Alliance Agreement - Tier Technologies (United Kingdom) Inc. and Siemens Business Services Ltd.
ALLIANCE AGREEMENT
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IN SUPPORT OF PROJECT UXBRIDGE
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BETWEEN
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TIER TECHNOLOGIES (UNITED KINGDOM) INC.
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AND
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SIEMENS BUSINESS SERVICES LIMITED
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Contract Reference Number : MIG/UXBR/CON/145
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CONTENTS
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<TABLE>
<CAPTION>
<S> <C>
1 PURPOSE 6
2 TERM 6
3 PRECEDENCE 7
4 ALLIANCE STEERING GROUP 7
5 ALLIANCE MANAGERS 9
6 BUSINESS DEVELOPMENT METHODOLOGY 10
7 CONSULTATION AND CO-ORDINATION OF THE PARTIES 10
8 CONSULTANCY SERVICES 11
9 THE ASC SERVICES 12
10 SBS STAFF SERVICES 13
11 OTHER RESPONSIBILITIES OF THE PARTIES 13
12 PAYMENT 14
13 INTELLECTUAL PROPERTY RIGHTS 15
14 FORCE MAJEURE 18
15 INSURANCES 19
16 LIABILITY 19
17 EMPLOYMENT INDEMNITIES 23
18 RESPONSIBILITIES AND COSTS 24
19 NOTICES 25
20 DATA PRIVACY AND ACCESS TO INFORMATION 26
21 DISPUTE ESCALATION PROCEDURE 26
22 DISPUTE RESOLUTION PROCEDURE 27
23 DEFAULT IN PERFORMANCE 29
24 TERMINATION 33
25 CHANGE CONTROL 36
26 MILLENNIUM COMPLIANCE 36
27 CONFIDENTIALITY 37
28 PUBLICITY 39
29 ENGAGEMENT OF SENIOR EMPLOYEES 39
30 FAILURE TO ENFORCE AND WAIVER 40
31 VALIDITY 40
32 ASSIGNMENT 40
33 NOT A PARTNERSHIP OR AGENCY 41
34 ORIGINALITY OF AGREEMENT 41
35 ENTIRE AGREEMENT 41
SCHEDULE 1
1 Interpretations 43
2 Definitions 43
SCHEDULE 2
1 Introduction 50
</TABLE>
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<TABLE>
<S> <C>
2 Supply of Consultancy Services 51
3 Method of Obtaining Supply 53
4 Workpackage Leaders 54
5 Performance 54
6 Fees 55
7 Payment 56
8 Discharge of the Consultancy Services Minimum Total Commitment 57
ATTACHMENT 1 TO SCHEDULE 2
1 Consultancy Services Charge Rates 58
ATTACHMENT 2 TO SCHEDULE 2
1 Tier Consultancy Services Description 59
SCHEDULE 3
1 Introduction 60
2 Scope 61
3 Programme 62
4 Calculation of Fees 62
5 Payment 63
6 Discharge of the SBS Staff Services Minimum Total Commitment 64
7 Success Fees 65
ATTACHMENT 1 TO SCHEDULE 3
1 Introduction 67
2 Assumptions 67
3 Payment Profile 68
SCHEDULE 4
1 Introduction 71
2 Contractual Relationships 71
3 Master Services Supply Agreement Form 72
SCHEDULE 5
1 Introduction 73
2 Condition Precedent 73
3 Due Diligence 73
4 Programme 74
SCHEDULE 6
1 Introduction 75
ATTACHMENT 1 TO SCHEDULE 6 76
ATTACHMENT 2 TO SCHEDULE 6
1 Introduction 77
2 Contents 77
ATTACHMENT 3 TO SCHEDULE 6 78
SCHEDULE 7
1 Introduction 80
2 Location of the ASC Infrastructure 80
</TABLE>
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<TABLE>
<S> <C>
3 Establishment of the ASC Infrastructure 80
SCHEDULE 8
1 Introduction 83
ANNEX 1 84
ANNEX 2
1 Purpose 85
2 Term 86
3 The ASC Services 86
4 SBS Staff Services 87
5 Payment 87
6 Default in Performance 88
7 Termination 89
ANNEX 3
1 Purpose 90
2 Approach 90
</TABLE>
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THIS AGREEMENT is made the 1st day of September NINETEEN HUNDRED AND NINETY NINE
BETWEEN
( 1 ) Tier Technologies (United Kingdom) (Inc). a company incorporated in
Delaware whose Registered Address is situated at 1013 Centre Road,
Wilmington, New Castle County, Delaware, USA ("Tier") and
( 2 ) Siemens Business Services Limited whose Registered Address is situated at
Siemens House, Oldbury, Bracknell, Berkshire RG12 8FZ ("SBS")
Hereinafter collectively referred to as "the Parties".
RECITALS
Recital ( A ) - SBS entered into an agreement with the Director of National
Savings on 27 January 1999 for the outsourcing of the
services directorate of National Savings ("the National
Savings Agreement") for a period of 10 years.
Recital ( B ) - SBS wishes to obtain Consultancy Services from Tier in
relation to the National Savings Bank Agreement and other
SBS projects generally and Tier wishes to supply Consultancy
Services to SBS.
Recital ( C ) - [***]
Recital ( D ) - The Parties held discussions on the establishment of an
alliance ("Alliance")between them for the mutual exchange of
business opportunities and benefits in relation to the
National Savings Bank Agreement and more generally in other
SBS projects. As a consequence of those discussions the
Parties agree to establish the Alliance on the terms,
conditions and principles as detailed herein.
* CONFIDENTIAL TREATMENT REQUEST(ED)
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Recital (E) - Notwithstanding the creation of the Alliance the obligations
in this Agreement relating specifically to the Consultancy
Services on the one hand and the SBS Staff Services
(including the ASC Services and the ASC Infrastructure) on
the other are independent, free standing and severable of
each other.
IT IS NOW HEREBY AGREED AS FOLLOWS:
1 PURPOSE
1.1 The purpose of this Agreement is to stipulate the provisions, terms
and conditions under which the Parties will co-operate in the
fulfilment of their obligations hereunder and under which the Parties
may share the risks and rewards expected to arise from it and to set
out the Parties' responsibilities and liabilities.
1.2 In particular this Agreement is established for the following specific
purposes:
1.2.1 To set out the contractual commitments of the Parties relating
to the provision of:
1.2.1.1 Consultancy Services including an obligation on SBS
to procure Consultancy Services up to the
Consultancy Services Minimum Total Commitment;
1.2.1.2 SBS Staff Services including an obligation on Tier
to meet the SBS Staff Services Minimum Total
Commitment.
1.2.1.3 the ASC Services.
[***]
2 TERM
2.1 The Parties agree that this Agreement shall have full force and legal
effect for the Contract Period unless and until terminated in
accordance with the provisions of Clauses 14 or 24.
2.2 At the Final Date Tier shall have an option to require SBS to enter
into a new and separate agreement substantially in accordance with the
terms set out in Annex 2.
* CONFIDENTIAL TREATMENT REQUEST(ED)
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3 PRECEDENCE
3.1 Where there is a conflict between the provisions of any Schedule,
Appendix or Attachment of this Agreement and any of these General
Terms and Conditions, then the latter shall take precedence.
3.2 Where there is a conflict between the provisions of any document
referenced or referred to herein and the provisions of this Agreement,
then the latter shall take precedence.
3.3 Where there is a conflict between the provisions of any document
agreed by the Parties, and the provisions of this Agreement the
provisions of this Agreement shall prevail unless this Agreement has
been amended in accordance with Clause 25 of these General Terms and
Conditions.
4 ALLIANCE STEERING GROUP
4.1 Within thirty (30) Calendar days of the Effective Date or as otherwise
agreed by the Parties each Party shall nominate the representatives
described in Clause 4.2 below to constitute an Alliance Steering Group
(hereafter "ASG") and shall provide written details of the nominees to
the other Party.
4.2 The representatives of the ASG shall comprise;
Role Representative From
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Managing Directors x 2 SBS and Tier
Finance Director x 1 SBS
Sales and Marketing Director x 2 SBS and Tier
Alliance Managers x 2 SBS and Tier
Jim Bildner (or his designee) Tier
4.3 The first meeting of the ASG shall take place within sixty (60)
Calendar days of the Effective Date or as agreed between the Parties
to confirm the initial roles and responsibilities of the appointed
representatives and to ratify the Business Development Methodology.
The Parties shall have the right after having informed the other Party
to replace any of its appointed representatives.
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4.4 The ASG shall meet as agreed by the Parties and in any event not less
than twice a year. Each meeting shall be chaired by one representative
(the "Chairman") in rotation, the first such meeting to be chaired by
SBS. Either Party may convene a meeting and shall give at least
fifteen (15) Working days notice from the date of issue including the
agenda for the said meeting to each representative.
4.5 A meeting of the ASG shall not take place unless a quorum is present.
For the purposes of this Clause a quorum shall be when at least two
representatives of the ASG are present from each Party. If such quorum
is not present the meeting of the ASG shall be adjourned.
4.6 The ASG shall have the following functions;
4.6.1 To co-opt additional members.
4.6.2 To consider and make recommendations on;
4.6.2.1 marketing plans and strategies, account development
(including account management plans) and
identification of future business opportunities;
4.6.2.2 decisions of the VRB;
4.6.2.3 the Business Development Methodology and
conformance, progress and the consideration of any
necessary changes thereto;
4.6.2.4 any Intellectual Property to be introduced into the
project;
4.6.2.5 agreement execution, programme plans, activities and
resources;
4.6.2.6 progress on achieving the said programme objectives
and any issues arising;
4.6.2.7 contractual issues and the ongoing relationship with
each other and third parties;
4.6.2.8 financial performance and projections;
4.6.2.9 the register of risks;
4.6.2.10 internal and external communications; and
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4.6.2.11 any other business required by either Party for the
successful discharge of the Parties' obligations
hereunder.
4.7 The Parties agree that the ASG shall meet in the Calendar month prior
to each of the fourth and fifth anniversaries of the Effective Date to
review inter alia the progress made by each Party in respect of its
obligations under this Agreement and the ongoing and future Alliance
between the Parties.
4.8 The Party which is hosting the meeting shall organise the facilities
required for the meeting. Secretarial services and the drafting of the
minutes arising from the meeting shall be provided by the Chairman.
The minutes shall be circulated to the other Party by the Chairman.
The minutes shall be deemed to have been accepted by the Parties if
following a period of fourteen (14) Calendar days of circulation
neither Party has raised any objections to the minutes with the
Chairman. The Parties shall permit the presence of up to two (2)
further attendees each at any meeting of the ASG for those parts of
the meeting which directly relate to the activities in which those
attendees are engaged.
4.9 The ASG may invite Third Parties to attend its meetings as observers
if so required and agreed by the Parties.
5 ALLIANCE MANAGERS
5.1 Within thirty (30) Calendar days of the Effective Date or as otherwise
agreed by the Parties each Party shall appoint a representative to be
an Alliance Manager (hereinafter "Alliance Manager") to co-ordinate
their operational activities. Each Party shall have the right to
replace its Alliance Manager on giving notice to the other Party.
5.2 The Alliance Managers shall meet at least once a Calendar month to
consider inter alia such matters as;
5.2.1 communications between the Parties;
5.2.2 co-ordination of plans and actions;
5.2.3 monitoring of progress;
5.2.4 resources;
5.2.5 any issues arising and the actions to be taken;
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5.2.6 Workpackages; and
5.2.7 handing over of customers.
5.3 Each Alliance Manager shall submit to the other monthly reports in
respect of current market prospects, monitoring current projects, co-
ordination of approval process, progress of ASC Infrastructure,
availability of SBS Staff Services, Consultancy Services and the
forecasting of requirements for Consultancy Services as appropriate at
least one week before each meeting of the Alliance Managers.
6 BUSINESS DEVELOPMENT METHODOLOGY
6.1 The Alliance Managers shall enter into good faith negotiations to
jointly produce a draft Business Development Methodology for approval
by the Alliance Steering Group, such Business Development Methodology
as set out in Annex 3 which is to be binding on the Parties.
6.2 The Business Development Methodology will contain the following
component parts:
6.2.1 customers and/or markets targeted by Tier in introducing Third
Parties to SBS to take ASC Services;
6.2.2 detailed provisions as to the ASC Services which SBS shall
provide;
6.2.3 agreed criteria and minimum requirements to be included in
agreements with Third Parties for the provision of ASC
Services and according to which the VRB will assess
introductions made by Tier.
6.3 A representative of the ASG from each Party shall sign the Business
Development Methodology and it shall then be reviewed by the ASG at
its first meeting and at each subsequent meeting of the ASG as
necessary. The Business Development Methodology shall only be varied
by agreement in writing by the ASG .
7 CONSULTATION AND CO-ORDINATION OF THE PARTIES
7.1 The Parties agree that they will consult generally with each other in
relation to their obligations under this Agreement, inform each other
and keep each other informed of material and significant developments
or matters arising under the Agreement, co-ordinate
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their activities under this Agreement and provide reports as further
set out in this Clause 7.
7.2 The Parties shall:
7.2.1 consult each other to ensure, so far as possible, that the
activities to be carried out under this Agreement are
conducted in a cost effective and efficient manner;
7.2.2 co-ordinate so far as necessary their respective
responsibilities and activities under this Agreement to
avoid duplication of effort and to assist in achieving the
objectives of this Agreement;
7.2.3 inform each other as soon as possible of any facts which are
known to either of them which may materially or
significantly affect the responsibilities and activities of
the other under this Agreement;
7.2.4 use all reasonable endeavours to devise and carry out the
Consultancy Services and the ASC Services (as the case may
be) efficiently and so as to ensure compatibility between
them.
8 CONSULTANCY SERVICES
8.1 Tier shall:
8.1.1 perform the Consultancy Services in accordance with this
Agreement;
8.1.2 promptly notify SBS of any delay in performance of the
Consultancy Services;
8.1.3 provide the Consultancy Services in accordance with good
consulting, engineering and computing practice;
8.1.4 ensure that the Consultancy Services carried out by them
conform to any quality requirements and/or specifications
stated in this Agreement or in any agreement with SBS or
agreed Workpackages as agreed to by Tier;
8.1.5 comply with all laws and regulations including relevant
health and safety legislation in the provision of the
Consultancy Services;
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8.1.6 have the right, power and authority to provide the Consultancy
Services in accordance with the Agreement or any other
arrangement or agreement with SBS and/or a Third Party.
9 THE ASC SERVICES
9.1 SBS shall:
9.1.1 make available at least the types of services identified in
Schedule 4 and/or the Business Development Methodology using
the ASC Infrastructure;
9.1.2 enter into agreements with Tier and/or Third Parties separate
from this Agreement for the performance and delivery of such
ASC Services, such agreements being substantially on the
basis of the principles set out in SCHEDULE 4 unless
expressly otherwise required by the Third Party;
9.1.3 promptly notify Tier of any delay in performance of the ASC
Services under any contract with a Third Party where such
delay may impact on Tier's performance of Consultancy Services
being provided pursuant to such contract;
9.1.4 provide the ASC Services in accordance with service levels
agreed with Third Parties;
9.1.5 ensure that the ASC Services conform to any quality
requirements and/or specifications stated in this Agreement or
as agreed by SBS in any agreement with a Third Party;
9.1.6 ensure that the ASC Services do not detract from the image and
reputation of Tier;
9.1.7 charge such rates for use of the ASC Services which are
competitive by reference to the benchmarking procedure
described in SCHEDULE 8;
9.1.8 have the right, power, authority and capability to provide the
ASC Services in accordance with the Agreement or any other
arrangement or agreement with Tier and/or a Third Party;
9.1.9 comply with all laws and regulations including relevant health
and safety legislation in the provision of the ASC Services.
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9.1.10 use reasonable endeavours to construct the ASC Infrastructure
in accordance with any timetables required by a Third Party or
as agreed by SBS and Tier for the provision of the ASC
Services.
