisions of this Clause
17.3, on the termination of this Agreement for any
reason, any financial consequences arising or flowing
from any Exult Third Party Contracts or the termination
of any such Exult Third Party Contracts:
(i) the duration of which Exult Supplier has agreed
to extend beyond the Expiry Date; and
(ii) the terms and conditions of which have not been
approved in writing by the BPA Regional
Representative prior to the entering into or
extension of such Exult Third Party Contracts,
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
23
<PAGE> 26
shall, subject to Clauses 17.3.5 and 17.3.6, be borne in
their entirety by Exult Supplier.
17.3.2 TERMINATION FOR EXULT SUPPLIER'S DEFAULT
On the termination of this Agreement by the Client
pursuant to Clause 14.1 (Termination on Winding Up or
Default), any financial consequences arising or flowing
from any Exult Third Party Contracts or the termination
of any such Exult Third Party Contracts shall, subject
to Clause 17.3.4 (Mitigation), be borne in their
entirety by Exult Supplier.
17.3.3 TERMINATION FOR ANY OTHER REASON
On the termination of this Agreement for any reason
other than by the Client pursuant to Clause 14.1
(Termination on Winding Up or Default) any financial
consequences arising or flowing from any Exult Third
Party Contracts or the termination of any such Exult
Third Party Contract shall, subject to Clause 17.3.4
(Mitigation) and Clause 17.3.5, be borne in their
entirety by the Client.
17.3.4 MITIGATION
The parties each agree to take reasonable steps to
mitigate costs arising on termination of this Agreement,
and agree that where either party is able to make use of
the Exult Third Party Contracts, in whole or in part,
for itself, its Affiliates or another client, it shall
use reasonable endeavours to do so and the other party's
obligation in relation to any Exult Third Party
Contracts shall extend only to that element of cost of
the Exult Third Party Contracts which remains unused.
17.3.5 Exult Supplier further agrees that for a period of
[***]* from the date of termination of this Agreement
if, subsequent to being reimbursed by the Client under
this Clause 17, Exult or an Exult Affiliate or their
clients use the whole or part of the Exult Third Party
Contract for which Exult Supplier has been previously
reimbursed by the Client, Exult Supplier shall refund to
the Client such portion of the reimbursement which
represents the use by Exult, Exult Affiliate or their
clients of such Exult Third Party Contract.
17.3.6 EMPLOYEES
The termination costs associated with Employees shall be
dealt with in accordance with Schedule J (Employee
Transfer Arrangements).
17.4 ASSETS
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
24
<PAGE> 27
On termination or expiration of this Agreement, the Client shall
have the option and in certain circumstances the obligation to
purchase Exult Assets at the written down book value as set out
in Clause 18.2 (Transfer Arrangements on Termination - Exult
Assets).
18 TRANSFER ARRANGEMENTS ON TERMINATION
18.1 CLIENT PREMISES
Exult Supplier shall vacate any Client Premises on or before the
termination or expiry of this Agreement, provided that Client
Premises or rights to Client Premises transferred to Exult
Supplier pursuant to Clause 6.1 shall, on termination or expiry
of this Agreement, be dealt with in accordance with Clause 18.2.
18.2 EXULT ASSETS
18.2.1 On the termination of this Agreement for all other
reasons than by the Client pursuant to Clause 14.1
(Termination on Winding Up or Default). Exult Supplier
shall offer to sell to the Client or its nominee and the
Client shall or shall cause its nominee to, subject to
Clause 18.2.3, purchase the Exult Assets at the written
down book value as at termination or expiry.
18.2.2 On the termination of this Agreement by the Client
pursuant to Clause 14.1 (Termination on Winding Up or
Default), Exult Supplier shall offer to sell to the
Client or its nominee the Exult Assets (at the written
down book value as at termination or expiry), but the
Client shall not be obliged to purchase such Exult
Assets.
18.2.3 The parties agree to take reasonable steps to mitigate
costs arising from or in connection with the Exult
Assets on termination or expiry of this Agreement and
the parties agree that where a party is able to make use
of an Exult Asset for itself, its Affiliates or another
client it shall use reasonable endeavours to do so at
the request of the other party.
18.2.4 Exult Supplier further agrees, at the Client's cost, to
co-operate in the relocation of any Exult Assets to be
purchased by the Client pursuant to this Clause,
provided that for the avoidance of doubt this will not
prevent the Client from seeking to recover damages in
respect of any loss it suffers pursuant to any
termination of this Agreement as a result of Exult
Supplier's Default.
18.2.5 On expiry of this Agreement Exult Supplier shall offer
to transfer ownership of any fully amortised Exult
Assets to the Client at no cost.
18.3 SYSTEMS
On the termination or expiry of this Agreement for any reason:
18.3.1 LICENCES
25
<PAGE> 28
All licences and all other rights to any Systems shall
be dealt with in accordance with Clause 19.
18.3.2 ESCROW
Exult Supplier shall, on Client's written request,
provide the Client with a copy of any source code
materials held in escrow pursuant to Clause 6.3.4.
18.3.3 RETURN OF CLIENT SYSTEMS AND MATERIALS
As soon as reasonably practicable following the
termination or expiry of this Agreement, Exult Supplier
shall return to the Client all Client Systems, Materials
and Client Information subject to the Exult Supplier
having the right to retain a copy of such Client
Systems, Materials and Client Information for compliance
with applicable laws, professional standards or quality
assurance purposes.
18.4 THIRD PARTY CONTRACTS
On the termination or expiry of this Agreement, the parties
shall, subject to Clause 17.3 (Third Party Contracts) and at the
Client's option and request, use reasonable endeavours to
transfer or assign all, or in the case of Exult Third Party
Contracts which are not used solely to provide the Services to
the Client, the relevant parts of, Exult Third Party Contracts
entered into by Exult Supplier to provide the Services to the
Client, BPA, a Participating Affiliate or a Successor Operator,
as the Client may direct.
18.5 EMPLOYEES
The transfer of Employees on termination or expiry shall be
dealt with in accordance with Schedule J (Employee Transfer
Arrangements).
18.6 BACK END CONSENTS
Where the consent of any third party is required to enable Exult
Supplier to provide the Client or Successor Operator, with the
benefit of the arrangements under which Exult Supplier holds or
uses any Exult Assets, Third Party Systems or Third Party
Contracts or such a consent is otherwise required to enable the
Client, or Successor Operator to take over the provision of the
Services from Exult Supplier in the manner contemplated by this
Agreement, Exult Supplier shall use reasonable endeavours, to
procure that such consent is granted or at Exult Supplier's
option, procure suitable alternative rights or services are
provided to the Client or Successor Operator to enable it to
perform the Services. The Client shall use reasonable endeavours
to co-operate in obtaining such consents or obtaining suitable
alternative rights, including where necessary entering into new
agreements or agreeing to comply with the terms of the relevant
existing agreements. The use of reasonable endeavours shall not
include the payment of any monies by any party, but where
consent can only be obtained in return for the payment of an
additional sum, the parties shall consider paying such sum if it
appears the most cost effective way of proceeding. Any such
payment shall be charged as a Pass Through Cost.
26
<PAGE> 29
19 INTELLECTUAL PROPERTY RIGHTS
19.1 CLIENT INTELLECTUAL PROPERTY
All Intellectual Property Rights subsisting in or relation to
Client Assets, Client Information, Client Systems, Materials and
the BPA Service Delivery Model (collectively, the "Client
Intellectual Property") shall (as between the parties) belong to
and be vested in BPA or the relevant BPA Affiliate or their
respective licensors as appropriate.
19.2 EXULT SUPPLIER INTELLECTUAL PROPERTY
All Intellectual Property Rights subsisting in or relation to
Exult Systems, Future Systems, Work Product, and the Exult
Service Delivery Model (collectively, the "Exult Supplier
Intellectual Property") shall (as between the parties) belong to
and be vested in Exult Supplier, Exult Participating Affiliates
or their respective licensors as appropriate.
19.3 LICENCE OF CLIENT INTELLECTUAL PROPERTY
The Client hereby grants to Exult Supplier (or, in the case of
Client Intellectual Property licensed to the Client, to the
extent that such grant is not within its power, shall use
reasonable endeavours to procure the grant to Exult Supplier of)
a worldwide, non-exclusive, unlimited user, royalty free licence
to use and the right to sublicence to subcontractors, the Client
Intellectual Property solely for the purposes of providing the
Services to the Client under this Agreement.
19.4 LICENCE OF EXULT SUPPLIER INTELLECTUAL PROPERTY
Exult Supplier hereby grants to the Client (or, in the case of
Exult Supplier Intellectual Property licensed to Exult Supplier
by third parties to the extent that such grant is not within its
power, shall use reasonable endeavours, to procure the grant to
the Client of) a worldwide non-exclusive, unlimited user
licence, together with a right to sub-license to third parties,
to use the Exult Supplier Intellectual Property or any physical
material created as a result of the use of the same in
connection with the supply of the Services to the extent
necessary to enable the Client to receive the benefit of the
Services.
19.5 LICENCES OF CLIENT INTELLECTUAL PROPERTY ON TERMINATION
On expiration or termination of this Agreement for any reason,
the licences granted pursuant to Clause 19.3 shall automatically
terminate.
19.6 LICENCES OF EXULT SUPPLIER INTELLECTUAL PROPERTY ON TERMINATION
On expiration or termination of this Agreement for any reason,
Exult Supplier shall offer to, and at the Client's option, grant
to the Client or Successor Operator (or, in the case of Exult
Supplier Intellectual Property licensed to Exult Supplier from a
third party, use reasonable endeavours for the provision of
services substantially similar to the Services under similar
economic arrangements ) to procure the grant to the Client, BPA
and the
27
<PAGE> 30
BPA Affiliates or Successor Operator of) a worldwide, perpetual,
irrevocable, non-exclusive, unlimited user licence (which shall
be at the lesser of the standard market rates and the lowest
royalty Exult Supplier charges to other licensees for similar
licences for the provision of services substantially similar to
the Services provided under similar economic arrangements to
use, modify and enhance any Exult Supplier Intellectual Property
used for the provision of the Services in the [***]* immediately
before the termination or expiry of this Agreement, with a right
to grant sub-licences to Successor Operators, subject to Exult
Supplier's prior consent to the identity of such Successor
Operator for the purpose of being a sub-licensee of such Exult
Supplier Intellectual Property and the terms of such
sub-licence, such consent not to be unreasonably withheld or
delayed. Such licence shall be for use solely in connection with
the provision of services comparable to the Services for the
Client and Participating Affiliates.
19.7 ROYALTIES
In the event that Exult Supplier exploits by way of assignment,
license or otherwise, any Exult Supplier Intellectual Property
which has been developed by way of a Project under this
Agreement and such development was funded by the Client, then
Exult Supplier shall pay to the Client royalties in respect of
the benefits received from such exploitation. The royalty
payable in each case shall be determined as part of the
implementation of the Project pursuant to Schedule L and
Schedule H.
19.8 CLIENT'S RIGHT TO USE SYSTEMS ON TERMINATION
In order to ensure that Exult Supplier is able to fulfil its
obligations to provide the licence under Clause 19.6, where a
System is to be developed specifically for the Client by Exult
Supplier using the services of a third party ("Developed
System") Exult Supplier shall before using such Developed System
in the provision of the Services:
19.8.1 take reasonable steps to obtain ownership rights in the
Developed System including obtaining any necessary
assignment of such rights from third parties; or
19.8.2 if Clause 19.8.1 is not reasonably practicable, take all
steps to procure a licence for itself substantially in
the form set out in Clause 19.6 for such Developed
Systems; and
19.8.3 to the extent the steps described in Clauses 19.8.1 and
19.8.2 are not reasonably practicable, discuss and agree
with Client alternative arrangements to ensure Client
can continue to use the Developed System on termination
or expiry of this Agreement.
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
28
<PAGE> 31
20 CONFIDENTIALITY
20.1 All Confidential Information communicated in connection with the
negotiation, preparation and performance of this Agreement was
and shall be received in confidence, used only for the purposes,
and within the duration, of this Agreement, and shall be
protected in the same manner as the party receiving such
Confidential Information protects its own Confidential
Information, but in any event in not less than a reasonable
manner, except for Confidential Information which:
20.1.1 is or becomes generally available to the public other
than as a result of a breach of this Clause 20;
20.1.2 is acquired from a third party who owes no obligation of
confidence to the disclosing party in respect of the
Confidential Information;
20.1.3 is independently developed by the receiving party
without the use of the disclosing party's Confidential
Information;
20.1.4 the receiving party is required by law to disclose;
20.1.5 is already known by the receiving party at the time of
its receipt (as evidenced by its written records); or
20.1.6 is agreed by the Client and Exult Supplier from time to
time to be excluded.
Provided always that:
20.1.7 the onus shall be on the party disclosing the
information pursuant to Clauses 20.1.1 to 20.1.6 to
prove through the use of documentary evidence that the
information fell within one of Clauses 20.1.1 to 20.1.6
otherwise than through unauthorised disclosure by that
party; and
20.1.8 if either party (the "disclosing party") is required to
make a disclosure in accordance with Clause 20.1.4, it
will, if it is not prohibited by law from doing so,
provide the other party with prompt notice of any such
requirement or request to disclose any such Confidential
Information so that the non disclosing party may seek an
appropriate order. The disclosing party shall provide
the other party with all necessary assistance in any
action taken by the other party to obtain an appropriate
order including an order providing that the information
does not have to be disclosed, an appropriate protection
order or other reliable assurance that confidential
treatment will be accorded the information that the
disclosing party is required to disclose.
20.2 Any party disclosing any Confidential Information to any agent
or subcontractor shall obtain or have obtained from the
authorised agent or subcontractor a signed confidentially
undertaking which the party disclosing reasonably believes
offers adequate protection in relation to the matters contained
in Clause 20.1. The parties agree that no
29
<PAGE> 32
Confidential Information will be disclosed after the expiry or
termination of this Agreement unless such Confidential
Information comes within one of the exceptions in Clauses 20.1.1
to 20.1.6.
20.3 Upon the expiration or termination of this Agreement, all
Confidential Information made available by one party to the
other pursuant to this Agreement, including any copies thereof,
shall be either returned to the disclosing party or destroyed
pursuant to the request of such disclosing party. The Client and
Exult Supplier may retain, however, subject to the terms of this
Clause 20 and Clause 19 (Intellectual Property Rights), copies
of the Confidential Information required for, in the case of
Exult Supplier compliance with applicable laws, professional
standards or quality assurance purposes, and in the case of BPA
their continuing operations or internal business purposes.
20.4 The obligations of each party in relation to Confidential
Information contained in this Clause 20 shall survive the
termination or expiry of this Agreement indefinitely.
20.5 Each party shall procure that its employees, subcontractors,
agents and Affiliates comply with this Clause 20 and shall, at
the request of the other party provide appropriate assurance of
such compliance and for the avoidance of doubt, Clause 12
(Audit) shall apply to such obligation.
21 DATA PROTECTION AND SECURITY
21.1 Each party shall and shall procure that its Affiliates comply in
all respects with the data processing obligations contained in
Schedule Q and with all relevant laws relating to the holding,
processing and protection of data.
21.2 Exult Supplier shall maintain the integrity of all Client
Information and keep such information logically separate from
any information and/or data relating to third parties and shall
procure that such information shall not be disclosed to any
third party. Such information shall be used solely for the
purposes of providing the Services and Exult Supplier shall
procure that no third party shall obtain access to such
information at any time other than its authorised Employees and
Subcontractors and other third parties with the Client's prior
consent.
21.3 If Exult Supplier becomes aware that it has received Client
Information which is not required to provide the Services, Exult
Supplier shall promptly inform the Client and return such
information to the Client on request without keeping copies of
the same.
21.4 Client Information shall remain the property of BPA or the
respective BPA Affiliates, as the case may be. Exult Supplier
shall provide BPA and/or the Participating Affiliates, as the
case may be, with a copy of any part of the Client Information
that BPA and/or the Participating Affiliates may, from time to
time, reasonably demand.
21.5 Exult Supplier shall and shall procure that its Employees and
Subcontractors shall develop, document and implement and at all
times maintain reasonable safeguards against the theft,
destruction, loss, wrongful use, disclosure, corruption or
alteration of
30
<PAGE> 33
Client Information in the possession or within the control or
responsibility of Exult Supplier, which safeguards are subject
to the Client's review and audit and which are at levels no less
rigorous than the safeguards maintained by the Client
immediately prior to the Commencement Date as such levels are
established by each Due Diligence Exercise or as otherwise
agreed by the Client and Exult Regional Project Leaders.
21.6 Exult Supplier shall use reasonable endeavours to prevent
computer viruses from being introduced by the Employees and
Subcontractors onto or into any of the IT and communications
equipment used by Client, the Participating Affiliates and their
respective employees, agents or contractors.
22 CONTRACT AND SERVICE MANAGEMENT
22.1 MANAGEMENT OF SERVICES
The Client and the Exult Supplier will manage their
relationship, including the provision of the Services, in
accordance with the Global Governance Arrangements set out in
Schedule P.
22.2 [***]*
22.2.1 [***]*
22.2.2 [***]*
22.2.3 [***]*
22.2.4 [***]*
22.2.5 [***]*
22.3 SERVICE PERFORMANCE REPORTS
Service Performance Reports will be prepared by the Exult
Country Representative and shall include information, as
applicable, on the RSLs, KPIs, KPI Failures, Key Incidents and
the procedures followed in relation to them and shall set out
the measures required to reduce the likelihood of a recurrence
of the relevant KPI Failure and/or Key Incidents.
Service Performance Reports shall be issued by Exult Supplier:
(i) monthly to the BPA Country Representative to cover
information relating to the previous month; and
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
31
<PAGE> 34
(ii) each calendar quarter to the Regional Governance Panel
to cover information relating to the previous calendar
quarter.
22.4 KEY INCIDENT REPORTING
22.4.1 The Country Representatives shall report all Key
Incidents promptly to the Regional Governance Panel.
22.4.2 The purpose of reporting Key Incidents is to:
(i) bring incidents quickly to the attention of
Exult Supplier's and the Client's management;
and
(ii) highlight areas of control weakness, initiate
procedures reviews and generate action to remedy
control weaknesses identified
22.4.3 The reporting of Key Incidents does not replace or
supersede, but shall be in addition to, the normal
reporting (including the provision of Service
Performance Reports under Clause 22.3) and updating of
appropriate management of routine work incidents.
22.5 SATISFACTION SURVEYS
22.5.1 Exult Supplier shall prepare customer satisfaction
surveys and management satisfaction surveys on a
frequency and basis to be agreed by the Regional
Governance Panel.
22.5.2 Customer satisfaction surveys and management
satisfaction surveys shall be submitted to the Regional
Governance Panel by the Country Representatives and the
results of such surveys shall be summarised in the
relevant Service Performance Report.
22.6 CONTINUOUS IMPROVEMENT
22.6.1 Exult Supplier recognises that it has an obligation
under this Agreement to maintain continuous improvement
in the Service Delivery Model used in the provision of
the Services on an ongoing basis in order to establish
and maintain a position as a market leader and to
continue efficient and effective use of developing
processes and technologies.
22.6.2 In addition to the benchmarking exercises referred to in
Clause 22.2, Exult Supplier shall report to the Client
on an annual basis its strategy plans to achieve
continuous improvement referred to in Clause 22.6.1.
22.6.3 To the extent that the parties agree particular Projects
are appropriate to maintain continuous improvement,
these shall be dealt with under Change Control
Management process, provided that the parties recognise
Exult
32
<PAGE> 35
Supplier should only bear an equitable proportion of the
costs of any developments which will be used by Exult
Supplier in the provision of services to other clients,
including those clients which Exult Supplier provides
services to from the Client Service Centre.
23 CONTRACT MINIMUMS
23.1 Contract Minimums for each Contract Minimum Year shall be
established in accordance with this Clause 23.
23.2 The Contract Minimum for:
23.2.1 [***]*
23.2.2 [***]*
23.3 Prior the commencement of each calendar quarter in each Contract
Minimum Year, the Client may give Exult Supplier [***]* of a
proposed reduction in the Contract Minimums to take account of
reductions in the Client's requirements for Services.
23.4 This Clause 23 applies to situations which result in an actual
reduction in the Client's requirement for Services and, for the
avoidance of doubt, the Client may not assume responsibility
internally for services equivalent to the Services or appoint a
third party to provide services equivalent to the Services
pursuant to the terms of this Clause 23.
23.5 [***]* prior to the end of each Contract Minimum Year, the
Regional Governance Panel shall meet to assess the impact,
including the impact on the Charges for the then current
Contract Minimum Year, of the reductions in the Client's
requirements for Services notified in accordance with Clause
23.3 above. Subject to Clause 23.6, the Regional Governance
Panel shall agree a decrease in the Contract Minimum for the
succeeding Contract Minimum Year which is proportionate with the
actual reduction in Charges arising from the events and in the
event that the Regional Governance Panel cannot agree on the
amount of the decrease the matter shall be referred to an Expert
to be appointed in accordance with Clause 29.2.
23.6 In no event shall a Contract Minimums be reduced by more than
[***]*
23.7 In the event that the impact of reductions in the Client's
requirements for Services as reviewed under Clause 23.5 is or
would be to reduce the Contract Minimum for the succeeding
Contract Minimum Year [***]* the matter will be referred by
either party to the Regional Governance Panel under Clause 18 of
the Framework Agreement (Contract Minimums) to reassess the
impact of such reduction across the relevant CSC Group.
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
33
<PAGE> 36
The decision of the Regional Governance Panel (or Expert
determination as the case may be) made pursuant to Clause 18 of
the Framework Agreement shall be implemented hereunder.
24 WARRANTIES
24.1 Exult Supplier hereby represents and warrants to the Client
that:
24.1.1 INCORPORATION AND EXISTENCE It is duly constituted,
organised and validly existing under its laws of
incorporation.
24.1.2 POWER AND AUTHORITY It has the legal right and full
power and authority to execute and deliver, and to
exercise its rights and perform its obligations under,
this Agreement and all the documents which are to be
executed by it as envisaged by this Agreement.
24.1.3 CORPORATE ACTION All corporate action required by it to
authorise the execution and delivery of, and to exercise
its rights and perform its obligations under this
Agreement and all other documents which are to be
executed by it as envisaged by this Agreement has been
or will be taken.
24.1.4 ASSURANCE Nothing contained in this Agreement will:
(i) result in a breach of any provision of its
constitutional documents; or
(ii) result in a breach of any agreement, licence or
other instrument, order, judgment or decree of
any Court, governmental agency or regulatory
body to which it is bound.
24.2 YEAR 2000 AND EMU COMPLIANCE
24.2.1 Subject to Clause 24.2.2, Exult Supplier makes no
warranties in respect of Year 2000 or EMU Compliance in
respect of Services or Projects or other activities
carried out under this Agreement and the Client or BPA
and the BPA Affiliates shall be solely responsible for
its and their Year 2000 and EMU Compliance.
24.2.2 Exult Supplier warrants that Future Systems and Exult
Proprietary Systems are Year 2000 Compliant and EMU
Compliant and that it has used and shall continue to use
reasonable endeavours to ensure that other Exult Systems
are Year 2000 Compliant and EMU Compliant, including
wherever practicable obtaining appropriate warranties
from the third party providers and providing the Client
with the benefit of such warranties.
24.2.3 Exult shall not be in breach of the warranties in Clause
24.2.2 to the extent that any failure of the Exult
Proprietary Systems and Future Systems to be Year 2000
Compliant or EMU Compliant is caused by data, interfaces
with third party systems including BPA Systems, other
than Exult Systems and software, in
34
<PAGE> 37
each case, which are not Year 2000 Compliant or EMU
Compliant.
