2.1.1

a “ person ” includes bodies corporate and unincorporated associations of people;

2.1.2

a clause, Schedule, paragraph, section, Exhibit, Appendix or Annex are, except where otherwise stated, a reference to a clause, Schedule, paragraph, section, Exhibit, Appendix or Annex to this Agreement. The Schedules form part of this Agreement and shall be read as though they were set out in this Agreement;

2.1.3

a word importing one gender shall (where appropriate) include any other gender and a word importing the singular shall (where appropriate) include the plural and vice versa;

2.1.4

any statute or statutory provision includes, except where otherwise stated, the statute or statutory provision as amended, consolidated or re-enacted from time to time and includes any subordinate legislation made under the statute or statutory provision (as so amended, consolidated or re-enacted) from time to time;

2.1.5

“ including ”, “ includes ” and “ in particular ” are illustrative, none of them shall limit the sense of the words preceding it and each of them shall be deemed to incorporate the expression “ without limitation ”. “ Other ” and “ otherwise ” are also illustrative and shall not limit the sense of the words preceding them;

2.1.6

words denoting persons include bodies corporate and unincorporated associations and vice versa where the context requires. The words “ subsidiary ” and “ holding company ” shall have the meanings given to them in section 1159 and schedule 6 of the Companies Act 2006;

2.1.7

the index and headings in this Agreement and any descriptive notes in brackets are for convenience only and shall not affect its interpretation; and

2.1.8

in the case of any inconsistency between any provision of the Schedules to this Agreement and any term of this Agreement the latter shall prevail. In the case of any inconsistency between any provision of the Annexes or Appendices and any provision of the Schedules, the latter shall prevail.

3.5.1

the UK Customer shall be entitled (acting as agent) to make decisions and provide instructions to the Service Provider and its Affiliates pursuant to this Agreement as “the Customer” for and on behalf of each of the US Customer and the Bermuda Customer and references to the Customer instructing the Service Provider or otherwise engaging with it in relation to the provision of instructions hereunder shall be understood to mean that, save with respect to SOWs entered into by the US Customer or the Bermuda Customer to which the UK Customer is not a party, the UK Customer can provide such instructions for and on behalf of the US Customer and the Bermuda Customer (and in the event of any conflict between any instructions received by the Service Provider from the UK Customer and either of the US Customer or the Bermuda Customer, the instructions of the UK Customer as agent will prevail);

3.5.2

the UK Customer shall procure that the relevant Customer entity complies with the requirements of the relevant Customer Dependencies;

3.5.3

notwithstanding clause 3.5.1, the UK Customer may appoint a local representative from each of the other Customers to give instructions to the Service Provider and its Affiliates working “on the ground” (a “ Local Manager ”), such appointment to be set out in writing between the Parties. In the event of any conflict between the Local Manager’s instructions and any instruction from the UK Customer, the instruction of the UK Customer shall prevail;

3.5.4

the UK Customer, the US Customer and the Bermuda Customer shall have joint and several liability under this Agreement and any SOW to which they are all parties;

3.5.5

the US Customer and the Bermuda Customer each hereby formally appoints the UK Customer as its agent for service of legal proceedings and hereby authorises the UK Customer to execute SOWs, formal variations to this Agreement and Change Control Notes on its behalf;

3.5.6

any SOW or Change Control Note to which all three of the UK Customer, the US Customer and the Bermuda Customer are party shall be executed by each such entity albeit that, pursuant to clause 3.5.3, the execution may be carried out by the UK Customer for and on behalf of the US Customer and the Bermuda Customer respectively;

3.5.7

invoices for the Charges payable in respect of Services delivered to all of the UK Customer, the US Customer and the Bermuda Customer under this Agreement and SOWs entered into by all three Customer Parties shall be apportioned in accordance with the mechanisms set out in Schedule 10 (Pricebook, Charges and Invoicing);