9.2 The Parties may elect to incorporate the provision of the ASC
Services as a subcontract to Tier in any agreement with a Third
Party, in which case Tier and SBS shall enter into a separate
agreement for that supply of ASC Services, the form of that agreement
being substantially in accordance with the principles set out in
SCHEDULE 4.
10 SBS STAFF SERVICES
10.1 SBS shall:
10.1.1 comply with its obligations during the Ramp-up Period and
there-after to Mobilise sufficient FTE SBS Staff Services to
enable Tier to comply at all times with its obligations under
this Agreement;
10.1.2 procure the training of all SBS Staff Services during the
Contract Period as set out in SCHEDULE 3;
10.1.3 ensure that appropriate instructions and directions are given
to the SBS Staff Services to provide the ASC Services in
accordance with agreements entered into with Third Parties
and/or Tier.
11 OTHER RESPONSIBILITIES OF THE PARTIES
11.1 In respect of the supply of information to each other and/or a
Third Party and in respect of the quality thereof the Parties shall:
11.1.1 use reasonable endeavours to ensure so far as reasonably
practicable the accuracy of such supplied information;
11.1.2 in the event of any material or significant error being
discovered in the supplied information and upon being
notified by the party receiving the information of such
error, the Party supplying the information shall, where
possible immediately correct any such error.
11.2 In respect of the use of Intellectual Property Rights:
11.2.1 Tier shall ensure to the best of its knowledge and belief,
that the provision of the Consultancy Services does not and
will not
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infringe any Third Party's Intellectual Property Rights or
require any licence from a Third Party;
11.2.2 SBS shall ensure to the best of its knowledge and belief,
that the provision of the ASC Services does not and will not
infringe any Third Party's Intellectual Property Rights or
require any licence from a Third Party.
12 PAYMENT
12.1 Tier shall invoice SBS on the first Working Day of every other
Calendar month in respect of Consultancy Services rendered in the
previous two Calendar Months. SBS shall pay such invoice within
thirty (30) days of receipt thereof.
12.2 SBS shall invoice Tier on the first Working Day of every other
Calendar month in respect of the Mobilised SBS Staff Services and/or
the ASC Services provided to Tier in accordance with this Agreement
in the previous two Calendar Months. Tier shall pay such invoice
within thirty (30) days of receipt thereof.
12.3 Payments becoming due under this Agreement, shall be made by the
Banks Automated Clearance System (BACS) or such other method as the
Parties may agree.
12.4 Invoices paid in accordance with the provisions of this Clause 12
shall be deducted against any outstanding balance of the Consultancy
Services Minimum Total Commitment or the SBS Staff Services Minimum
Total Commitment, as the case may be.
12.5 Either Party may dispute an invoice within thirty (30) Calendar
days of receipt of it by giving the other Party written notice
setting out the basis of the dispute.
12.6 Where such a dispute arises or a Party fails to pay without
disputing the invoice under Clause 12.5 the Parties shall use
reasonable endeavours to settle the dispute amicably failing which
the provisions of Clause 22 will apply.
12.7 All payments to be made under this Agreement shall be made in full
without any set-off, restriction or condition and without any
deduction for or on account of any counterclaim.
12.8 Each Party shall:
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12.8.1 keep true and accurate accounts and records in sufficient
detail to enable the amount of all sums payable under this
Agreement to be determined;
12.8.2 at the reasonable request of the other Party from time to
time allow that other Party or its agent at that Party's
expense to inspect those accounts and records and, to the
extent that they relate to the calculation of the sums
payable under this Agreement, to take copies of them.
12.9 Any inspection pursuant to Clause 12.8.2 shall be carried out by an
independent accountant reasonably acceptable to the Party whose
accounts are being inspected who shall be instructed not to divulge
to the Party carrying out the inspection any information obtained by
reason of his inspection, other than information which is directly
relevant to the determination of sums payable under this Agreement or
to use for any unauthorised purpose any information so obtained, and
who shall be required to give to the Party being inspected a direct
and binding undertaking to this effect in such form as that Party may
reasonably request.
12.10 The provisions of Clauses 12.8 and 12.9 shall remain in full force
and effect after the termination of this Agreement for any reason
until the settlement of all subsisting claims of either Party under
this Agreement.
13 INTELLECTUAL PROPERTY RIGHTS
13.1 Each Party shall fully indemnify the other against all claims,
demands, actions, costs, expenses (including but not limited to legal
costs and disbursements on a solicitor and client basis), losses and
damages arising from or incurred by reason of any infringement or
alleged infringement (including but not limited to the defence of
such infringement or alleged infringement) of any third party's
Intellectual Property Right enforceable in the United Kingdom in
connection with the provision or receipt of the Consultancy Services
and/or the ASC Services (as the case may be).
13.2 A Party shall promptly notify the other if any claim or demand is
made or action brought against them (or in their reasonable opinion
is likely to made) for infringement or alleged infringement of any
third party's Intellectual Property Right by reason of the use or
possession of such Intellectual Property Right under this Agreement
which may affect the provision and/or receipt of the Consultancy
Services and/or the ASC Services (as the case may be).
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13.3 The Party against whom the indemnity claim is made shall at its own
expense conduct any litigation arising therefrom and all negotiations
in connection therewith and the other Party hereby agrees to grant to
them exclusive control of any such litigation and such negotiations.
13.4 The other Party shall, at the request of the Party against whom the
claim is made, afford all reasonable assistance for the purpose of
contesting any claim or demand made or action brought against them
and shall be repaid all costs and expenses incurred in doing so.
13.5 The non-defending Party shall not make any admissions which may be
prejudicial to the defence or settlement of any claim, demand or
action for infringement or alleged infringement of any Intellectual
Property Right.
13.6 If a claim or demand is made or action brought for the infringement
or alleged infringement of any third party Intellectual Property
Right, the Parties shall on the reasonable request of either Party,
subject to Clause 25, either:
13.6.1 modify any or all of the Consultancy Services and or the ASC
Services (as the case may be) without reducing the
performance and functionality of the same, or substitute
alternative services of equivalent performance and
functionality for any or all of the Consultancy Services and
or the ASC Services (as the case may be), so as to avoid the
infringement or the alleged infringement, provided that the
terms herein shall apply mutatis mutandis to such modified or
substituted Consultancy Services and or the ASC Services (as
the case may be) and such modified or substituted Consultancy
Services and or the ASC Services (as the case may be) are
acceptable to the Parties, such acceptance not to be
unreasonably withheld; or
13.6.2 procure a licence for the Parties to provide the Consultancy
Services and or the ASC Services (as the case may be) and/or
to receive the full benefit of the Consultancy Services and
or the ASC Services (as the case may be) on terms which are
consistent with the requirements of this Agreement.
13.7 The foregoing provisions of this Clause 13 shall not apply insofar
as and to the extent only that any such claim or demand or action is
in respect of:
13.7.1 any use by or on behalf of one Party of the Consultancy
Services and/or the ASC Services (as the case may be) in
combination
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with any item not supplied by the other Party where such
combined use directly gives rise to the claim, demand or
action; or
13.7.2 any modification carried out by or on behalf of one Party to
any item supplied by the other Party under this Agreement if
such modification is not authorised by that Party in writing;
or
13.7.3 any use by one Party of software or documentation in a manner
not reasonably to be inferred from this Agreement; or
13.7.4 any software or documentation produced by either Party
pursuant to and in accordance with a technical specification
given by the other Party.
13.8 If the Parties have availed themselves of their rights to modify
the Consultancy Services and or the ASC Services (as the case may be)
or supply substitute services pursuant to Clause 1361 or to procure a
licence under Clause 1362 and such exercise of the said rights has
avoided any claim, demand or action for infringement or alleged
infringement, then there shall be no further liability thereafter
under this Clause 13 in respect of the said claim, demand or action.
13.9 Each Party will retain ownership of its Intellectual Property
Rights in existence at the date of this Agreement. Neither Party
shall have any right title or interest in any Intellectual Property
Rights created outside the Agreement.
13.10 Subject to the provisions of Clause 13.9 and the rights of Third
Parties, SBS shall be the owner of any copyright and other
Intellectual Property Rights (if any) arising from and subsisting
in;
13.10.1 the Consultancy Services provided to SBS by Tier;
13.10.2 documents produced during the Business Development
Activity, Proposal Development Activity and Proposal
Submission Activity;
13.10.3 proposals; and
13.10.4 the ASC Services provided hereunder.
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13.11 SBS shall at Tier's request grant Tier a worldwide royalty free
non-exclusive licence to use any copyright or other Intellectual
Property Rights arising from and subsisting in any or all of the
items set out in Clauses 13.10.1, 13.10.2 and 13.10.3.
13.12 Subject to the rights of Third Parties, SBS shall be the co-owner
with Tier of any trade marks (if any) subsisting in (or becoming or
intended to be vested) in any or all of those things referred to in
Clause 13.10 under which they will be marketed by SBS.
14 FORCE MAJEURE
14.1 Neither Party to this Agreement shall be deemed to be in breach of
this Agreement or otherwise liable to the other Party for any
failure or delay in the performance of its obligations hereunder
which is due to Force Majeure. Notwithstanding the foregoing, each
Party shall use all reasonable endeavours to mitigate the severity
of the Force Majeure.
14.2 If either of the Parties' performance of its obligations under this
Agreement is affected by Force Majeure then:
14.2.1 it shall give written notice to the other Party, specifying
the nature and extent of the Force Majeure on becoming aware
of the Force Majeure;
14.2.2 subject to the provisions of Clause 14.2.3, the date of
performance of such obligations shall be deemed suspended
only for a period equal to the delay caused by such event;
14.2.3 it shall not be entitled to payment from the other Party in
respect of extra costs and expenses incurred by virtue of
the Force Majeure event.
14.3 It is expressly agreed that any failure by a Party to perform or any
delay in performing their obligations under this Agreement which
results from any failure or delay in the performance of their
obligations by any person, firm or company with which they 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 of Force Majeure.
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14.4 If the Force Majeure in question prevails for a continuous period in
excess of six (6) months (such period to be measured from the date on
which the Force Majeure begins) then the Party not subject to the
Force Majeure shall be entitled to give written notice to the
defaulting Party to terminate this Agreement. The notice to terminate
must specify the termination date, which must not be less than thirty
(30) Working Days after the date on which the notice is given. Once a
notice to terminate has been validly given, the Agreement will
terminate on the termination date set out in the notice.
14.5 For the avoidance of doubt, in the event that the Agreement is
terminated in accordance with Clause 14.4 neither Party shall be
liable to pay the reconciliation payments under SCHEDULE 2 paragraph
8.2 or SCHEDULE 3 paragraph 6.3.
15 INSURANCES
15.1 The Parties shall for the Contract Period procure and maintain with
a reputable insurer insurance as required by law and such further
insurance as set out in Annex 1 up to the limits specified therein
for any event or series of events attributable to a single cause.
15.2 In respect of that insurance required under the provisions of Clause
151 no insurance of either Party shall be permitted to lapse, be
cancelled or materially changed without fourteen (14) Working Days
prior written notice to the other's insurers or brokers.
15.3 Pursuant to the provisions of Clause 151, the Parties shall maintain
insurance policy's substantially the same as set out in Annex 1.
16 LIABILITY
16.1 Subject to the maximum extent permissible in law, all conditions and
warranties which are to be implied by statutes or otherwise by
general law into this Agreement or relating to the ASC Services or
Consultancy Services are hereby excluded.
16.2 The Parties expressly agree that the exclusions and limitations of
liability contained in this Agreement are reasonable because of
(amongst other matters) the likelihood that the amount of damages
awardable to either Party for a breach by the other Party of this
Agreement may be disproportionately greater than the monies paid by
the Parties under this Agreement in respect of the SBS Staff Services
and Consultancy Services.
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16.3 The following provisions set out the Parties' entire liability
(including any liability for the acts and omissions of their
representative, employees, agents or sub-contractors) to each other
in respect of:
16.3.1 any breach of their respective contractual obligations under
this Agreement;
16.3.2 a tortious act or omission, including negligence, arising
under or in connection with this Agreement;
16.3.3 an action arising out of any misrepresentation by either
Party.
(save for the obligation to pay reconciliation payments under
SCHEDULE 2 paragraph 8.2 and SCHEDULE 3 paragraph 6.3, and any
special project agreements as referred to in SCHEDULE 2 paragraph
3.1.1 or Clause 9.2).
16.4 The total aggregate liability of either Party for all acts, omissions
and defaults shall be subject to the financial limits set out in this
Clause 16.4:
16.4.1 the total aggregate liability of either Party resulting in
direct loss of or damage to the property of the other under
this Agreement shall in no event exceed [***]; and
16.4.2 the total aggregate liability of either Party during each
Year of this Agreement for all acts, omissions and defaults
(other than a default governed by Clause 16.4.1) shall in no
event exceed [***].
16.5 In no event shall either Party be liable to the other for:
16.5.1 loss of profits, business, revenue, goodwill or anticipated
savings; and/or
16.5.2 indirect or consequential loss or damage.
16.6 The provisions of Clause 16.5 shall not limit or restrict the right
of one Party to claim from the other:
16.6.1 additional operational and administrative costs and expenses;
and/or
16.6.2 expenditure or charges incurred by that Party rendered
unnecessary,
* CONFIDENT TREATMENT REQUEST(ED)
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as a direct result of any default by the other.
16.7 Notwithstanding anything to the contrary herein contained the
Parties' liability for death or personal injury which arises out of
their negligence or the negligence of their servants, agents or sub-
contractors shall not be limited.
16.8 The Parties expressly agree that any order for specific performance
made in connection with this Agreement in respect of either Party
shall be subject to the financial limitations set out in Clause 16.4.
16.9 Without prejudice to Clause 16.7 each Party agrees that it will have
no remedy against the other in respect of any untrue statement
(unless such statement was fraudulent) made to it upon which they
relied in entering into this Agreement and that the only remedies (if
any, and subject to Clause 24.10) can be for breach of contract,
and/or in respect of any fraudulent misrepresentations made by that
Party.
16.10 Without prejudice to the provisions of Clause 16.7, Tier shall
indemnify SBS within the limits specified in this Clause 16.4 in
respect of any claims and demands arising out of Tier's negligent
misstatement or misrepresentation during the performance of the
Business Development Activity.
16.11 Without prejudice to the provisions of Clause 16.7 if a Third Party
in accordance with the provisions of a separate agreement or
otherwise claims any reimbursement, indemnity or payment of damages
from a Party (the "Claimant") and the other Party's (the
"Indemnifier") negligent act or omission has caused or contributed to
the claim being made the Indemnifier shall indemnify the Claimant
against such claims to the extent that it has caused or contributed
to the claim being made provided always that the total aggregate
limit of liability of the Indemnifier in respect of any and all such
claims shall not exceed that contained within the said separate
agreement (if any) or in the absence of a specified sum, the total
aggregate limit of liability in this Agreement. Where the limitations
of liability in a separate agreement are higher than the limitations
set out in Clause 16.4, the higher limitations on liability shall not
apply unless they have been expressly agreed to in writing by Tier.
16.12 In the event that the Claimant seeks to rely on an indemnity given by
the Indemnifier under this Agreement in respect of a claim made
against the Claimant by a Third Party the Claimant shall:
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16.12.1 provide the Indemnifier with prompt notice of such claim;
16.12.2 ensure at the request in writing of the Indemnifier that
the Indemnifier is placed in a position to dispute the
claim and shall render, or cause to be rendered, to the
Indemnifier at the Indemnifier's expense all such
assistance as the Indemnifier may reasonably require in
disputing the claim.
16.13 The Indemnifier or its insurers shall be entitled to the exclusive
conduct of any such action or claim.