24.3 The Client hereby represents and warrants to Exult Supplier
that:
24.3.1 INCORPORATION AND EXISTENCE It is duly incorporated,
organised and validly existing under its law of
incorporation.
24.3.2 POWER AND AUTHORITY It has the legal right and full
power and authority to execute and deliver, and to
exercise its rights and perform its obligations under
this Agreement and all the documents which are to be
executed by it as envisaged by this Agreement.
24.3.3 CORPORATE ACTION All corporate action required by it to
authorise the execution and delivery of, and to exercise
its rights and perform its obligations under this
Agreement and all other documents which are to be
executed by it as envisaged by this Agreement has been
or will be taken.
24.3.4 ASSURANCE Nothing contained in this Agreement will:
(i) result in a breach of any provision of its
constitutional documents; or
(ii) result in a breach of any agreement, licence or
other instrument, order, judgment or decree of
any Court, governmental agency or regulatory
body to which it is bound.
24.4 Each of the Client and Exult Supplier undertakes to perform its
obligations under this Agreement in compliance with all
applicable laws, enactments, orders and regulations.
24.5 Except as expressly stated in this Agreement, all warranties and
conditions, whether express or implied by statue, common law or
otherwise are hereby excluded to the extent permitted by law.
25 LIMITATION ON LIABILITY
25.1 Neither party shall limit or exclude its liability to the other
in respect of (i) death or personal injury caused by its
negligence or the negligence of its employees acting in the
course of their employment; (ii) for any fraudulent
misrepresentation, including fraudulent pre-contractual
misrepresentation made by a party on which the other party can
be shown to have relied when entering into this Agreement; and
(iii) any other liability which by law cannot be excluded.
25.2 Subject to Clauses 25.1, 25.3 and 25.4 each party's liability to
the other under this Agreement in respect of a claim arising out
of this Agreement shall be limited to an amount equal to [***]*.
Where an event which gives rise to a claim occurs during the
initial
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
35
<PAGE> 38
16 months of this Agreement each party's liability to the other
shall be limited to [***]* established in accordance with the
provisions of Schedule C, (Charges and Invoicing).
25.3 Each party's aggregate liability to the other during the term of
this Agreement for all claims arising out of this Agreement
shall be limited to an amount equal to [***]*. For the purposes
of calculating the Charges under this Clause 25.3, [***]* that
the limitation in this Clause 25.3 at any time shall not require
the repayment of sums paid or payable in respect of claims in
any earlier period.
25.4 Each party's liability to the other for all claims arising under
this Agreement in respect of any Project shall, unless agreed
otherwise agreed in accordance with the procedure set out in
Schedule H, (Projects), be limited to [***]*.
25.5 Subject to Clause 25.7, neither party shall be liable to the
other for any consequential or indirect loss or damage suffered
by the other party in connection with this Agreement.
25.6 Neither party shall be liable to the other for loss of profits,
loss of revenue, loss of goodwill or loss or failure to make any
anticipated savings.
25.7 In respect of the Client, the Client's re-establishment costs,
and in respect of Exult Supplier, the categories of cost
identified in Schedule C in relation to termination, such costs
are not considered consequential or indirect loss.
25.8 The limitations set out in Clauses 25.2 to 25.7 shall not apply
with respect to:
(i) Indemnities (including those set forth in Schedule J);
(ii) Payment under Letter of Credit (as described in Clause
22 of the Framework Agreement);
(iii) Payment under designated insurance policies (as
described in the Clause 22 of the Framework Agreement);
(iv) Client's obligation to pay, including with respect to
Early Termination Charges;
(v) Liabilities arising from the breach of the
confidentiality provisions under this Agreement;
(vi) Payment of Charges and Service Credits.
25.9 Subject to Clauses 34.12 (Legal Proceedings) and 34.13
(Equitable Remedies) the parties recognise that damages are the
only remedy available under this Agreement and, to the extent
permissible by law, the limits under this Clause are the
absolute limit of each party's liability arising under or in
connection with this Agreement. All other liability is expressly
excluded.
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
36
<PAGE> 39
25.10 LIMITATIONS ON PARTICIPATING AFFILIATES' CLAIMS
25.10.1 The following represents the limit of all claims or
actions that may be made pursuant to this Agreement
relative to Participating Affiliates:
(i) subject to the terms of this Clause 25.10, the
Client shall have the right to bring actions
against Exult Supplier in respect of such
Participating Affiliates for Losses suffered by
the Participating Affiliates in respect of the
Services or this Agreement;
(ii) the Client shall wherever reasonably practicable
consolidate actions against Exult Supplier for
Losses suffered by Participating Affiliates in
respect of each alleged default; and
(iii) the Participating Affiliates' Losses shall be
deemed the direct Losses of the Client, but all
such Losses shall be subject to the exclusions
and limitations set out in this Agreement.
25.10.2 The Client shall procure that:
(i) the Participating Affiliate will not make any
claim or be a party to any claim or other action
against Exult Supplier, Exult or an Exult
Affiliate or their employees, offices or
directors arising from or in connection with
this Agreement; and
(ii) the Participating Affiliate will direct all
communications regarding this Agreement through
and to the Client and not to Exult Supplier.
25.10.3 The Client is fully responsible for the performance of
all its obligations under this Agreement with respect to
the Services provided to such Participating Affiliates.
25.10.4 Nothing in Clause 25.10.1, 25.10.2 or Clause 25.10.3
relieves the Client of its obligations or expands Exult
Supplier's obligations under this Agreement.
26 INDEMNITIES AND DEFENCE OF CLAIMS
26.1 INDEMNIFICATION BY EXULT SUPPLIER
Subject to Clause 26.5, Exult Supplier shall indemnify and keep
indemnified the Client, BPA, the Participating Affiliates and
its and their respective officers, directors, employees, agents,
successors and assigns (each, an "Indemnified BPA Party") from
and against any and all Losses arising in connection with this
Agreement from any of the following:
26.1.1 a claim by a BPA Third Party arising from the death or
illness of or personal injury to any BPA Third Party or
from any damage to any real or tangible personal
property of any BPA Third Party arising directly from
and to the extent
37
<PAGE> 40
of the negligent act or omission of Exult Supplier, an
Exult Participating Affiliate or its and their
respective employees, officers, agents or
subcontractors;
26.1.2 a claim by a BPA Third Party arising from the death or
illness of or personal injury to any employee of Exult
Supplier or of an, Exult Participating Affiliate or to
any employee of their respective agents, or
subcontractors or arising from any damage to any real or
tangible personal property of any employee of Exult
Supplier or of, an Exult Participating Affiliate or of
any employee of their respective agents, or
subcontractors, in each case, notwithstanding that such
claim arose from the negligence of an Indemnified BPA
Party;
26.1.3 a claim by a third party other than a BPA Affiliate to a
Third Party Contract where such claim arises in
connection with a breach of Exult Supplier's or Exult
Participating Affiliate's obligations under or relating
to such Third Party Contract assumed by Exult Supplier
or the relevant Exult Participating Affiliate pursuant
to obtaining consents in respect of such Third Party
Contract to enable Exult Supplier or the relevant Exult
Participating Affiliate to provide the Services; and
26.1.4 a claim by a BPA Third Party arising from and directly
connected with the breach of any law, rule, regulation
or order, where such breach arises directly from the
negligent act or omission of Exult Supplier, an Exult
Participating Affiliate or its and their respective
employees, officers, agents or subcontractors.
26.2 INDEMNIFICATION BY BPA
Subject to Clause 26.5, the Client shall indemnify and keep
indemnified Exult Supplier, the Exult Participating Affiliates
and its and their respective officers, directors, employees,
agents, successors and assigns (each, an "Indemnified Exult
Party") from and against any and all Losses arising in
connection with this Agreement from any of the following:
26.2.1 a claim by an Exult Third Party arising from the death
or illness of or personal injury to any Exult Third
Party or from any damage to any real or tangible
personal property of any Exult Third Party arising
directly from and to the extent of the negligent act or
omission of the Client, a Participating Affiliate or its
and their respective employees, officers, agents, or
subcontractors;
26.2.2 a claim by an Exult Third Party arising from the death
or illness of or personal injury to any employee of the
Client, or of a Participating Affiliate or to any
employee of their respective agents or subcontractors or
arising from any damage to any real or tangible personal
property of any employee of the Client or of, a
Participating Affiliate or of any employee of their
respective agents or subcontractors, in each case,
notwithstanding that such claim arose from the
negligence of an Indemnified Exult Party;
26.2.3 a claim by a third party other than an Exult Affiliate
to an Exult Third Party
38
<PAGE> 41
Contract where such claim arises in connection with a
breach of the Client's or Participating Affiliate's
obligations under or relating to such Exult Third Party
Contract assumed by the Client or the relevant
Participating Affiliate pursuant to obtaining consents
in respect of such Exult Third Party Contract obtained
on the termination or expiry of the relevant Country
Agreement;
26.2.4 a claim by an Exult Third Party arising from and
directly connected with the breach of any law, rule,
regulation or order, where such breach arises directly
from the negligent act or omission of the Client, a
Participating Affiliate or its and their respective
employees; and
26.2.5 a claim by an Exult Third Party where such Exult Third
Party:
(i) is an employee or former employee of the Client
or of a BPA Affiliate to the extent such claim
relates to the period such employee or former
employee was employed by the Client or a BPA
Affiliate (except to the extent that such claim
is covered by the indemnity provisions set forth
in Schedule J of this Agreement);
(ii) is a beneficiary under any Client or BPA
Affiliate employee related benefits plans,
programmes or schemes to the extent that such
claim relates to such plans, programmes or
schemes; or
(iii) has a fiduciary role or responsibility in
relation to any the Client or BPA Affiliate's
employee related benefit plans, programmes or
schemes to the extent such claim relates to such
role or responsibility,
in each case, except to the extent that such claim
results from the negligence of Exult Supplier, an Exult
Participating Affiliate, or its or their respective
employees, officers, agents or subcontractors.
26.3 INDEMNIFICATION BY EXULT SUPPLIER WITH RESPECT TO INTELLECTUAL
PROPERTY
26.3.1 Subject to Clause 26.5, Exult Supplier shall indemnify
and keep indemnified the Client, its Affiliates and
their respective officers, directors, employees and
agents, from and against all reasonable costs and
expenses (including the amount of any damages awarded by
a court of competent jurisdiction) which the Client may
incur as a result of defending or settling any claim by
a third party that the Client's use or possession of any
of the Exult Proprietary Systems is unauthorised or
infringes the Intellectual Property rights of any third
party.
26.3.2 In the event of any such claim being made, the Client
shall notify the Exult Regional Representative as soon
as practicable upon becoming aware of the same and,
subject to being indemnified, at the request of Exult
Supplier, grant Exult Supplier sole conduct of the claim
and provide to Exult Supplier all reasonable assistance
in the conduct of the claim, provided that in conducting
the claim Exult Supplier shall minimise the disruption
to the business of BPA
39
<PAGE> 42
and the Participating Affiliates, including the use of
the Exult Supplier Intellectual Property, as the case
may be.
26.3.3 No liability shall exist under this Clause 26.3 to the
extent that any such claim arises solely from:
(i) the use by the Client and/or the Participating
Affiliates of the relevant Exult Systems, Future
Systems or Work Product for purposes not
connected with the provision of the Services or
services equivalent to the Services in the
Country in which those Services are being
provided or as otherwise authorised;
(ii) any modification of the relevant Exult Systems,
Future Systems or Work Product by or on behalf
of the Client and/or the Participating
Affiliates to which Exult Supplier or the third
party, as the case may be, has not given its
consent; or
(iii) use of the relevant Exult Systems, Future
Systems or Work Product in connection with
materials or data supplied by the Client.
26.3.4 In the event that the Client's use or possession of any
part of the Exult Systems, the Future Systems or Work
Product is held to be unauthorised or to infringe any
third party Intellectual Property rights, then Exult
Supplier shall at its own expense and at the Client's
option:
(i) obtain for the Client a licence or such other
right to continue to use that System or Work
Product or part thereof; or
(ii) replace or modify such part so as to avoid or
rectify the unauthorised use or infringement
without significant interruption or degradation
in performance of that System or the Services,
provided that the Client shall provide Exult Supplier
with all reasonable assistance (at the cost of Exult
Supplier) to enable Exult Supplier to so do.
26.4 INDEMNIFICATION OF EXULT IN RELATION TO INTELLECTUAL PROPERTY
26.4.1 Subject to Clause 26.5, the Client shall indemnify and
keep indemnified Exult Supplier from and against all
reasonable costs and expenses (including the amount of
any damages awarded by a court of competent
jurisdiction) which Exult Supplier may incur as a result
of defending or settling any claim by a third party that
Exult Supplier's use of any of the Client Systems which
has been authorised by the Client is unauthorised or
infringes the Intellectual Property rights of any third
party.
26.4.2 In the event of any such claim being made, Exult shall
notify the BPA Regional Representative as soon as
practicable upon becoming aware of the claim and,
40
<PAGE> 43
subject to being indemnified at the request of the
Client, grant BPA or the Client sole conduct of the
claim and provide to the Client all reasonable
assistance in the conduct of the claim.
26.4.3 No liability shall exist under Clause 26.4 to the extent
that any such claim arises from:
(i) the use by Exult Supplier of the relevant Client
System for purposes not connected with the
provision of the Services in the Country in
which the Services are provided; or
(ii) any modification of the Client System by or on
behalf of Exult Supplier to which the Client has
not given its consent.
26.4.4 In the event that Exult Supplier's use of any part of
the Client Systems is held to be unauthorised or to
infringe any Intellectual Property rights relating
thereto, then the Client shall at its own expense:
(i) obtain for Exult Supplier a licence or such
other right to continue to use that System; or
(ii) replace or modify such part so as to avoid or
rectify the unauthorised use or infringement,
provided that Exult Supplier shall provide the Client
with all reasonable assistance to enable the Client to
so do.
26.5 DEFENCE OF CLAIMS
26.5.1 Each party will defend and procure the relevant
Affiliate to defend any claim brought or threatened
against the other party to the extent that such claim is
or may be subject to the indemnity contained in Clauses
26.1, 26.2, 26.3 and 26.4 (the party providing such
defence, the "Indemnifying Party" and the party entitled
to such defence, the "Indemnified Party"). The
Indemnifying Party will bear the expense of such defence
and pay any damages and legal fees finally awarded by a
court of competent jurisdiction which are attributable
to such claim.
26.5.2 The Indemnified Party shall notify the Indemnifying
Party of any claim under Clauses 26.1, 26.2, 26.3 and
26.4 within 30 days (or such shorter period as may be
required to respond to a third party claim) after
receipt of notice. The Indemnifying Party required to
indemnify the Indemnified Party under this Agreement
shall have no obligation for any claim under this Clause
26.5 to the extent that the defence of such claim is
prejudiced by such failure if:
(i) the Indemnified Party fails to notify the
Indemnifying Party of such claim as provided
above;
41
<PAGE> 44
(ii) the Indemnified Party fails to tender control of
the defence of such claim to the Indemnifying
Party; or
(iii) the Indemnified Party fails to provide the
Indemnifying Party with all reasonable
cooperation in the defence of such claim (the
cost thereof to be borne by the Indemnifying
Party).
26.5.3 The Indemnifying Party shall have no obligation for any
claim under this Agreement if the Indemnified Party
makes any admission or settlement regarding such claim
without the prior written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld
or delayed. Notwithstanding the foregoing sentence, the
Indemnifying Party may settle any claim involving only
the payment of money by the Indemnifying Party.
26.5.4 The Indemnified Party shall have the right (but not the
obligation) to participate in such defence or settlement
(and in the case of any proposed settlement of a claim
which does not involve only the payment of money, the
Indemnifying Party shall obtain the prior written
consent of the Indemnified Party to such settlement,
such consent not to be unreasonably withheld or
delayed), in which event the Indemnified Party shall pay
its attorneys' fees associated with such participation.
26.5.5 In conducting the defence of the claim the Indemnifying
Party shall liaise with the Indemnified Party and keep
the Indemnified Party informed as to the progress of the
action and shall take into account the requirements and
requests of the Indemnified Party and in particular
shall not make any public statement relating to the
action without the Indemnified Party's prior written
consent and shall not do anything which could
potentially adversely prejudice the reputation or
goodwill of the Indemnified Party or its Affiliates.
26.6 SURVIVAL OF RIGHTS
All indemnities, and exclusions and limitations of liability
contained in this Clause 26 and elsewhere in this Agreement
shall remain binding on the parties hereto, notwithstanding the
expiry or termination of this Agreement.
27 INSURANCE
Exult Supplier shall inform the Client immediately in the event that it
becomes aware that insurance cover as required under Clause 22 of the
Framework Agreement is not in place and in such event shall itself
obtain the appropriate insurance to the extent that this relates to this
Agreement.
28 RECOVERY OF DAMAGE AWARDS
28.1 In the event that the parties cannot agree as to whether there
is a default or as to the amount to be paid to either party in
connection with any default by the other party under
42
<PAGE> 45
this Agreement, the matter shall be resolved pursuant to the
Dispute Resolution Procedure in accordance with Clause 29.3.
28.2 In the event that it is agreed, or determined pursuant to Clause
28.1, that Exult Supplier is liable to pay an Award to the
Client, the mechanism for recovering such Award shall be as
follows:
28.2.1 Exult Supplier shall first seek to recover the Award
under any relevant insurance policy maintained by Exult
pursuant to Clause 22 of the Framework Agreement
(Insurance) and pay the Award recovered to the Client;
28.2.2 if the Award is not paid to the Client pursuant to
Clause 28.2.1 within 30 days of it being agreed or
determined that an Award is payable, the Client (or BPA
acting on its behalf) shall be entitled to seek to
recover the Award directly under the indemnity to
principal provision contained in any relevant insurance
policy maintained by Exult in accordance with Clause 22
of the Framework Agreement (Insurance).
28.2.3 If the Award is not paid pursuant to Clause 28.2.1 or
Clause 28.2.2, the Client shall provide Exult Supplier
with [***]* notice within which Exult Supplier shall pay
the Award to the Client.
28.2.4 Subject to the provisions of Clause 23 of the Framework
Agreement (Letter of Credit), if the Award is not paid
pursuant to Clauses 28.2.1, 28.2.2 or 28.2.3 within the
expiry of the [***]* notice period in Clause 28.2.2,
then BPA shall have the right, but not the obligation to
make a demand under the Letter of Credit.
28.2.5 Exult Supplier shall not be entitled to seek to recover
under any insurance policy maintained pursuant to Clause
22 of the Framework Agreement (Insurance) in order to
satisfy any indemnity claim or obligation or to seek to
recover any Award made in connection with indemnity
provisions other than claims, obligations or Awards made
in connection with Clauses 26.1.1 and 26.1.2.
28.3 In respect of an Award or other indemnity claim or obligation
that the Client is liable to pay to Exult Supplier, the Client
shall not be entitled to seek to recover under any insurance
policy maintained pursuant to Clause 22 of the Framework
Agreement (Insurance) in order to satisfy any indemnity claim or
obligation or to recover any Award made in connection with
indemnity provisions other than claims, obligations or Awards
made in connection with Clauses 26.2.1 and 26.2.2.
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
43
<PAGE> 46
29 DISPUTE RESOLUTION
29.1 INFORMAL DISPUTE RESOLUTION
Prior to the initiation of dispute resolution procedures
pursuant to Clause 29.2 and 29.3, the parties shall attempt to
resolve any Dispute informally, as follows:
29.1.1 Upon the request of either Country Representative, in
the case of a Dispute which has not been resolved, or
cannot be resolved by the Country Representatives within
[***]* that Dispute shall be referred to the Regional
Governance Panel.
29.1.2 If the Regional Governance Panel is unable to resolve
the Dispute within [***]* after it is submitted to the
Regional Governance Panel, then the Dispute will be
referred to the Global Governance Panel. The Global
Governance Panel shall use its best efforts to resolve
such Dispute.
29.1.3 If the Global Governance Panel is unable to resolve the
Dispute within [***]* after it is submitted to the
Global Governance Panel (or such later time as may be
agreed by the Global Governance Panel), then the Dispute
shall be referred to the Exult Chief Executive Officer
and the BPA Vice President Group HR.
29.1.4 If the BPA Vice President Group HR and the Exult Chief
Executive Officer have not been able to resolve the
Dispute within [***]* of the matter having been referred
to them (or such later date as they may agree), the
Dispute shall be referred to Expert Decision or
Arbitration (as the case may be) in accordance with the
provisions of this Agreement.
29.1.5 During the course of any discussions in accordance with
this Clause 29, all reasonable requests made by one
party to the other for information will be honoured in
order that the parties may be fully advised of each
other's position. Any Confidential Information disclosed
will be treated by the recipient in accordance with
Clause 20 (Confidentiality).
29.1.6 Unless the Agreement specifies otherwise, all Disputes
shall be referred to the informal Dispute Resolution
Procedure and thereafter to Arbitration pursuant to
Clause 29.3.
29.1.7 Only the informal Dispute Resolution Procedures set out
in Clause 29.1 can apply where the parties fail to agree
to carry out a new or Project or project or to make a
substantial or material change to the Agreement or any
Service or any provision specified in the Agreement as
being an agreement to agree.
29.2 EXPERT DECISION
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
44
<PAGE> 47
29.2.1 Where a Dispute is designated in this Agreement as
appropriate for Expert Decision it shall be referred for
determination to an Expert nominated either jointly by
the parties, or failing agreement between them within
the time stated in this Agreement or, where no time is
stated, within 10 working days, on the application of
the Client or Exult Supplier, to:
(i) the Institute of Electrical Engineers for any
issue involving software, hardware, or systems;
(ii) the Institute of Chartered Accountants for
England and Wales for any issue involving
finance, accounting and tax; and
(iii) the Institute of Personnel and Development
Management for any issue involving human
resources polices and practices that cannot be
referred to an appropriate Expert under Clause
29.2.1(i) and (ii).
29.2.2 The parties agree:
(i) to supply the Expert with the assistance,
documents and information he/she requires for
the purpose of his/her determination;
(ii) that in all cases, the terms of appointment of
the Expert shall include a requirement on the
Expert to give his/her determination with 21
days or such other period as may be agreed, to
hold professional indemnity insurance for both
then and for 3 years following the date of
his/her determination and to establish his/her
own reasonable procedures to enable him to give
his determination; and
(iii) that in considering any issue relating to the
KPIs the Expert shall take into account the
performance levels of service achieved by the
Client.
29.2.3 The Expert's Decision is final and binding on the
parties in the absence of negligence, manifest error or
bad faith. The Expert acts as an expert and not an
arbitrator and the Expert's Decision is not a
quasi-judicial procedure. Save as provided elsewhere in
this Agreement, each party shall bear its own costs and
the costs of the Expert shall be borne equally between
the parties.
29.3 ARBITRATION
29.3.1 Subject to any other terms of this Agreement, if any
Dispute, which is designed as a Dispute to be referred
to Arbitration, arising in connection with this
Agreement cannot be resolved in accordance with the
provisions of Clause 29.1 it shall be referred to
arbitration at the written request of any party under
the Rules of the International Chamber of Commerce,
which rules are deemed to be incorporated by reference
into this Clause 29.3.
29.3.2 The parties agree that:
45
<PAGE> 48
(i) the number of arbitrators shall be three;
(ii) the place of the arbitration shall be London;
(iii) the language to be used in the arbitration
proceedings shall be English; and
(iv) the ruling of the arbitrators on the Dispute
shall be final and binding.