3.5.8

pursuant to clause 34.10, the UK Customer shall be the only Party entitled to bring a claim against the Service Provider in connection with this Agreement or any SOW to which (i) all three of the UK Customer, the US Customer and the Bermuda Customer are party; or (ii) the UK Customer and one of the US Customer and the Bermuda Customer are a party. Accordingly, where a loss is suffered by a Customer (the UK Customer, US Customer or Bermuda Customer) under this Agreement or a SOW to which all three of the UK Customer, US Customer and Bermuda Customer are parties then the UK Customer shall bring that claim (unless prohibited by law); and

3.5.9

Where the UK Customer is not a party to any SOW and there is more than one other Customer entity contracting, then the Parties agree that:

3.5.9.1

the SOW shall set out applicable terms for governance and management of the SOW in place of the terms of this clause 3.5 and appoint a managing agent;

3.5.9.2

the relevant Customer contracting entities shall have joint and several liability under that SOW;

3.5.9.3

appropriate mechanisms for invoicing in relation to each relevant Customer contracting entity shall be set out in the SOW; and

3.5.9.4

the party nominated as the managing agent for the purposes of that SOW under 3.5.9.1 shall be the only party entitled to bring claims for losses suffered under that SOW (unless prohibited by law).

4.

SERVICES

4.1

The Service Provider shall provide the Services to the Customer and the Customer Group in accordance with the terms of the Agreement and also:

4.1.1

in accordance with the requirements set out in the applicable Schedules save for immaterial or cosmetic deviations;

4.1.2

with diligence, professionalism and in accordance with Good Industry Practice;

4.1.3

with sufficient, suitably trained and qualified resources to provide the Services;

4.1.4

in a cost-effective manner, but without prejudice to the level of quality and performance required;

4.1.5

in accordance with the relevant time frames specified or if none are specified, within a reasonable time frame;

4.1.6

in material compliance with the Customer Standards and Policies made available to it in writing from time to time (with changes to the versions listed in Schedule 6 notified by Customer to Service Provider and managed via the Contract Change Control Procedure);

4.2.6

facilitate the identification and deployment of creative solutions to optimise value; and

4.2.7

reflect the partnership principles set out in the annex that will form part of the Schedule 12 (Governance and Service Management).

4.4.1

any services, functions or responsibilities performed within the twelve (12) month period immediately preceding the Effective Date by the Customer’s employees, agents and/or contractors whose functions were displaced as a result of this Agreement, even if the service, function or responsibility is not specifically described in this Agreement unless such function or responsibility is specifically identified in this Agreement as either no longer being required or as being the responsibility of the Customer; and

4.4.2

any services, functions and responsibilities reflected in those categories of the Customer’s budget that the Service Provider is assuming pursuant to the Agreement unless the same are specifically identified in this Agreement as either no longer being required or as being the responsibility of the Customer,

4.8

In respect of Transition, Committed Transformation and Change Management Services related project work only, the Customer shall have the right to suspend the provision of Services at any time where either:

4.8.1

the provision of Services is, in the Customer’s reasonable opinion, having an adverse impact on the Customer’s business or the experience of its customers or staff; or

4.8.2

the Service Provider is in material breach of its obligations in respect of the Services that the Customer wishes to suspend.

4.10

In relation to Change Management Services related project work (i.e. where clause 4.9 does not apply), the suspension terms in this clause 4.10 and clause 4.11 shall apply. In the event of suspension pursuant to clause 4.8:

4.10.1

the Service Provider shall immediately cease providing the affected Change Services;

4.10.2

where suspension takes place pursuant to clause 4.8.1 (suspension because of adverse impact):

4.10.2.1

the Service Provider shall continue to charge for the project team at the applicable Rate Card day rate for a period of [ *** ], following which the Charges shall be reduced to [ *** ] percent

4.10.2.2

Liquidated Damages and other remedies shall not apply during the period of delay caused by the suspension;

4.10.3

where suspension takes place pursuant to clause 4.8.2 (suspension for material breach):