16.14 In connection with the conduct of any dispute relating to the claim:
16.14.1 the Indemnifier shall keep the Claimant informed of its
progress and at the negotiations relating to it;
16.14.2 the Claimant shall undertake no negotiations and make no
settlement or compromise, not agree any matter in relation
to its conduct which is likely to affect the amount
involved in the future liability of the Indemnifier without
the prior approval of the Indemnifier, such approval not to
be unreasonably withheld, developed or refused.
16.15 The Claimant shall take all reasonable steps to mitigate its loss in
respect of the claim being made against the Indemnifier.
16.16 Where in the performance of any obligations under this Agreement a
Party subcontracts such performance to a third party the Party so
subcontracting shall remain wholly liable for the performance of such
obligations.
16.17 The exclusions from and limitations of liability set out in this
Clause 16 shall be considered severably. The invalidity of
unenforceability of any one clause or sub-clause of this Clause 16
shall not affect the validity or enforceability of any other part of
this Clause 16.
16.18 The provisions of this Clause 16 shall survive the termination of the
whole or a part of this Agreement.
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17 EMPLOYMENT INDEMNITIES
17.1 It is the Parties' intention and understanding that the provisions of
TUPE do not apply to this Agreement and none of the SBS Staff
Services will transfer to Tier. The Parties shall take all reasonable
steps to avoid circumstances which give rise to a situation where the
provisions of TUPE are likely to apply by operation of this
Agreement. The Parties have therefore agreed Clauses 17.2, 17.3,
17.4, 17.5 and 17.6 below.
17.2 If any contract of employment of an employee of SBS deemed to have
been effected between Tier and such employee as a result of the
provisions of Regulation 5 of TUPE, then:-
17.2.1 Tier shall within twenty () Working Days of becoming aware
of the application of Regulation 5 to any such contract
notify SBS of the fact in which case SBS shall have thirty
(30) Calendar days in which to offer that employee
employment with SBS, failing which, or if the employee does
not accept the offer unconditionally within fifteen (15)
days of the offer being made, Tier shall have the right to
terminate such contract;
17.2.2 In respect of such an employee SBS will indemnify Tier in
full against any actions, proceedings, costs, claims,
demands, awards, fines, orders, expenses and liability
whatsoever (including legal and other professional fees and
expenses) in relation to that employee whether arising
directly or indirectly out of or in connection with
termination or otherwise, and against any sums payable to
or in relation to that employee in respect of his
employment with Tier; and
17.2.3 In respect of SBS Staff Services recruited externally by
SBS at Tier's request SBS and Tier shall bear all costs and
expenses equally arising directly or indirectly out of or
in connection with termination or otherwise, and any sums
payable to or in relation to such person in respect of his
employment with Tier.
17.3 In the event of any employee of SBS bringing proceedings against
Tier, whether or not that employee is claiming that he is employed by
Tier, SBS will keep Tier indemnified in full against all costs of
defending such proceedings (including legal and other professional
fees and expenses) and any awards, fines, orders, expenses and
liabilities whatsoever arising, directly or indirectly in connection
with such proceedings.
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17.4 In the event of any SBS Staff Services recruited externally by SBS at
Tier's request bringing proceedings against Tier, whether or not that
SBS Staff Services is claiming that he is employed by Tier, SBS and
Tier shall bear all costs equally of defending such proceedings
(including legal and other professional fees and expenses) and any
awards, fines, orders, expenses and liabilities whatsoever arising,
directly or indirectly in connection with such proceedings.
17.5 When reasonably required to do so by Tier, SBS will assist Tier in
taking and/or defending any proceedings by and/or against Tier in
connection with any of its employees or former employees.
17.6 If the right to terminate arises under Clause 17.2.1 and Tier does
not ex ercise that right by terminating the employment or giving
notice of termination within thirty (30) Calendar days of that right
arising then Tier shall be deemed to have accepted the employees
transferred to them and SBS shall have no obligation to indemnify
Tier under any provisions of this Clause 17 arising out of employment
after that thirty (30) Calendar day period.
18 RESPONSIBILITIES AND COSTS
18.1 In respect of costs each Party shall be responsible for and bear
their own costs incurred in executing this Agreement and their
obligations hereunder unless otherwise provided for under this
Agreement.
18.2 Tier shall be responsible for carrying out the Business Development
Activity, the Proposal Development Activity and the Proposal
Submission Activity and SBS shall fully co-operate with Tier as
further set out in the provisions of Schedule 3. In particular the
VRB shall, at all times, act reasonably and within its own guidelines
and give written reasons to Tier for any decision at any stage up to
and including the Formal Commitment Stage not to proceed with an
opportunity presented to it by Tier to Utilise the Mobilised SBS
Staff Services.
18.3 Tier shall bear its own costs arising during the Business Development
Activity, the Proposal Development Activity and the Proposal
Submission Activity.
18.4 SBS shall bear all its own costs arising during and beyond the Formal
Commitment Stage.
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18.5 For the avoidance of doubt Tier shall not be entitled to any
reimbursement of cost or have the right to claim any offset against
the SBS Staff Services Minimum Total Commitment in respect of any
opportunity which the VRB decides not to proceed with.
19 NOTICES
19.1 Any notice required to be given or made hereunder or in connection
with this Agreement shall be in writing and shall be given or made by
delivering the same by hand or by sending the same by prepaid first
class post or other fast postal or courier service or facsimile to
the address or relevant telecommunications number of the relevant
Party set out in Clause 19.3 or such other address or number of the
relevant Party or such other address or number as that Party may have
notified to the other pursuant to the provisions of this Clause 19.
19.2 Any such notice given as aforesaid shall be deemed to have been duly
given if delivered by hand or courier upon delivery at the address of
the relevant Party, two (2) Working Days next following the day of
sending if sent by post and if sent by facsimile at the time of
transmission (provided a confirmatory letter is sent by prepaid first
class post). In proving the fact of despatch by post it shall be
sufficient to show that the envelope containing the notice was
properly addressed, stamped and posted.
19.3 The Parties' Addresses;
19.3.1 For Tier Technologies Inc
1350 Treat Boulevard
Suite 250, Walnut Creek
CA 94596
USA
Tel: 001 925 937 3950
Fax: 001 925 937 3902
For the Attention of: Mr J Bildner
cc: Tier Technologies (United Kingdom) Inc.
19, Wellington Business Park,
Dukes Ride,
Crowthorne,
Berkshire RG45 6LS
Telephone: 01344 760700
Facsimile: 01344 760701
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For the Attention of: Mr. A.D. Armstrong, Managing Director
cc: Eversheds
Senator House
85 Queen Victoria Street
London EC4 4JL
Tel: 0171 919 4500
Fax: 0171 919 4919
For the Attention of: Mr B Gripton
19.3.2 For SBS;
Siemens House,
Oldbury,
Bracknell
Berkshire RG12 8FZ
Telephone: 01344 396104
Facsimile: 01344 396020
For the Attention of: Mr. M.I Gore, Head of Contract
Management and Procurement Mr Gary Pusey and Mr J
Loughrey
20 DATA PRIVACY AND ACCESS TO INFORMATION
20.1 Notwithstanding any obligations contained herein, the Parties shall
ensure that they are and remain compliant with the Data Protection
Act and shall not knowingly cause the other to be in breach of the
provisions thereof.
21 DISPUTE ESCALATION PROCEDURE
21.1 All disputes between the Parties arising out of or relating to this
Agreement which cannot be amicably settled between the Parties'
Alliance Managers shall be referred, by either Party, to their
respective Finance Directors or their nominated representatives for
resolution.
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21.2 If any dispute cannot be resolved by the Parties' respective Finance
Directors or their nominated representatives within a maximum of
fifteen (15) Calendar days after it has been referred under Clause
21.1 that dispute shall be referred to the Parties' Managing
Directors for resolution.
21.3 If the dispute cannot be resolved by the Parties' representatives
nominated under Clause 21.1 within a maximum of fifteen (15) Calendar
days after it has been referred under Clause 21.2 the dispute may be
referred by either Party in accordance with the provisions of Clause
22.
22 DISPUTE RESOLUTION PROCEDURES
22.1 In the event that a dispute is referred under Clause 21:
22.1.1 and if the dispute relates to whether or not the
Consultancy Services and/or the ASC Services (as the case
may be) are being provided in accordance with the technical
provisions of this Agreement including whether or not the
terms of this Agreement relating to quality, scope and
fitness for purpose have been complied with or it relates
to non-payment of an invoice under Clause 14 or a failure
of the Parties to agree the Consultancy Services Charge
Rates in Attachment 1 to SCHEDULE 2, a notice of the
dispute shall be provided to a technical expert (the
"Expert") who shall act as expert and not as arbitrator; or
22.1.2 if the dispute relates either to whether or not any term or
condition of this Agreement is valid or enforceable and/or
as to the proper interpretation or construction of this
Agreement, or to any other matter relating to breach of
this Agreement a notice of the dispute shall be provided to
an arbitrator ("the Arbitrator") who shall act as an
arbitrator and not an expert.
22.2 The Expert shall be selected by mutual agreement or, failing
agreement, within ten (10) Calendar days after a request by one Party
to the other, shall be chosen at the request of either Party by the
President at the time being of the British Computer Society who shall
be requested to choose a suitably qualified and experienced Expert
for the dispute in question.
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<PAGE>
22.3 The Arbitrator shall be selected by mutual agreement or, failing
agreement, within ten (10) Calendar Days after a request by one Party
to the other, shall be chosen at the request of either Party by the
President at the time being of the Chartered Institute of Arbitrators
who shall be requested to choose a suitably qualified and experienced
arbitrator for the dispute in question.
22.4 Thirty (30) Calendar Days after the Expert or Arbitrator (as the case
may be) has accepted the appointment each Party shall submit a
written report on the dispute setting out the issues of the dispute
to the Expert or Arbitrator (as the case may be) and to each other
and ten (10) Calendar Days thereafter shall submit any written
replies they wish to make to the Expert or Arbitrator (as the case
may be) and to each other.
22.5 Both Parties will then afford the Expert or Arbitrator (as the case
may be) all necessary assistance which the Expert or Arbitrator
requires to consider the dispute including but not limited to access
to the Premises of the Parties and any documentation or
correspondence relating thereto which it could be required to produce
on disclosure.
22.6 The Expert or Arbitrator (as the case may be) shall be instructed to
deliver his determination in writing to the Parties within thirty
(30) Working Days after the submission of the written reports
pursuant to Clause 22.4.
22.7 The Expert or Arbitrator (as the case may be) shall have the same
powers to require any party to produce any documents or information
to him and the other Party as an arbitrator and each Party shall
supply to him such information when required to do so which it could
be required to produce on disclosure.
22.8 Subject to the Arbitration Act 1996, decisions of the Expert and
Arbitrator shall be final and binding and not subject to appeal.
22.9 Any decision by the Expert in relation to payment of an invoice shall
be complied with within thirty (30) Calendar Days of the date on
which the decision is published. If a Party has been ordered to pay
the invoice and fails to do so within that thirty (30) Calendar Day
period the Expert shall have the power to order that Party to pay
interest on such sum from the first Working Day after the expiration
of that thirty (30) Working Day period at the annual rate of 4 per
cent above the base lending rate from time to time of National
Westminster Bank PLC accruing on a daily basis until payment is made
whether before or after any judgement.
28
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22.10 The costs of the Arbitrator shall be borne by the Parties in the
proportion as shall be determined by the Arbitrator having regard
(amongst other things) to the conduct of the Parties.
22.11 The costs of the Expert shall be borne equally by the Parties save
where the Expert's decision as to payment of an invoice has not been
complied with within the time limit set out in Clause 22.9 in which
case the Party that has failed to comply with the Expert's decision
shall bear all the costs of the Expert.
22.12 The performance by the Parties of their respective obligations under
this Agreement shall not cease or be delayed by this dispute
resolution procedure and the Parties will give effect to the
determination.
22.13 Each Party will bear its own legal or other costs in connection with
dispute resolution procedure, whether determined by an Expert or an
Arbitrator.
23 DEFAULT IN PERFORMANCE
23.1 Either Party may investigate any and each case where the other Party
(the "Non-Performing Party") appears to have failed to perform any
obligation conferred by and upon it in accordance with this
Agreement.
23.2 Where the Party so investigating (the "Investigating Party") is
satisfied that in any particular case the Non Performing Party has
failed to perform an obligation in accordance with the provisions of
this Agreement, the Investigating Party shall be entitled to
instruct the Non Performing Party to remedy the failure within such
reasonable period as the Investigating Party may determine and
(subject to the limitations of liability expressed in Clause 16)at
no additional cost to the Investigating Party. For the purpose of
this Clause 23.2 only, "reasonable period" shall mean that period of
time that is reasonably necessary to rectify the non performance,
taking into consideration the nature, scale and impact of the non
performance and the circumstances that gave rise to it which in any
event shall be no less than 45 Calendar days.
23.3 Where the Investigating Party issues an instruction to the Non
Performing Party under Clause 23.2 and the Non Performing Party
fails to comply (either wholly or partially) with the instruction
issued by the Investigating Party within the timescale permitted by
the said instruction then the Investigating Party shall be entitled
to issue a Default Notice in respect of each such failure
<PAGE>
23.4 Upon the issue of a Default Notice under Clause 23.3:
23.4.1 where the breach detailed in the said instruction being the
subject of the Default Notice is capable of remedy, the Non
Performing Party shall remedy the said breach within forty-
five (45) Calendar days (or as otherwise agreed between the
Parties) after the Default Notice is served, and if the said
breach is then not remedied within that forty-five (45)
Calendar day period (or such other period as the Parties may
otherwise agree, (as the case may be)) , the Investigating
Party shall be entitled to issue a Major Default Notice; or
23.4.2 where the breach detailed in the said instruction being the
subject of the Default Notice is not capable of remedy, the
Investigating Party shall be entitled, having given the Non
Performing Party ten (10) Calendar days (or such other
period as the Parties may have otherwise agreed (as the case
may be)) written notice of its intention to so do, issue a
Major Default Notice.
23.5 Where the Major Default Notice relates to the performance of the
Consultancy Services, save for a default governed by Clause 12 the
Investigating Party shall specify in the Major Default Notice that
in the event of:
23.5.1 a further Major Default Notice being issued to the Non-
Performing Party within the next six (6) Calendar months; or
23.5.2 three Major Default Notices in total being served within any
eighteen (18) Calendar month period during the Contract
Period, then;
the Investigating Party may either, without prejudice to any
of its other rights and remedies hereunder;
23.5.3 extend the period for performance in relation to any
outstanding Major Default Notices; or
23.5.4 terminate the provisions in the Agreement which relate to
the Consultancy Services, in accordance with the provisions
of Clause 24.1.
<PAGE>
23.6 Where the Major Default Notice relates to the provision of the SBS
Staff Services (including the ASC Services and the ASC
Infrastructure) save for a default governed by Clause 12 the
Investigating Party shall specify in the Major Default Notice that
in the event that:
23.6.1 a further Major Default Notice being issued to the Non-
Performing Party within the next twelve (12) Calendar
months; or
23.6.2 three Major Default Notices in total being served within any
thirty-six (36) Calendar month period during the Contract
Period, then;
the Investigating Party may either, without prejudice to any
of its other rights and remedies hereunder;
23.6.3 extend the period for performance in relation to any
outstanding Major Default Notices; or
23.6.4 terminate the provisions of the Agreement which relate to
the SBS Staff Services (including the ASC Services and the
ASC Infrastructure) in accordance with the provisions of
Clause 24.4.
23.7 Where the Major Default Notice relates to a default governed by
Clause 12 in respect of non-payment of an invoice by SBS for
Consultancy Services provided by Tier where SBS has failed to comply
with an Expert's decision pursuant to Clause 22.9 Tier shall specify
in the Major Default Notice that in the event of:
23.7.1 a further Major Default Notice being issued to SBS relating
to non-payment of an invoice pursuant to an Expert's
decision under Clause 22.9 within the next twelve (12)
Calendar months;
Tier may either, without prejudice to its other rights and
remedies hereunder;
23.7.2 extend the period for performance in relation to the
outstanding Major Default Notices; or
23.7.3 terminate the whole Agreement in accordance with the
provisions of Clause 24.7.