30 FORCE MAJEURE
30.1 Subject to Clause 30.2, neither party shall be liable to the
other for any Loss of any kind whatsoever, including but not
limited to any damages, whether directly or indirectly caused to
or incurred by the other party to the extent such Loss arises by
reason of any failure or delay in the performance of its
obligations hereunder which is due to Force Majeure.
30.2 The party claiming to be prevented or delayed in the performance
of any of its obligations under this Agreement by reason of
Force Majeure shall use reasonable endeavours to continue to
perform its obligations under this Agreement without being
obliged to incur any significant additional cost to bring the
Force Majeure to a close or to find a solution by which the
Agreement may be performed despite the continuance of the Force
Majeure circumstances.
30.3 If either party shall become aware of circumstances of Force
Majeure which give rise to or which are likely to give rise to
any such failure or delay on its part, it shall forthwith notify
the other by the most expeditious method then available and
shall inform the other of the period which it is estimated that
such failure or delay may continue. If Force Majeure continues
for seven days or longer the Global Governance Panel shall be
notified by the party affected by such Force Majeure and
requested to decide upon a course of action.
30.4 It is agreed that any failure by a party to perform or any delay
by a party in performing its obligations under this Agreement
which results from any failure or delay in the performance of
its obligations by any person, firm or company with which such
party shall have entered into any contract, supply arrangement
or sub-contract or otherwise shall be regarded as a failure or
delay due to Force Majeure only in the event that such person,
firm or company shall itself be prevented from or delayed in
complying with its obligations under such contract, supply
arrangement or sub-contract or otherwise as a result of
circumstances which would be Force Majeure for the purposes of
this Agreement.
31 ASSIGNMENT
31.1 Exult Supplier shall not be entitled to and shall not assign,
novate or otherwise transfer this Agreement, in whole or in
part, without the Client's prior written consent.
46
<PAGE> 49
31.2 The Client shall not be entitled to assign, novate or transfer
this Agreement or any part of it without Exult Supplier's prior
written consent save that the Client may assign, novate or
otherwise transfer this Agreement in whole or in part to a BPA
Affiliate, provided that if at any time following such transfer,
assignment or novation the relevant entity ceases to be a BPA
Affiliate the Client shall procure that such entity shall
re-transfer, re-assign or re-novate this Agreement, or the
relevant part of it, to the Client or another BPA Affiliate at
that time.
32 SUBCONTRACTING
32.1 Exult Supplier may employ subcontractors which are Exult
Affiliates and may, subject to the other provisions of this
Clause 32, employ other subcontractors in the provision of any
part of the Services. Subcontractors listed in Schedule M are
approved for the purposes of Clause 32.2.
32.2 Exult Supplier shall not employ subcontractors without the BPA
Regional Commercial Contract Leader's prior written approval
(such approval not to be unreasonably withheld or delayed):
32.2.1 on any occasion where the value of a proposed individual
subcontract is in excess of [***]* per annum; or
32.2.2 where the subcontracted work relates to a Sensitive
Third Party Contract.
32.3 Exult Supplier shall promptly notify the BPA Regional Commercial
Contract Leader if at any time the total value of the
subcontracted work in any twelve month period would be [***]*
32.4 Exult Supplier shall ensure that the Subcontractors are
appropriately skilled and qualified.
32.5 Exult Supplier shall remain liable to the Client in respect of
any such Services provided by Subcontractors.
32.6 Data protection and confidentiality provisions equivalent to
those contained in this Agreement shall be included in any
agreement with Subcontractors entered into by Exult Supplier
pursuant to this Clause 32, provided that in respect of
Subcontractors which are parties to Third Party Contracts which
are assigned or novated to Exult Supplier, Exult Supplier shall
use reasonable endeavours to comply with its obligations under
this Clause relating to such Subcontractors and shall inform the
Client where it has not been possible to fulfil such obligation.
32.7 For the purposes of this Clause 32, Subcontractors shall not
include contract staff whether hired on an individual basis or
through an agency where Exult Supplier
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
47
<PAGE> 50
exercises direction and control over the work of such contract
staff. The BPA Regional Commercial Contract Leader's consent is
not required in relation to Exult Supplier hiring such contract
staff.
32.8 Exult Supplier's use in the ordinary course of business of third
party services or products that are not dedicated solely to the
provision of the Services and that are not material to the
performance of the Services and which do not result in a
material change in the way Exult Supplier conducts its business
will not be subject to the provisions of this Clause 32. If the
Client expresses any concern to Exult Supplier about any such
third party services or products, Exult Supplier shall discuss
such concerns with the Client and work in good faith to resolve
the Client's concerns on a mutually acceptable basis.
32.9 It is understood that no approval given under this Clause 32
shall generate contractual relations between the Client or any
of its Affiliates and any Subcontractor except as expressly
contemplated by this Clause 32.
33 PARTICIPATING AFFILIATES
33.1 Exult Supplier acknowledges that the Client has concluded this
Agreement for the benefit of the Client and the Participating
Affiliates.
33.2 At the request of the Client, Exult Supplier shall at the
Client's expense execute all deeds or other documents required
to enable any Loss incurred or sustained by any Participating
Affiliate recovered pursuant to Clause 25.10 (Limitations on
Participating Affiliates' Claims).
34 GENERAL TERMS
34.1 PUBLICITY
34.1.1 Except with the prior written consent of the other party
each party shall not and shall procure that its
Affiliates shall not make any press or other public
announcements relating to this Agreement, the Framework
Agreement or any other Country Agreement, or disclose
any information relating to the commercial or other
terms of this Agreement, the Framework Agreement or any
other Country Agreement.
34.1.2 It is the intention of the parties that immediately
following the Commencement Date, they will jointly
develop and agree a press release relating to their
relationship under this Agreement and the Framework
Agreement.
34.2 NOTICES
Wherever under this Agreement a party is required or permitted
to give notice to the other party, such notice shall be in
writing and shall be delivered personally, sent by fax, (as
appropriate) recognised express courier service or certified,
registered, or first class mail. Any such notice shall be deemed
given when actually received when so delivered
48
<PAGE> 51
personally, by fax or express courier, or if mailed, on the 5th
day after its mailing, postage prepaid to the recipient party
addressed as follows:
In the case of the Client:
Country Representative
Britannic House
1 Finsbury Square
London
EC2M 7BA
BPA Regional Representative
Britannic House
1 Finsbury Square
London
EC2M 7BA
In the case of Exult Supplier:
Exult Country Representative
4 Park Plaza
Suite 350
Irvine
California 92614
Fax: (949) 250 8086
with a copy (which shall not constitute effective notice) to:
Legal Department
4 Park Plaza
Suite 350
Irvine
California 92614
Fax: (949) 250 8086
Any party may change its address for notices upon giving 10
days' prior notice of the change to the other parties in the
manner provided in this Clause 34.2.
34.3 LIMITATION ON RECRUITING
49
<PAGE> 52
34.3.1 Subject as hereinafter provided in this Clause 34.3,
each of the Client or Exult Supplier shall not during
the term of this Agreement or within six months of its
termination or expiry employ and/or solicit directly or
indirectly any employees of the other party who have
been involved in providing the Services or are otherwise
connected with this Agreement.
34.3.2 Clause 34.3.1 will not restrict the Client or Exult
Supplier from employing employees of the other party:
(i) who apply unsolicited in response to a general
advertising or other general recruitment
campaign;
(ii) which the party who employed the relevant
employee has agreed in writing may be so
employed; or
(iii) as contemplated in Schedule J of this Agreement.
34.4 WAIVER
34.4.1 Subject to Clause 34.12 (Legal Proceedings) no delay or
omission by either party to exercise any right or power
shall impair such right or power or be construed as a
waiver.
34.4.2 A waiver by either of the parties of any covenants to be
performed by the other party or of any breach shall not
be construed to be a waiver of any succeeding breach or
of any other covenant.
34.4.3 No waiver of any of the provisions of this Agreement
shall be effective unless it is expressly stated to be a
waiver and communicated to the other party in writing in
accordance with the provisions of Clause 34.2 (Notices).
34.5 AMENDMENTS
The terms and conditions of this Agreement shall not be varied
or amended, except by a written instrument executed by or on
behalf of each of the parties in accordance with the Change
Control Management process.
34.6 SEVERABILITY
If any provision of this Agreement is held to be invalid,
unenforceable or void, such decision shall not have the effect
of invalidating or voiding the remainder of this Agreement, and
the parties agree that they shall immediately commence in good
faith negotiations to seek to remedy such invalidity,
unenforceability or illegality.
34.7 COSTS
50
<PAGE> 53
Except as expressly otherwise provided for in this Agreement,
each party shall bear its own costs and expenses incurred in
connection with the negotiation and preparation of this
Agreement.
34.8 ENTIRE AGREEMENT
This Agreement shall constitute the entire agreement between the
parties with respect to the subject matter hereof and (to the
extent permissible by law) supersedes all prior representations,
writings, negotiations or understandings with respect thereto
provided that neither party is attempting to exclude any
liability for fraudulent statements including pre-contractual
misrepresentations on which the other party can be shown to have
relied.
34.9 CONFLICT AND INCONSISTENCIES
34.9.1 In the event and to the extent only of any conflict
between the Clauses and the Schedules, the Clauses shall
prevail.
34.9.2 In the event of any inconsistencies between the English
language version of this Agreement and any contract
administration documents prepared in connection
therewith and any translation of such agreements or
documents, the English language version shall prevail.
In the event of any inconsistencies between any
obligations of the parties set out in this Agreement and
the corresponding obligations in any Framework
Agreement, the corresponding obligations in this
Agreement shall prevail.
34.10 SURVIVAL
The terms and conditions of this Agreement which are expressly
or by implication intended to survive its termination or expiry
shall so survive and continue to bind the parties.
34.11 COUNTERPARTS
This Agreement may be executed in two or more counterparts or by
fax, each of which shall be deemed to be an original, but all of
which together shall constitute one agreement binding on all
parties, notwithstanding that all parties are not signatories to
the original or the same counterpart or fax copy.
34.12 LEGAL PROCEEDINGS
Any legal proceedings in relation to this Agreement must be
commenced by the relevant party within 2 years of the
termination or expiry of this Agreement.
34.13 EQUITABLE REMEDIES
51
<PAGE> 54
The parties agree that damages shall be the only remedy
available in respect of each parties' liability arising under
this Agreement provided that the parties shall be free to seek
equitable remedies (including injunctive relief) in respect of
breaches of confidentiality and matters relating to the
infringement of Intellectual Property Rights.
34.14 INDEPENDENT CONTRACTOR
In providing Services to the Client under this Agreement, Exult
Supplier is acting only as an independent contractor.
Notwithstanding any provision of this Agreement to the contrary,
this Agreement establishes and shall only be construed as
establishing a contract between unrelated business entities for
the provision and purchase of certain services and does not and
shall not be deemed to create a partnership, joint venture,
agency (except as expressly provided in this Agreement) or any
other type of joint relationship.
34.15 RESPONSIBILITY FOR EMPLOYEES
Employees shall be employees of Exult Supplier or the relevant
Exult Participating Affiliates as appropriate and under no
circumstances other than as provided in Schedule J (Employee
Transfer Arrangements) are Employees to be considered employees
of the Client or any BPA Affiliate. Exult Supplier or the
relevant Exult Participating Affiliate shall have the sole
responsibility for supervision and control of the Employees and
for payment of their entire compensation, including salary,
Withholding Taxes and social security taxes, workers
compensation, employee and disability benefits and the like and
shall be responsible for all employer obligations under all
applicable laws.
34.16 RESTRICTIVE TRADE PRACTICES
Notwithstanding any other provision of this Agreement, no
provision of this Agreement which is of such a nature as to make
this Agreement liable to registration under the Restrictive
Trade Practices Act 1976 shall take effect until the day after
that on which particulars thereof have been duly furnished to
the Director General of Fair Trading pursuant to the said Act.
For the purposes of this Clause 34.16, the expression "this
Agreement" shall include any agreement forming part of the same
arrangement.
34.17 GOVERNING LAW
This Agreement shall be governed and construed in accordance
with the laws of England and Wales.
52
<PAGE> 55
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:
---------------------------------
53
<PAGE> 56
INDEX TO SCHEDULES
Schedule A Scope of Services (indicative)
Schedule B Service Levels (indicative)
Schedule C Charges and Invoicing
Schedule D Third Party Contracts
Schedule E Assets
Schedule F Systems
Schedule G Part I Country Transition Plan
Part II Validation Exercise
Schedule H Projects/Projects
Schedule I Part I Key Employees
Part II BPA Key Employees
Schedule J Employee Transfer Arrangements
Schedule L Change Control Management
Schedule M Approved Exult Sub-contractors
Schedule O BPA Business Policies and Controls
Schedule P Global Governance Arrangements
Schedule Q Data Protection
Schedule R BPA Participating Affiliates
Schedule T Process Line Population
Schedule U Escrow Agreement
Schedule Z Definitions
54
<PAGE> 57
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
55
<PAGE> 58
(iii) a company does not include any joint venture whether
incorporated or unincorporated.
"BPA COUNTRY REPRESENTATIVE" means any individual appointed by BPA
pursuant to the Agreement to be a Country Representative in respect of
this Agreement;
"BPA IT POLICY" means the document, describing the policies to be
adopted by the Exult and the Exult Affiliates in relation to the use of
Systems in connection with the provision of the Services, set out in
Schedule O, Part 1 (BPA Policies and Controls);
"BPA KEY EMPLOYEES" means the BPA personnel identified by name and
position in Part II of Schedule I to this Agreement (Employees).
"BPA REGIONAL REPRESENTATIVE" means an individual appointed by Client
pursuant to the Framework Agreement;
"BPA RESPONSIBILITIES" means those actions described in Schedule A which
need to be performed by the Client in order for Exult Supplier to be
able to provide the Services;
"BPA THIRD PARTY" means a third party other than BPA, a BPA Affiliate
and its and their respective agents, subcontractors, officers, directors
and employers;
"CHANGE" means a change to this Agreement or the Framework Agreement
agreed in accordance with the Change Control Management process;
"CHANGE OF CONTROL" shall be deemed to have occurred in relation to any
company ("THE COMPANY") if any Relevant Entity, together with any
Relevant Entity Affiliates:
(i) becomes interested (and, for the avoidance of doubt, was not
previously so interested), directly or indirectly, in more than
50 per cent of the shares of the Company or of the voting rights
attached thereto, including through an initial public offering
of more than 50 per cent of the share capital of the Company; or
(ii) acquires the right to appoint or remove a majority of the board
of directors of the Company
references to a Relevant Entity being "interested" in shares shall mean
interested in those shares for the purposes of Part VI of the Companies
Act 1985.
for the purposes of this definition only "RELEVANT ENTITY AFFILIATE"
means, in relation to any Relevant Entity, any other which is in Control
of, is Controlled by or is under common Control with such Relevant
Entity, "CONTROL" of a person shall mean:
(i) the right, whether direct or indirect, to vote 50 per cent or
more of the securities having the power to elect directors of
such person; or
(ii) the power, whether direct or indirect, to direct the management
or policies of such person.
56
<PAGE> 59
"CHANGE CONTROL MANAGEMENT" means the procedure by which changes may be
made to the Agreement pursuant to Clause 9 (Change Control Management
Process) and as further set out in Schedule L (Change Control
Management);
"CHANGE REQUEST" means a request for a Change made in accordance with
the Change Control Management process;
"CHARGES" means the charges payable by the Client in respect of the
Services calculated in accordance with Schedule C (Charges and
Invoicing);
"CLIENT ASSETS" means the goods and other assets which are owned or used
by BPA, a BPA Affiliate or the Client solely to provide the services
equivalent to the Services immediately before the Commencement Date,
including, but not limited to, Client Systems and Third Party Systems
and facilities whether or not the subject of Third Party Contracts and
as identified in Schedule E (Assets), in each case which are required to
be used by Exult Supplier to provide the Services;
"CLIENT INFORMATION" means the information provided by the Client which
comes into the possession of Exult Supplier or the Exult Affiliates or
their subcontractors pursuant to this Agreement, or created under or
arising out of data and records of the Client, BPA or BPA Affiliates
pursuant to this Agreement;"CLIENT INTELLECTUAL PROPERTY" has the
meaning ascribed to it in Clause 19.1 (Intellectual Property Rights);
"CLIENT PREMISES" means any premises of Client Affiliates in the United
Kingdom which the Client or Client Affiliates use to provide services
equivalent to the Services immediately prior to the applicable Country
Commencement Date;
"CLIENT SERVICE CENTRE" means each of the remote service centres to be
established by Exult Supplier;
"CLIENT SYSTEMS" means Systems (or part thereof) in which the
Intellectual Property is owned by either Client or Client Affiliates and
to be used in whole or in part in the provision of the Services as
identified in this Agreement;
"COMMENCEMENT DATE" means the date of execution of this Agreement by
both of the parties to this Agreement;
"CONFIDENTIAL INFORMATION" means all information obtained from the other
party which by its nature should be treated as confidential information
or is marked as such which may come into its possession or into the
possession of its employees, agents or subcontractors as a result of or
in connection with this Agreement and any and all information which may
be derived from such information;
"CONTRACT MINIMUM(s)" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"CONTRACT MINIMUM YEAR" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
57
<PAGE> 60
"CONTRACT TRANSFER PLAN" means the plan to be developed and agreed by
the Exult Supplier and the Client relating to the Transfer of a Third
Party Contract to Exult Supplier or the assumption by Exult Supplier of
an administration role in relation to a Third Party Contract;
"CONTROLS" means those business practices (including computer security
provisions, procedures to protect Confidential Information and
procedures to ensure compliance with obligations to third parties in
connection with Exult Supplier's provision of the Services hereunder),
controls, Client policies, quality standards and human resource,
financial and accounting controls necessary for the provision and
receipt of the Services in accordance with this Agreement including:
(i) the Client Business Standards and Policy Document;
(ii) the Client Policy on the Business Conduct and Code of Business
Ethics;
(iii) the Client Disaster Recovery Plan; and
(iv) the BPA IT Policy.
which have been provided or will be provided from time to time to Exult
Supplier in writing and as listed in Schedule O (BPA Policies and
Controls);
"CORPORATE OVERHEAD" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"COUNTRIES" means the Countries in which Client requires Exult Supplier
to procure the provision of services such as the Services pursuant to
the Framework Agreement and "COUNTRY" means any one of them;
"COUNTRY AGREEMENT" means an agreement, substantially in the form set
out in Schedule N of the Framework Agreement, except as varied by or as
necessary to accommodate the relevant applicable laws of each Country or
as agreed by Client and Exult, to be entered into pursuant to the
Framework Agreement by a Participating Affiliate and Exult Participating
Affiliate in relation to the provision of Services to that Participating
Affiliate and any other Client Affiliates and/or Affiliates specified
therein;
"COUNTRY REPRESENTATIVES" means the representatives appointed by each of
the Client and Exult Supplier pursuant to, and having the
responsibilities referred to in Clause 22 (Contract and Service
Management) and "COUNTRY REPRESENTATIVE" means any one of them;
"COUNTRY TRANSITION PLAN" means the plan for the assumption of the
provision of the Service by the Exult Supplier set out in Schedule G
(Transition Plan);
"DECREASES" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"DEFAULT" means any material breach, or series of related or unrelated
persistent breaches which when taken together constitute a material
breach of its material obligations under this Agreement by either party;
"DEVELOPED SYSTEMS" has the meaning ascribed in Clause 19.8.1
(Intellectual Property Rights);
58
<PAGE> 61
"DISPUTE" means any dispute, controversy or claim arising under this
Agreement ;
"DISPUTE RESOLUTION PROCEDURE" means the procedure which the parties
agree should be used to resolve Disputes as set out in Clause 29
(Dispute Resolution);
"DUE DILIGENCE COSTS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"DUE DILIGENCE EXERCISE" means the exercise carried out in relation to
each Country in accordance with Clause 4 (Due Diligence) of the
Framework Agreement which includes the production of the Due Diligence
Reports;
"EARLY TERMINATION PAYMENT" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
Exult"EMBEDDED SERVICES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"EMPLOYEE" means any employee of Exult Supplier employed from time to
time wholly or mainly for the purposes of performing Exult Supplier's
obligations under this Agreement;
"EMU COMPLIANCE" means that all financial and accounting software,
screen layouts and hardware, conform with the applicable conversion and
rounding requirements set out in the European Council Regulation 1103/97
and with the use of the euro as a dual and single currency but only to
the extent necessary to meet the business requirements of Client and
Participating Affiliates and where Exult Supplier has been given
reasonable notice of such business requirements;
"ESCROW AGREEMENT" means the agreement substantially in the form of that
contained in Schedule U (Escrow Agreement);
"EUROPE" means countries presently forming the European Union (Austria,
Belgium, Denmark, Finland, Continental France (including Corsica),
Germany, Greece, Ireland, Italy, Luxembourg, The Netherlands, Portugal,
Spain, Sweden and the United Kingdom) together with those territories or
countries presently known as Albania, Andorra, The Azores, Belorussia,
Bosnia, Bulgaria, The Canary Islands, Ceuta, The Channel Islands,
Croatia, Cyprus, The Czech Republic, Estonia, Gibraltar, Hungary,
Iceland, Isle of Man, Latvia, Liechtenstein, Lithuania, Macedonia,
Maderia, Malta, Melilla, Moldavia, Monaco, Norway, Poland, Romania, the
Russian Federation to the west of the Urals, San Marino, The Slovak
Republic, Slovenia, Switzerland, Turkey, Ukraine, Vatican City and The
Yugoslav Republic including such other countries as may be notified to
Exult Supplier in writing from time to time;
"EXISTING IT DOMAIN" means the IT infrastructure and systems
architecture existing at the Commencement Date;
"EXPERT'S DECISION" means the decision of the Expert pursuant to the
procedure described in Clause 29.2 (Dispute Resolution);
"EXPERT" has the meaning ascribed to it in Clause 29.2 (Dispute
Resolution);
59
<PAGE> 62
"EXPIRY DATE" means the end of the Initial Period unless and until no
notice to terminate is given within the time limit specified in Clause
14.4 (Termination on Notice after the Initial Period) at which time the
Expiry Date shall mean the Framework Expiry Date;
"EXULT ACTUAL COST" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"EXULT AFFILIATE" means any company which is for the time being directly
or indirectly controlled by Exult Supplier and for this purpose:
(i) a company is directly controlled by another company beneficially
owning shares carrying the majority of votes at a general
meeting of shareholders (or its equivalent) of the first
mentioned company; and
(ii) a particular company is indirectly controlled by a company if a
series of companies can be specified, beginning with that
company and ending with the particular company, so related that
each company in the series is directly controlled by one or more
of the companies earlier in the series;
"EXULT ASSETS" means the goods and other assets which are owned by Exult
Supplier, Exult or an Exult Affiliate and acquired and used solely to
provide the Services immediately before the termination or expiry of
this Agreement, including Systems owned by Exult Supplier but excluding
any assets licensed or leased to Exult Supplier, Exult or Exult
Affiliate by way of a Third Party Contract;
"EXULT PROPRIETARY SYSTEMS" means Exult's Systems in which the
Intellectual Property is owned by Exult or Exult Supplier;
"EXULT REGIONAL REPRESENTATIVES" means the individuals appointed by
Exult Supplier pursuant to, the Framework Agreement;
"EXULT SUPPLIER DISASTER RECOVERY PLAN means the plan to be agreed
between the parties which sets out the procedures to be adopted by Exult
Supplier and the Exult Participating Affiliates in the event that any
Systems used in the provision of the Services, or any data relating to
the Services, is damaged or becomes unavailable for any reason;
"EXULT SUPPLIER INTELLECTUAL PROPERTY" has the meaning ascribed to it in
Clause 19.2 (Intellectual Property Rights);
"EXULT SYSTEMS" means Systems used in the provision of the Services in
which Exult or Exult Supplier owns the Intellectual Property or has been
granted a licence to use the Intellectual Property, excluding Future
Systems and Client Systems;
"EXULT THIRD PARTY" means a third party other than Exult, an Exult
Affiliate and its and their respective agents, subcontractors, officers,
directors and employees;
"EXULT THIRD PARTY CONTRACT" means any contracts, including subcontracts
and licences, but excluding contracts relating to employment, entered
into by, assigned to or novated to Exult,
60
<PAGE> 63
Exult Supplier or an Exult Supplier Participating Affiliate the benefit
of which relates to, or which are used in whole or in part for,
providing the Services;
"FAILED READINESS TEST" means a failure to complete all material
elements of a Readiness Test.