4.10.3.1

save to the extent any ramp down benching or other costs are agreed in this Agreement or the applicable SOW, the Service Provider shall [ *** ]; and

4.10.3.2

the Service Provider shall engage in good faith discussions with the Customer in relation to potential resolutions of the breach giving rise to the suspension but, during the period of delay caused by the suspension the Customer agrees that the Service Provider shall be relieved from any duty to pay Liquidated Damages;

4.11

The Customer shall have the right to require that any Services suspended pursuant to clause 4.8 restart at any time upon at least one (1) week’s notice provided that if suspension occurs pursuant to clause 4.8.2 and the period of suspension continues for longer than two (2) months, at least two (2) weeks’ notice shall be required.

4.12

The Service Provider agrees that the Customer has the right to call off project work under Statements of Work incorporating the full terms of this Agreement and the particular arrangements for doing so are set out in paragraphs 4.4 and 4.5 of Annex 5 of Schedule 2 (Change Management Services).

5.3.4

identify clearly which Services, Milestones (if any), Performance Standards and/or other Agreement obligations are likely to be affected and, in the reasonable opinion of the Service Provider, the extent to which they are likely to be affected; and

5.3.5

identify as far as possible the extent to which the Service Provider’s fulfilment of the relevant obligations under this Agreement will be delayed, interrupted or otherwise affected.

5.3.1

continue to provide the Services so as to meet the Milestone or complete Transition as soon as possible after the Milestone Date; or

5.3.2

re-perform the Services so as to meet the Milestone or complete Transition as soon as possible after the Milestone Date, [ *** ].

6.8.1

require the Service Provider to rectify any defects and re-submit the Acceptance Item for acceptance;

6.8.2

accept the Acceptance Item subject to an equitable reduction in fees (which shall be at least [ *** ]%) and, in this scenario, such Acceptance Item shall be treated as if it were fully accepted; or

6.8.3

immediately terminate the Service or Transition related to the Acceptance Item and any other affected Services for material breach and be refunded all Charges paid under this Agreement in connection with the same provided that all Acceptance Items related to such termination are returned to the Service Provider.

6.10

Notwithstanding clause 6.9, the Service Provider may issue an invoice for the relevant Milestone payment if the Customer has not confirmed acceptance or rejection within one month of the due date for acceptance of the Acceptance Item. For the avoidance of doubt, the lack of confirmation of acceptance shall not be ground for the Customer to claim that the invoice has been improperly rendered pursuant to paragraph 3.7 of Schedule 10 (Pricebook, Charging & Invoicing).

6.11

If the Customer conditionally accepts an Acceptance Item, it shall notify the Service Provider of the conditions to which the acceptance is subject and the Acceptance Item shall not be fully accepted until such conditions have been met. The Charges related to the relevant Acceptance Item shall be subject to an equitable reduction (which shall be at least 10%), with the balance paid when the defects or backlog of issues have been completed.

7.1.1

so as to cause minimal disruption to the business of the Customer (and in any event only that disruption agreed in the Transition Plan or other applicable Transformation Plan); and

7.1.2

in accordance with the Milestones set out in the agreed Transition Plan (or other applicable Transformation Plan).

8.5

The Service Provider agrees that if an agreed trigger event occurs (it being agreed that this shall include if: (i) there are repeated delivery or service failures; (ii) there is a major one-off failure such as a failure to achieve Transition Milestone Dates; (iii) and/or it fails to comply with its rectification obligations) then it will commit to executive escalation as follows:     

8.5.1

as a first level of executive escalation (“ Executive Escalation (a) ”) the Service Provider has agreed that should Executive Escalation (a) be triggered then Service Provider’s Executive Sponsor (named in the Agreement as a member of the Key Personnel) shall relocate to the Customer’s offices for four (4) full Business Days per week to lead the Service Provider’s team and to explain progress; and the Service Provider’s UK CEO or his or her nominee who shall be a main board member of the Service Provider’s UK entity shall telephone the Customer’s CEO once each week to report progress. Without prejudice to its other rights and remedies the Customer may in its sole and absolute discretion elect to waive or defer Executive Escalation (a); and