<PAGE>
23.8 Where the Major Default Notice relates to a default governed by
Clause 12 in respect of non-payment of an invoice by Tier in respect
of Mobilised SBS Staff Services and Tier has failed to comply with
an Expert's decision pursuant to Clause 22.9 SBS shall specify in
the Major Default Notice that in the event of:
23.8.1 a further Major Default Notices relating to non-payment of
an invoice being issued to Tier pursuant to an Expert's
decision under Clause 22.9 within the next twelve (12)
Calendar months;
SBS may either, without prejudice to its other rights and
remedies hereunder;
23.8.2 extend the period for performance in relation to the
outstanding Major Default Notice; or
23.8.3 terminate the whole Agreement in accordance with the
provisions of Clause 24.7.
23.9 Where the Major Default Notice relates to a default not governed by
Clauses 23.5.4, 23.6.4, 23.7.3 or 23.8.4 the Investigating Party
shall specify in the Major Default Notice that in the event of:
23.9.1 a further Major Default Notice being issued to the Non-
Performing Party within the next twelve (12) Calendar months
which does not relate to a default governed by Clauses
23.5.4, 23.6.4, 23.7.3 or 23.8.4;
the Investigating Party may either, without prejudice to any
of its other rights and remedies hereunder;
23.9.2 extend the period for performance in relation to any
outstanding Major Default Notice; or
23.9.3 terminate the Agreement in accordance with the provisions of
Clause 24.7.
23.10 To the extent that any failure by the Investigating Party to fulfil
any of its obligations is caused by a default by the Non Performing
Party, then:
23.10.1 the Investigating Party shall use all reasonable endeavours
to arrange all such additional resources as are necessary to
fulfil the said obligation as early as possible thereafter
(at the cost of
<PAGE>
the Non Performing Party (subject to the limitations of
liability expressed in Clause 16; and
23.10.2 the Investigating Party shall be entitled to an extension of
time in respect of such obligation which shall reflect the
delay actually caused by the Non Performing Party's default.
23.11 In the event of the default referred to in Clause 23.10 causing a
delay in any Third Party contract, then the Parties shall use best
endeavours to ensure that the effect on the said Third Party
contract is kept to an absolute minimum and that the said Third
Party is advised immediately about the consequential effects of such
a delay.
24 TERMINATION
24.1 Where the right to terminate arises pursuant to Clause 23.5.4 SBS
may terminate the provisions in the Agreement relating to the
Consultancy Services by serving a written termination notice on
Tier. The termination notice must specify the termination date,
which must not be less than thirty (30) Working Days after the date
on which the termination notice is given.
24.2 In the event that SBS exercises its right under Clause 24.1 to
terminate the provisions in the Agreement relating to the
Consultancy Services:
24.2.1 the provisions relating to the Consultancy Services in the
Agreement will terminate on the termination date set out in
the termination notice. For the avoidance of doubt SBS shall
be immediately discharged from any further liability to pay
the Consultancy Services Minimum Total Commitment;
24.2.2 SBS shall pay forthwith all monies due and owing to Tier in
respect of the Consultancy Services provided up to the
termination date.
24.3 Save as provided in Clause 24.2.1, all other provisions in this
Agreement shall continue in full force and effect, including the
performance by SBS of its obligations in respect of the SBS Staff
Services (including the ASC Services and the ASC Infrastructure) and
Tier shall remain liable to meet the SBS Staff Services Minimum
Total Commitment.
<PAGE>
24.4 Where the right to terminate arises pursuant to Clause 23.6.4 Tier
may terminate the provisions of the Agreement relating to the SBS
Staff Services (including the ASC Services and the ASC
Infrastructure) by serving a written termination notice on SBS. The
termination notice must specify the termination date which must not
be less than thirty (30) Working Days after the date on which the
termination notice is given.
24.5 In the event that Tier exercises its right under Clause 24.4 to
terminate the provisions in the Agreement relating to the SBS Staff
Services (including the ASC Services and the ASC Infrastructure:
24.5.1 the provisions relating to the SBS Staff Services (including
the ASC Services and the ASC Infrastructure) in the
Agreement will terminate on the termination date set out in
the termination notice and for the avoidance of doubt Tier
shall be immediately discharged from any further liability
to pay the SBS Staff Services Minimum Total Commitment;
24.5.2 Tier shall pay forthwith all monies due and owing to SBS in
respect of any Mobilised FTE SBS Staff Services up to the
termination date.
24.6 Save as provided in Clause 24.5.1, all other provisions in this
Agreement shall continue in full force and effect, including the
obligation on SBS to continue to procure Consultancy Services from
Tier up to the Consultancy Services Minimum Total Commitment.
24.7 Where the right to terminate arises pursuant to Clauses 23.7.3,
23.8.3 and 23.9.3 either Party may terminate this Agreement by
serving a written termination notice on the other Party. The
termination notice must specify the termination date, which must not
be less than thirty (30) Working Days after the date on which the
termination notice is given.
24.8 In the event that either Party exercises its right under Clause 24.7
to terminate the Agreement:
24.8.1 the Agreement will terminate on the termination date set out
in the termination notice;
24.8.2 no further payments whatsoever shall be due from one Party
to the other Party other than payments which have fallen due
prior to the termination date, such payments to be made
forthwith.
<PAGE>
24.9 If a Receiver is appointed of the whole or part of one Party's (the
"Insolvent Party") assets or an order is made or a resolution passed
for winding up (unless such order or resolution is part of a
voluntary scheme for the reconstruction or amalgamation of the
Insolvent Party as a solvent corporation and the resulting
corporation if a different legal entity undertakes with the other
party to be bound by the terms of this Agreement) or the Insolvent
Party otherwise becomes subject to or takes advantage of the
bankruptcy or insolvency laws applicable to it then this Agreement
shall immediately terminate without the need of any notice but the
other Party may at its absolute discretion waive such termination by
notice in writing given within twenty (20) Working Days after the
event giving rise to such termination comes to the other Party's
attention in which case this Agreement shall revive and shall be
deemed never to have been terminated and the rights and obligations
under the Agreement shall subsist for the successors and assigns of
the Insolvent Party.
24.10 Save for the provisions under Clause 14 the provisions of Clause 24
shall be the sole provisions relating to termination of this
Agreement in whole or in part and for the avoidance of doubt, the
Parties waive irrevocably pursuant to Clause 30 any other right or
remedy which may otherwise accrue to the other Party howsoever to
terminate and/or rescind this Agreement and/or to cease or suspend
the provision of the Consultancy Services and/or ASC Services (as
the case may be) at any time during the Contract Period but nothing
in this Clause 24.3 shall exclude or restrict the Parties' right (if
any and subject to Clause 16) to claim any other remedy in equity or
law from the other.
24.11 Termination in accordance with this Clause 24 shall not prejudice or
affect any right of action or remedy which shall have accrued or
shall thereafter accrue to either Party (including, without
limitation, in respect of any damages suffered or incurred
thereafter).
24.12 In the event of termination or expiry of this Agreement in whole or
in part, the Parties will promptly return to each other any property
belonging to them which they have no contractual right to retain.
24.13 Subject as otherwise provided in this Agreement, or subject to any
rights or obligations which have accrued prior to termination
neither Party shall have any further obligation to the other under
this Agreement in respect of the part of the Agreement which is
terminated.
<PAGE>
25 CHANGE CONTROL
25.1 Either Party may from time to time request amendments to this
Agreement. Amendments to this Agreement shall be effected only by
way of Change Control Notes signed by the duly authorised
representatives of the Parties, such approval not to be unreasonably
withheld.
25.2 Change Control Notes shall be substantially in the form set out in
ATTACHMENT 1 to SCHEDULE 6 and shall be numbered consecutively.
26 MILLENNIUM COMPLIANCE
26.1 The Parties hereby warrant that the performance and functionality of
all software and hardware or other items in question (the "Relevant
Item") owned or used by, or licensed to them in performing their
obligations under this Agreement will not be affected by the advent
of the year 2000 or by any leap year or by any use of or reference
to a date beyond 31 December 1999. In particular the Relevant Item
will:
26.1.1 handle date information before, during and after 1st January
2000, including but not limited to accepting date input,
providing date output, and accurately performing
calculations on dates or portions of dates in a manner that
is unambiguous as to century;
26.1.2 function accurately and without interruption before, during
and after 1st January 2000, without any changes in operation
associated with the advent of that year or the end of the
preceding year; and
26.1.3 respond to two-digit year date input in a way that resolves
the ambiguity as to century in a disclosed, defined and
predetermined manner without the need for human
intervention;
Provided that until 31st December 1999 the only remedy
available to either Party in respect of any default by the
other Party under this Clause 261 shall be to require that
Party to correct the affected software and hardware or other
item owned or used by, or licensed by that Party as soon as
is practicable such that neither the provision nor the
receipt of the Consultancy Services or the ASC Services will
be affected by the advent of the Year 2000 or by any use of
or reference to a date beyond 31st December 1999.
<PAGE>
27 CONFIDENTIALITY
27.1 For the purpose of this Agreement it is contemplated that either or
both of the Parties may disclose or allow access to certain
information in the pursuance of the Agreement and the Parties wish to
protect and regulate how such Confidential Information is to be
treated in order to protect their interests in this information.
27.2 Each Party hereto possesses valuable information, including without
limitation, ideas, business methods, finances, prices, customer lists
or details, business, financial, marketing, development or manpower
plans, computer systems and software, technical drawings, data,
manuals, techniques, trade secrets, know-how, or other matters
connected with services provided under this Agreement, information
concerning relationships with actual or potential clients or
customers and the needs and requirements of such persons, research
and development data and specifications, and data of a secret and
confidential nature relating to its present and future commercial
activities any of which may be in whatever form, whether imparted
orally or in writing or by other medium including all copies of the
same all of which are regarded by it as commercial assets of
considerable value.
27.3 For the purpose of this Clause 27, the following definitions shall
apply;
27.3.1 "Confidential Information" shall mean those things described
in Clause 272.
27.3.2 "Disclosing Party" shall mean the Party who discloses its
Confidential Information to the other Party.
27.3.3 "Receiving Party" shall mean the Party who receives its
Confidential Information from the Disclosing Party.
27.3.4 The Receiving Party shall:
27.3.4.1 hold all Confidential Information received from
the Disclosing Party in strict confidence;
27.3.4.2 use the Confidential Information solely for the
purpose intended by this Agreement;
27.3.4.3 permit access to such Confidential Information
only to those of its personnel who need to know
for carrying out their respective obligations
under this Agreement.
37
<PAGE>
27.3.5 Without prejudice to the generality of the provisions of this
Clause 27, the Receiving Party shall exercise no less a degree
of care in protecting the Confidential Information than which
it uses to protect its own information of like sensitivity and
importance.
27.3.6 The obligations of confidentiality herein shall not apply to
any Confidential Information which:
27.3.6.1 was in the possession of the Receiving Party
before such Confidential Information was imparted
by the Disclosing Party or is independently
developed by any servant, agent or employee of the
Receiving Party without access to or use or
knowledge of the Confidential Information imparted
by the Receiving Party; or
27.3.6.2 was, is in or subsequently comes into the public
domain other than by breach by the Receiving Party
of its obligations hereunder or under any other
agreement of confidentiality between the Parties;
or
27.3.6.3 is received by the Receiving Party without
restriction on disclosure or use from a Third
Party, which Third Party has a lawful right to
make such disclosure; or
27.3.6.4 is disclosed because of a legal requirement.
27.3.7 If any portion of any Confidential Information falls within
any of the above exceptions, the remainder shall continue to
be subject to the restrictions of this Agreement.
27.3.8 Any Confidential Information imparted hereunder shall remain
the property of the Disclosing Party and must be used only for
the purpose of this Agreement. No rights are granted to the
Receiving Party hereunder and no rights shall be deemed to
have arisen or be implied in any Confidential Information.
27.3.9 Upon expiration or termination in whole or in part of this
Agreement, the Receiving Party shall return such Confidential
Information as relates to the part of the Agreement which has
terminated where part-termination has occurred or otherwise
all Confidential Information received from the Disclosing
Party to the Receiving Party, or, upon the consent of the
Disclosing Party, shall destroy all such Confidential
Information and provide to the Disclosing Party a certificate
of such destruction signed by a responsible officer of the
Receiving Party.
38
<PAGE>
27.3.10 Unless otherwise agreed, in writing, these confidentiality
provisions shall survive termination of this Agreement and
shall remain in effect for a period of five (5) years after
return or destruction by the Receiving Party of the other
Party's Confidential Information provided in accordance with
this Agreement.
27.4 The Parties accept and agree not to divulge the nature, existence
and/or content of this Agreement to any other company, organisation
or individual, without the consent of the other Party, save in cases
where it is necessary by virtue of judicial review, legislation
and/or financial regulations, in which cases the one Party shall
receive due notice from the other Party so required to disclose the
necessary information.
28 PUBLICITY
28.1 Neither Party shall publicise the existence of this Agreement nor
make all or any necessary press announcements in respect thereof
without the consent of the other Party.
29 ENGAGEMENT OF SENIOR EMPLOYEES
29.1 Neither Party shall during the Contract Period and for a period of
twelve (12) Calendar months after its termination solicit, employ or
engage or offer to employ or engage any of the other Party's senior
employees or consultants without the prior written consent of the
other Party.
29.2 In the event of breach of Clause 29.1 and only where the senior
employee or consultant in question has actively sought employment
with the defaulting Party, the defaulting Party shall pay to the
other Party a sum equal to 30% of the first year's annual salary paid
to the senior employee or consultant so recruited by the defaulting
Party. Payment of such sum shall be the sole and exclusive liability
of the defaulting Party. Payment shall be made with thirty (30)
Working Days of commencement of employment.
39
<PAGE>
30 FAILURE TO ENFORCE AND WAIVER
30.1 The failure or delay by either Party to exercise any right, power
or remedy under this Agreement shall not constitute a waiver thereof
and shall not in any circumstances impair such right, power or remedy
nor operate as a waiver of it. The single or partial exercise by
either Party of any right, power or remedy under Agreement shall not
in any circumstances preclude any other or further exercise of it or
the exercise of any right, power or remedy.
30.2 A waiver of any breach or default under any terms of this Agreement
shall not be deemed a waiver of any subsequent breach or default and
shall in no way affect the other terms of this Agreement.
31 VALIDITY
31.1 If any provision of this Agreement is held to be invalid, illegal
or unenforceable for any reason (whether by an expert, by
arbitration, or by a court of competent jurisdiction):
31.1.1 such provision will be severed and the remainder of the
provisions will continue in full force and effect as if this
Agreement had been executed with the invalid, illegal or
unenforceable provisions eliminated;
31.1.2 the Parties shall in good faith amend the provision of the
Agreement to reflect as nearly as possible the spirit and
intention behind that invalid, illegal or unenforceable
provision so as to place the Parties in substantially the
same position, to the extent that such spirit and intention
is consistent with the laws of England, and so that the
amended clause complies with the laws of England.
32 ASSIGNMENT
32.1 Neither Party shall assign or purport to assign or transfer this
Agreement or any part thereof without the prior consent in writing of
the other. Any such assignment as aforesaid shall not excuse the
assigning Party from liability for due performance and observance of
any provision expressed herein on its part to be performed or
observed.
40
<PAGE>
33 NOT A PARTNERSHIP OR AGENCY
33.1 Nothing in this Agreement shall constitute or be deemed to
constitute a partnership between the Parties hereto or constitute or
be deemed to constitute SBS as agent of Tier or Tier as agent of SBS
for any purpose whatsoever and SBS shall have no authority or power
to bind Tier and Tier shall have no authority to bind SBS or to
contract in the name of or create a liability against Tier or SBS
(howsoever the case may be) in any way or for any purpose.