"FORCE MAJEURE" means any cause affecting the performance of the
obligations under this Agreement by a party arising from acts, events,
omissions, happenings or non-happenings beyond its reasonable control
including (but without limiting the generality thereof) governmental
regulations arising after the Commencement Date, civil and/or political
unrest, fire, flood, or any disaster or an industrial dispute (other
than those relating to Exult's employees) but shall not include lack of
funds or events caused by the party seeking to rely on the Force Majeure
event or by any third party employed or engaged by the party seeking to
rely on the Force Majeure event (except where and to the extent that
such third party is also affected by a Force Majeure event) and provided
that in determining what is in the reasonable control of Exult Supplier,
full account shall be taken of the existence of the Exult Supplier
Disaster Recovery Plan;
"FULL SERVICE DATE" means 00.01 a.m. on the date (which is the end of
the Transition Period) on which Exult Supplier is required to provide
all of the Services to the Client pursuant to the Country Transition
Plan.
"FUTURE SYSTEMS" means Systems created by Exult Supplier or its
Affiliates, or which Exult Supplier or its Affiliates procure to be
created, in fulfilling obligations under this Agreement, during the term
of this Agreement and provided to the Client or used in the provision of
the Services;
"FRAMEWORK COMMENCEMENT DATE" means the date defined as Commencement
Date in the Framework Agreement;
"FRAMEWORK EXPIRY DATE" means the date 7 years from the *Framework
Commencement Date or in the event the Framework Agreement is extended by
agreement between the parties, the date which is then stated as being
the Expiry Date of the Framework Agreement;
"GENERAL WINDING UP PLAN" means the plan for co-ordinating the orderly
assumption of the provisions of the Services by the Successor Operator
to be produced pursuant to the Framework Agreement;
"GLOBAL GOVERNANCE PANEL" means the body to be established in accordance
with the Framework Agreement;
"GOOD INDUSTRY PRACTICE" means in relation to any undertaking and any
circumstances, the exercise of the degree of skill, care, prudence and
foresight which would be expected from a reasonably skilled and
experienced person engaged in the same type of undertaking under the
same or similar circumstances;
"GUARANTEED MINIMUM SAVINGS" has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
61
<PAGE> 64
"GUARANTEED MINIMUM SAVINGS DATE" has the meaning ascribed to it in
Schedule C (Charges and Invoicing);
"HR IT SERVICES" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"INCREASES" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"INDEMNIFIED PARTY" has the meaning ascribed to it in Clause 26.5.1
(Defence of Claims);
"INDEMNIFYING PARTY" has the meaning ascribed to it in Clause 26.5.1
(Defence of Claims);
"INDEPENDENT BUSINESS" means any business unit within a Country
designated by Client executive committee from time to time to operate at
arm's length because (i) it is pending decision regarding a possible
disposal of the business unit; or (ii) the business unit operates under
conditions materially distinct from those applying to the Services as
evidenced by non participation in all or some of the other Client main
stream support services in that Country;
"IN-SITU PROCESS TAKE ON DATE" means 00:01AM on the day on which Exult
Supplier assumes responsibility for a Process in-situ;
"INITIAL BASELINE" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"INITIAL BASE CHARGES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"INITIAL PERIOD" means the period of 5 years from the Commencement Date;
"INITIAL RESOURCE VOLUMES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"INTELLECTUAL PROPERTY" means patents, trade marks, service marks,
copyrights, topography rights, rights to extract information from
databases, design rights, trade secrets and rights of confidence and all
rights or forms of protection of a similar nature or having equivalent
or similar effect to any of them which may subsist anywhere in the
world, whether or not any of them are registered and including
applications for registration of any of them;
"INTERNAL CONTROLS" means such controls as would be reasonably required
in accordance to Good Industry Practice;
"KEY EMPLOYEES" means those Employees to be identified pursuant to
Section 2, Schedule I (Employees) to this Agreement;
"KEY INCIDENT" means an incident (whether or not a KPI failure) which
would have an impact either real or perceived on the operational
performance, finances or reputation of Client or the Client Affiliates
or Exult's or the Exult Affiliates' performance, finances or reputation;
"KPI CREDIT" has the meaning ascribed to it in Schedule C (Charges and
Invoicing);
"KPI FAILURE" means any failure by the Exult Supplier to achieve a KPI;
62
<PAGE> 65
"KPI FAILURE PERIOD" means the period of time during which there has
been a KPI Failure;
"KPIs" means the key performance indicators set out in the Service
Levels in Schedule B (Service Levels) and "KPI" means any one of them;
"% OF KPI POOL" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"KPI PER EVENT CREDIT" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"LEVERAGED OPERATIONS" means the result of Exult Supplier's
transformation of the Services to Exult Supplier's Service Delivery
Model intended to improve the quality of HR services provided to the
Client and achieve the Guaranteed Minimum Savings.
"LEVERAGED PROCESS TAKE ON DATE" means 00:01AM local time on the day on
which Exult Supplier assumes responsibility for a Process in Leveraged
Operations;
"LOSSES" means all losses, liabilities, costs (including reasonable
legal costs), charges, expenses, actions, procedures, claims, demands
and damages (including the amount of damages awarded by an arbitrator
pursuant to Clause 29.3) (Dispute Resolution);
"MATERIALS" means all materials, including without limitation, magnetic
tapes, documents, designs, drawings, manuals, specifications,
flowcharts, and all stationery and other consumables as are, at the
applicable Country Commencement Date, in use by Client, the Client or
their Affiliates for the provision of the services equivalent to the
Services to the Client;
"NON-TRANSFERRABLE THIRD PARTY CONTRACT" means a Third Party Contract
other than a Transferable Third Party Contract;
"NORTH AMERICA" means United States of America, Canada, and Trinidad and
Tobago;
"OPERATIONAL CHANGE" means a change to any Process which affects the
procedures, scheduled operations activities, output and/or functioning
of the Service Delivery Model, but which is not determined to be a
Project, and does not require an adjustment to the Agreement;
"PARTICIPATING AFFILIATES" means the Client Affiliates, in addition to
the Client, which will receive the Services from the Exult Supplier
Participating Affiliates under this Agreement and "Participating
Affiliate" mean any one of them;
"PASS THROUGH COSTS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"PROCESS" means one of the 17 processes identified in Section II of
Schedule A (Scope of Services);
"PROCESS TAKE ON DATE" means 00.01am local time on the day on which
Exult Supplier assume responsibility for the delivery of the applicable
Process pursuant to the Country Transition Plan.
63
<PAGE> 66
"PROJECT" means a discrete piece of work which is not a Service, is not
included in the Baseline, is limited in duration, has specific
deliverables, has identifiable start and end dates, is agreed through
the Change Control Management process, and is subject to an Process
Charge as defined in Schedule C;
"PROPOSED CHANGE" means a change requested through a Change Request,
pending approval;
"QUALITY CONTROL DOCUMENT" means the summary document to be prepared by
Exult Supplier in accordance with Clause 3.2.8 (Controls) which sets out
the basis on which Exult Supplier will apply the Controls to the
provision of the Services;
"READINESS TEST" means the test agreed between the parties to establish
the readiness of both the Client and Exult Supplier to transition a
Process to Exult Supplier as described in Sections 7 and 8 of Schedule G
(Transition Plan).
"REDUCED RESOURCE CHARGES" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"REGION" shall mean each of North America, Europe and the Rest of the
World;
"REGIONAL REPRESENTATIVES" means the BPA Regional Representative and the
Exult Regional Representative;]
"RELEVANT ENTITY" means a person who in the reasonable opinion of Client
either:
(i) is a competitor of the Client, Client or a Participating
Affiliate primarily engaged in the business of distribution and
production of oil and petrochemicals;
(ii) whose (i) financial substance and (ii) credit rating are weaker
in any material respect than those of the Company; or
(iii) may, through its control of the Company, have any adverse effect
on the reputation of Client or any member of the BP Group;
"RESOURCE UNITS" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"RESOURCE VOLUMES" has the meaning ascribed to it in Schedule C (Charges
and Invoicing);
"REST OF THE WORLD" means [countries in which Client or the Client
Affiliates have operations other than Europe and North America;
"RETURN ON COSTS" or "R.O.C." has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
"SALES TAXES" means any federal, national, state, local, sales, use,
excise, utility, gross receipts, value added taxes, other similar
tax-related charges and surcharges levied by any authorised tax
authority, agency or government department;
64
<PAGE> 67
"SENSITIVE SERVICES" means those services in the nature of the Services
which are considered by the Client, Client or Client Affiliates to be of
a sensitive nature in that they represent a significant risk to the
reputation or ongoing business of the Client, Client or Client
Affiliates or if the nature of the services are such that they could, in
the Client's, Client's or Client Affiliate's view, potentially expose
the Client, Client or Client Affiliate to particular legal liability,
including those relating to administration benefit plans subject to the
US Employee Retirement Income Security Act 1974 as amended and are
retained and provided internally by the Client, Client or any Client
Affiliates;
"SENSITIVE THIRD PARTY CONTRACTS" means those Third Party Contracts and
Exult Supplier Third Party Contracts which are considered by the Client
to be of a sensitive nature in that they represent a significant risk to
the reputation or ongoing business of the Client, Client or the
Participating Affiliates, or if the nature of the services provided
under the contracts are such that they could, in the Client's view,
potentially expose the Client, Client or the Participating Affiliate to
particular liability;
"SERVICE CREDIT" means an amount payable by Exult Supplier to the Client
in respect of a KPI Failure;;
"SERVICE DELIVERY DESCRIPTION" means the documentation to be prepared by
Exult Supplier and/or Exult Supplier in accordance with Clause 16.5
(Winding Up Assistance);
"SERVICE DELIVERY MODEL" means the method by which the Services, or in
the case of Client, the services equivalent to the Services, are
delivered.
"SERVICE LEVEL" means the level to which the Services are to be provided
to the Client as set out in Schedule B (Service Levels);
"SERVICE PERFORMANCE REPORTS" means the reports to be produced by the
Exult Supplier Country Representative in accordance with Clause 22.3
(Service Performance Reports);
"SERVICED EMPLOYEE" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"SERVICES" means the human resource management and related services
processes described in Schedule A (Scope of Services) as may be amended
from time to time in accordance with the Change Control Management
process.;
"STANDARD RATES" means the rate to be charged by Exult Supplier to the
Client for the provision of Projects as determined in accordance with
Schedule C (Charges and Invoicing);
"SUBCONTRACTOR" means any subcontractor of Exult Supplier engaged from
time to time in accordance with Clause 32 (Subcontracting) for the
purposes of performing any part of Exult Supplier's obligations under
this Agreement;
"SUCCESSOR OPERATOR" means the entity (which may include Client or any
Client Affiliates) succeeding Exult Supplier in the provision or
operation of all or any of the Services;
65
<PAGE> 68
"SYSTEMS" means computer programs, databases, the tangible media on
which they are recorded, and their supporting documentation, including
input and output format, program listings, narrative descriptions,
source code, object code, algorithms, logic and development tools,
operating instructions and user manuals;
"TAXES" means all federal, state, local or foreign income tax, duty,
charge, and any penalty or interest thereon and any of the costs and
charges whatsoever assessed or imposed by any competent legal or fiscal
authority in relation thereto, including Withholding Tax, but excluding
value added or other similar sales or use taxes;
"TERM VESTED ANNUITANTS" has the meaning ascribed to it in Schedule C
(Charges and Invoicing);
"THIRD PARTY CONTRACTS" means any contracts, including licences, but
excluding contracts relating to employment, entered into by Client, or
any Client Affiliates the benefit of which relates to, or which are used
in whole or in part for providing services equivalent to the Services
immediately prior to the Commencement Date as identified in Schedule D
(Third Party Contracts);
"THIRD PARTY HR CONTRACT" means a Third Party Contract pursuant to which
a third party provides the Client with services equivalent to the
Services;
"THIRD PARTY SYSTEMS" means any Systems in which the Intellectual
Property is owned by a third party which Client, or any Client Affiliate
has been granted a licence to use and which are required to be used by
Exult Supplier to provide the Services as identified in Schedule F
(Systems);
"TOTAL LABOUR RELATED COSTS" has the meaning ascribed to it in Schedule
C (Charges and Invoicing);
"TRANSFER" and "TRANSFERRED" in respect to a Third Party Contract or
Sensitive Third Party Contract refers to the transfer of such contract
by assignment or novation as well as to, upon termination or expiry of
such Third Party Contract, the taking over by Exult Supplier of the
services provided thereunder as Services under the relevant Country
Agreement;
"TRANSFER/TRANSFORMATION COSTS" has the meaning ascribed to it in
Schedule C (Charges and Invoicing);
"TRANSFERABLE THIRD PARTY CONTRACTS" means Third Party Contracts which
are identified during the Due Diligence Exercise or the Validation
Exercise or thereafter as being capable of being either terminated or
assigned to Exult Supplier at short notice and without incurring any
penalty; "VALIDATION EXERCISE" means the exercise to be carried out in
accordance with Part 2 of Schedule G (Transition Plan);
"TRANSITION PERIOD" means the period between the Commencement Date and
the Full Service Date;
66
<PAGE> 69
"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".
67
<PAGE> 70
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE A
SCOPE OF SERVICES
<PAGE> 71
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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.......................................................................4
M Employee Development..........................................................5
N Resourcing/Recruiting.........................................................5
O Severance.....................................................................5
P Performance Management........................................................5
Q Domestic Relocation Administration............................................6
R HR Information Technology ("HRIT")............................................6
i
<PAGE> 72
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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.
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
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
1
<PAGE> 73
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
materials includes traditional classroom, self-study,
computer-aided training and third party training delivery
mechanisms.
[***]*.
[***]*
B ORGANISATION DEVELOPMENT
Organisation development focuses on organisation design and
ensuring organisation effectiveness. These activities include
business and new venture organisation consulting, managing
organisational improvement efforts and overseeing organisation
consulting supplied by third parties. Assessment of existing and
proposed organisation models and reorganisations will also be
major activities in the area
[***]*.
[***]*
C HR STRATEGY
HR strategy develops the long-term HR strategy for BPA and
ensures the linkages to organisational goals and business
objectives. In addition, HR strategy directs the development of
the HR function and maintains ties to outside entities thereby
introducing new HR concepts into BPA
[***]*.
[***]*
D LABOUR RELATIONS
Labour relations promotes/maintains effective relationships
between BPA and its employees. Relationship management, for
example, with any BPA works councils, trade unions, collective
bargaining units, employee forums and all BPA employees includes
negotiations, problem/issue management, and interfacing with
regulatory entities on behalf of BPA
[***]*.
[***]*
E EXPATRIATE RELOCATION AND ADMINISTRATION
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
2
<PAGE> 74
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
Expatriate relocation and administration establishes expatriate
policies, manages the special needs of the expatriate
population, and assesses the many expatriate related
problems/issues. Other responsibilities include tax activities,
spouse and dependent programs, relocation assistance, and salary
equalisation. Repatriation of employees is also in the scope of
this function.
[***]*.
[***]*
F HR INFORMATION SERVICES ("HRIS") (EMPLOYEE RECORDS)
HR information services (employee records) responsibilities
include all activities necessary to capture, track, modify and
report employee related electronic and physical data. HRIS data
includes data on active employees, inactive employees such as
terminated, term vested, deceased, and annuitants, and
appropriate non-employee populations.
[***]*.
[***]*
G BENEFITS
Benefits includes benefits strategy development, benefits plan
design and administration, and communications of benefit
programs to BPA employees. The function determines the
appropriate competitive level and mix of benefits for BPA,
including health and welfare plans, defined contribution plans,
and defined benefit plans.
[***]*.
[***]*
H COMPENSATION
Compensation is the development of compensation plans and
strategies for BPA. The function ensures and administers the
various compensation programs that range from basic pay,
executive compensation, variable pay programs and other
business-needs based pay schemes. Additionally, the function
determines the appropriate competitive level and mix of base
pay, short-term incentives and long term incentives.
[***]*.
[***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
3
<PAGE> 75
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
I EMPLOYEE RELATIONS
Employee relations performs activities needed to keep a
productive and committed workforce in place. Assuring a healthy
work environment includes activities such as goal setting,
diversity programs, employee complaint resolution, employee
coaching/counselling and communicating workplace issues to
interested groups of employees.
[***]*.
[***]*
J COMPLIANCE
Compliance is the management of BPA's legal requirements and
internal business policies across all HR processes.
[***]*.
[***]*
K VENDOR ADMINISTRATION
Vendor administration is the process by which third party
providers of HR or other related services to BPA are
administered by Exult to ensure acceptable quality and price.
Vendor selection, performance monitoring, service negotiation
and vendor certification are all critical efforts. The
administration of third party costs and allocation of these
costs to the appropriate business entities are also included
here.
[***]*.
[***]*
L PAYROLL
Payroll processes include the collection of time and attendance
data, management of employee earning and deductions, calculation
of gross and net pay, and processing employee payments.
Additionally, the payroll function will compute and file payroll
related taxes, manage mandated deductions and perform the
accounting transactions necessary to accumulate labour expenses
at the detailed level including all general ledger interfaces.
[***]*.
[***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
4
<PAGE> 76
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
M EMPLOYEE DEVELOPMENT
Employee development identifies employee development needs and
ensures that these development needs are planned with the
employee and the supervisor. Development tool construction,
managing the execution of development, tracking employee
development plans, and succession planning are all included.
[***]*.
[***]*
N RESOURCING/RECRUITING
Resourcing/recruiting includes setting resourcing strategy,
conducting workforce planning and performing the hiring process,
which includes candidate pool solicitation, assessment,
negotiation and orientation activities. Vendor administration,
logistics and assessment of resourcing strategies are also
included.
[***]*.
[***]*
O SEVERANCE
Severance responsibilities include development of successful
programs/policies to transition employees from BPA, policy
definition, program development, impact modelling and program
administration, selection of third party vendors for
outplacement, and managing the cost of severance programs.
[***]*.
[***]*
P PERFORMANCE MANAGEMENT
Performance management sets performance goal structures for BPA
and develops the tools needed to assess employee/group
performance against these goals. Management of the performance
review process and reporting on the process outcomes are also
responsibilities.
[***]*.
[***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
5
<PAGE> 77
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
Q DOMESTIC RELOCATION ADMINISTRATION
Domestic relocation administration oversees the work involved in
moving employees from one geographical location to another.
Policy development, cost tracking, employee education and
communication, third party administration and issue resolution
all reside in this area.
[***]*.
[***]*
R HR INFORMATION TECHNOLOGY ("HRIT")
"BPA IT Domain" shall mean the data processing infrastructure,
servers, data communications equipment, local area networks,
desktop equipment and support, common office environment, and
wide area network facilities operated and maintained by BPA
and/or operated and maintained by third parties under Third
Party Contracts managed by BPA.
[***]*.
[***]*
-----------------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
6
<PAGE> 78
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE B
SERVICE LEVELS
<PAGE> 79
TABLE OF CONTENTS
1 INTRODUCTION.........................................................................1
2 PRINCIPLES GOVERNING SERVICE LEVELS..................................................1
3 PROCESS..............................................................................1
4 SERVICE CREDITS......................................................................4
i
<PAGE> 80
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.
1
<PAGE> 81
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
3.1.3 [***]*
[***]*
3.2 KPI Service Levels
3.2.1 With respect to the KPI Service Levels for Payroll and
HRIT, as identified in each applicable Country
Agreement, the parties shall agree on the applicable KPI
Service Level metric prior to the Process Take On Date.
Exult shall report on its performance of the Services in
accordance with such KPI Service Level thereafter.
3.2.2 With respect to the remaining KPI Service Levels, the
parties shall agree on the applicable provisional KPI
Service Level metric prior to the Process Take On Date.
Exult shall measure and report its performance of the
Services in accordance with such provisional KPI Service
Levels for an agreed period of time, [***]* in order to
determine the appropriate KPI Service Level metric.
After such period, the parties shall agree on the
applicable KPI Service Level metric and Exult shall
report on its performance of the services in accordance
with such Service Level thereafter.
3.2.3 KPI Service Level Table
KPI Process Weighting for KPI Service Levels shall be
determined by the Client and identified within the
Country Agreement. [***]* Each KPI [***]* shall be
assigned a value of [***]*
[***]*
To the extent that a KPI Service Level is not achieved due to
any non-performance of or any other defect in any systems,
hardware or other technical infrastructure, other than those
systems, hardware or other technical infrastructure supplied or
controlled by Exult under this Agreement, Exult Supplier shall
have no liability for such failure to achieve the KPI Service
Levels.
3.4 Reporting Service Levels
The following table of RSLs is illustrative of those that will
be adopted in each Country. The intention is to adopt a limited
number of meaningful RSLs to reflect key aspects of each
Process. The parties recognise that the illustrative RSLs set
out below will need to be amended by agreement before the
Process Take On Date for each Process to reflect the greater
understanding of each Process that will be developed during the
Validation Exercise (and on an ongoing basis through the life of
the Agreement as the Service Delivery Model is enhanced).
The parties agree that the RSLs should wherever practicable and
appropriate be based on (i) information that is currently
reported on at the Process Take On Date; or (ii) information
which can b generated from the normal operation of the Service
Delivery
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
2
<PAGE> 82
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
Model and Systems without the need for extra development or
modification to the Systems or Service Delivery Model. Any
proposals for additional RSLs beyond the numerical limits set
out above or for RSLs which do not fit into the category set out
in the paragraph below shall be subject to Change Control
Management and the Parties recognise that an appropriate
equitable adjustment may be necessary to implement such RSLs. As
noted in Section 3.4 below, the parties shall review Service
Level metrics and shall determine and agree, through the Change
Control Management process, revised Service Level metrics to
reflect the benefits of Leveraged Operations. Agreed changes to
RSLs resulting from this review will be implemented at Exult
Supplier's expense.
The number of RSLs shall me limited to a [***]* for each Country
and wherever practicable and appropriate RSLs shall be
standardised for like Processes in each Country. Although it is
recognised that because requirements will vary between Countries
and that there will sometimes be a need for different RSLs to be
applied on a Country by Country basis, the intention is that the
total number of active RSLs shall be no greater that 50 on a
global basis at any one time.
3.4.1 Once the measurement tools and the reporting process
have been determined, the RSLs shall be measured and
reported on an ongoing basis.
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
3
<PAGE> 83
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
3.4.2 [***]*
[***]*
3.5 Annual Service Levels Review
3.5.1 [***]* Processes being transformed to Leveraged
Operations, the Regional Governance Panel shall review
Service Level metrics and shall determine and agree,
through the Change Control Management process, revised
Service Level metrics to reflect the benefits of
Leveraged Operations.
3.5.2 These Service Levels shall be reviewed and revised,
through the Change Control Management process on an
annual basis thereafter.
4 SERVICE CREDITS
4.1 KPI Surveys and KPI Service Levels shall be subject to Service
Credits as set out in Schedule C.
4.2 Provisional KPI Service Levels and RSLs shall not be subject to
Service Credits.