8.5.2

as a second level of executive escalation (“ Executive Escalation (b) ”) the Service Provider has agreed that should Executive Escalation (a) not result in the successful resolution of the issue that gave rise to Executive Escalation (a) then the Service Provider’s UK CEO or his or her nominee who shall be member of the leadership of the Service Provider’s UK business (and not the person already identified as Executive Escalation (a)) shall relocate to the Customer’s offices for three (3) full Business Days per week to lead the Service Provider’s team and to explain and report progress. Without prejudice to its other rights and remedies the Customer may in its sole and absolute discretion elect to waive or defer Executive Escalation (b).

10.

Holdback, Service Levels and Liquidated Damages

10.1

If the Service Provider fails to achieve a Key Milestone for any reason other than a Force Majeure Event or a failure by the Customer to meet a Customer Dependency, without prejudice to its other rights and remedies, the Customer may claim the Liquidated Damages associated with that Key Milestone (if any) as set out in paragraph 5.5.1 of Schedule 10 (for Transition), paragraph 14.3.1 of Schedule 10 (for Committed Transformations) or an applicable SOW, in which case:

10.2

The Parties acknowledge that, prior to the Service Commencement Date for a particular Service Tower, the mechanisms in Schedule 3 (Service Levels and Service Credits) and clause 32 (Step-In) are not applicable.

10.3

Where a Transition or Committed Transformation is delayed and the Service Provider becomes liable for the delayed savings intended to be delivered by that Transition or Committed Transformation pursuant to clause 5.3 then paragraph 5.5.2 or paragraph 14.3.2 of Schedule 10 (as applicable) shall apply to compensate the Customer for this.

10.4.1

The Service Provider agrees that [ *** ] percent ([ *** ]%) of the Charges for the Committed Transformation shall be held back (the “ Holdback ”) as set out in paragraph 14.2 of Schedule 10 (Pricebook, Charges and Invoicing).

10.4.2

The Parties agree that with respect to Change Projects, including Change Projects related to Future Transformation, a Holdback mechanism akin to that set out in clause 10.4.1 above may apply and, if agreed to be applicable, shall be documented in the relevant SOW. The Service Provider shall not unreasonably withhold its agreement to include such a mechanism.

10.5

The Service Provider acknowledges that any failure to provide a Service to a Performance Standard may have a material adverse impact on the business and operations of the Customer and that, accordingly, it shall:

10.5.1

at all times achieve or exceed the Performance Standards in respect of the Services; and

10.5.2

perform the Services with at least the same level of performance (including in respect of accuracy, quality, timeliness, responsiveness and efficiency) as was provided by or for the Customer prior to the Effective Date (unless expressly agreed to the contrary in the Agreement) or, if higher, in accordance with Good Industry Practice.

10.6

Each Party acknowledges and agrees that any Service Credits that may become payable are an adjustment to the Charges and that the payment and receipt of Service Credits and/or Liquidated Damages is without prejudice to any other right or remedy available to the Customer as a result of the Service Provider’s failure to meet the relevant Service Levels or achieve the relevant Milestone (as applicable).

10.7

In addition to Service Levels, the Service Provider shall measure other key indicators of performance of the Services (including by carrying out a customer satisfaction survey) and shall provide such measurements to the Customer in order for the Customer to fully understand the levels of performance of the Service being provided by the Service Provider.

10.8

At the Customer’s election, Service Levels may be added, deleted or revised due to change in the Customer’s business requirements once suitable agreement on the impact of such changes on the Service and the Service Credits has been reached through the Contract Change Control Procedure.

11.

SERVICE IMPROVEMENT AND ADVANCES IN TECHNOLOGY

11.1

Other than the Standards and Policies, the Service Provider shall keep the systems, methodologies and processes used and owned or licenced by the Service Provider in performing the Services current and the Customer shall receive the benefits of upgrades in the same through increases in efficiency and productivity.