34 ORIGINALITY OF AGREEMENT
34.1 This Agreement may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same document.
35 ENTIRE AGREEMENT
35.1 This Agreement sets out the entire agreement between the Parties
with respect to the subject matter covered by it and supersedes all
prior communications, drafts, representations, agreements,
warranties, statements and understandings of whatever nature, whether
oral or in writing between the Parties, relating to the subject
matter, provided that this shall not exclude any liability which a
Party would otherwise have to the other Party in respect of a
statement made fraudulently by that Party prior to the date of this
Agreement.
35.2 This Agreement shall come into effect on the Effective Date and
subsist for the Contract Period unless or until terminated in
accordance with the provisions of Clauses 14 or 24.
35.3 Neither Party shall have any rights or licence save as specifically
agreed herein.
35.4 This Agreement will be governed by and construed in accordance with
English Law. The Parties hereby submit to the jurisdiction of the
High Court of Justice in England.
41
<PAGE>
AS WITNESS the hands of the Parties hereto the day and year first hereinbefore
written:
SIGNED AND AGREED for and on Behalf of Tier Technologies (United Kingdom) Inc.
Signature: /s/ [ILLEGIBLE]^^ Date: 1 September 99
------------------------- ---------------------------
Name: James L. Bildner Status: CEO
--------------------------- --------------------------
SIGNED AND AGREED for and on Behalf of Siemens Business Services Limited
Signature: /s/ [ILLEGIBLE]^^ Date: 1 Sept 1999
------------------------- ---------------------------
Name: G. S. Posey Status: MD
------------------------- -------------------------
42
<PAGE>
SCHEDULE 1
INTERPRETATIONS AND DEFINITIONS
-------------------------------
1 INTERPRETATIONS
1.1 Clause headings in this Agreement are for ease of reference only and
do not affect interpretation.
1.2 References to Paragraphs shall mean those paragraphs contained within
those Schedules and/or Annexes in which they are contained unless
expressly stated otherwise by references to other Schedules and/or
Annexes.
1.3 The singular includes the plural and vice versa.
1.4 References to Clauses shall mean those clauses contained within the
General Terms and Conditions of the main body of this Agreement unless
expressly stated otherwise.
2 DEFINITIONS
"ASC
Infrastructure" means the infrastructure (as defined in
SCHEDULE 7) to be put into place in
accordance with the provisions of SCHEDULE 7
to facilitate the provision of the ASC
Services by SBS.
"ASC
Infrastructure Specification" means the outline specification relating to
the operational, functional and/or design
characteristics of the ASC Infrastructure to
be provided in accordance with the provisions
of Paragraph 3.1 of SCHEDULE 7.
"ASC
Services" means those services to be provided by SBS to
Tier and/or a Third Party, using the ASC
Infrastructure as further described in
SCHEDULE 4 and the Business Development
Methodology.
"Agreement" Means this agreement comprising the
front/cover page, contents page(s), Clauses 1
to 35 inclusive and SCHEDULE 1 to SCHEDULE 8
inclusive and all or any Annexes, Appendices
or Attachments forming part thereof and any
Change Control Note issued,
<PAGE>
approved and authorised in accordance with
the provisions of Clause 25 and the Business
Development Methodology.
"Bid Manager" means an individual appointed by SBS to
coordinate the Proposal Development Activity
and the production of the Proposal.
"Bid Team" means a group of individuals appointed by the
Bid Manager to assist Tier in discharging its
duties.
"Business Development
Activity" means the development of Third Party
relationships, covering inter alia initial
Third Party contact, Third Party business
needs identification, Third Party business
process definition and service provision
definition, to a standard agreed between the
Parties on a case by case basis.
"Business Development
Methodology" means a contractually binding document
identifying markets, targets, customers, the
ASC Services and including a methodology for
development of Third Party contacts by Tier
to be agreed and signed by a representative
of each Party from the ASG on or before the
date of this Agreement.
"Calendar" means the Gregorian calendar.
"Change Control Note" means a change control note as referred to in
Clause 25 and as amended by any subsequent
Change Control Note.
"Consultancy Services" means those activities to be conducted by
Tier (as may be better described in paragraph
3.1 of SCHEDULE 2) which are provided to SBS
and/or a Third Party under or pursuant to
this Agreement.
"Consultancy Services Charge
Rates" means those rates chargeable for the
provision of the Consultancy Services defined
in ATTACHMENT 1 of SCHEDULE 2.
<PAGE>
"Consultancy Services Minimum
Total Commitment" means the total sum of Consultancy Services to be
procured by SBS and/or a Third Party from Tier during
the Contract Period. The said sum shall be[***]. For
the avoidance of doubt this sum excludes the supply of
hardware or software or training or any other services
sourced through a third party and arranged by Tier
regardless of whether at margin or otherwise and
Consultancy Services procured by customers that have
been handed over to Tier by SBS where SBS requires no
further involvement with that customer.
"Consultancy Services
Timesheets" means timesheets completed in accordance with the
provisions of SCHEDULE 2 using the proforma timesheet
provided for in ATTACHMENT 3 to SCHEDULE 6.
"Contract Period" means the period commencing on the Effective Date of
this Agreement and continuing until the Final Date or
until it is terminated in accordance with Clause 14 or
24 whichever is the earlier date.
"Data Protection Act" means the Data Protection Act 1984 and the Data
Protection Act 1998 as applicable.
"Effective Date" means the first Working Day following the date on which
this Agreement receives its last signature from the
Parties.
[***]
"FTE" means full time equivalent - that is an individual or
series of individuals working collectively all Working
Days in a Calendar month save for leave, absence or
sickness.
"Final Date" means the date occurring exactly sixty (60) Calendar
months after the Effective Date unless and until
extended by agreement between the Parties in accordance
with the provisions of Clause 25.
"Force Majeure" means any cause preventing the performance by either
Party of any or all of its obligations arising from or
attributable to acts, events or omissions
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
beyond its reasonable control including (but
without limiting the generality thereof)
governmental regulations, fire, flood, act of
God, strike, war, riot, breakdown of plant or
machinery or any disaster or an industrial
dispute affecting a third party for which a
substitute third party is not reasonably
available.
"Formal Commitment Stage" means a point in time where a legal agreement
(having full force and effect) between SBS
and a Third Party is entered into directly
between them, such agreement taking the form
of either a letter of intent, letter to
proceed or a full contract for the provision
of ASC Services, where such agreement is
established subsequent to the Proposal
Submission Activity and as a direct
consequence thereof.
"General Terms and Conditions" means Clauses 1 to 35 inclusive and any
Change Control Note issued, approved and
authorised in accordance with the provisions
of Clause 25.
"Intellectual Property" means any and all patents, trade marks,
service marks, copyright, moral rights,
rights in design, know-how, confidential
information and all or any other intellectual
or industrial property rights whether or not
registered or capable of registration and
whether subsisting in the United Kingdom or
any other party of the world together with
all or any goodwill relating thereto.
"Mobilise(d)" means the making available of FTE SBS Staff
Services. SBS shall notify Tier in writing
that a specified number of FTE Staff Services
complete with their employment grade mix, are
prepared in readiness for the provision of
ASC Services, for "availability" in this
context to be proved.
"Mobilisation" means the activity associated with making
Mobilised SBS Staff Services available.
"Premises" means in respect of the Consultancy Services,
the place of performance specified in any
Workpackage or otherwise in respect of the
ASC Services the place of performance for
such ASC Services or the location where the
ASC Infrastructure is established.
<PAGE>
"Proposal" means a document in a form to be agreed on a
case by case basis between the Parties
(taking into account any Third Party
specified requirements) constituting a formal
offer capable of acceptance by a Third Party,
for the provision of ASC Services.
"Proposal Development
Activity" means those activities necessary (including
the obtaining of any necessary consents and
approvals of SBS' Directors and/or VRB) as a
consequence of the Business Development
Activity to ultimately produce a Proposal
including but not limited to the development
and production of specifications, service
level definitions, risk registers, cost
models, Third Party business plans or budgets
and the like or any other documents including
other financial data.
"Proposal Submission Activity" means the activities rendered necessary by
either the Third Party and/or the Parties
after the submission of the Proposal to
assist the Third Party in reaching the Formal
Commitment Stage, including any necessary
approvals of the Third Party or SBS'
Directors and/or VRB. Such activities are
likely to include, but not be limited to,
offering clarifications on the Proposal
content, negotiation of commercial and legal
terms, presentations to the Third Party's
representatives and the like.
"Ramp-up Period" means the period commencing 1st July 2000 and
ending on 30th June 2001 during which SBS
will Mobilise a specified number of FTE SBS
Staff Services.
"SBS Accommodation Services" means the bundling of roof, heat, light etc.
costs and the ASC Infrastructure capital
payment recharge costs, ASC Infrastructure
operational and maintenance costs (and the
like) on a unit basis linked to the number of
FTE SBS Staff Services supplied in accordance
with this Agreement. The appropriate charge
for the SBS Accommodation Services shall be
determined upon the ASC Infrastructure being
established.
"SBS Staff Services" means people employed by SBS or recruited by
SBS where appropriate who will be made
available in accordance with the provisions
of SCHEDULE 3 in readiness to support Tier in
servicing Third Parties
<PAGE>
or Tier's own requirements for ASC Services.
Those employed by SBS are likely be supplied
from [***]
"SBS Staff Services Minimum
Total Commitment" means a maximum sum of [***]payable by Tier
to SBS in respect of the Total Available Man
Months for Mobilised FTE SBS Staff Services
at the Average Mobilised Rate.
"Success Fee" means a sum of money to be paid to Tier by
SBS for Tier's costs and expenses incurred
during the whole of the Business Development
Activity, the Proposal Development Activity,
the Proposal Submission Activity up to and
through the Formal Commitment Stage. The
method of calculating the Success Fee shall
be as described in Paragraph 7 of SCHEDULE 3.
"Third Party(ies)" means businesses, companies and/or
organisations who may potentially have or
will require the provision of or supply of
ASC Services.
"Total Available Man
Months" means the total number of FTE SBS Staff
Services available for Utilisation in
accordance with the payment profile in
Attachment 1 to Schedule 3.
"TUPE" means the Transfer of Undertakings
(Protection of Employment) Regulations 1981
and any subsequent re-enactment or amendments
thereto.
"Utilise/utilised" means the act of using Mobilised SBS Staff
Services in the provision of the ASC Services
to Tier and/or a Third Party under agreements
separate from this Agreement and Utilisation
shall be construed accordingly.
"VRB" means the SBS Value Review Board constituted
and operated in accordance with SBS' VRB
Procedure, (as attached to the Business
Development Methodology ) used to evaluate
inter alia the business value of submitted
opportunities and any risks (including
financial, technical, delivery and resourcing
availability) associated with the said
opportunity. The said procedure is an
iterative one, requiring reviews at certain
identified stages of the project lifecycle.
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
The output from the VRB meetings (which are
convened on a weekly basis) is a decision to
proceed to the next stage of the project
lifecycle or not, as the case may be. All
meetings of the VRB are minuted.
"Working Day" means any day other than Saturday or Sunday
or a bank holiday in the UK.
"Workpackage" means those packages of work for Consultancy
Services established in accordance with the
procedures and provisions of SCHEDULE 2.
"Year of this Agreement" means the period of twelve (12) Calendar
months commencing on the Effective Date and
expiring on the first anniversary thereof and
each successive year thereafter during the
Contract Period.
<PAGE>
SCHEDULE 2
Agreement Covering the Provision of Consultancy Services by Tier to SBS
-----------------------------------------------------------------------
1 INTRODUCTION
1.1 The Consultancy Services intended to be made available by Tier under
this Agreement shall include;
1.1.1 Business Process Redesign/Strategic Consulting.
1.1.2 Web Enabled Customer Technology.
1.1.3 People/Change Management.
1.1.4 Data Management and Warehousing.
1.1.5 Call Centres.
1.1.6 Front & Back Office Design.
1.1.7 Major Systems Design.
1.1.8 Training.
1.1.9 Distance Learning Applications.
1.1.10 Application Development
1.1.11 Project Management
and as may be better described in ATTACHMENT 2 to SCHEDULE 2.
1.2 SBS and/or a Third Party may take up the Consultancy Services. The
supply of Consultancy Services directly to a Third Party shall be
subject to an agreement separate from this Agreement, unless such
supply is incorporated into a package of services by SBS to that Third
Party.
1.3 Consultancy Services may be taken up by SBS in support of its
obligations under this Agreement or for any other purpose it may so
choose.
<PAGE>
1.4 SBS and/or a Third Party will during the Contract Period procure the
supply of Consultancy Services up to the Consultancy Services Minimum
Total Commitment. Notwithstanding the foregoing obligation, there is
no commitment by SBS and/or a Third Party as to the proportion or mix
of the Consultancy Services which may be requested from time to time
and no continuity of Workpackages is guaranteed.
2 SUPPLY OF CONSULTANCY SERVICES
2.1 Tier shall make available the Consultancy Services to SBS on a "most
favoured customer" basis and SBS shall so request the Consultancy
Services from Tier on a "Preferred Supplier" basis. For the purpose of
this paragraph "most favoured customer" status shall require Tier to
provide the Consultancy Services to SBS on a priority basis and at
preferential commercial rates. For the avoidance of doubt the
Consultancy Services Charge Rates reflect Tier's current preferential
rates which may be adjusted in accordance with the provisions of
Attachment 1 to Schedule 2. "Preferred supplier" status will require
SBS to offer its requirements for Consultancy Services in respect of
SBS projects to Tier in preference to any other supplier. In
particular SBS shall develop a change management review programme to
consider the options for increasing Tier's involvement in the
provision of Consultancy Services in connection with SBS' obligations
under the National Savings Bank Agreement to an agreed programme.
2.2 Tier shall provide the Consultancy Services to Third Parties in such a
manner as will not detract from the image and reputation of SBS.
2.3 Subject to requirements under the Data Protection Act Tier shall on
reasonable request provide employment status details of the persons
providing the Consultancy Services.
2.4 Tier undertakes that at all times the Consultancy Services shall
remain under the direction and control of Tier. Notwithstanding Tier's
overall control, Tier recognises that the Consultancy Services may
require Tier to perform work in relation to SBS' (and/or a Third
Party's) managed activity and that, in this event, SBS (and/or a Third
Party) shall be responsible for and shall supervise and manage such
activity.
2.5 The Consultancy Services shall be provided in an efficient, effective
and controlled manner and in accordance with the exercise of that
degree of skill, diligence, prudence and foresight which would
reasonably and ordinarily be expected from a skilled and experienced
consultancy company seeking in good faith to comply with its
contractual obligations, complying with all applicable laws and
engaged in the same type of undertaking and under the same or
<PAGE>
similar circumstances and conditions (including financial processing
controls).
2.6 Any material issued by SBS (and/or a Third Party) to Tier "free of
charge" for use in or associated with the Consultancy Services
provided under this Agreement shall remain the property of SBS (and/or
a Third Party). Any such material must be kept in good order and shall
be returned to SBS (and/or a Third Party) on completion of the
relevant Workpackage or otherwise as agreed in the same condition as
received subject to wear and tear. Where consumables are supplied Tier
shall return any unused portion of such consumables to SBS (and/or a
Third Party).