4.3 A failure by the Exult Participating Affiliate to meet a KPI set
forth in the applicable Country Agreement shall entitle the BPA
Participating Affiliate to at its option (1) recover a service
credit as set forth in Schedule C and/or (2) seek any other
remedy set forth in the applicable Country Agreement.
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
4
<PAGE> 84
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
UNITED KINGDOM AGREEMENT
SCHEDULE C
CHARGES AND INVOICING
<PAGE> 85
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
TABLE OF CONTENTS
1 INTRODUCTION.........................................................................1
2 DEFINITIONS..........................................................................1
3 OVERVIEW.............................................................................3
4 CHARGING METHODOLOGY PRIOR TO THE GUARANTEED MINIMUM SAVINGS DATE....................8
5 CHARGING METHODOLOGY FOLLOWING THE GUARANTEED MINIMUM SAVINGS........................9
6 TRANSITION/TRANSFORMATION COSTS.....................................................14
7 CLIENT SERVICE CENTRE COSTS (CSC)...................................................15
8 AGGREGATION OF TRANSITION/TRANSFORMATION AND CLIENT SERVICE CENTRE COSTS............15
9 CORPORATE OVERHEAD/CENTRE OF EXCELLENCE/DUE DILIGENCE TREATMENT.....................15
10 IT INVESTMENTS......................................................................15
11 GAIN SHARING........................................................................16
12 CLASSIFICATION OF EXPENSE ITEMS SUBJECT TO MARGIN VERSUS PASS-THROUGH...............19
13 THIRD PARTY REVENUE.................................................................19
14 INVOICING...........................................................................19
15 TRANSFER OF ASSETS..................................................................20
16 CONTRACT MINIMUMS...................................................................20
17 INFLATION...........................................................................22
18 EARLY TERMINATION PAYMENT...........................................................22
i
<PAGE> 86
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
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
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
1
<PAGE> 87
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
(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.
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
2
<PAGE> 88
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
"% OF KPI POOL" means the percentage used of the maximum Service Credits
per year.
"KPI PER EVENT CREDIT " means the percentage deducted for each missed
Service Level from the % of KPI Pool for a specific KPI.
"PASS THROUGH COSTS" shall mean those costs identified in the Country
Agreement [***]* including the cost of [***]* BPA charge-ins including
those relating to [***]*.
"REDUCED RESOURCE CHARGES" or "RRCs" shall mean the incremental credits
payable to BPA for resource usage that is lower than the Resource Volumes.
"RESOURCE UNITS" shall mean the units of measurement for the amount of
Resource Volumes used within each Process.
"RESOURCE VOLUMES" shall mean, with respect to the applicable Country, the
estimated amount of resources utilised by BPA (such as the number of
training courses, the number of attendees at training courses or domestic
relocations) and/or the number of Active Serviced Employees required by
BPA, annually from the Guaranteed Minimum Savings through the term of the
Country Agreement.
"RETURN ON COSTS" or "ROC" shall mean Exult's portion of gain share from
providing Services in a Country divided by the Exult Actual Cost for
[***]*
"SERVICED EMPLOYEE" shall mean any BPA employee, former employee, or
contractor that is supported by the Services.
"TOTAL LABOUR RELATED COSTS" shall mean the costs incurred by BPA in
relation to HR employees or individual contractors including salaries and
wages, payroll benefits and BPA employee taxes, contractors fees, pension,
travel expenses, training, meetings and entertainment, office space and
utilities, office expenses supplies and dues, desktop and communication
services, relocation and expatriate expenses. Pension costs are only
included to the extent that BPA is at the relevant Process Take On Date
making contributions to the employees' pension plans.
"TRANSFER/TRANSFORMATION COSTS" shall mean the costs set out in Section 6.
"WINDING UP ASSISTANCE COSTS" shall mean the following costs associated
with the transfer of the Services upon termination of the Country
Agreement to BPA or a third party:
[***]*
3 OVERVIEW
3.1 PRINCIPLES
The main principles underlying the charging mechanism are as
follows:
3.1.1 Subject to Sections 5.1.3 (ARCs/RRCs), 17 (Inflation) and
agreed Changes, Exult's charges shall not:
[***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
3
<PAGE> 89
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
3.1.2 Exult's charges shall be based upon BPA's [***]* as
appropriate, as described in Sections 4.1 and 5 of this
Schedule C.
3.1.3 The Exult Actual Cost in any year following the Guaranteed
Minimum Savings Date [***]* subject to the following
adjustments:
(i) ARCs/RRCs (see Section 5.1.3)
(ii) Inflation (see Section 17)
(iii) Charges for agreed Changes (see Section 5.1.9 and
Schedule L)
(iv) Project Charges (see Section 5.1.9)
3.1.4 The Exult Actual Cost shall not [***]*.
3.1.5 [***]*
3.1.6 During the [***]* the parties will work together to ensure
that all in-scope BPA employee costs are identified so
that the Initial Base Charges calculated in accordance
with Sections 4 and 5, are [***]*
3.1.7 From the Guaranteed Minimum Savings Date, and subject to
agreed Changes, Force Majeure events, BPA performing its
responsibilities under the applicable Country Agreement
and the specific Process being taken on prior to the
Guaranteed Minimum Savings Date.Exult shall provide
Guaranteed Minimum Savings on the [***]* costs with
respect to those Processes which have been taken on by the
Guaranteed Minimum Savings Date and for subsequent
Processes when taken on.
3.1.8 It is Exult's intention to try to reduce the cost of
Third Party Contracts transferred to Exult [***]*
3.2 CATEGORIES OF COST
The charging mechanisms will be based on cost
categories related to the Services. [***]*
[***]* BPA shall receive Guaranteed Minimum Savings, shown in
Table C-5.1.1, from Exult on the [***]* costs to be determined
as part of Baseline Validation.
3.3 COUNTRY DUE DILIGENCE EXERCISE
The Initial Baseline will be determined during the Country Due
Diligence Exercise prior to signature of the relevant Country
Agreement. [***]* For Countries apart from the U.S. and U.K.,
Country Due Diligence Exercises shall determine whether the
Guaranteed Minimum Savings and Exult's Return can be achieved.
[***]* The impact of any Withholding Taxes shall also be included
in Exult's Return as set out in Clause 2.10 of the Framework
Agreement.
3.4 ESTABLISHING BASELINE COSTS
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
4
<PAGE> 90
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
3.4.1 Client HR Costs
During the [***]*, BPA shall establish its total Client HR
Costs including HR IT Services. For Countries other than
the U.S. and U.K, the Client HR Costs shall be established
by BPA during each Due Diligence Exercise. The Client HR
Costs will be used to determine the actual [***]* cost
savings realised by BPA as the result of the Process being
taken on by Exult. [***]*, BPA will establish the numbers
of HR staff and designate each staff member with the
following categories:
o In-Scope employees.
o Embedded Services HR staff.
o Staff associated with the merger and harmonisation
of BP and Amoco.
o Staff whose status is still to be determined.
o Other staff associated with identified projects
In order to establish the Total Labour Related Costs no HR
personnel can be removed by BPA from the Client HR Cost
without first being designated within one of the above
five categories. Any dispute relating to the
classification of HR personnel shall be determined by an
Expert in accordance with Clause 24.2 of the Framework
Agreement (Dispute Resolution Procedure).
[***]*
For Countries other than the US and UK, the Client HR Cost
shall be established during the Country Due Diligence
Exercise and each member of staff designated within the
above four categories.
3.4.2 Adjustments to Client HR Costs
Once the Client HR Costs are established, BPA shall put in
place financial controls and tracking mechanisms to allow
BPA to track costs and for Exult to verify such costs on a
monthly basis. The Client HR Costs shall be adjusted to
take into account "Increases" or "Decreases" as set out
below:
A Increases
Increases in costs shall include the following
activities:
o An increase in compensation or other Total
Labour Related Costs.
o Temporary staff required to replace staff
included as Client HR Costs.
o Replacement (either temporary or
full-time) staff to fill vacant positions
for HR personnel initially included as
Client HR Costs
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
5
<PAGE> 91
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
o who leave BPA (or take a non-HR job within
BPA) and who do not transfer to Exult prior
to the applicable Process Take On Date.
o Additional HR resources to handle expansions
and/or changes to BPA's business
requirements and or activities.
o Anticipated adjustments agreed by parties.
B Decreases
Decreases in costs shall include decreases not
caused by Exult taking on the Services:
o Savings in providing Embedded Services
resulting from non-Exult activities such as
using one HR advisor across more than one
business unit where two or more advisors
were used previously.
o Savings as a result of a reduction in
services provided by Embedded Services staff
such as the elimination of Organisational
Developmental services at a particular
business unit.
o Continuous improvement in the way Embedded
Services are provided such as the
restructuring of functions to consolidate
staff.
o Divestitures.
o Replacement of Embedded Services staff with
less expensive staff.
o Savings related to the harmonisation and
merger of BP and Amoco. Such savings
include, but are not limited to, for
example, the transition to a single payroll
system for the merged company in the
Country.
In the event of a dispute arising out of the
classification of a Decrease in cost as not having
been caused by Exult taking on the Services, the
matter shall be referred to an Expert pursuant to
Clause 24.2 of the Framework Agreement (Dispute
Resolution Procedure). Unless the parties agree
otherwise, all cost Decreases not classified as
Decreases not caused by Exult taking on the
Services shall form part of the [***]* and [***]*
cost savings realised by BPA as the result of Exult
taking on the Process.
The remaining Client HR Costs [***]* shall be
considered to be the cost of providing Embedded
Services.
3.4.3 Baseline Validation
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
6
<PAGE> 92
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
Baseline Validation will commence once the final Process
Take On Date has occurred and prior to [***]* to establish
the actual Baseline to be used for the remaining term of
the Country Agreement. Baseline Validation will establish
the Baseline and resultant Base Charge to be applied
following the Guaranteed Minimum Savings Date.
The Baseline Validation shall cover those items included
in the Due Diligence Exercise as well as other costs or
items the are identified subsequent to the Due Diligence
Exercise. Baseline Validation shall also include
validation of the remaining Client HR Costs including the
merger and harmonisation costs associated with BP and
Amoco. Exult shall have the option to carry out an audit
at its own cost on the Client HR Costs established during
Baseline Validation. Any disagreements about the findings
of this audit may be referred to an Expert pursuant to
Clause 24.2 of the Framework Agreement (Dispute Resolution
Procedure).
3.4.4 [***]* Cost Validation
(i) Principles relating to costs
The principles underlying the Exult Actual Cost
for [***]*
(a) Exult will use technology to assist it in
providing the Guaranteed Minimum Savings
(b) Exult intends to automate relevant
transactional processes and allow BPA
employee access through the implementation
of internet-enabled HR support by using
Client Service Centres (including the
integration of HR transactional processing
support), knowledge and case management,
workflow and data warehousing technology;
(c) Exult's use of technology will continue to
evolve as opportunities to use technology
effectively are identified during the term
of the Country Agreement;
(d) Exult shall not unreasonably be prevented
from using technological innovations;
(e) as a result of Section (a) to (e) above,
[***]*
3.4.5 [***]* Charges
[***]*
3.4.6 [***]* Validation
The [***]* costs for BPA (which are based upon the budget
provided by BPA) and Exult's budgeted [***]* costs shall
be validated as part of the Baseline Validation. To the
extent that the merger and harmonisation of BP and Amoco
has not been completed by the completion date for the
Baseline Validation an estimate for the anticipated impact
of any remaining merger and harmonisation activity will be
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
7
<PAGE> 93
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
agreed and included in the Baseline Validation and such
estimate will be subject to further validation on the
completion of the merger and harmonisation activity. Both
parties shall make reasonable efforts to validate these
actual and budgeted costs. This shall include, where
possible, the parties comparing individual cost items on a
like-for-like basis. BPA's [***]* costs will need to be
adjusted to match the changes in technology used by Exult
to deliver the Services in order to achieve this
like-for-like comparison.
If the parties disagree with this comparison of [***]*
costs, the matter shall be referred to an Expert pursuant
to Clause 24.2 of the Framework Agreement (Dispute
Resolution Procedure).
3.4.7 Resource Volumes
Prior to the Process Take On Date the Resource Volumes for
the relevant process shall also be established.
3.4.8 [***]* Costs
[***]* Costs shall also be validated as part of the
Baseline Validation. The [***]* Costs shall go through a
review process to establish an agreed cost projection from
the third month following the Country Commencement Date
until the end of month fourteen. [***]* Costs shall be
tracked by Exult and reconciled with BPA [***]* month
following the Country Commencement Date.
4 CHARGING METHODOLOGY PRIOR TO THE GUARANTEED MINIMUM SAVINGS DATE
Prior to the Guaranteed Minimum Savings Date and following the first
Process Take On Date, charges from Exult shall be based on the Initial
Base Charges.
4.1 CALCULATION OF THE INITIAL BASE CHARGES
Prior to the signature of each Country Agreement, Exult shall
provide the Baseline Guarantee for each Process. BPA shall pay to
Exult following each Process Take On Date the Initial Base
Charges which shall be an amount equal to the [***]*
[***]*
During Baseline Validation, the parties will reconcile the
amounts invoiced in relation to each Process and the actual
[***]* and [***]* cost savings realised by BPA relating to that
Process being taken on by Exult. If such actual costs are found
to be:
(i) greater than the amounts invoiced by Exult, Exult shall
submit an invoice for the difference (actual [***]* and
[***]* cost savings less the invoiced amount) .
(ii) less than the amounts invoiced by Exult, but greater than
the Baseline Guarantee, Exult shall issue BPA a credit on
the following month's invoice for the difference (invoiced
amount less the actual [***]* and [***]* cost savings).
(iii) less than the amount invoiced by Exult and the Baseline
Guarantee, Exult shall issue BPA a credit on the following
month's invoice for an amount equal to the
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
8
<PAGE> 94
difference between the invoice amount and the Baseline
Guarantee.
TABLE C-4.1
BASELINE GUARANTEE FOR THE US AND UK
IN USD
[***]*
Where the parties agree, the Baseline Guarantee for each Process may
be changed to reflect actual cost so long as the aggregate of all
Processes within the Baseline Guarantee for the U.S. and U.K. is
equal to the [***]*
If a Process is taken on prior to the completion of the Client HR Costs,
the Initial Base Charges shall be equal to the Baseline Guarantee and
reconciled at the end of the year for applicable costs exceeding the
Baseline Guarantee.
If a Process Take On Date is extended for more than 30 days, the parties
shall establish a panel with equal number of members from each party to
meet over a period of 30 days in order to decide the cause for such
delay. [***]*
Where the parties cannot agree which party caused a particular Process
Take On Date to be delayed, a payment or credit can still be agreed by
the panel although either or both parties may reserve the right to
review the cause for any such delays during Baseline Validation and to
refer any such disputes to the Informal Dispute Resolution Procedure
pursuant to Clause 24.1 of the Framework Agreement, and if the parties
are still unable to resolve such dispute, the matter shall be referred
to an Arbitrator pursuant to Clause 24.3 of the Framework Agreement.
5 CHARGING METHODOLOGY FOLLOWING THE GUARANTEED MINIMUM SAVINGS
From the Guaranteed Minimum Savings Date until the termination or expiry
of the Country Agreement, BPA shall pay to Exult the greater of the
Baseline Guarantee and the Baseline (both of which shall be subject to
Guaranteed Minimum Savings). The Baseline Guarantee and Baseline charges
shall be subject to Contract Minimums in each Country.
[***]*
BPA's actual usage/counts of the Resource Volumes shall be measured and
reported by Exult [***]*, Exult shall calculate and apply the ARC/RRC
adjustments, Service Credits and gain sharing adjustments.
5.1 GUARANTEED MINIMUM SAVINGS CALCULATION
5.1.1 The Guaranteed Minimum Savings shall apply to the [***]*
charges in the Baseline in accordance with Table C-5.1.1.
The Guaranteed Minimum Savings for [***]* items will be
calculated [***]* during Baseline Validation.
GUARANTEED MINIMUM SAVINGS
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
9
<PAGE> 95
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
TABLE C-5.1.1
[***]*
For the Guaranteed Minimum Savings to apply in respect of a
Country, and provided that Exult has not delayed BPA, BPA must
give notice [***]* to Exult that it wishes to receive the
Services in that Country.
[***]*
5.1.2 Adjustments to Base Charge
(i) The Base Charge shall be adjusted during the last
month of each Contract Minimum Year to determine:
[***]*
(ii) During the last month of each Contract Minimum Year
the Base Charge shall be adjusted prior to the gain
share calculation as follows:
(a) any increase or decrease in the Resource
Volumes and the IT Work Unit Volumes that
has occurred during the Contract Minimum
Year; and
(b) to reflect an increase or decrease in the
cost of providing any new services or
modifying the Services agreed in accordance
with the Change Control Management process.
(iii) The Base Charge for the following Contract Minimum
Year shall be calculated by adjusting the Base
Charge as follows:
[***]*
5.1.3 ARCs/RRCs
ARCs will be used when the actual Resource Volumes in the
current year exceed the upper threshold for Resource
Volumes for the previous year.
ARCs will be calculated by [***]*
RRCs will be used when the actual Resource Unit in the
current year is less than the lower threshold for Resource
Volumes for the previous year. RRCs will be calculated by
[***]*
The ARC and RRC thresholds shall be established as part of
the Baseline Validation.
ARCs and RRCs will be reconciled and invoiced on an annual
basis. ARCs and RRCs unit rates will be subject to
inflation adjustments in accordance with Section 16.
The ARC unit rates shall be agreed between the parties no
later than the commencement of the Guaranteed Minimum
Savings Date and will be [***]* The RRC unit rates will be
agreed between the parties no later than the commencement
of the Guaranteed Minimum Savings Date and will be [***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
10
<PAGE> 96
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
5.1.4 Resource Units
The Resource Units identified below are intended to
provide the proper measurement of usage for the Services
and allow for a reasonable means to gather data. The
Resource Units may be changed based on agreement between
the parties at any time during the term of the Country
Agreement.
[***]*
5.1.5 Charges Based on the Average Number of Active Serviced
Employees
Charges based on the average number of Active Serviced
Employees include the following functions:
[***]*
The relevant employee database will be used to track
Active Serviced Employees as the master repository for
Active Serviced Employee information. When an Active
Serviced Employee is added or removed, the relevant
employee database will be updated with this information.
Charges based on the average number of Active Serviced
Employees will be derived from the weighted average number
of Active Serviced Employees supported in BPA. Weighted
average will be calculated by taking the number of Active
Serviced Employees for both the first and last day of the
month and dividing by two (2).
In addition to the Resource Volumes for Active Serviced
Employee, HR Information Services will have limitations on
the number of reports (as these requests will come through
HR Information Services in support of multiple Processes).
This will be dependent upon the level of staffing. Reports
shall be included in the IT Work Units structure (as
defined in Section 5.2.4 below) determined during Baseline
Validation.
In order to ensure that Exult can implement desired
Process improvements and gain sharing while still
providing flexibility in meeting BPA's needs, Payroll will
be subject to two additional measurements beyond the
Active Serviced Employee measurement. Manual cheques will
be subject to a surcharge of [***]* per cheque and
off-cycle Payroll runs shall be subject to an agreed
surcharge.
5.1.6 Service Charge Adjustments Based on the Average Number of
Active Serviced Employees
If the weighted average actual number of Active Serviced
Employees varies above the Resource Volumes by [***]* then
an adjustment to the Base Charge shall be calculated. ARCs
and RRCs shall be based on the entire variance from the
Resource Baseline Volumes. Should the actual Active
Serviced Employees vary from the Resource Volume by [***]*
the parties will agree upon an equitable adjustment to the
Base Charge.
5.1.7 Charges Based on Direct Usage
Charges based on the direct usage of each Process include
the following functions:
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
11
<PAGE> 97
[***]*
5.1.8 Adjustments to the Charges Based on Direct Usage
Should the direct usage count vary from the Resource
Volumes [***]*, then an adjustment to the Base Charge
shall be calculated. ARCs and RRCs adjustments shall be
based on the entire variance from the Resource Volumes. If
the parties agree that [***]* is not the appropriate
threshold to trigger an ARC or RRC adjustment, the
threshold may change subject to agreement by both parties.
Should the actual usage vary from the Resource Volume
[***]*, the parties will agree upon an equitable
adjustment to the Base Charge. For those Processes based
on number of standard reports, these Processes will be
grouped together for ARC and RRC adjustments as they will
not be identified by Process when a request for a report
is placed by BPA.
5.1.9 Project Charges
For each Project identified in Schedule H, the charges for
such Project will be agreed by the parties and set out in
the applicable Project Statement. Unless otherwise agreed,
Project Charges shall be based on [***]* For services
added that are not part of this Country Agreement and that
continue for the duration of the Country Agreement, these
services shall be handled through Change Control
Management.
5.1.10 Out-Of-Pocket Expenses
BPA will reimburse Exult for out-of-pocket expenses as
part of requests outside of Services. These out-of-pocket
are:
(i) Project related travel expenses approved by BPA.
(ii) Any other expenses approved by BPA.
5.2 [***]*
In addition to the charges shown in Section 5.2, other [***]*
items which Exult and BPA determine may be classified as [***]*
during the term of the Country Agreement through the Change
Control Management procedure.
5.2.1 [***]*
5.2.2 [***]*
5.2.3 [***]*
5.2.4 Information Technology Work Units (IT Work Units)
Exult shall, in accordance with the IT Work Unit
methodology perform modifications, enhancements, changes,
and installations to comply with regulatory or trade union
requirements and changes as disclosed to Exult by BPA.
Exult shall support regulatory reviews, audits, compliance
assessments,
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
12
<PAGE> 98
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
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
<CAPTION>
-------------------------------------------------------------------------------
WORK TYPE NATURAL NUMBER WORK UNIT / ANNUAL WORK
SIZE UNIT REQUESTED SIZE UNIT UNITS
-------------------------------------------------------------------------------
Regulatory
-------------------------------------------------------------------------------
Changes (Small)
-------------------------------------------------------------------------------
Regulatory Changes
(Medium)
-------------------------------------------------------------------------------
Regulatory Changes
(Large)
-------------------------------------------------------------------------------
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
13
<PAGE> 99
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
<CAPTION>
-------------------------------------------------------------------------------
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 [***]*
[***]* 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 [***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
14
<PAGE> 100
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
7 Client Service Centre Costs (CSC)
Client Service Centre costs are included in the [***]* charges as set
out below.
On an annual basis following the Guaranteed Minimum Savings Date through
the term of the applicable Country Agreement, the charges will be based
on [***]*
The Client Service Centre costs will include all staffing expenses,
facility related expenses, management expenses related directly to the
Client Service Centre, hardware and software expenses, lease expenses,
finance charges, amortisation and depreciation, supplies and third party
services related to the Service Centres. IT related costs that support
multiple customers shall be included as well in the aforementioned
categories. Client Service Centre costs will be allocated to the
appropriate [***]* Processes.
Table C-7.1
CLIENT SERVICE CENTRE COSTS MAXIMUM ALLOCATION
In USD
[***]*
8 AGGREGATION OF TRANSITION/TRANSFORMATION AND CLIENT SERVICE CENTRE COSTS
By agreement at the time not to be unreasonably withheld, with respect
to the maximum allowed costs for Transition/Transformation in Section 6
and Client Service Centres in Section 7, Exult shall be allowed to
[***]*
9 CORPORATE OVERHEAD/CENTRE OF EXCELLENCE/DUE DILIGENCE TREATMENT
Corporate Overhead costs will be recovered from available gain share
before gain share is distributed. Following the Guaranteed Minimum
Savings Date, Corporate Overhead for the U.S. and U.K. will be
allocated at the lesser of:
[***]*
For the U.S. and U.K. Due Diligence, [***]*
Exult Centre of Excellence (COE) costs [***]*
[***]*
The Corporate Overhead/COE/Due Diligence costs allocation methodologies
on actuals may be changed subject to agreement between the parties.