11.2

The Service Provider shall cause the delivery of the Services, as approved by the Customer, to evolve and be modified, enhanced, supplemented and replaced as necessary for the Services to keep pace with advances in the methods of delivering services, where such advances are at the time pertinent and in general use. Accordingly, the Service Provider shall proactively seek out new technologies by surveying the market and the technology landscape more generally to identify advances or changes in technology that are appropriate and beneficial to the Customer.

12.

TRANSFORMATION OPPORTUNITIES AND REFERENCE

12.1

In addition to the baseline improvements in service quality and reduction in charges and costs agreed as of the Effective Date and to be delivered as part of Transition of the agreed Services, the Service Provider shall actively seek out costs reduction opportunities throughout the Term and, subject to the Customer’s approval, shall implement the same in order to pass on the benefit of costs savings to the Customer (“ Transformation ”).

12.2

If the Service Provider adopts technology or processes that change the manner in which the Services are supplied and this results in cost reductions to the Service Provider, the Service Provider shall notify the Customer and the Charges shall be reduced accordingly.

12.3

The Service Provider shall submit to the Customer a draft transformation plan (the “ Transformation Plan ”) for the Customer’s review and approval and shall revise the Transformation Plan as requested or approved by the Customer. The Transformation Plan shall be additional to the improvements and transformational activities to be carried out during Transition or agreed to be carried out in any event as at a particular Service Commencement Date.

12.5

The Transformation Plan shall include suggestions and plans, including cost benefits, for improving productivity beyond the Service Levels and/or reducing the Charges. Upon approval by the Customer, any such suggestions may be incorporated into this Agreement pursuant to the process set out in Schedule 8 (Transition and Transformation).

12.6

The Service Provider shall use the Customer as a referee in relation to at least two (2) bids each year. Such bids shall be for services broadly similar to the Services for clients of a similar size to the Customer. Failure to do this shall, without limitation, require the Service Provider’s UK and Ireland CEO to provide detailed reasons for such failure to the Customer’s CIO.

13.1

In the event the Customer deems it necessary to require the Service Provider to use equipment owned or operated by the Customer (“ Customer Equipment ”), the Service Provider shall be responsible for transfer of the Customer equipment to the Service Provider’s sites/environments. As at the Effective Date, the Parties do not envisage any Customer Equipment being installed on the Service Provider’s sites/environments.

13.3

The Service Provider shall be fully responsible for monitoring the operation of and maintenance of the Customer Equipment (if any) and shall promptly notify the Customer of any issues with the same that may impact the provision of the Services or achievement of the Service Levels.

13.4

The Service Provider may, where directed to do so by the Customer, acquire future equipment (“ Future Equipment ”), including modifications, upgrades, enhancements, additions and replacements of the Customer Equipment, as necessary or appropriate to provide the Services. Such Future Equipment shall be acquired in the name of the Customer and title shall vest in the Customer and, unless agreed to the contrary pursuant to the Contract Change Control Procedure, the Customer shall pay the vendor directly for such Future Equipment.

13.5

The Customer shall have the right to approve any software or Service Provider Tools used by the Service Provider in relation to the Services and installed on Customer Systems prior to the Service Provider’s use of the same in order to provide the Services, such approval shall not be unreasonably withheld or delayed. The Service Provider shall be responsible for:

13.5.1

in consideration of the Run Charges, installing, operating and maintaining the Service Provider Software and Service Provider Tools;

13.5.2

in consideration of the Run Charges, managing and using any other Software, Systems or Materials (including the Customer Software, Customer Systems and Customer Materials) required to provide the Services; and

13.5.3

in consideration of any agreed Change Management Charges, modifying such other Software, Systems or Materials (including the Customer Software, Customer Systems and Customer Materials) where the same is agreed as part of the relevant Change Management Services.