2.7 SBS (and/or a Third Party) may require the removal of any member of
Tier's personnel with immediate effect if such individual:
2.7.1 in the reasonable opinion of SBS (and/or a Third party)
proves unable to perform the Consultancy Services at any
time during his/her attendance at SBS (and/or the Third
Party's) Premises; or is guilty of serious misconduct or of
conduct which is contrary to standards of discipline
reasonably expected by SBS (and/or a Third Party) of its own
staff or does anything harmful to the reputation of SBS
(and/or the Third Party); or
2.7.2 intentionally without the prior written authority of SBS
(and/or the Third Party), removes (for whatever reason) any
of SBS (and/or the Third Party) tapes, disks, documents,
software, data or other materials or information from the
Premises of SBS (and/or the Third Party); or
2.7.3 without the prior written authority of SBS (and/or the Third
Party) makes (for whatever reason) any copies of documents
or software or other materials which belong or are licensed
to SBS (and/or the Third Party) for his/her own benefit or
for the benefit of any person (other than SBS (and/or the
Third Party); or
2.7.4 without the prior written authority of SBS (and/or the Third
Party), bring any software, tapes or disks on to premises of
SBS (and/or the Third Party), unless such software, tapes or
disks are used solely on Tier's equipment used stand-alone
and entirely separate from any of SBS (and/or the Third
Party)'s systems; or
2.7.5 causes a computer to perform any function with intent to
secure unauthorised access to the whole or any part of any
program or data held in any computer or does or omits to do
anything which may cause or facilitate any unauthorised
access, modification, alteration or eradication of the whole
or any part of any program or data held in any computer or
on any storage
<PAGE>
medium or which may otherwise adversely affect the operation
or reliability of any computer or program or the reliability
or accessibility of any data; or
2.7.6 does or omits to do anything which may prejudice the
security of the SBS (and/or the Third Party) Premises,
computers or software.
3 METHOD OF OBTAINING SUPPLY
3.1 SBS shall request and Tier shall provide Consultancy Services under
this Agreement by reference to:
3.1.1 a separate project agreement executed between the Parties;
or
3.1.2 a Workpackage called off under this Agreement which shall be
made in writing in accordance with this SCHEDULE 2; or
3.1.3 an oral request confirmed in writing within five (5) Working
Days by Tier.
3.2 Workpackages will be agreed upon between SBS and Tier prior to the
commencement thereof. Tier shall not commence any particular
Workpackage prior to having received the written approval of SBS.
3.3 Workpackages will be initiated utilising the following generic
process;
3.3.1 SBS shall provide to Tier a specification, describing inter
alia such matters as operational, functional or design
characteristics, major deliverables and timescales required.
3.3.2 Tier shall provide, in response to the said specification,
within thirty (30) Working days (unless agreed otherwise)
its response ("Response").
3.3.3 Tier's Response shall include descriptions of the
Consultancy Services to be provided, the criteria on which
they are to be provided, any dependencies between tasks and
external resources and requirements that may affect the
timely and qualitative delivery of the Workpackage and the
price (calculated using the Consultancy Services Charge
Rates) for providing the required Consultancy Services.
3.3.4 SBS shall then evaluate the Response. If so requested by SBS
Tier may, at no additional cost, make available that
resource reasonably necessary to assist SBS in its
evaluation of the Response, including presentations and the
like.
<PAGE>
3.3.5 Once agreement on the content of the Response has been agreed
and approved by SBS the said Response shall be accommodated
within a Workpackage either as a task or series of tasks as a
complete Workpackage.
3.3.6 SBS shall authorise commencement of the said Workpackage in
writing to Tier.
4 WORKPACKAGE LEADERS
4.1 SBS and Tier shall respectively (unless otherwise agreed) appoint a
representative to be a Workpackage Leader (hereafter "WPL") for each
and every Workpackage.
4.2 The WPL within their respective organisations shall be responsible
for;
4.2.1 co-ordinating with internal party(ies) involved in the
technical activities of the Workpackage;
4.2.2 the drafting, organisation and presentation of the necessary
parts of the Workpackage descriptions and content;
4.2.3 maintaining efficient and effective communication amongst the
said Party(ies) involved in the Workpackage and to ensure that
timescales are maintained;
4.2.4 organising when necessary Workpackage meetings;
4.2.5 keeping the other informed on the current status and progress
made in respect to the Workpackage activities and to help the
other in suggesting any corrective action that may need to be
taken.
5 PERFORMANCE
5.1 Tier undertakes to procure that each of its personnel carrying out the
Consultancy Services shall:-
5.1.1 except as otherwise agreed, attend the Premises and provide
such of the Consultancy Services as SBS requires for eight (8)
hours each Working Day between 8.30am and 5.30pm (unless
otherwise agreed in any particular Workpackage) and devote the
whole of his/her time, attention and ability to SBS during
such hours;
<PAGE>
5.1.2 perform his/her work with the level of skill, care and
technical ability expected of a person specialising in the
type of work specified in this Agreement;
5.1.3 perform his/her work promptly and comply with all reasonable
and lawful directions given by authorised personnel of SBS and
on request promptly give a full account of all matters with
which he/she is entrusted.
5.2 Tier undertakes that if any of its personnel is unable at any time to
work for a period exceeding five (5) Calendar days or more continuous
absence whether through ill health, injury or otherwise, it shall use
all reasonable endeavours to procure, at the request of SBS, that
another person of at least similar ability, experience and status be
supplied to SBS in place of the person who is absent.
5.3 In the event of an increase in the scope of the Consultancy Services
or the time required to provide the Consultancy Services such that SBS
requires additional Consultancy Services from Tier as determined by
SBS, SBS may notify Tier in writing of the need for such additional
Consultancy Services. Upon receipt of a notice in writing from SBS,
Tier shall use all reasonable endeavours to provide additional
Consultancy Services to SBS upon the terms and conditions set out in
this Agreement.
5.4 If the Consultancy Services do not substantially or materially comply
as required in this Agreement or any Workpackage, SBS shall within a
reasonable time give notice of rejection to Tier and without prejudice
to any of SBS' other rights SBS may at its discretion require Tier to
comply with this Agreement and the Workpackage by expeditiously re-
performing or otherwise righting any rejected Consultancy Services. In
such circumstances, Tier shall fully indemnify SBS for any direct
costs, expenses and/or losses incurred by it.
6 FEES
6.1 In consideration of the Consultancy Services provided pursuant to this
Agreement, SBS shall pay Tier the Consultancy Services Charge Rates in
respect of every 8 hours per day worked by each person carrying out
the Consultancy Services. For the avoidance of doubt, the Consultancy
Services Charge Rates shall be applied pro-rata in respect of any
period or periods of less than 8 hours. Periods in excess of eight (8)
hours shall not be chargeable at any premium rate unless otherwise
agreed in writing by the Parties. Any replacement shall (subject to
their being of at least equal ability, experience and status) be
chargeable at the same rate as the person who is thereby replaced.
6.2 Except as provided for in Paragraph 6.5, the Consultancy Services
<PAGE>
Charge Rates shall be inclusive of all secretarial, office
accommodation and other overheads including telephone, facsimile and
postage costs incurred by Tier in the course of its administrative
functions, unless otherwise agreed between the Parties. Such
Consultancy Services Charge Rates will be exclusive of value added tax
but will be deemed to be inclusive of any other forms of tax levies,
imposts, charges, fees and/or duties applicable from time to time.
6.3 The daily Consultancy Services Charge Rates for each person carrying
out the Consultancy Services shall be as detailed in ATTACHMENT 1 to
SCHEDULE 2.
6.4 Any materials or products supplied to SBS by Tier will be charged at
cost unless otherwise agreed by the Parties and in any event in
accordance with SBS' current expenses reimbursement policy for use
with contractors.
6.5 All expenses incurred by Tier in the provision of the Consultancy
Services will, provided SBS agrees in advance where reasonably
practicable to such expenses, be passed on at cost unless otherwise
agreed by the Parties and in any event in accordance with SBS' current
expenses reimbursement policy for use with contractors and included in
appropriate invoices, with associated receipts when requested. Such
expenses shall include, but not be limited to, car travel expenses,
parking, rail fares, air fares, taxis, hotels, subsistence, computer
time, photocopying, slide and report production.
6.6 If the supply of the Consultancy Services or any part of such
Consultancy Services is cancelled, SBS shall only be obliged to pay
any fees due up to the end of the cancellation period. For the
avoidance of doubt this shall not affect SBS' obligation to procure
Consultancy Services up to at least the Consultancy Services Minimum
Total Commitment.
7 PAYMENT
7.1 Except as provided in any particular Workpackage, an invoice with
supporting documentation shall be rendered every other Calendar month
in arrears and payment of the fees shall be made in accordance with
the provisions of Clause 12.
7.2 Invoices shall be based on authorised hours worked by each individual
involved in providing the Consultancy Services as certified by SBS on
the Consultancy Services Timesheets.
<PAGE>
7.3 Invoices raised in accordance with the provisions of Paragraphs 7.1
and 7.2 above shall be deducted against any outstanding balance of the
Consultancy Services Minimum Total Commitment.
8 DISCHARGE OF THE CONSULTANCY SERVICES MINIMUM TOTAL COMMITMENT
8.1 SBS' commitment to procure a defined volume of the Consultancy
Services defined in Paragraph 1.4 of this SCHEDULE 2 shall be fully
discharged immediately upon SBS and/or a Third Party (either
individually or as a sum total) paying invoices for the provision of
Consultancy Services by Tier equal to or in excess of the Consultancy
Services Minimum Total Commitment .
8.2 At the end of the Contract Period (save for early termination in
accordance with Clauses 14 or 24) if SBS and/or the Third Parties
(either individually or as a sum total) has/have not procured
Consultancy Services equal to or in excess of the Consultancy Services
Minimum Total Commitment then Tier shall raise an invoice for the
outstanding sum (if any) of the Consultancy Services Minimum Total
Commitment, calculated by deducting from the Consultancy Services
Minimum Total Commitment any and all invoices raised by Tier and/or
the Third Parties (either individually or as a sum total) for the
provision of the Consultancy Services during the Contract Period.
8.3 SBS shall pay any invoice raised by Tier in accordance with paragraph
8.2 within sixty (60) Working Days from the date of receipt.
<PAGE>
ATTACHMENT 1 to SCHEDULE 2
Consultancy Services Charge Rates
---------------------------------
Charge Rate
------------
Consultant Type ((Pounds)'s per day)
--------------- --------------------
Manager [***]
Senior Consultant [***]
Consultant [***]
Team Leader [***]
Technologist [***]
1 CONSULTANCY SERVICES CHARGE RATES
1.1 Any of the above Consultancy Services Charge Rates may be decreased at
any time by agreement between the Parties and implemented in
accordance with Clause 25.
1.2 Consultancy Services Charge Rates shall be fixed for the first twelve
Calendar Months of this Agreement and thereafter subject to review on
each anniversary of the Effective Date and agreed by the Parties. In
the event the Parties fail to agree on the Consultancy Services Charge
Rates the Parties shall refer to the benchmarking procedure in
SCHEDULE 8. Where the Parties fail to agree pursuant to the procedure
in SCHEDULE 8 either Party may refer the dispute to an Expert under
Clause 22.
1.3 The Consultancy Services Charge Rates specified in this ATTACHMENT 1
to SCHEDULE 2 shall only be amended in accordance with Clause 25 of
this Agreement and shall only take effect upon the equivalent
amendment being agreed between SBS and Tier.
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
ATTACHMENT 2 to SCHEDULE 2
Tier Consultancy Services Descriptions
--------------------------------------
1 TIER CONSULTANCY SERVICES DESCRIPTION
1.1 Tier shall provide and continue to maintain the capability to provide
the following Consultancy Services to SBS (and/or a Third Party)
throughout the duration of this Agreement.
<TABLE>
<CAPTION>
QUALIFICATIONS AND EXPECTATION OF CAPABILITY
CONSULTANT TYPE EXPERIENCE
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Manager Degree and five years relevant Project manage a medium/large project
experience including management of to customer requirements on cost and
similar project time to CIS ISO 9001 QMS.
----------------------------------------------------------------------------------------------------------------------
Senior Consultant 7 years experience in relevant field. High level tactical or technical
Member of an appropriate professional advice to departments or programmes.
body or educationally qualified for
membership
----------------------------------------------------------------------------------------------------------------------
Consultant 5 years experience in relevant field. Provision of technical advice to
Member of an appropriate professional department or to a specific programme.
body or educationally qualified for
membership
----------------------------------------------------------------------------------------------------------------------
Team Leader Honours degree and four years Provide leadership, technical advice
relevant experience. or analysis on major portion of a
programme to assignment manager.
----------------------------------------------------------------------------------------------------------------------
Technologist City and Guilds or Equivalent and To act as a member of a technical
five years relevant experience. design and development team.
----------------------------------------------------------------------------------------------------------------------
</TABLE>
59
<PAGE>
SCHEDULE 3
Agreement Covering the Provision of SBS Staff Services from SBS to Tier
-----------------------------------------------------------------------
1 INTRODUCTION
1.1 SBS shall make available the SBS Staff Services for Tier's immediate
Utilisation (or otherwise) in accordance with the provisions of this
SCHEDULE 3.
1.2 Tier shall use all reasonable endeavours to identify and create
opportunities using the agreed Business Development Methodology for
SBS to Utilise the Mobilised FTE SBS Staff Services either indirectly
to Third Parties through Tier or directly to Third Parties, via
agreements created through the following processes;
1.2.1 Business Development Activity;
1.2.2 Proposal Development Activity;
1.2.3 Proposal Submission Activity leading up to and including;
1.2.4 Formal Commitment Stage.
1.3 Without prejudice to the other provisions of this Agreement in
relation to this matter, Tier shall submit each process to the VRB for
approval (or otherwise) to continue to the next activity or stage such
approval to be given in accordance with the VRB guidelines, and not to
be unreasonably withheld.
1.4 During the Proposal Development Activity, SBS shall, subject to the
approval of the VRB, make available at least a Bid Manager, who may
appoint a Bid Team to support Tier during the Proposal Development
Activity.
1.5 During the Proposal Submission Activity, SBS shall, subject to the
continuing approval of the VRB, continue to make available a Bid
Manager, and (if any) the Bid Team appointed to support Tier during
the Proposal Development Activity.
1.6 Tier shall at all times during the aforementioned activities and
process work within the VRB guidelines and the Business Development
Methodology.
<PAGE>
1.7 In the event that Tier are unable to Utilise the SBS Staff Services
in accordance with the provisions of this Agreement, Tier shall
during the Contract Period and in accordance with the Programme and
Payment Profile hereinafter defined, procure the Mobilisation of the
SBS Staff Services up to the SBS Staff Services Minimum Total
Commitment.
2 SCOPE
2.1 The SBS Staff Services shall be provided (unless otherwise agreed by
the Parties) from various SBS [***] Premises.
2.2 Where additional skills are required to supplement the Utilised SBS
Staff Services (including but not limited to the areas of management,
team leadership, technical and programme management) SBS shall recruit
up to a maximum of 20% of the Mobilised SBS Staff Services at SBS'
discretion in consultation with Tier and the costs of recruitment for
such additional skills shall be borne equally by SBS and Tier. For the
avoidance of doubt any Mobilised SBS Staff Services recruited shall
count towards the SBS Staff Services Minimum Total Commitment.
2.3 The Mobilisation of such SBS Staff Services in accordance with the
payment profile in ATTACHMENT 1 of this SCHEDULE 3 shall be the sole
trigger for payment by Tier of the SBS Staff Services.
2.4 The capability or otherwise for Tier to Utilise (in whole or in
part) the SBS Staff Services (or not as the case may be) shall not
discharge Tier's obligations under this Agreement and in particular,
the provisions of Paragraph 5 of this SCHEDULE 3.
2.5 SBS will commit to supply Utilised SBS Staff Services to Tier at
appropriate service levels, where such service levels include
accommodation factors.
2.6 SBS will provide human resources support (including recruitment and
selection, if necessary) during the Mobilisation of the SBS Staff
Services.
2.7 For the avoidance of doubt, SBS shall give Tier priority allocation
to its IT personnel being Mobilised and not required by SBS.
2.8 SBS shall provide basic competency skills training to the SBS Staff
Services such as keyboard skills, basic IT operation, basic telephone
skills at SBS' cost.
2.9 For the avoidance of doubt where a Third Party requires additional
training SBS shall provide such training at its own or at the Third
Party's cost.