10 IT INVESTMENTS
IT Investments shall fall into two types. The first type shall consist
of those IT investments authorised by BPA. [***]* The second type shall
consist of those IT investments that are intended
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
15
<PAGE> 101
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
to be for the benefit of multiple Exult clients. [***]*
If the second type of investment will result in the Exult Actual Cost
for [***]* exceeding the [***]* cost in the Baseline, Exult shall obtain
approval from BPA, such approval not to be unreasonably withheld, prior
to making such investment.
[***]*
11 GAIN SHARING
BPA and Exult shall participate in a gain sharing exercise for [***]*
and [***]* items. Gain sharing can only apply to [***]* once Guaranteed
Minimum Savings have been realised. The Base Charge and Exult's actual
costs for [***]* and [***]* shall be used in quantifying the total
amount of gain sharing to be allocated between BPA and Exult. Each
charge Category will be handled differently under this gain sharing
arrangement. [***]*
11.1 GAIN SHARING METHOD BY CATEGORIES
To determine the applicable gain share, Exult's Actual Costs for
[***]* and [***]* items will be subtracted from the applicable
Base Charge for the preceding 12 months. Exult's, costs for
Corporate Overhead, Charge-Ins from BPA, COE and Amortisation of
Due Diligence will be subtracted from the amount available for
gain share. The remaining amount will be subject to gain share
distribution. Gain sharing for [***]* will start from [***]* and
at the end of every 12-month period thereafter to determine the
applicable gain share.
[***]* Following the Guaranteed Minimum Savings Date, [***]* gain
share will be subject to gain share distribution.
The method for gain sharing calculation shall be as follows:
(i) If the Exult Actual Cost for [***]* and [***]* is less
than the Base Charge for [***]* items, then those savings
(Base Charge minus Exult Actual Costs for [***]* and
[***]*) will be subject to adjustments and subsequently
the Gain Sharing Distribution Matrix shown below in Tables
C-11.2.1 and C-11.2.2. The levels of distribution that
determine the proportion of gain share are shown as part
of the Distribution Matrices.
(ii) If the actual [***]* costs are less than the budgeted
[***]* costs (Budgeted [***]* cost - Actual [***]* cost)
then those savings shall be subject to the Gain Sharing
Distribution Matrix shown below in Tables C-11.2.1 and
C-11.2.2
11.2 GAIN SHARING DISTRIBUTION MATRIX
The Gain Sharing Distribution Matrix will be used to determine
the proportion of savings to be split between BPA and Exult
resulting from the calculation of the amount available for gain
sharing. [***]* The gain share will begin with the first level of
distribution and proceed to the next level until the amount
available for gain share has been fully distributed.
GAIN SHARING DISTRIBUTION MATRIX-NO SERVICE CREDITS TO BPA
TABLE C-11.2.1
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
16
<PAGE> 102
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
[***]*
11.3 GAIN SHARING EXAMPLE
Table C-11.3 below is an example of the gain sharing calculation
amount and distribution.
17
<PAGE> 103
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
[***]*
11.4 SERVICE CREDITS CALCULATION
KPIs are Service Levels that, when missed, are subject to Service
Credits. Service Credits for KPIs will be weighted in accordance
with Schedule B of this Agreement and will adjust the gain
sharing distribution between BPA and Exult. The Service Credits
shall be calculated on a Client Service Centre basis as part of
gain sharing and credited to the respective Countries (as advised
by BPA) on an annual basis.
The formula for calculating the Service Credits for Exult's
failure to achieve any one of the seven KPIs is set out below.
The total amount determined from the service credit calculations
for all KPIs shall be subtracted from Exult's gain share portion
prior to Service Credits. The net result shall equal Exult's gain
share portion after Service Credits. [***]*
The calculation of Service Credits will be by KPI Process. Any
unutilised credits in the KPI Pool at the end of any year
following the Guaranteed Minimum Savings Date cannot be carried
forward to the succeeding year. [***]*
SERVICE CREDITS CALCULATION METHOD EXAMPLE
TABLE C-11.4
[***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
18
<PAGE> 104
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
12 CLASSIFICATION OF EXPENSE ITEMS SUBJECT TO MARGIN VERSUS PASS-THROUGH
12.1 EXULT ACTUAL COST
The following costs shall be subject to margin as part of gain
sharing:
TABLE C-12.1
[***]*
12.2 OTHER COSTS
The following costs shall not be included in the Exult Actual
Cost:
TABLE C-12.2
[***]*
13 THIRD PARTY REVENUE
Where the parties agree that third parties are permitted to market
services to BPA employees using Exult's Web-enabled HR services portal,
[***]*
14 INVOICING
14.1 Invoices for Base Charge and the Initial Base Charges as
applicable will be submitted monthly in advance on the first day
of each month. All other charges including [***]* will be
invoiced in arrears on the first day of the subsequent month.
Invoices will provide details of each Base Charge and such
supporting information as BPA may reasonably require and will be
in the Country's local currency. For those Processes delivered in
a Client Service Centre not sited in the Country being invoiced,
Exult will convert the cost of those items not invoiced in the
local currency using a fixed exchange rate established on each
anniversary of the Country Commencement Date. At the end of each
year of the Agreement, the invoice amounts will be recalculated
using the actual month end exchange rates for the period and a
credit or invoice, as appropriate, will be issued to BPA. In
addition, at the end of the year, all adjustments including ARCs
and RRCs, gain sharing and Service Credits will be made and
invoiced or credited in the subsequent month. BPA shall inform
Exult how gain sharing and Service Credits are to be distributed
between Countries.
14.2 The ARC and RRC adjustments, inflation adjustments, and BPA's
portion of gain share from the previous year will be used going
forward to calculate Base Charge for the following year subject
to end of year reconciliation in accordance with Section 5.1.2
14.3 Payments are due within [***]* of receipt of any invoice by BPA.
Interest for late payments will be charged at the rate of [***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
19
<PAGE> 105
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
14.4 If as a result of any audit carried out in accordance with the
terms of a Country Agreement it is discovered that BPA has been
overcharged, Exult shall pay an amount equal to:
[***]*
15 TRANSFER OF ASSETS
As agreed between BPA and Exult, BPA's existing assets and management of
these assets may transfer to Exult as part of the Services that Exult
will provide to BPA. [***]*
16 CONTRACT MINIMUMS
16.1 Contract Minimums for each Contract Minimum Year shall be
established in accordance with Clause 18 of the Framework
Agreement.
16.2 The Contract Minimum for the initial Contract Minimum Year shall
be a sum equivalent to [***]*
16.3 Within [***]*, BPA may give Exult [***]* written notice of a
proposed reduction in the Contract Minimum to take account of
specified reductions in BPA's requirements for Services. These
reductions shall reflect material changes in BPA's business
operations or structure including those caused by Significant
Changes.
16.4 This Section 16 applies to situations which result in an actual
reduction in BPA's requirement for Services and, for the
avoidance of doubt, BPA may not assume responsibility internally
for services equivalent to the Services or appoint a third party
to provide services equivalent to the Services pursuant to the
terms of this Section 16.
16.5 [***]* prior to the end of each Contract Minimum Year, the
Regional Governance Panel shall meet to assess the impact,
including the impact on the Charges for the then current Contract
Minimum Year, of the reductions in BPA's requirements for
Services arising from the events identified in a notice served in
accordance with Section 16.3 above. As appropriate, and subject
always to Section 16.6 below, the Regional Governance Panel shall
agree a decrease in the Contract Minimum for the succeeding
Contract Minimum Year which is proportionate with the actual
reduction in Charges arising from the events.
16.6 [***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
20
<PAGE> 106
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
TABLE C-16.1
CONTRACT MINIMUMS EXAMPLE
[***]*
1
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
21
<PAGE> 107
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
17 INFLATION
All Base Charges shall be adjusted annually in arrears by a recognised
index in each Country for [***]*
For the UK, inflation will be measured by the index of Average Earnings
shall be used for all non-IT staff and the New Earnings Survey (software
and consultancy) for IT staff.
The adjustment for inflation for [***]* and [***]* charges and
associated ARCs and RRCs unit rates shall be subject to the percentage
of Total Labour Related Costs going to Exult as shown in Table C-5.1.1.
[***]*
Exult's Actual Cost for [***]* and [***]* for allowing increases with
respect to cost increases greater than inflation, shall be set and
measured at 90 days following the final Process Take On Date.
18 EARLY TERMINATION PAYMENT
18.1 Termination for convenience shall be calculated as:
[***]*
O Winding Up Assistance Costs; and
O Remaining amortisation of Exult's Due Diligence Costs; and
O the remaining book value for the Assets as follows:
O [***]*
O Redeployment costs of staff and equipment (to remove from
BPA's sites) that have not been transferred to BPA; and
O Remaining obligations for Third Party Contracts including
but not limited to outstanding loans and financing costs
related to such contracts as follows:
[***]*
18.2 Termination for Change of Control shall be calculated as:
O Winding Up Assistance Costs; and
O Remaining amortisation of Exult's Due Diligence Costs; and
O The remaining book value for the Assets as follows:
O [***]*
O Redeployment costs of staff and equipment (to remove from
BPA's sites) that
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
22
<PAGE> 108
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT-PROJECT ATLAS
-------------------------------------------------------------------------------
have not been transferred to BPA; and
O Remaining obligations for Third Party Contracts including
but not limited to outstanding loans and financing costs
related to such contracts as follows:
[***]*
18.3 Termination for Cause by BPA shall be calculated as follows:
O Winding Up Assistance Costs; and
O [***]*
18.4 Termination for a Key Country (U.S. or U.K.) - the payments for
the remaining Countries shall be calculated as follows:
O Winding Up Assistance Costs; and
O Remaining amortisation of Exult's Due Diligence Costs; and
O The remaining book value for the Assets as follows:
[***]*
O Redeployment costs of staff and equipment (to remove from
BPA's sites) that have not been transferred to BPA; and
O Remaining obligations for Third Party Contracts including
but not limited to outstanding loans and financing costs
related to such contracts as follows:
[***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
23
<PAGE> 109
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE D
THIRD PARTY CONTRACTS
<PAGE> 110
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
SCHEDULE D
THIRD PARTY CONTRACTS
This schedule sets forth the Third Party Contracts and designates whether such
contract is intended to be "Administered", "Transferred" or "Retained" by BPA.
This schedule shall be completed following the Commencement Date.
A. THIRD PARTY CONTRACTS
[***]*
--------
* Confidential treatment is requested for redacted portion. The
confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
1
<PAGE> 111
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE E
ASSETS
<PAGE> 112
SCHEDULE E
ASSETS
This schedule sets forth the Client Assets which may be used by Exult to
provide the services. This schedule shall be completed following the Country
Commencement Date.
[***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
1
<PAGE> 113
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE F
SYSTEMS
<PAGE> 114
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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.
[***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
1
<PAGE> 115
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE G
TRANSITION PLAN
<PAGE> 116
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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..................................................3
7 IN SITU PROCESS TAKE ON.......................................................3
8 LEVERAGED PROCESS TAKE ON.....................................................4
9 UK COUNTRY TRANSITION SCHEDULE................................................6
i
<PAGE> 117
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
SCHEDULE G
TRANSITION PLAN
1 INTRODUCTION
This Schedule sets forth the Country Transition plan for conducting the
Validation Exercise, the plan for the transition of the Services from
the Client to the Exult Supplier and the approach to transition that
shall be followed.
2 VALIDATION EXERCISE
The Validation Exercise for each Process shall be conducted following
the Commencement Date and conclude prior to the Process Take On Date.
The Validation Exercise shall consist of validation of the Baseline,
volumetrics, resource requirements, cost, Services, Third Party
Contracts and Service Levels. This data shall be verified and adjusted,
as agreed by both parties, for each Process prior to the relevant
Process Take On Date in accordance with the Country Transition Schedule.
In the event that the Country Representatives fail to reach agreement,
such failure shall be resolved in the informal dispute resolution
process as detailed in Clause 29.1 of the Country Agreement.
3 DETAILED WORK PLAN
The final form of the Transition Schedule and the Detailed Work Plan
will be developed and agreed between the parties, [***]*.
In the event that the Country Representatives fail to reach agreement,
such failure shall be resolved in the informal dispute resolution
process as detailed in Clause 29.1 of the Country Agreement.
4 TRANSITION APPROACH
4.1 Two Path Transition Approach.
The purpose of transition is to move the Services to a Leveraged
Operations delivery model as efficiently as possible, with the
minimum of disruption to BPA operations. The Client and Exult
Supplier have agreed to two distinct paths through the
transition Process. The goals of the two path approach are to
allow the Client and Exult Supplier the opportunity to manage
the risk of transition [***]*
4.2 Transition Path One
For those Processes (or discrete parts of Processes) that follow
path one through the transition process, Exult Supplier shall
first assume responsibility for these Processes in-situ,
referred to as "In-Situ Process Take On". Once Exult Supplier is
successfully providing these Processes in-situ, Exult Supplier
shall transform these Processes to Leveraged Operations.
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
1
<PAGE> 118
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
4.3 Transition Path Two
Processes in this category shall be transformed directly to
Leveraged Operations and, therefore, Exult Supplier shall not
assume operation responsibility for such Processes in-situ prior
to Transformation.
4.4 Path Selection
Exult Supplier and the Client shall agree to either path one or
path two for each Process based on an assessment of risk, the
degree of centralisation of the staff currently performing the
Processes, and the cyclical nature of the Processes. The
provisional allocation is set out in the Transition Schedule in
Section 9 of this Schedule.
5 PROCESS CHANGE MANAGEMENT AND COMMUNICATIONS
5.1 Process Change Management and Communications Approach
The establishment and maintenance of the process-change
management & communications infrastructure shall be managed
through Exult Supplier's project management office in concert
with Client Regional Project Leaders. The primary outcomes of
these activities shall be to:
a) [***]*
b) [***]*
c) [***]*
d) [***]*
e) [***]*
5.2 Process-Change Management and Communications Activities
For each Process that Exult Supplier shall take responsibility
for in-situ:
a) [***]*
b) [***]*
c) [***]*
d) [***]*
[***]*
e) [***]*
f) [***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
2
<PAGE> 119
g) [***]*
h) [***]*
i) [***]*
j) [***]*
6 TRANSITION PLAN SET UP PHASE
The set-up phase of the Transition Plan deals with the project
infrastructure necessary to support the successful completion of the
transition. This is the phase of the transition during which the Client
and Exult Supplier agree to the overall approach and schedule, the plan
to complete the work, and the staffing levels and commitments from both
organizations and the Detailed Work Plan. In addition, the Client and
Exult Supplier shall agree the process-change management program and
communications plan for the transition process. When the change
management actions are agreed, these are added to the details of the
Transition Schedule and Detailed Work Plan. Finally, the project
reporting and governance is agreed and put in place.
7 IN SITU PROCESS TAKE ON
The following steps shall be conducted prior to the Process Take On Date
for each Process.
7.1 Current Situation Assessment Phase
Exult Supplier shall collect data through a series of workshops,
structured interviews and field work, as well as reference to all
data collected during the contract due diligence phase. The scope
of the data collection shall answer the following questions:
[***]*
Exult Supplier shall document the Processes to the level
necessary to clearly identify how Exult Supplier shall provide
the Processes in-situ.
7.2 Operational Plan
[***]*
a) [***]*
b) [***]*
c) [***]*
d) [***]*
e) [***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
3
<PAGE> 120
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
f) [***]*
g) [***]*
h) [***]*
i) [***]*
7.3 Readiness Test
The Client and Exult Supplier shall agree to a specific set and
schedule of Readiness Tests to be satisfied prior to Exult
Supplier assuming responsibility for a Process. These tests
shall be specific to each Process and shall be designed to
assure the Client and Exult Supplier of the readiness of both
parties to transition the Process to Exult Supplier. Each
Readiness Test plan shall document the objective and measurable
criteria to be tested, the expected outcomes, the governance of
the test, and the results. Typical items that would appear in a
Readiness Test include:
[***]*
In the event that either party believes that there has been a
failure to complete a Readiness Test in all material respects,
it shall provide the other party with a written notice
specifying the grounds on which it believes the Readiness Test
has been failed, within [***]* of the completion of the
Readiness Test. As soon as reasonably practicable following the
receipt of such notice, the parties shall meet to discuss, and
if possible, agree whether and in what respects the Readiness
Test has failed, and to agree a plan to conduct a further
Readiness Test.
7.4 Transfer of Responsibility
Exult Supplier shall assume responsibility for the Process on
successful completion of the Readiness Test. Once the Process
has transitioned to Exult Supplier, Exult Supplier shall measure
its performance to the Service Levels in accordance with
Schedule B.
8 LEVERAGED PROCESS TAKE ON
8.1 Global Process Rationalisation Phase
This is the phase of the project where the Client and Exult
Supplier finalise the list of Processes that shall have a global
or cross-region approach and which Processes shall be specific
to the Country. Exult Supplier and the Client shall agree to
grouping of Processes, where appropriate, and Exult Supplier
shall conduct the overall design session for Process groups. The
parties shall agree to the timeline and sequencing of the
Processes for transformation. The Client and Exult Supplier
shall finalise the plan to transform to Leveraged Operations and
agree to the staff resource levels in the plan.
8.2 Design
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
4
<PAGE> 121
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
Design shall be conducted cross-region and by Process group
where applicable. Exult Supplier shall conduct Process design
workshops with the Client and shall design and agree to changes
to the Processes.
Exult Supplier shall document the new Process flows, the Service
Delivery Model to be used to support the new Process, and the
workforce requirements to support the new Process for both the
Client and Exult Supplier, and the parties shall agree to new
service levels based on the new Process.
8.3 Service Delivery Build
Exult Supplier shall develop and execute a plan to build the
delivery model for the newly designed Processes. The plan shall
identify:
[***]*
8.4 Readiness Test
The Client and Exult Supplier shall agree to a specific set and
schedule of Readiness Tests to be satisfied prior to the Client
migrating to a transformed Process. These tests shall be
specific to the Process and shall be designed to assure the
Client and Exult Supplier of the readiness of both parties. The
test plan shall document the objective and measurable criteria
to be tested, the expected outcomes, the governance of the test,
and the results. Typical items that would appear in a Readiness
Test include:
[***]*
At the request of the Client, Readiness Tests can be grouped
with the requirement that all grouped Processes pass the
Readiness Tests before Exult Supplier assumes responsibility for
any one of such Processes.
In the event that either party believes that there has been a
failure to complete a Readiness Test in all material respects,
it shall provide the other party with a written notice
specifying the grounds on which it believes the Readiness Test
has been failed, within [***]* of the completion of the
Readiness Test. As soon as reasonably practicable following the
receipt of such notice, the parties shall meet to discuss, and
if possible, agree whether and in what respects the Readiness
Test has failed, and to agree a plan to conduct a further
Readiness Test.
8.5 Transfer of Responsibility
When the Readiness Test for a Process or Process group has been
completed, Exult Supplier shall commence delivering services
using the new Process or group of Processes. If applicable, the
service level measurement period shall commence for that Process
or group of Processes as defined in the Country Agreement,
Schedule B, Service Levels. On completion of the measurement
period, Exult Supplier shall document the Service Levels and
measure its performance to such Service Levels.
8.6 Post Implementation Review
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
5
<PAGE> 122
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
Conduct post implementation review and document lessons learned
for incorporation in subsequent planning efforts. Implement any
required remediation.
9 UK COUNTRY TRANSITION SCHEDULE
See attached Gant Chart
6
<PAGE> 123
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE H
PROJECTS
<PAGE> 124
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
i
<PAGE> 125
SCHEDULE H
PROJECTS
1 PROJECTS INCLUDED AS AT COUNTRY COMMENCEMENT DATE
As of the Commencement Date, Exult Supplier and the Client have
identified the following projects as being in-scope:
1.1 Peoplesoft and Payroll Integration Project - This project is in
progress. The primary objective is to assist in successfully
completing this project. Within [***]* of the Commencement Date
of the Framework Agreement, Exult Supplier and the Client shall
agree on an appropriate Project Statement; and
1.2 ARCO Integration Project - The ARCO Integration Project primary
objective will be to perform the activities and make the changes
necessary to integrate the ARCO employees and management into
the Services. Subject to regulatory approval of the acquisition
of ARCO by the Client, and within [***]* of the Commencement
Date or as otherwise agreed, Exult Supplier and the Client shall
agree to a Project Statement for this project.
2 COUNTRY AGREEMENT PROCESS FOR AGREEING NEW PROJECTS AND CHANGES TO
AGREED PROJECTS
Client may at any time during the term of this Agreement propose to
Exult Supplier that it undertakes a new Project pursuant to the Change
Control Management process. Any such requests will be made and evaluated
in accordance with the Change Control Management process in Schedule L.
3 PRO FORMA ISSUES LIST RE PROPOSED PROJECTS
3.1 The terms applicable to a Project shall be set out in a Project
statement to be signed by both parties. Once signed a Project
statement will, unless agreed otherwise in writing by the
parties, form part of this Agreement.
3.2 Content of Project statement
- Scope of work
- Service Level Impact
- Impact Analysis including priority
- Deliverables [as applicable]
- Acceptance criteria, timeframe & process [as applicable]
- Project Timetable (including start and end dates,
activity duration and critical dependencies
----------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
1
<PAGE> 126
- Responsibilities
- Staffing (implementation and ongoing)
- Assumptions
- Charges and Payment Terms
- Project Manager Contacts
- Other Terms and Conditions [to detail variations and/or
additions to the Country Agreement Clauses and/or
Schedules applicable in relation to the Project].
2
<PAGE> 127
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE I
EMPLOYEES
<PAGE> 128
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
TABLE OF CONTENTS
1 INTRODUCTION.........................................................................1
2 KEY EMPLOYEES........................................................................1
3 EMPLOYEES TO BE TRANSFERRED FROM THE CLIENT TO EXULT SUPPLIER........................2
i
<PAGE> 129
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
SCHEDULE I
EMPLOYEES
1 INTRODUCTION
This schedule sets forth the Key Employees and the employees to be transferred
from the Client to Exult Supplier in accordance with Schedule J.
2 KEY EMPLOYEES
As of the Commencement Date each of the parties shall identify the
individuals for each of the following positions.
Key Employees for the Client:
- BPA Global Project Leader
- BPA Regional Project Leader for the UK/Europe
- BPA Regional Project Leader for North America
- Chemical Stream Lead
- Down Stream Lead
- Up Stream Lead
- Gas Stream Lead (To be added at a later date)
Key Employees for Exult Supplier:
- Exult Global Project Leader
- Exult Regional Project Leader for the UK/Europe
- Exult Regional Project Leader for North America
- UK/Europe Transition Lead
- North America Transition Lead
- IT Lead
For each of the Client and Exult Supplier the responsibilities for the
Key Employees shall include the following:
- Regional and Global Project Leaders: [***]*
- Stream Leads: [***]*
- Transition/Service Delivery Leads: [***]*
- IT Lead: [***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
1
<PAGE> 130
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
Individuals identified as Key Employees will be confirmed in their
positions within 30 days of the Commencement Date of the Framework
Agreement. Each will serve in their positions for a minimum of [***]*
and up to [***]* unless otherwise agreed between the parties.
At anytime after [***]* one of the parties may request to reassign a Key
Employee. Reassignment may take place with a minimum of 4 weeks notice
and agreement between the parties. The parties will make a reasonable
effort to accommodate and achieve the reassignment and the timing of the
reassignment as requested.