13.6

Each Party shall be responsible for risk of loss of, and damage to, Equipment, Software or other Material in its possession or under its control, provided that the Service Provider will notify the Customer prior to installing any single piece of Equipment worth more than £50,000 at a Customer Location.

13.7

The Service Provider shall be responsible for the risk of loss of, and damage to, any property, systems or material used by it to provide the Services, except to the extent that any loss of, or damage to, any such property, systems or materials is caused by an intentional wrongful act or omission of the Customer or Customer Personnel.

14.

CO-OPERATION AND THIRD PARTY CONTRACTS

14.1

The Service Provider acknowledges that it will be delivering the Services to the Customer in a multi-vendor environment. Accordingly, the Service Provider shall co-operate in good faith with the Customer, to the extent relevant to obtain the benefit of the Services, and with the Customer’s other suppliers to facilitate the integrated and efficient carrying out of the Customer’s operations and the provision of the Services. Such co-operation shall include providing advice, assistance, data and information as reasonably required by the Customer and (subject to reasonable confidentiality provisions being in place) its suppliers.

14.2

Where applicable to its service model, the Service Provider will agree to specific operation level agreements with those third party suppliers of the Customer identified by the Parties from time to time and, without prejudice to the generality of clause 14.1, the Service Provider shall comply with such co-operation obligations.

14.3

Notwithstanding Schedule 14 Appendix A, during Transition, the Parties will identify any third party contracts under which a Third Party Provider furnishes or provides services to the Customer that are associated with the Services and which are required to be maintained in the name of the Customer (or its Affiliates) and managed by the Service Provider (" Managed Agreements "). Any such contracts not already included in Schedule 14, Appendix 14-A will be added to it by written agreement of the Parties.

14.4

Without prejudice to the generality of its obligations under clauses 14.1 and 14.2, the Service Provider agrees that in relation to any such Managed Agreements, it will monitor the performance of each applicable Third Party Service Provider and take steps to address with each Third Party Service Provider any issues arising with its performance and shall promptly escalate any concerns it may have with respect to such performance to the Customer.

14.5

The Service Provider shall ensure that reasonable knowledge transfer takes place between it and the applicable Third Party Service Providers including in relation to:

14.5.1

difficulties and issues such Third Party Service Providers may encounter in delivering their services in the context of the Service Provider’s provision of the Services;

14.5.2

information regarding the operating environment, system constraints and other operating parameters applicable to the provision of the Services by the Service Provider as a supplier with reasonable technical skills and expertise would find reasonably necessary in order to perform its work; and

14.5.3

such information as is necessary to assist each such Third Party Service Provider to ensure that the results of its services have the ability to interoperate with the Services.

14.6

The Parties acknowledge that from time to time the Service Provider may need to appoint third parties as its subcontractors in order to enable it to perform aspects of the Services. The Service Provider agrees that the Customer shall have the right to nominate certain Third Party Suppliers to be its subcontractors in relation to such Services. Where requested to do so by the Customer, the Service Provider shall either manage such contracts on the Customer’s behalf or shall then enter into direct contracts with such Third Party Suppliers provided, in such latter case, that: (i) the Service Provider is able to reach a commercial agreement in relation to the same; and (ii) the relevant Third Party Supplier passes the Service Provider’s ethics, security and compliance checks. Where requested to enter into a direct subcontract with a third party pursuant to this clause, the Service Provider shall negotiate in good faith and use its reasonable commercial endeavours to reach agreement and the Customer agrees to provide reasonable support to assist with such discussions (if requested to do so). Third Party Suppliers who enter into direct agreements with the Service Provider shall thereafter be treated as a subcontractor of the Service Provider for the purposes of clause 17 below.

15.2

The personnel assigned to the Customer account by the Service Provider (or its Sub-contractors) will be and remain employees of the Service Provider (or such Sub-contractors) (“ Service Provider Personnel ”) and the Service Provider (or such Sub-contractors) shall be liable for all taxes, national insurance and other costs, compensation and benefits of such personnel, including salary, health, accident and workers’ compensation benefits, pensions and contributions that an employer is required to pay with respect to the employment of employees related to the Service Provider Personnel (“ Employment Costs ”).