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
2.10 In the event that Tier enters into any agreement with SBS for the
provision of the ASC Services the Parties will agree on any additional
training requirements and the costs shall be borne by SBS save that
SBS' liability for basic and additional training shall not exceed
[***]in aggregate per FTE SBS Staff Services. Tier may provide such
additional training to SBS at cost unless otherwise agreed between the
Parties.
2.11 In respect of training to be provided under Clause 2.9 SBS shall
request the provision of such training from Tier in preference to any
other supplier where Tier has the capability to provide such training.
2.12 SBS shall establish the ASC Infrastructure in accordance with the
provisions of Schedule 7.
3 PROGRAMME
3.1 SBS shall Mobilise the SBS Staff Services in accordance with the
payment profile in ATTACHMENT 1 to SCHEDULE 3 so as to reach a total
of [***] SBS Staff Services at the end of the Ramp-Up Period.
4 CALCULATION OF FEES
4.1 In consideration of the Mobilisation of the SBS Staff Services by
SBS pursuant to the payment profile in ATTACHMENT 1 to this SCHEDULE,
Tier (and/or Third Party) shall become liable for payment to SBS at
the relevant rate for such provision, in accordance with the Payment
Profile defined in Paragraph 5 below.
4.2 At the end of the first Calendar month of the Ramp-Up Period SBS
shall calculate a sum equivalent to [***] of those SBS Staff
Services Mobilised in that Calendar month (the "FTE SBS Staff Services
Rate").
4.3 At the end of each subsequent Calendar month during the Ramp-Up
Period SBS shall calculate the FTE SBS Staff Services Rate in respect
of the preceding month. Having calculated such sum SBS shall aggregate
the FTE SBS Staff Services Rates from the date of commencement of the
Ramp-Up Period to the date on which the calculation is made in order
to calculate a further sum equivalent to the average of the FTE SBS
Staff Services Rates (the "Average Mobilised Rate"). For the avoidance
of doubt in no event shall the Average Mobilised Rate be more than
[***].
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
4.4 At the end of the Calendar month immediately following the end of
the Ramp-Up Period, the Average Mobilised Rate shall become fixed for
the remainder of the Contract Period.
4.5 SBS Staff Services shall be charged to Tier (and/or a Third Party)
at the following rates:
4.5.1 for Mobilised FTE SBS Staff Services directly Utilised by Tier
(and/or a Third Party) at a commercial rate agreed between the
Parties taking into account the then current market conditions
for such services on a like for like comparison (the "Utilised
Rate");
4.5.2 for Mobilised FTE SBS Staff Services NOT directly Utilised by
Tier and/or a Third Party at the Average Mobilised Rate per
Mobilised FTE;
4.5.3 for the avoidance of doubt, where the Utilised Rate is to be
charged to Tier, SBS Accommodation Services shall be
additionally charged.
4.6 The rates set out in this Paragraph 4 will be exclusive of value
added tax but will be deemed to be inclusive of any other forms of tax
levies, imposts, charges, fees and/or duties applicable from time to
time.
5 PAYMENT
5.1 In accordance with the payment profile given in ATTACHMENT 1 to
SCHEDULE 3 SBS shall invoice Tier as follows;
5.1.1 for the fees due for the Mobilised FTE SBS Staff Services
supplied to Tier in the period from the last invoice to the
then current date calculated using the Average Mobilised Rate;
and
5.1.2 for the fees due for the Utilised FTE SBS Staff Services
supplied to Tier in the period from the last invoice to the
then current date calculated using the Utilised Rate; less
5.1.3 any deductions for FTE Utilised SBS Staff Services supplied to
a Third Party in the period from the last invoice to the then
current date calculated by deducting the equivalent number of
the so Utilised FTE SBS Staff Services from the number of
Mobilised FTE SBS Staff Services provided by SBS in the same
period;
<PAGE>
save and unless the total sum becoming payable under an
invoice raised in accordance with the provisions of Paragraph
5.1 above, is a sum of less than one hundred pounds
((Pounds)100), in which case no invoice will be raised for the
period in question, and any sums due will be carried over to
the next period.
5.2 Invoices raised in accordance with this paragraph 5 shall be
deducted against any outstanding balance of the SBS Staff Services
Minimum Total Commitment.
6 DISCHARGE OF THE SBS STAFF SERVICES MINIMUM TOTAL COMMITMENT
6.1 The SBS Staff Services Minimum Total Commitment shall be fully
discharged immediately upon;
6.1.1 Tier having paid invoices in respect of the Mobilised FTE SBS
Staff Services in an amount equal to the SBS Staff Services
Minimum Total Commitment; or
6.1.2 Tier and/or a Third Party Utilising the Mobilised FTE SBS
Staff Services in an amount equal to or greater than the Total
Available Man Months for Utilisation. For the avoidance of
doubt:
[***]
6.1.2.2 if a Third Party introduced to SBS by Tier terminates
its contract with SBS in respect of the ASC Services
on the basis of SBS' default, the Utilisation of SBS
Staff Services under that Third Party contract shall
continue to count against the SBS Staff Services
Minimum Total Commitment for the whole committed
period that the contract would have run but for SBS'
default; or
6.1.3 Failing that Tier being invoiced for the Mobilised FTE SBS
Staff Services that are not Utilised up to an amount equal to
the SBS Staff Services Minimum Total Commitment.
6.2 Tier may request at any time that some or all of SBS Staff Services
be transferred to Tier in accordance with the TUPE Regulations. In the
event that such a transfer takes place Tier's liability to SBS in
respect of the SBS Staff Services so transferred shall be
extinguished.
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
6.3 At the end of the Contract Period (save for early termination in
accordance with Clauses 14 or 24) if Tier has not discharged its SBS
Staff Services Minimum Total Commitment in accordance with the
provisions of Paragraph 6 above then SBS shall raise an invoice for
the remaining amount in respect of the Total Available Man Months for
Utilisation not Utilised by Tier or a Third Party. For the avoidance
of doubt the rate to be used in any such calculation of the invoice
sum shall be the Average Mobilised Rate. In no event shall Tier have
to pay in excess of the SBS Staff Services Minimum Total Commitment.
6.4 Tier shall pay any invoice raised by SBS in accordance with
paragraph 6.3 within sixty (60) Working Days from the date of receipt.
7 SUCCESS FEES
7.1 During the Contract Period Tier's Success Fees shall be calculated
in accordance with the following;
7.1.1 For any Third Party opportunity comprising of Business
Development Activity, Proposal Development Activity and
Proposal Submission Activity or any parts thereof that does
not reach the Formal Commitment Stage, the Success Fee payable
by SBS to Tier shall be [***].
7.1.2 For any Third Party opportunity comprising of a complete end-
to-end process of Business Development Activity, Proposal
Development Activity and Proposal Submission Activity that
concludes by reaching the Formal Commitment Stage and where
the said Third Party opportunity Utilises less than fifty (50)
Mobilised FTE SBS Staff Services for the remainder of the
Contract Period, the Success Fee shall be [***].
7.1.3 For any individual Third Party opportunity comprising of a
complete end-to-end process of Business Development Activity,
Proposal Development Activity and Proposal Submission Activity
that concludes by reaching the Formal Commitment Stage and
where the said Third Party opportunity Utilises fifty (50) or
more Mobilised FTE SBS Staff Services for the remainder of the
Contract Period, the Success Fee shall be [***].
7.1.4 For any Third Party opportunity comprising of a complete end-
to-end process of Business Development Activity, Proposal
Development Activity and Proposal Submission Activity that
concludes by reaching the Formal Commitment Stage after Tier
has Utilised [***] SBS Staff Services and the said Third
Party opportunity Utilises any number of Mobilished FTE
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
SBS Staff Services in excess of those [***]
the Success Fee shall be [***].
7.2 Success Fees falling due under the provisions of this Paragraph 7
shall be invoiced to SBS on the effective date of the agreement with
the Third Party unless otherwise agreed by the Parties.
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
ATTACHMENT 1 to SCHEDULE 3
Mobilisation Programme and Payment Profile for the SBS Staff Services
---------------------------------------------------------------------
1 INTRODUCTION
1.1 SBS shall Mobilise the SBS Staff Services in accordance with the
Programme identified in the following table.
1.2 Tier shall pay SBS for Mobilised SBS Staff Services in accordance
with the Payment Profile identified in the following table.
1.3 Deductions to the following payments shall be made in respect of all
Utilised SBS Staff Services.
2 ASSUMPTIONS
2.1 Mobilised Rate for Calculations is [***]. This figure shall be
substituted by the Average Mobilisation Rate, on a bi-monthly basis,
until the end of the Ramp-Up Period.
2.2 No allowances have been made for Utilised SBS Staff Services.
Adjustments to the Payment Profile will be made on a bi-monthly basis
to reflect any Utilisation of the SBS Staff Services.
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
[***]
68
*CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
[***]
69
*CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
[***]
70
*CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
SCHEDULE 4
Agreement Covering the Provision of ASC Services from SBS to Tier and/or a Third
--------------------------------------------------------------------------------
Party
-----
1 INTRODUCTION
1.1 The provisions of this SCHEDULE 4 shall determine the way in which the
Parties shall contract with Third Parties and will establish the terms
upon which they will so do.
2 CONTRACTUAL RELATIONSHIPS
2.1 SBS shall, in the provision of ASC Services either to Tier and/or a
Third Party, enter into agreements separate from this Agreement with
those Parties. The said agreements will, wherever possible, contain
minimum twelve (12) month termination and/or exit provisions.
2.2 Where the ASC Services are to be provided to a Third Party, SBS and
Tier shall use reasonable endeavours to ensure that the agreement for
the provision of those ASC Services is established on substantially
the same terms and conditions as those intended by the provisions of
this SCHEDULE 4, taking into consideration always, the requirements of
any Third Party.
2.3 In any such agreement with Tier and/or a Third Party the scope of the
ASC Services to be provided by SBS shall cover the following generic
areas:
[***]
[***]
[***]
[***]
[***]
[***]
* CONFIDENTIAL TREATMENT REQUEST(ED)
71
<PAGE>
[***]
[***]
[***]
[***]
[***]
3 MASTER SERVICES SUPPLY AGREEMENT FORM
3.1 Within six (6) Calendar months from the Effective Date, SBS shall
prepare a Master Services Supply Agreement for review by Tier. Tier
shall review the Master Services Supply Agreement within thirty (30)
Calendar Days of receipt from SBS and shall notify SBS of any
suggested revisions to the Master Services Supply Agreement, which
shall be either incorporated into the Master Services Supply Agreement
by SBS or discussed and resolved at a specially convened meeting of
the representatives of the Parties. The agreed Master Services Supply
Agreement shall be incorporated into this Agreement and, in particular
this SCHEDULE 4, by way of a Change Control Note.
3.2 From the date of that Change Control Note referred to in Paragraph 3.1
of this SCHEDULE 4, the said Master Services Supply Agreement, shall
become the de facto proforma agreement for the supply of ASC Services.
* CONFIDENTIAL TREATMENT REQUEST(ED)
72
<PAGE>
SCHEDULE 5
Commercial Principles Concerning the Assignment of [***]
---------------------------------------------------------------------
1 INTRODUCTION
1.1 This Schedule is intended to define the principles relating to the
possible assignment of [***] subject to the terms of the yet to be
defined Deed of Assignment to be established on the principles as
herein described.
1.2 For the avoidance of doubt, any agreed assignment of [***] shall take
the form of a Deed of Assignment, an agreement separate from this
Agreement (and having full force and effect) between [***], on terms
and conditions to be agreed.
2 CONDITION PRECEDENT
2.1 It shall be a condition precedent to the provisions of this SCHEDULE 5
taking effect that [***] shall obtain unequivocal and irrevocable
agreement from [***] to assign the benefits and burdens (subject to
any terms and conditions that they require) of [***]. In the event
that such permission as aforesaid is not obtained the provisions of
this SCHEDULE 5 shall become null and void on both Parties without
liability of any kind accruing to them.
2.2 For the avoidance of doubt, the failure by [***] to obtain any
necessary consents from [***] to assign [***] shall not constitute a
default hereunder and all other obligations, save for those relating
to this SCHEDULE 5, shall remain unchanged.
3 DUE DILLEGENCE
3.1 Without prejudice to the provisions of Paragraphs 1 and 2 of this
SCHEDULE 5, the Parties may wish to carry out comprehensive technical
and commercial due diligence exercises and the other Party agrees to
offer such opportunity and such assistance as necessary to conclude
such exercises.
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
3.2 In the event that the Parties do not proceed to a Deed of Assignment
or information was discovered during due diligence that prevented
either of them proceeding to further agreement, then the full costs
incurred by the Parties during the due diligence exercise shall be
borne by the Party incurring such costs, unless agreement to the
contrary in certain individual cases are otherwise agreed in writing
between the Parties.
4 PROGRAMME
4.1 Without prejudice to the provisions of Paragraphs 1 and 2 of this
SCHEDULE 5, upon [***] obtaining that permission required by virtue of
the provisions of Paragraphs 1 and 2 of this SCHEDULE 5, the Parties
shall commence discussions for the establishment of the detailed plans
for carrying out any necessary due diligence, any necessary
contractual preparation for continued uninterrupted delivery of [***],
including transition arrangements and the like, which will cover [***]
and the like.
4.2 Without prejudice to any other provisions of this SCHEDULE 5, the
Parties are cognisant of the fact that the Parties have agreed a price
[***]at the time of entering into this Agreement. The Parties also
acknowledge and accept that the said price is calculated using a cost
model agreed between the Parties for such purpose and that the said
price is subject to revision as a consequence of inter alia the
effluxion of time from the Effective Date and incoming cashflow
effects and/or all or any of those matters identified in Paragraph 3
above. Accordingly, the foregoing provisions of this Paragraph 4.2
shall be considered in any such discussions contemplated by virtue of
the provisions of Paragraph 4.1.
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
SCHEDULE 6
PROFORMAS
---------
1 INTRODUCTION
1.1 This SCHEDULE 6 contains Proformas to be used pursuant to the
provisions of this Agreement during the Contract Period.
1.2 Only properly executed documents constructed in accordance with the
principles contained in this Agreement using the proformas contained
in this SCHEDULE 6 shall be accepted by the Parties under this
Agreement.
<PAGE>
ATTACHMENT 1 TO SCHEDULE 6
Form of Change Control Note
---------------------------
--------------------------------------------------------------------------------
CHANGE CONTROL NOTE NO: Ref :
This CHANGE CONTROL NOTE is issued pursuant to Clause 24 of the Agreement
dated [date of the Agreement] between Tier Technologies (United Kingdom)
Inc. and Siemens Business Services Limited.
It is now hereby agreed by the signatories below, acting as authorised
representatives of their respective companies, that the above referenced
contract shall be amended as detailed below;
--------------------------------------------------------------------------------
DESCRIPTION OF CHANGES TO THE ABOVE REFERENCED CONTRACT:
--------------------------------------------------------------------------------
Issued by: Agreed by:
Signature ....................... Signature: ..............................
Printed Name: ................... Printed Name: ...........................
Title: .......................... Title: ..................................
Date: ........................... Date: ...................................
--------------------------------------------------------------------------------
<PAGE>
ATTACHMENT 2 TO SCHEDULE 6
Form of Workpackage
-------------------
1 INTRODUCTION
1.1 The specific format of each Workpackage shall be agreed between the
Parties on a case by case basis. Considerations in determining such
format should include, but not be limited to, Third Party
requirements, complexity and size, scope of the Consultancy Services
and duration of the task.
2 CONTENTS
2.1 Each Workpackage is likely to include as a minimum;
2.1.1 A reference to this Agreement.
2.1.2 Appropriate approvals from SBS, Tier and the Third Party (if
applicable).
2.1.3 Contents page.
2.1.4 A project definition.
2.1.5 Stated terms of reference and objectives.
2.1.6 Responsibilities of the parties involved in the Workpackage
activity.