[***]*
3 EMPLOYEES TO BE TRANSFERRED FROM THE CLIENT TO EXULT SUPPLIER
The table below lists the Client employees that shall be transferred
from the Client to Exult Supplier in accordance with Schedule J. This
table shall be completed following the Country Commencement Date.
<CAPTION>
NAME OF EMPLOYEE BPA STAFF NUMBER FULL/PART TIME
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
2
<PAGE> 131
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE J
EMPLOYEE TRANSFER ARRANGEMENTS
<PAGE> 132
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
TABLE OF CONTENTS
1 DEFINITIONS..........................................................................1
2 TRANSFER PROVISIONS..................................................................2
3 INDEMNITIES..........................................................................3
4 EMPLOYEE RECORDS.....................................................................3
5 TRANSITION AND SEVERANCE PAYMENTS....................................................4
6 OFFER OF EMPLOYMENT..................................................................5
7 PENSIONS.............................................................................5
8 ASSIGNMENT...........................................................................5
9 SECONDMENT...........................................................................8
10 EMPLOYEE INFORMATION.................................................................8
11 EMPLOYMENT PROVISIONS ON TERMINATION.................................................9
i
<PAGE> 133
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
SCHEDULE J
EMPLOYEE TRANSFER ARRANGEMENTS
1 DEFINITIONS
In this Schedule:
"AFFECTED EMPLOYEE " means any employee employed wholly or mainly in
providing one or more of the services similar to the Services in the UK
immediately before the Commencement Date or who would have been so
employed had his employment not been terminated for a reason connected
with this Agreement;
"APPROPRIATE AFFILIATE" means any BPA Affiliate which employs an
Affected, Assigned or Relevant Employee immediately before either his
Transition Date or any termination of his employment with that BPA
Affiliate;
"ASSIGNED EMPLOYEE" means an Affected Employee who has, before the first
Transition Date occurring in relation to the part of the Services in
which the Affected Employee is employed, notified the Appropriate
Affiliate in writing that he objects to transfer to the employment of
Exult Supplier pursuant to the Transfer Provisions, but who agrees to be
seconded to Exult Supplier.
"RELEVANT EMPLOYEE" means an Affected Employee employed by the Client or
Appropriate Affiliate immediately before the first Transition Date
occurring in relation to the part of the Services in which the Affected
Employee is employed but excludes any Assigned Employee;
"RELEVANT EMPLOYER" means the employer of a Returning Employee;
"RETURNING EMPLOYEES" means an employee employed wholly or mainly in
providing one or more of the Services immediately before the Transfer
Date;
"SEVERANCE PAYMENT" means a sum [***]*
"STAFF COSTS" means any and all compensation, damages, interest,
reasonable legal costs, penalties, fines or other liabilities
whatsoever, arising from any claim by one or more Affected Employees,
the Inland Revenue or Customs and Excise in relation to any employment
contract, employment relationship or collective agreement including
without limitation any claim for a Severance Payment or Transition
Payment and any other claim whatsoever in contract or tort or under the
Employment Rights Act 1996, the Equal Pay Act 1970, the Equal Pay
(Amendment) Regulations 1983, the Sex Discrimination Act 1975, the Race
Discrimination Act 1976, the Disability Discrimination Act 1995, the
Trade Union and Labour Relations (Consolidation) Act 1992, the Working
Time Regulations 1998, the Human Rights Act 1998, the Transfer
Provisions and any provision of the Treaty of Rome or other provision of
EC Law,
"TRANSFER DATE" means 23.59 local time on the date when this Agreement
expires or terminates;
"TRANSFER PROVISIONS" means the Transfer of Undertakings (Protection of
Employment) Regulation 1981, as amended;
----------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
1
<PAGE> 134
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
"TRANSFEREE" means the Client and/or the Successor Operator;
"TRANSFERRED EMPLOYEE" means a Relevant Employee who transfers to the
employment of Exult Supplier on the relevant Transition Date pursuant to
Section 2.1 of this Schedule and pursuant to an individual transition
plan to be documented and agreed between Exult Supplier and the
Appropriate Affiliate;
"TRANSITION DATE" means the date on which an Affected Employee becomes
an employee of Exult Supplier pursuant to an individual transition plan
to be agreed and documented between Exult Supplier and the Appropriate
Affiliate;
"TRANSITION PAYMENT" means [***]*
"TRANSITION PAYMENT DATE" means the date which is six months after
Transition Date.
2 TRANSFER PROVISIONS
2.1 It is the Parties' intention that the Transfer Provisions apply
to the outsourcing of each part of the Services at the point at
which Exult Supplier assumes responsibility for providing the
part of the Services concerned and that shall be the "time of
transfer" under the Transfer Provisions and also that the
contract of employment or the employment relationship of each
Relevant Employee shall have effect on and from the Transition
Date as if originally made between the Relevant Employee and
Exult Supplier save insofar as that contract or relationship
relates to any occupational pension scheme where the Transfer
Provisions exclude any such scheme from their scope.
2.2 The Client shall, and shall procure that the Appropriate
Affiliate shall, be responsible for all wages, salaries,
emoluments, taxation and national insurance contributions
payable in the ordinary course of business in respect of the
Relevant Employees and will discharge all such obligations in
respect of the Relevant Employees up to the Transition Date.
Subject to Sections 3.3 and 5.6 Exult Supplier shall be
responsible for and will discharge all such obligations in
respect of the Transferred Employees thereafter.
2.3 In accordance with its obligations under the Transfer
Provisions, Exult Supplier shall provide the Client in writing
with such information and at such time as will enable each
Appropriate Affiliate to carry out its obligations to inform and
consult under the Transfer Provisions.
2.4 The Client shall, and shall procure that the Appropriate
Affiliates shall, provide information to, and consult with, the
appropriate representatives (as defined in the Transfer
Provisions) of the Affected Employees in accordance with its
obligations under the Transfer Provisions.
2.5 The Client shall not and shall procure that no Appropriate
Affiliate shall employ or engage further employees wholly or
mainly in providing one or more of the services similar to the
Services after the Commencement Date without consultation with
Exult Supplier.
----------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
2
<PAGE> 135
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
3 INDEMNITIES
3.1 Subject to Sections 2.2 and 8.5.3, the Client will, and will
procure that each Appropriate Affiliate will, indemnify, keep
indemnified and reimburse Exult Supplier against any Staff Costs
(other than any Staff Costs resulting from an act or deliberate
failure to act by Exult Supplier in its dealings with an
Affected Employee) incurred by Exult Supplier relating to the
period before the relevant Transition Date, irrespective of when
such claim is made, and any Staff Costs incurred by Exult
Supplier which arise out of or are connected with any act or
omission by the Appropriate Affiliate having its origin before
the relevant Transition Date.
3.2 Subject to Sections 3.1 and 5 Exult Supplier will indemnify the
Client and keep the Client indemnified, for itself and as
trustee for each Appropriate Affiliate, against:
3.2.1 any Staff Costs which relate to, arise out of or are
connected with any act or omission by Exult Supplier
having its origin on or after the relevant Transition
Date and which the Appropriate Affiliate incurs pursuant
to the Transfer Provisions; and
3.2.2 any Staff Costs which relate to or arise out of any act
or omission by Exult Supplier prior to the relevant
Transition Date which the Appropriate Affiliate incurs
by virtue of Regulation 5(5) of the Transfer Provisions
and/or Article 4(2) of Council Directive 77/187 EEC.
3.3 The Client will reimburse Exult Supplier (or where applicable,
the Exult Supplier will reimburse the Client) in respect of
accrued (or used) holiday pay entitlements and accrued holiday
entitlements and/or loans of the Relevant Employees as at the
relevant Transition Date against invoices in accordance with the
arrangements set out in Schedule C.
3.4 To the extent permitted by law, neither party shall bring any
claims against the other for any negligent acts or omissions of
Assigned Employees.
4 EMPLOYEE RECORDS
4.1 As soon as reasonably practicable after the relevant Transition
Date, the Client shall procure that the Appropriate Affiliates,
subject to any restrictions imposed by law, will:
4.1.1 deliver to Exult Supplier copies of all personnel and
other records (excluding health records) relating to the
employment by the Client or Appropriate Affiliate of any
Transferred Employee to Exult Supplier or, where such
records are held in any electronic or electromagnetic
form (including databases stored on computer tapes or
discs), paper copies of those records; and
4.1.2 deliver to Exult Supplier's medical officer or other
medically qualified doctor notified by Exult Supplier to
the Client copies of all records, documents and
information connected directly or indirectly with the
health of such Transferred Employees.
4.2 Exult Supplier shall maintain comprehensive, accurate and up to
date employee records in relation to the Employees.
3
<PAGE> 136
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
5 TRANSITION AND SEVERANCE PAYMENTS
5.1 A Transferred Employee will receive a Transition Payment from
Exult Supplier provided that he is employed by Exult Supplier on
the Transition Payment Date. Subject to Section 5.2 Transition
Payments will be paid via payroll [***]*
5.2 A Transferred Employee who, by reason of redundancy, is not
employed by Exult Supplier on the Transition Payment Date shall
receive a Transition Payment from Exult Supplier [***]* Such
employee will also receive a Severance Payment from Exult
Supplier, [***]*
5.3 A Transferred Employee whose contract of employment is
terminated by Exult Supplier on or after the Transition Payment
Date by reason of redundancy, will receive a Severance Payment
from Exult Supplier, the [***]*
5.4 An Assigned Employee will receive a Transition Payment from
Exult Supplier in the month in which the Transition Payment Date
occurs, provided he remains seconded to Exult Supplier for the
period of the Assignment and is offered and accepts a job with
Exult Supplier at the end of the Assignment and is employed by
Exult Supplier on the Transition Payment Date.
5.5 An Assigned Employee will receive a Severance Payment, [***]*
5.5.1 from Exult Supplier if during or at the end of the
Assignment he is offered and accepts employment with
Exult Supplier and his contract of employment with Exult
Supplier is subsequently terminated by Exult Supplier by
reason of redundancy provided always that he has not
previously received a Severance Payment from the Client
or Appropriate Affiliate in respect of the same period
of service; or
5.5.2 from the Appropriate Affiliate if before the end of the
Assignment his employment is terminated by the
Appropriate Affiliate by reason of redundancy and he has
not unreasonably refused an offer of a suitable
alternative job with a BPA Affiliate; or
5.5.3 from the Appropriate Affiliate provided he remains
seconded to Exult Supplier for the period of the
Assignment and at the end of the Assignment is either
not offered a job by Exult Supplier or is offered but
does not accept a job with Exult Supplier and in either
case has not unreasonably refused an offer of a suitable
alternative job with a BPA Affiliate.
5.6 The Client will, and will procure that each Appropriate
Affiliate will, indemnify, keep indemnified, and reimburse Exult
Supplier, within [***]* of a request to do so or earlier if the
payment arrangements in Schedule C permit and on production of
documents endorsing the amount of the payment incurred, in
respect of any claim by an Affected Employee in relation to a
Severance or Transition Payment [***]*
5.7 Exult Supplier and the Client or Appropriate Affiliate will
agree appropriate communications to Affected Employees in
connection with this Agreement.
----------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
4
<PAGE> 137
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
6 OFFER OF EMPLOYMENT
During or on termination of an Assignment, Exult Supplier may offer to
employ an Assigned Employee. Such offer shall be in writing and will be
to employ an Assigned Employee on the same contractual terms upon which
he was employed at the date of the Offer (save in so far as those terms
relate to an occupational pension scheme) and Exult Supplier shall treat
such employee's continuous period of service with the Appropriate
Affiliate as continuous with Exult Supplier (the "OFFER").
7 PENSIONS
7.1 The Client shall, and shall procure that each Appropriate
Affiliate shall, perform and discharge its or their obligations
in relation to any occupational pension scheme of the Client or
Appropriate Affiliate and of which any Affected Employee is a
member, including without limitation its or their obligations to
make employer's contributions and to ensure that the
consequences of the cessation of any such Affected Employee's
employment shall be administered in accordance with the rules of
such scheme and shall indemnify Exult and keep Exult against any
losses, costs (including reasonable legal costs), penalties,
fines or other expenditure incurred by Exult as a result of the
Client or Appropriate Affiliate failing so to discharge.
7.2 The parties will within [***]* of the Commencement Date of the
Agreement agree(by a side letter) in respect of any proposed
Transferred Employee and employees who accept employment with
Exult Supplier pursuant to Section 6:
7.2.1 [***]*
7.2.2 [***]*
7.2.3 [***]*
8 ASSIGNMENT
The Client and/or the Appropriate Affiliate will second its or their
Assigned Employees to Exult Supplier on the following terms.
8.1 DURATION
Subject to Section 8.6 the Client and/or Appropriate Affiliate
will second the Assigned Employees to Exult Supplier to perform
the Services [***]* or such other period agreed between Exult
Supplier, the Client and the Assigned Employee (the
"ASSIGNMENT").
8.2 CONTINUING EMPLOYMENT BY THE CLIENT/APPROPRIATE AFFILIATE
8.2.1 During the Assignment the Assigned Employees will remain
employed by the Client or the Appropriate Affiliate and
will be assigned to Exult Supplier on their terms
immediately prior to the start of the Assignment as
amended from time to
----------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
5
<PAGE> 138
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
time provided always that such amendments shall be
notified to Exult Supplier in good time for Exult
Supplier to comply with its obligations in Section 8.4.
8.2.2 During the term of the Assignment, Assigned Employees
will observe their terms of employment as if Exult
Supplier were the actual employer in all respects other
than matters relating to the termination of the Assigned
Employee's employment by the Client or Appropriate
Affiliate.
8.2.3 The Client will reimburse Exult Supplier (or where
applicable, Exult Supplier will reimburse the Client) in
respect of accrued (or used) holiday pay entitlements
and accrued holiday pay entitlements of the Assigned
Employees as at the relevant transfer date.
8.3 DUTIES OF THE CLIENT OR AN APPROPRIATE AFFILIATE
8.3.1 The Client or the Appropriate Affiliate will pay the
Assigned Employees' salary and provide all contractual
and other benefits during the Assignment.
8.3.2 The Client or the Appropriate Affiliate will be
responsible for making appropriate tax and national
insurance deductions from the Assigned Employees'
remuneration.
8.3.3 The Client or Appropriate Affiliate shall be responsible
for confirming the arrangements set out in Section 8 in
writing to the Assigned Employee.
8.3.4 Prior to the commencement of any Assignment and in good
time for Exult Supplier to comply with its obligations
under Section 8.4 the Client or Appropriate Affiliate
shall deliver to Exult Supplier copies of the terms of
employment of any Assigned Employee.
8.4 DUTIES OF EXULT SUPPLIER
8.4.1 Subject to Section 8.7 Exult Supplier will observe the
Assigned Employees' terms of employment as if it were
the actual employer in all respects other than in
matters relating to the termination of the Assigned
Employee's employment with the Client or Appropriate
Affiliate.
8.4.2 Exult Supplier will maintain a record of each Assigned
Employee's sickness absence and will notify the Client
or the Appropriate Affiliate of such absence and provide
a copy of such records to the Client or the Appropriate
Affiliate at its request.
8.5 PAYMENT FOR SERVICES
8.5.1 As soon as practicable after the Commencement Date and
in any event prior to the commencement of the first
Assignment occurring in relation to the part of the
Services in which an Assigned Employee works, the Client
shall and shall procure that any Appropriate Affiliate
shall provide Exult Supplier with details of the costs
incurred by the Appropriate Affiliate of employing
Assigned Employees on a monthly basis.
8.5.2 The Client shall not and shall procure that no
Appropriate Affiliate shall increase those costs other
than in the ordinary course of business.
6
<PAGE> 139
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
8.5.3 The Client shall advise Exult Supplier of the costs
incurred by the Appropriate Affiliates of employing the
Assigned Employees on a monthly basis, [***]*
8.6 EARLY TERMINATION
8.6.1 Either party may terminate any Assigned Employee's
Assignment immediately by giving written notice to the
other if:
(i) the Assigned Employee does or omits to do
anything (whether in connection with the
Assignment or not) which would allow the Client
or the Appropriate Affiliate to terminate his
employment summarily; or
(ii) the Assigned Employee is guilty of dishonesty or
is convicted of an offence (other than a
motoring offence which does not result in
imprisonment) whether in connection with the
Assignment or not.
8.6.2 Exult Supplier may terminate any Assigned Employee's
Assignment at any time on giving two week's written
notice to the Appropriate Affiliate, provided that in
this case only Exult Supplier's obligation to deduct
from charges invoiced to the Client the costs of
employing such an Assigned Employee incurred by an
Appropriate Affiliate, shall not cease until the earlier
of the end of the Assignment period or the date on which
the Assigned Employee's employment with the Appropriate
Affiliate ceases.
8.6.3 An Assignment will automatically terminate on the
termination of the Assigned Employee's employment with
the Appropriate Affiliate.
8.7 DISCIPLINARY MATTERS
If any disciplinary or grievance matter arises in relation to
any of the Assigned Employees during the Assignment, Exult
Supplier will notify the Client or the Appropriate Affiliate as
soon as possible. The Client or the Appropriate Affiliate will
deal with the matter in accordance with its disciplinary or
grievance procedure. Exult Supplier will provide whatever
assistance is necessary.
8.8 HEALTH AND SAFETY
Exult Supplier will comply with its health and safety
obligations in relation to the Assigned Employees. Exult
Supplier will co-operate with the Client or the Appropriate
Affiliate in respect of any action which it wishes to take in
respect of the Assigned Employee in order to fulfil such
obligations.
8.9 INTELLECTUAL PROPERTY
During the Assignment any invention, design, copyright or other
intellectual property made by any of the Assigned Employees,
[***]*
----------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
7
<PAGE> 140
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
9 SECONDMENT
9.1 In addition to the Assigned Employees, the Client may second to
Exult Supplier one employee of its choice in [***]* or above
(the "SECONDED EMPLOYEE") per 5000 employees in respect of whom
Exult Supplier is providing Services to perform the Services
[***]* (the "SECONDMENT").
9.2 The Secondment shall be on the terms set out in Section 8 other
than sub Sections 8.1, 8.5, and 8.6.2 substituting Seconded
Employee for Assigned Employee in that section and references to
Appropriate Affiliate being understood to be references to the
employer of the Seconded Employee. For the avoidance of doubt
Exult Supplier shall not be required to pay the Appropriate
Affiliate for the services of the Seconded Employee.
10 EMPLOYEE INFORMATION
Two months before the expiry of this Agreement, or if this Agreement has
been terminated earlier for any reason within two weeks of being
requested to do so by the Client, Exult Supplier will provide (and will
procure any other employer will provide) to the Client the following
information in relation to all employees who are employed wholly or
mainly in providing the Services ("CURRENT EMPLOYEES"):
10.1 the total number of the Current Employees (including those on
maternity leave or other long-term leave of absence and who have
a statutory or contractual right to return to work);
10.2 the name, sex, date of commencement of employment, period of
continuous employment, notice period, location, salary and other
contractual or non-contractual benefits including any bonus
entitlement, grade and age of each Current Employee;
10.3 the complete terms of the contract of employment for each
Current Employee entitled to a salary at a rate in excess of
[***]*
10.4 a copy of each proforma contract of employment and other
contractual documentation for employees entitled to a salary at
a rate of [***]* or less and the complete terms of the contracts
of employment of any Current Employee not employed under a
proforma contract of employment;
10.5 details of dismissals or terminations of employment within the
previous 12 months of any person who during that period was
involved in the provision of the Services; and
10.6 details of all agreements and arrangements entered into in
relation to the Current Employees with any trade union or
association of trade unions, works council, staff association or
other similar organisation or body of employees.
11 EMPLOYMENT PROVISIONS ON TERMINATION
11.1 On termination or expiry of this Agreement it is the intention
of the parties that the Transfer Provisions will apply. If the
Transfer Provisions have effect the following provisions shall
apply in connection with such transfer:
----------
* Confidential treatment is requested for redacted portion. Confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
8
<PAGE> 141
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
11.1.1 the contract of employment of each Returning Employee
(save insofar as that contract relates to any
occupational pension scheme where the Transfer
Provisions exclude any such scheme from their scope)
shall be transferred to the Transferee with effect from
the Transfer Date which shall be the `time of transfer'
under the Transfer Provisions;
11.1.2 Exult Supplier shall, and shall procure that each
Relevant Employer shall, perform and discharge its or
their obligations in respect of all the Returning
Employees for its or their own account up to and
including the Transfer Date including, without
limitation, discharging all wages, salaries and
emoluments of the Returning Employees or employer's
contributions to any relevant occupational pension
scheme and all other costs and expenses related to their
employment (including, without limitation, any taxation,
national insurance contributions, accrued holiday pay,
accrued bonus, commission or other sums payable in
respect of service prior to the Transfer Date) and shall
indemnify the Transferee and keep the Transferee
indemnified against any Staff Costs (substituting
Returning Employees for Affected Employees in that
definition and indemnified subject to Sections 5 and
3.1) which the Transferee incurs arising from Exult
Supplier's or the Relevant Employer's failure so to
discharge; the Client or Appropriate Affiliate shall and
shall procure that the Successor Operator shall
discharge all responsibilities and obligations in
respect of the Returning Employees thereafter;
11.1.3 Exult Supplier shall, and shall procure that each
Relevant Employer, shall indemnify the Transferee and
keep the Transferee indemnified against all Staff Costs
(substituting Returning Employees for Affected Employees
in that definition and subject to Sections 5 and 3.1)
which relate to or arise out of any act or omission by
Exult Supplier or a Relevant Employer or any other event
or occurrence prior to the Transfer Date and which the
Transferee incurs in relation to any contract of
employment, employment relationship or collective
agreement concerning one or more of the Returning
Employees pursuant to the Transfer Provisions;
11.1.4 The Client will and will procure that the Appropriate
Affiliate or Successor Operator will indemnify and keep
Exult Supplier indemnified against :
(i) any Staff Costs (substituting Returning
Employees for Affected Employees in that
definition and subject to Sections 5 and 3.1)
which relate to or arise out of any act or
omission by the Client, Appropriate Affiliate or
Successor Operator, having its origin on or
after the Transfer Date and which Exult Supplier
incurs pursuant to the Transfer Provisions; and
(ii) any Staff Costs (substituting Returning
Employees for Affected Employees in that
definition) which relate to or arise out of any
act or omission by the Client, Appropriate
Affiliate or Successor Operator prior to the
Transfer Date which Exult Supplier incurs by
virtue of Regulation 5(5) of the Transfer
Provisions and/or Article 4(2) of Council
Directive 77/187 EEC.
11.1.5 Exult Supplier shall, and shall procure that each
Relevant Employer, shall indemnify the Transferee and
keep the Transferee indemnified against all Staff Costs
(substituting Returning Employees for Affected Employees
in that definition and subject to Sections 5 and 3.1)
which relate to or arise out of any dismissal
(including, without limitation, constructive dismissal)
by Exult Supplier or a Relevant Employer of any employee
(not being a Returning Employee) which the Transferee
incurs pursuant to the Transfer Provisions.
9
<PAGE> 142
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
11.2 If the contract of employment of an employee transfers to the
Transferee pursuant to the Transfer Provisions on a date other
than the Transfer Date (but after the date of this Agreement)
the provisions of Sections 10 and 11.1 above shall apply with
the substitution of the date of actual transfer for the Transfer
Date and references to the termination or expiry of the
Agreement and the definitions used in those sections shall be
amended by the same substitution. In respect of Section 10,
Exult Supplier will supply the information listed in that
section within a reasonable period (being no more than 10
working days, of a request for it from the Client).
11.3 If in the Client's reasonable opinion the Transfer Provisions
will not apply to transfer the contract of employment of a
Returning Employee on the Transfer Date, the Client or a
Successor Operator may, at its absolute discretion, offer to
employ one or more of the Returning Employees after the Transfer
Date. The Relevant Employer will not discourage Returning
Employees from accepting such an offer.
11.4 In respect of each Returning Employee who transfers to the
Transferee pursuant to Section 11.1.1 above, the Exult Supplier
shall, and shall procure that each Relevant Employer shall,
provide such employee's employment records and medical records
to the Successor Operator in accordance with the terms of
Section 4 with the necessary changes.
11.5 In Section 11 the undertakings and indemnities given by Exult
Supplier or procured by Exult Supplier to be given by a Relevant
Employer to the Transferee shall be given to the Client for
itself and as trustee for the Successor Operator.
10
<PAGE> 143
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE L
CHANGE CONTROL MANAGEMENT
<PAGE> 144
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
TABLE OF CONTENTS
1 CHANGE REQUESTS.................................................. 1
2 CLASSIFICATION OF THE CHANGE REQUEST............................. 1
3 EVALUATION OF THE PROPOSED CHANGE................................ 1
4 IMPACT ANALYSIS.................................................. 3
5 APPROVAL......................................................... 4
6 REPORTING........................................................ 4
i
<PAGE> 145
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
SCHEDULE L
CHANGE CONTROL MANAGEMENT
This Schedule sets out the procedure to be followed for any Proposed Change to
the Framework Agreement or any Country Agreement.
1 CHANGE REQUESTS
1.1 Either party may request a Proposed Change by submitting a Change
Request in accordance with the following process.
1.2 The Change Request shall be divided into two (2) sections.
Section One shall contain the general information regarding the
Proposed Change and shall be completed by the Country
Representative of the submitting party. Section Two shall contain
the impact analysis for the Proposed Change, which shall be
completed by the Exult Supplier Country Representative.
1.3 In each Country, Change Requests shall be presented by the
Country Representative of the submitting party to the other
party's Country Representative or designee who shall acknowledge
receipt by signature of the Change Request.
1.4 Any Proposed Change which has a potential impact on more than one
Country shall have a Change Request completed for each impacted
Country.
2 CLASSIFICATION OF THE CHANGE REQUEST
The Exult Supplier Country Representative and the Client Country
Representative shall agree to the classification of the Change Request
as follows:
2.1 Where it is determined that the Proposed Change is an Operational
Change, the Proposed Change shall be evaluated as set out in
Section 3.1.
2.2 Where it is determined that the Proposed Change is a change to
the Client's Policies and Procedures, the proposed change shall
be evaluated as set out in Section 3.2.
2.3 Where it is determined that the Proposed Change is a Project, the
Proposed Change shall be evaluated as set out in Section 3.3
2.4 Where it is determined that the Proposed Change is a change to
the terms and conditions of the Country Agreement or a change
related to the Schedules of the Country Agreement which is not
related to a specific Project or to a change to Client's Policies
and Procedures, the Proposed Change shall be evaluated as set out
in Section 3.4.
2.5 Where it is determined that the Proposed Change should not
proceed, the Change Request shall be rejected and returned to the
submitting party.
If the Exult Supplier's Country Representative and the Client's Country
Representative cannot agree to the classification of the Change Request,
then the Change Request shall be referred to the Regional Governance
Panel for classification.
3 EVALUATION OF THE PROPOSED CHANGE
The Proposed Change shall be evaluated, by classification, as described
below:
1
<PAGE> 146
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
3.1 Operational Changes
3.1.1 Operational Changes shall be implemented in accordance
with the operational change control procedures and
approved subject to Section 5 of this Schedule.
3.2 Changes to Client's Policies and Procedures
3.2.1 Exult Supplier shall perform the impact analysis as
described in Section 4.
3.2.2 The Exult Supplier Country Representative shall submit the
Proposed Change, including the Impact Analysis, to the
Client Country Representative.
3.2.3 Based on the results of the impact analysis, the Client
Country Representative shall, within a reasonable
timeframe:
(i) approve the Proposed Change and proceed to its
implementation subject to Section 5 of this
Schedule; or
(ii) request Exult Supplier in writing to re-submit the
Proposed Change stating which items of information
it is dissatisfied with, in which case Exult
Supplier shall re-submit the Proposed Change within
a reasonable timeframe; or
(iii) reject the Change Request in which case the
Agreement shall continue un-amended.
3.3 Projects
3.3.1 Exult Supplier shall perform the impact analysis as
described in Section 4.
3.3.2 Exult Supplier shall prepare a Project Statement as set
out in Schedule H.
3.3.3 The Exult Supplier Country Representative shall submit
the Proposed Change, including the Project Statement, to
the Client Country Representative
3.3.4 Based on the results of the impact analysis, the Client
Country Representative shall, within a reasonable
timeframe:
(i) approve the Proposed Change and the Project
Statement and proceed to its implementation subject
to Section 5 of this Schedule; or
(ii) request in writing that Exult Supplier re-submit
the Proposed Change and Project Statement stating
which items of information it is dissatisfied with,
and Exult Supplier shall re-submit the Proposed
Change and Project Statement within a reasonable
timeframe; or
(iii) reject the Change Request in which case Exult
Supplier will not implement the Project.
3.4 Changes to the Agreement (as described in Section 2.4)
3.4.1 Exult Supplier shall perform the impact analysis as
described in Section 4.
3.4.2 The Exult Supplier Country Representative shall submit the
Proposed Change, including the impact analysis, to the
Client Country Representative for approval
2
<PAGE> 147
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
subject to Section 5 of this Schedule.
4 IMPACT ANALYSIS
4.1 Upon determination of the classification of the Proposed Change,
Exult Supplier shall provide, at its expense, within [***]* or as
otherwise agreed, an estimate of the time and cost that Exult
Supplier proposes to charge to the Client to complete the impact
analysis. The Client shall provide Exult Supplier, within 10
business days or as otherwise agreed, a decision as to whether to
proceed with the impact analysis as estimated.
4.2 If the Client Country Representative determines that the Proposed
Change should not proceed, the Change Request shall be rejected
and returned to the submitting party.
4.3 If the Client Country Representative decides to proceed, Exult
Supplier shall, as soon as reasonably practicable and acting in
good faith, conduct an impact analysis to assess and evaluate the
impact of the Proposed Change having regard to all relevant
factors including the following:
[***]*
4.4 In the case of Proposed Changes relating to Projects, Exult
Supplier, in addition to the impact analysis shall, acting in
good faith, provide the Client with the following information:
4.4.1 whether Exult Supplier considers the Project to be
technically feasible, and, if so, the estimated number,
grade, qualification and experience of personnel required
to provide the Project;
4.4.2 the estimated number of days that would be required to be
spent by each such person in order to provide the Project;
4.4.3 the estimated cost and timetable for implementation of the
Project including the date of its completion;
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
3
<PAGE> 148
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
4.4.4 the anticipated impact, if any, on other aspects of the
Services and operation of the Systems by the Client;
4.4.5 the terms and conditions on which Exult Supplier is
willing to provide the Project, which shall so far as
reasonably appropriate shall be consistent with the terms
and conditions on which the Services are provided under
this Agreement; and
4.4.6 any other information the Client may reasonably require in
relation to the Project.
Exult Supplier shall, in good faith, endeavour to complete the impact
analysis and propose fair a price to the Client for the implementation
of the Proposed Change. In the event that Exult Supplier chooses not to
quote a price for the Proposed Change, the Client may submit the request
to another supplier.
5 APPROVAL
Subject to the delegated financial authority limits provided by the
relevant Client Global Commercial Contract Leader and Client Regional
Commercial Contract Leader, the following approval levels shall apply.
5.1 Change Requests that are classified as Operational Changes shall
be approved by the Client's Country Representative and Exult
Supplier's Country Representative or their designees except where
Operational Changes do not impact Client activities or costs, in
which case the Exult Country Representative or its designee may
approve the change.
5.2 Change Requests that are classified as changes to the Client's
Policies and Procedures shall be approved by the Client Country
Representative.
5.3 Change Requests that are classified as Projects shall be approved
by the Client's Country Representative.
5.4 Change Requests that are classified as changes to the terms and
conditions of the Country Agreement or as changes related to the
Schedules of the Country Agreement which are not related to a
specific Project or to a change to the Client's Policies and
Procedures, shall be approved by the Regional Governance Panel.
In the event that such changes have global implications, the
Change Request shall be approved by the Global Governance Panel.
Neither party shall be obliged to comply with any Proposed Changes
unless and until approval has been given in accordance with this Change
Control Management process and, pending approval, no Change shall be
made to the Services or to the Framework and Country Agreements.
6 REPORTING
A consolidated report of all Change Requests shall be presented by the
Exult Supplier Country Representative to the Regional Governance Panel
on a monthly basis. The Regional Governance Panel shall report Change
Requests on a quarterly basis to the Global Governance Panel.
4
<PAGE> 149
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE M
APPROVED EXULT SUBCONTRACTORS
<PAGE> 150
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
SCHEDULE M
APPROVED EXULT SUBCONTRACTORS
This schedule sets forth those subcontractors that have been approved by BPA.
[***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
1
<PAGE> 151
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE O
BPA POLICIES AND CONTROLS
<PAGE> 152
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
SCHEDULE O
BPA POLICIES AND CONTROLS
1 PART 1
The following Controls have been submitted to Exult in writing and Exult
shall fulfil its obligation under this Agreement in accordance with such
Controls.
[***]*
2 PART 2
The following Controls shall be reviewed and evaluated by BPA and Exult
in accordance with this Agreement.
[***]*
--------
* Confidential treatment is requested for redacted portion. The confidential
redacted portion has been omitted and filed separately with the Securities and
Exchange Commission.
1
<PAGE> 153
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE P
GLOBAL GOVERNANCE ARRANGEMENTS
<PAGE> 154
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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
i
<PAGE> 155
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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;
1
<PAGE> 156
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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;
2
<PAGE> 157
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
3.6.6 submitting quarterly performance review reports to the
Regional Steering Committee for its guidance and
recommendations;
3.6.7 submit quarterly performance review reports to the
Global Governance Panel.
3.6.8 managing Change Requests outside the authority of the
relevant Country Representative and otherwise in
accordance with the Change Control Management procedure;
3.6.9 seeking to resolve any Disputes referred to in
accordance with the Dispute Resolution Procedure;
3.6.10 referring matters outside its authority to the Global
Governance Panel;
3.6.11 identifying issues which may have an impact outside the
relevant Region and referring these to the Global
Governance Panel as required; and
3.6.12 monitoring and reviewing the ongoing status of Third
Party Contracts which are not Transferred to Exult
Supplier.
3.7 The parties shall procure that the members of the Regional
Governance Panel shall, at all times, act reasonably and in good
faith having due regard to the interests of all parties.
4 COUNTRY REPRESENTATIVES
4.1 As soon as reasonably practicable following a Country
Commencement Date, BPA and Exult shall procure that, the
relevant Affiliates each appoint a Country Representative in
respect of that Country.
4.2 The Country Representatives will have day-to-day responsibility
for managing the operation of the Country Agreement and
supervising the co-operation and other matters between the
parties.
4.2.1 The responsibilities and authorities of each Country
Representative will be determined and delegated in each
case by the relevant Regional Governance Panel and may
include matters such as:
4.2.2 reviewing the overall performance of the parties'
respective Affiliates under the relevant Country
Agreement;
4.2.3 interpretation of the Agreement;
4.2.4 ensuring efficient flow of documentation under the
Agreement;
4.2.5 handling of Disputes within the authority of the Country
Representative and referring others to the Regional
Governance Panel in accordance with the Dispute
Resolution Procedure;
4.2.6 handling of Change Requests within the authority of the
Country Representative and referring others to the
Regional Governance Panel in accordance with the Change
Control Procedure;
4.2.7 submitting issues concerning the relationship between
the parties to the Regional Steering Committee for its
guidance and recommendations;
4.2.8 submit [monthly/regular] performance review reports to
the Regional Governance Panel;
3
<PAGE> 158
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
4.2.9 generally dealing with any matter or issue arising out
of or in connection with the Country Agreement within
the delegated authority of, the Country Representative;
4.2.10 identifying and referring matters outside the Country
Representative authority to the Regional Governance
Panel; and
4.2.11 identifying issues which may have an impact outside the
relevant Country and referring these to the Regional
Governance Panel for their attention.
4.3 The parties shall procure that the Country Representatives
shall, at all times, act reasonably and in good faith having due
regard to the interests of all parties.
5 EXECUTIVE STEERING COMMITTEE
5.1 As soon as reasonably practicable following the Commencement
Date an Executive Steering Committee will be established by the
parties to focus primarily on global relationship issues. It is
agreed that the Executive Steering Committee should not be
involved in day-to-day issues.
The Executive Steering Committee will be comprised as follows:
For BPA:
5.1.1 the Executive Steering Committee shall be chaired by a
BPA Group representative;
5.1.2 one Global Project Leader from BPA (who will also be a
member of the Global Governance Panel);
5.1.3 four business stream representatives; and
5.1.4 one IT representative.
For Exult:
5.1.5 one Exult corporate executive representative;
5.1.6 one Global Project Leader who will also be a member of
the Global Governance Panel; and
5.1.7 IT/e-commerce/services representation.
Each party shall wherever reasonably practicable give the other
3 months written notice in the event it wishes to change its
representatives on the Global Governance Panel.
5.2 The Executive Steering Committee will meet quarterly, and at
other times as agreed between the parties.
5.3 The Executive Steering Committee shall be a non-voting body.
5.4 The responsibilities of the Executive Steering Committee will
include:
5.4.1 reviewing the global relationship issues arising out of
the Framework Agreement and the Country Agreements;
5.4.2 reviewing significant recommendations and suggestions
made by the Regional Steering Committee relating to
issues affecting the relationships between the parties
and relationships between the stakeholders;
4
<PAGE> 159
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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.
5
<PAGE> 160
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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
<PAGE> 161
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE Q
DATA PROTECTION
<PAGE> 162
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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
i
<PAGE> 163
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT SUPPLIER - PROJECT ATLAS
--------------------------------------------------------------------------------
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
1
<PAGE> 164
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
transmission, dissemination or otherwise making available, alignment or
combination, blocking, erasure or destruction;
"PURPOSES" means the purposes for which BPA personal data is to be
Processed, as may be amended from time to time by the parties, and as
currently set out in Schedule A (Scope of Services);
"SENSITIVE DATA" means personal data revealing racial or ethnic origin,
political opinions, religious or philosophical beliefs, trade-union
membership, or health or sex life;
"THIRD COUNTRY" means any country outside the European Economic Area.
2 PROCESSOR'S OBLIGATIONS AND WARRANTIES
2.1 GENERAL OBLIGATIONS
Exult hereby agrees during the term of the Agreement:
2.1.1 to act only solely on the instructions of BPA and in so
doing to process BPA personal data on behalf of BPA
solely for the Purposes;
2.1.2 to process BPA personal data in accordance with the
Directives and Implementing Legislation if the personal
detail is subject to the Directives; and
2.1.3 to process BPA personal data in accordance with the
provisions of this Agreement.
2.2 SPECIFIC OBLIGATIONS
Without limiting the generality of Section 2.1, Exult shall;
2.2.1 REGISTRATION AND AUTHORITY
Ensure that it has the necessary legal authority for the
purpose of processing BPA personal data for the Purposes
in accordance with the terms of this Agreement;
2.2.2 SECURITY
Prior to any processing of BPA personal data:
(i) put in place appropriate technical and
organisational measures to protect BPA personal
data (including suitable measures to protect
Sensitive Data) against accidental or unlawful
destruction or accidental loss, alteration,
unauthorised disclosure or access and against
all other unlawful forms of processing;
(ii) put in place adequate security programmes and
procedures to ensure that unauthorised persons
will not have access to the equipment used to
process BPA personal data, and that any persons
it authorises to have access to BPA personal
data will respect and maintain the
confidentiality and security of BPA personal
data; and
(iii) have reviewed and to continue to review its
security programmes and procedures to ensure
that they are adequate, having regard to
industry good practice and the cost of their
implementation at that time; and
(iv) once processing has commenced in accordance with
this Agreement, if at any time Exult becomes
aware of any breach in security advise
2
<PAGE> 165
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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
3
<PAGE> 166
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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;
4
<PAGE> 167
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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.
5
<PAGE> 168
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM AGREEMENT PRO FORMA
SCHEDULE R
BPA PARTICIPATING AFFILIATES
<PAGE> 169
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
SCHEDULE R
BPA PARTICIPATING AFFILIATES
This schedule sets forth the BPA Affiliates that shall receive the Services
under the applicable Country Agreement. This table shall be completed following
the Country Commencement Date.
--------------------------------------------------------------------------------
COMPANY COUNTRY PARENT IF NOT THE REGISTERED OFFICE OR
CLIENT PRINCIPAL OR PLACE OF
BUSINESS
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
1
<PAGE> 170
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE T
PROCESS LINE POPULATION
1
<PAGE> 171
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations
OIL (COUNTRY)
Retail
CI
MAS
Corporate Functions
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL
BUSINESS/OTHER POPULATION BY PROCESS LINE
Under E/U Resourcing/ Performance Domestic
Compliance Admin Payroll Development Recruiting Severance Management Relocation HRIT
OIL (COUNTRY)
Retail
CI
MAS
Corporate Functions
1
<PAGE> 172
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations
Other
(1) __________________
(2) __________________
OIL (INTERNATIONAL)
Air
Marine
Shipping
Other
(1) __________________
(2) __________________
EXPLORATION
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL
BUSINESS/OTHER POPULATION BY PROCESS LINE
Under E/U Resourcing/ Performance Domestic
Compliance Admin Payroll Development Recruiting Severance Management Relocation HRIT
Other
(1) __________________
(2) __________________
OIL (INTERNATIONAL)
Air
Marine
Shipping
Other
(1) __________________
(2) __________________
EXPLORATION
2
<PAGE> 173
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations
Business Units
(1) __________________
(2) __________________
Corporate Functions
Other
(1) __________________
(2) __________________
CHEMICALS
Business Units
(1) __________________
(2) __________________
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL
BUSINESS/OTHER POPULATION BY PROCESS LINE
Under E/U Resourcing/ Performance Domestic
Compliance Admin Payroll Development Recruiting Severance Management Relocation HRIT
Business Units
(1) __________________
(2) __________________
Corporate Functions
Other
(1) __________________
(2) __________________
CHEMICALS
Business Units
(1) __________________
(2) __________________
3
<PAGE> 174
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations
Corporate Functions
Other
(1) __________________
(2) __________________
SOLAR
Business Units
(1) __________________
(2) __________________
Corporate Functions
Other
(1) __________________
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL
BUSINESS/OTHER POPULATION BY PROCESS LINE
Under E/U Resourcing/ Performance Domestic
Compliance Admin Payroll Development Recruiting Severance Management Relocation HRIT
Corporate Functions
Other
(1) __________________
(2) __________________
SOLAR
Business Units
(1) __________________
(2) __________________
Corporate Functions
Other
(1) __________________
4
<PAGE> 175
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations
(2) __________________
GAS
Business Units
(1) __________________
Corporate Functions
Other
(1) __________________
(2) __________________
OTHER COUNTRY UNITS
SUPPORTED
(1) __________________
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL
BUSINESS/OTHER POPULATION BY PROCESS LINE
Under E/U Resourcing/ Performance Domestic
Compliance Admin Payroll Development Recruiting Severance Management Relocation HRIT
(2) __________________
GAS
Business Units
(1) __________________
Corporate Functions
Other
(1) __________________
(2) __________________
OTHER COUNTRY UNITS
SUPPORTED
(1) __________________
5
<PAGE> 176
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL TOTAL
BUSINESS/OTHER POPULATION POPULATION BY PROCESS LINE
Organisation HR Labour Expat E/U
Training Development Strategy Relations Admin HRIS Benefits Compensation Relations
(2) __________________
OTHER POPULATIONS
(1) EXAMPLE-ANNUITANTS
(2) __________________
<CAPTION>
BUSINESS ENTITY/
BUSINESS UNIT/
INTERNATIONAL
BUSINESS/OTHER POPULATION BY PROCESS LINE
Under E/U Resourcing/ Performance Domestic
Compliance Admin Payroll Development Recruiting Severance Management Relocation HRIT
(2) __________________
OTHER POPULATIONS
(1) EXAMPLE-ANNUITANTS
(2) __________________
6
<PAGE> 177
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
UNITED KINGDOM COUNTRY AGREEMENT
SCHEDULE U
ESCROW AGREEMENT
<PAGE> 178
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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> 179
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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> 180
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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> 181
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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> 182
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
7 CONFIDENTIALITY
7.1 The Material shall remain the confidential property of the Owner
and in the event that Escrow Agent provides a copy of the
Material to the Licensee, the Licensee shall be permitted to use
the Material only in accordance with a confidentiality
undertaking in the form contained in Schedule 3 of this
Agreement.
7.2 Escrow Agent agrees to maintain all information and/or
documentation coming into its possession or to its knowledge
under this Agreement in strictest confidence and secrecy. Escrow
Agent further agrees not to make use of such information and/or
documentation other than for the purposes of this Agreement and
will not disclose or release it other than in accordance with
the terms of this Agreement.
7.3 Termination of this Agreement will not relieve Escrow Agent or
its employees or the Licensee or its employees from the
obligations of confidentiality contained in this Section 7.
8 INTELLECTUAL PROPERTY RIGHTS
The release of the Material to the Licensee will not act as an
assignment of any Intellectual Property Rights that the Owner possesses
in the Material.
9 VERIFICATION
9.1 Subject to the provisions of Sections 9.2 and 9.3, Escrow Agent
shall bear no obligation or responsibility to any person, firm,
company or entity whatsoever to determine the existence,
relevance, completeness, accuracy, effectiveness or any other
aspect of the Material.
9.2 Upon the Material being lodged with Escrow Agent, Escrow Agent
shall perform those tests in accordance with its Standard
Verification Service and shall provide a copy of the test report
to the parties to this Agreement.
9.3 The Licensee shall be entitled to require that Escrow Agent
carries out a Full Verification. Any reasonable charges and
expenses incurred by Escrow Agent in carrying out the Full
Verification will be paid by the Licensee save that if in the
opinion of the expert appointed by the Managing Director of
Escrow Agent, the Material is substantially defective in content
any such reasonable charges and expenses will be paid by the
Owner.
10 ESCROW AGENT'S LIABILITY
10.1 Escrow Agent shall not be liable for loss caused to the Owner or
the Licensee either jointly or severally except for loss or
damage to the Material to the extent that such loss or damage is
caused by the negligent acts or omissions of Escrow Agent, its
employees, agents or sub-contractors and in such event Escrow
Agent's total liability in respect of all claims arising under
or by virtue of this Agreement shall not (except in the case of
claims for personal injury or death) exceed the sum of Pound
Sterling 500,000.
10.2 Escrow Agent shall in no circumstances be liable to the Owner or
the Licensee for indirect or consequential loss of any nature
whatsoever whether for loss of profit, loss of business or
otherwise.
10.3 Escrow Agent shall be protected in acting upon any written
request, waiver, consent, receipt or other document furnished to
it pursuant to this Agreement, not only in assuming its due
execution and the validity and effectiveness of its provisions
but also as to the
4
<PAGE> 183
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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> 184
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
SCHEDULE 1
MATERIAL: TECHNICAL INFORMATION
The source code of the Package known as [ ]
1
<PAGE> 185
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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> 186
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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> 187
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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> 188
COMMERCIAL-IN-CONFIDENCE BP AMOCO/EXULT - PROJECT ATLAS
--------------------------------------------------------------------------------
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