2.1.7 Workpackage breakdown, complete with a description of the
Consultancy Services to be provided.
2.1.8 Clearly identified deliverables, resource requirements
expressed in man days per consultant type and indicative costs
and time to complete.
<PAGE>
ATTACHMENT 3 TO SCHEDULE 6
Form of Timesheet
-----------------
78
<PAGE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------------
TIER TECHNOLOGIES (UNITED KINGDOM) INC. CONSULTANCY SERVICES PROVISION TO SBS
---------------------------------------------------------------------------------------------------------------------------------
CHARGEABLE HOURS
---------------------------------------------------------------------------------------------------------------------------------
Name Activity Expenses Materials
Description or to be to be Mon Tues Weds Thurs Fri Sat Sun
Role/Position Workpackage Claimed Claimed
Number (Y/N) (Y/N)
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
--------------------------------------------------------------------------------------------------------------------------------
TOTAL CHARGEABLE -
--------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
----------------------------------------------------------------------------------------------------------
Total Total Total Daily Rate
Overtime Standard Chargeable Pound's Total Pound's
Hours Hours Hours
----------------------------------------------------------------------------------------------------------
<S> <C>
- - - (Pounds) -
- - - (Pounds) -
- - - (Pounds) -
- - - (Pounds) -
- - - (Pounds) -
- - - (Pounds) -
- - - (Pounds) -
- - - (Pounds) -
- - - (Pounds) -
- - - (Pounds) -
- - - (Pounds) -
- - - (Pounds) -
- - - (Pounds) -
------------------------------------------------------------------------------------------------------------
Hours - Pound (Pounds)
------------------------------------------------------------------------------------------------------------
TIMESHEET AUTHORISED BY: SIEMENS BUSINESS SER TIMESHEET ISSUED BY: TIER TECHNOLOGIES (UNITED KINGDOM) INC.
------------------------------------------------------------------------------------------------------------
</TABLE>
79
<PAGE>
SCHEDULE 7
ASC Infrastructure
------------------
1 INTRODUCTION
1.1 This SCHEDULE 7 describes the infrastructure to be established by
SBS and at SBS? cost, to facilitate the provision of the ASC
Services to a Third Party or to Tier.
1.2 It shall be a condition precedent to forward capital and/or resource
investment other than the facilities and resources currently in
place into the ASC Infrastructure that at least one Third Party
agreement or an agreement with Tier is entered into (which shall be
determined by the reaching of the Formal Commitment Stage) by SBS
for the provision of ASC Services. SBS shall not be required to
perform any obligations contained in this SCHEDULE 7 until and
unless the said condition precedent is met.
2 LOCATION OF THE ASC INFRASTRUCTURE
[***]
3 ESTABLISHMENT OF THE ASC INFRASTRUCTURE
3.1 Without prejudice to the Paragraph 1.2 above, within three (3)
Calendar months from the Effective Date, SBS shall prepare a ASC
Infrastructure Specification for review by Tier. Tier shall review
the ASC Infrastructure Specification within ()thirty (30) Working
Days of receipt of the ASC Infrastructure Specification from SBS and
shall notify SBS of any suggested revisions to the ASC
Infrastructure Specification, which shall be either incorporated
into the ASC Infrastructure Specification by SBS or discussed and
resolved at a specially convened meeting of the ASG. The agreed ASC
Infrastructure Specification shall be signed as approved by each
Party.
[***]
[***]
[***]
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
[***]
[***]
3.4 SBS agrees to submit to Tier at Calendar monthly intervals during
the implementation of the ASC Infrastructure progress reports.
3.5 SBS and Tier agree to hold management review meetings to discuss and
review progress on the implementation of the ASC Infrastructure.
Such meetings shall be held at such intervals as the Parties shall
agree.
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
3.6 The Parties recognise that during the implementation of the ASC
Infrastructure the requirements relating to it may change. If either
Party identifies the need for any such change, such Party shall
first advise the other Party in writing of such proposed change and
the reasons therefor. The Parties shall meet to discuss such
proposed change and in the event that they jointly agree that such
change is necessary, the Parties shall execute a Contract Change
Note.
<PAGE>
SCHEDULE 8
Benchmarking
------------
1 INTRODUCTION
1.1 The Parties agree to the principle of benchmarking and market
testing to ensure the costs of the Consultancy Services and/or the
ASC Services provided to each other under this Agreement are
competitive in respect of those provided to their other customers of
a similar size and nature and that overall they respectively remain
competitive within the market at large providing the subject
Consultancy Services and/or the ASC Services during the period of
this Agreement. The Parties agree, to ensure that there are no
ambiguities in relation to the Parties? understanding of how this is
measured, it will be necessary to agree a structure around which
these benchmark measurements are to be taken. The principles of such
structures shall include, but not be limited to:
1.1.1 each service offered shall be capable of being benchmarked;
1.1.2 in such benchmarking systems, where a benchmark reveals a
variance, the said systems shall define the mechanisms for
making any necessary adjustments such as inter alia immediate
adjustment, future adjustment, price variation etc;
1.1.3 each benchmarking system will contain a requirement for a
regular review to ensure that the costs of providing the
services one to the other will at all times be competitive in
relation to then current equivalent service offerings
available to each Party in the market place as a whole.
1.2 For the purposes of benchmarking under this Schedule 8 companies
that are considered at the date of this Agreement to provide similar
Consultancy Services include Arthur Anderson, PriceWaterhouse
Coopers, Deloitte & Touche and KPMG, and companies considered at the
date of this Agreement to provide similar services to the ASC
Services include Arthur Anderson, Capita and EDS.
<PAGE>
ANNEX 1
Insurance Policies of Tier and SBS
----------------------------------
<PAGE>
ANNEX 2
AGREEMENT FOR THE PROVISION OF SBS STAFF SERVICES FROM SBS TO TIER
------------------------------------------------------------------
THIS AGREEMENT is made on day of
BETWEEN:
(1) Tier Technologies (United Kingdom) (Inc) a company incorporated in Delaware
whose Registered Address is situated at 1013 Centre Road, Wilmington, New
Castle County, Delaware, USA (?Tier?); and
(2) Siemens Business Services Limited whose Registered Address is situated at
Siemens House, Oldbury, Bracknell, Berkshire RG12 8FZ (?SBS?)
hereinafter collectively referred to as ?the Parties?.
RECITALS
Recital (A) Tier and SBS entered into an Alliance Agreement on 1999. Under the
Alliance Agreement Tier agreed to provide Consultancy Services to
SBS and SBS agreed to provide SBS Staff Services for Utilisation in
the ASC Services.
Recital (B) Tier had an option under the Alliance Agreement to require SBS to
enter into a new and separate agreement under which Tier would
create opportunities for SBS to Utilise the SBS Staff Services.
Pursuant to this option, Tier and SBS agree to enter into this
Agreement on the terms and conditions contained herein.
Recital (C) All the defined terms used in this Agreement shall have the same
meaning as in the Alliance Agreement unless otherwise specified.
IT IS NOW HEREBY AGREED AS FOLLOWS:
1 PURPOSE
1.1 The Parties shall enter into this Agreement on terms identical to
Clauses 4, 5, 6, 11, 13 ? 22, 25 ? 35 and Schedule 1 in the Alliance
Agreement and otherwise agree the terms and conditions set out
herein.
1.2 The purpose of this Agreement is stipulate the provisions, terms and
conditions used which SBS will provide SBS Staff Services and the ASC
Services [***]
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
1.3 For the avoidance of doubt SBS is under no obligations to procure
Consultancy Services from Tier under this Agreement and Tier is under
no obligation to provide any such Consultancy Services to SBS.
2 TERM
The Parties agree that this Agreement shall have full force and effect for a
period of two and a half years from the date of this Agreement.
3 THE ASC SERVICES
3.1 SBS shall:
3.1.1 make available the same types of services currently existing
in the ASC Services or any additional services agreed between
the Parties and set out in the Business Development
Methodology or otherwise agreed;
3.1.2 enter into Agreements with Tier and/or Third Parties separate
from this Agreement for the performance and delivery of such
ASC Services, such Agreement to be based on the Master
Services Supply Agreement unless expressly otherwise required
by the Third Party;
3.1.3 promptly notify Tier of any delay in performance of the ASC
Services;
3.1.4 provide the ASC Services in accordance with service levels
agreed with Third Parties;
3.1.5 ensure that the ASC Services conform to any quality
requirements and/or specifications stated in this Agreement or
as agreed by SBS in any agreement with a Third Party;
3.1.6 charge such rates for use of the ASC Services which are
competitive by reference to the benchmarking procedure
described in SCHEDULE 8 of the Alliance Agreement;
3.1.7 have the right, power, authority and capability to provide the
ASC Services in accordance with this Agreement or any other
arrangement or Agreement with Tier and/or a Third Party;
3.1.8 comply will all laws and regulations including relevant health
and safety legislation I the provision of the ASC Services;
<PAGE>
3.1.9 use reasonable endeavours to maintain the ASC Infrastructure
in order to provide the ASC Services in accordance with this
Agreement.
3.2 The Parties may elect to incorporate the provision of the ASC
Services as a sub-contract to Tier in any Agreement with a Third
Party, in which case Tier and SBS shall enter into a separate
Agreement for that supply of ASC Services the form of that Agreement
being the Master Services Supply Agreement unless otherwise agreed
between the Parties.
4 SBS STAFF SERVICES
4.1 SBS shall:
4.1.1 Mobilise sufficient FTE SBS Staff Services for Utilisation by
Tier and/or a Third Party in order to meet all requests for
the ASC Services made by Tier and/or Third Parties introduced
by Tier to SBS during the term of this Agreement. In the
event that SBS are unable to Mobilise SBS Staff Services SBS
shall recruit sufficient SBS Staff Services externally such
recruitment costs to be at SBS? cost.
4.1.2 continue to procure the training of all SBS Staff Services
during this Agreement as set out in SCHEDULE 3 of the
Alliance Agreement;
4.1.3 ensure that appropriate instructions and directions are given
to the SBS Staff Services to provide the ASC Services in
accordance with Agreements entered into with Third Parties
and/or Tier.
5 PAYMENT
5.1 Tier shall be entitled to [***]of any Net Margin (as defined below)
made on any Third Party contract entered into with SBS for the
provision of the ASC Services pursuant to Tier?s introduction of that
Third Party to SBS.
5.2 In respect of each such Third Party contract SBS shall pay Tier [***]of
any Net Margin (as defined below) calculated at the end of each six
month period payable in arrears for the duration of each Third Party
contract.
5.3 At the end of the period of any such Third Party contract the Net
Margin for the whole of that Third Party contract period shall be
calculated and reconciliation payments made to Tier as necessary.
*CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
5.4 For the purposes of this Clause 5 ?Net Margin? means all profit arising
out of a Third Party contract before the deduction of any tax less any
direct costs incurred in relation to such Third Party contract,
including a proportionate element of costs of assets shared between SBS
projects provided that such shared assets are directly used in the
delivery of that Third Party Contract.
5.5 Tier may dispute the amount of any monies paid to it in accordance with
Clause 5.1 within thirty (30) Calendar days of payment being made to it
by giving SBS written notice setting out the basis of the dispute.
Where such a dispute arises or SBS fails to pay Tier its [***]of any
Net Margin due under Clause 5.1 the Parties shall use reasonable
endeavours to settle the dispute amicably failing which the provisions
of Clause 21 of the Alliance Agreement will apply.
5.6 All payments to be made under this Agreement shall be made in full
without any set off, restriction or condition and without deduction for
or on account of any counterclaim.
5.7 Tier shall have access to SBS? accounts in accordance with the
provisions of Clauses 12.8 and 12.9 of the Alliance Agreement.
5.8 For the avoidance of doubt there shall be no additional payments in
respect of a Success Fee.
6 DEFAULT IN PERFORMANCE
6.1 In the event that SBS are unable to provide any SBS Staff Services in
order to perform the ASC Services for Tier and/or a Third Party SBS
shall be in default of this Agreement and Tier shall be entitled to
serve a default notice requiring SBS to remedy the default within
thirty (30) Working Days.
6.2 In the event that SBS fail to pay Tier any sums due to Tier in respect
of Net Margin made as a result of any Third Party contract for the ASC
Services SBS shall be in default of this Agreement and Tier shall be
entitled to serve a default notice requiring SBS to pay within thirty
(30) Working Days.
6.3 In the event that SBS commits three defaults under either Clause 6.1 or
6.2 within a period of six (6) Calendar months Tier shall be entitled
to terminate this Agreement in accordance with the provisions of Clause
7 below.
*CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
7 TERMINATION
7.1 This Agreement may be terminated for default as set out in Clause 6
above or for insolvency as set out in Clause 23 of the Alliance
Agreement.
7.2 In the event of termination pursuant to Clause 6 SBS shall pay Tier
forthwith any sums due and owing in respect of Third Party contracts
for the ASC Services at the date of termination.
SIGNED AND AGREED for and on behalf of Tier Technologies (United Kingdom) Inc.
Signature: Date:
Name: Status:
SIGNED AND AGREED for and on behalf of Siemens Business Services Limited
Signature: Date:
Name: Status:
<PAGE>
ANNEX 3
THE BUSINESS DEVELOPMENT METHODOLOGY
------------------------------------
1 PURPOSE
1.1 The purpose of this document is to describe the processes to be
followed by the Parties to support the Business Development Activity
contemplated under this Agreement.
1.2 In particular this document is established for the specific purposes
set out in Clause 6.2 of the Agreement.
2 APPROACH
2.1 The Alliance Managers shall review, document and agree, at each
Calendar monthly meeting;
2.1.1 In respect of new, anticipated or emerging Third Parties;
2.1.1.1 sales opportunities for the forthcoming six Calendar
month period and those Third Parties to be
approached in the forthcoming Calendar month;
2.1.1.2 the qualification criteria to be used in respect of
each new, anticipated or emerging Third Party
identified in Paragraph 2.1.1.1 above;
2.1.1.3 the sales campaign, action plan and resourcing
requirements to be deployed in respect of each new,
anticipated or emerging Third Party identified in
Paragraph 2.1.1.1 above;
2.1.1.4 any activities required by the VRB;
2.1.1.5 which Party is to be responsible for the activities
arising from Paragraphs 2.1.1.3 and 2.1.1.4 above;
2.1.1.6 to agree on the allocation of resources to support
those activities required by Paragraph 2.1.1.5.
2.1.2 In respect of those anticipated or emerging Third Parties
previously identified by the Parties pursuant to Paragraph
2.1.1.1. above:
2.1.2.1 Business Development Activity planned and undertaken
in the previous Calendar month and that anticipated
in the forthcoming Calendar month;
<PAGE>
2.1.2.2 Proposal Development Activity planned and/or
undertaken in the previous Calendar month and that
anticipated in the forthcoming Calendar month;
2.1.2.3 Proposal Submission Activity planned and/or
undertaken in the previous Calendar month and that
anticipated in the forthcoming Calendar month;
2.1.2.4 qualification criteria, sales campaign, action plan
and resourcing requirements and their ongoing
applicability, and whether or not to discontinue any
identified Third Party opportunity identified
pursuant to Paragraph 2.1.1.1 above;
2.1.2.5 any activities required by, the progress thereof,
and any decisions made by, the VRB and the reasons
for any such decisions;
2.1.2.6 to review the ongoing allocation of resources to
support those activities required by Paragraph
2.1.2.5.
2.2 The documents referred to in this paragraph 2 shall be updated as
necessary and reviewed as agreed between the Parties.
AS WITNESS the hands of the Parties hereto the day and year first hereinbefore
written:
SIGNED AND AGREED for and on Behalf of Tier Technologies (United Kingdom) Inc.
Signature:____________________________ Date:__________________________
Name:____________________________ Status:__________________________
SIGNED AND AGREED for and on Behalf of Siemens Business Services Limited
Signature:____________________________ Date:________________________
Name:____________________________ Status:________________________