15.3.1

additional work in connection with the performance of the Services by the Service Provider that would have otherwise been unnecessary in the absence of such action or inaction; or

15.3.2

additional work for the Customer to enable it to obtain the full benefit of the Services,

15.4

The Customer shall have the right to require the removal of any member of the Service Provider Personnel assigned to perform under this Agreement where such Service Provider Personnel’s performance and competence, responsiveness, capabilities, cooperativeness, ability to work within the Customer’s culture, or fitness for a particular task of any person assigned by the Service Provider to perform Services, is insufficient to perform the Services in a manner acceptable to the Customer. In these circumstances, the Customer shall provide to the Service Provider written reasons for the request for removal. Without prejudice to the foregoing, the Service Provider shall furnish a qualified replacement as soon as reasonably practicable but in all cases, within twenty (20) days of the removal.

15.5

The Customer shall have the right to designate certain employees of the Service Provider or its Sub-contractors as key employees (the “ Key Personnel ”), provided that the Service Provider may reasonably refuse such designation. The Parties shall agree a maximum number of Key Personnel across each Service Tower during Transition and following the applicable Service Commencement Date. The Key Personnel shall devote sufficient effort to perform their role in the delivery of the applicable Services. The Key Personnel will be listed in Schedule 18 (Key Personnel) to this Agreement.

15.6

During their Duration of Commitment, the Service Provider shall only remove or change the Key Personnel with the written consent of the Customer except where the removal or change results from resignation, death, disability, or termination of employment of the Key Personnel in question in which case the Service Provider must promptly notify the Customer of such removal and the proposed replacement. The Service Provider may review its team after the expiry of the initial Duration of Commitment set out in Schedule 18 (Key Personnel) and thereafter every twelve (12) months and advise which Key Personnel are to be changed in accordance with this clause 15.6 and clause 15.7 and any such changes will be made on at least six (6) months’ notice.

15.7

The Service Provider may only assign or replace any Key Personnel with the Customer’s prior written consent (which in the circumstances set out above shall be deemed to have been given) and only after the Service Provider has provided the Customer with the relevant curriculum vitae of the relevant Key Personnel and with a reasonable opportunity to interview such Key Personnel. At no additional cost to the Customer, the Service Provider will provide for an appropriate transition (including overlap) period for the new individual so that there is no disruption to the performance of the Service Provider’s obligations or the Customer’s receipt of the Services under this Agreement.

15.8

Save for any exceptions agreed in Schedule 17 (Human Resources Provisions), each Party agrees that during the term of this Agreement and for a period of one (1) year thereafter, it will not and will procure that its Affiliates will not directly or indirectly, either on its own account or in conjunction with or on behalf of any other person, hire, solicit or endeavour to entice away from the other Party any person who, during the term of this Agreement has been an officer, manager, employee, agent or consultant of the other Party. The Parties agree that to the extent required by Relevant Law, this restriction shall not apply to responses made to bona fide job advertisements.

16.

SERVICE LOCATIONS

16.1

When working at any Customer facilities, Service Provider Personnel shall comply with the requirements of Schedule 22 (Locations and Site Licence) and all applicable Standards and Policies, including the Customer’s standard workplace security, administrative, safety and other policies and procedures applicable to the Customer’s own employees or contractors (“ Customer Location Policies ”) and the Customer IT and security policies as set out in Schedule 7 (Security - IT and Physical).

16.2

The Customer shall notify the Service Provider of any subsequent modifications or amendments to the Customer Location Policies. Any such changes to the Customer Location Policies which impose materially increased obligations or costs on the Service Provider, shall be agreed through the Contract Change Control Procedure.

17.

SUBCONTRACTORS

17.1

The Service Provider shall not delegate or subcontract any of its obligations under this Agreement without the prior written consent of the Customer and shall ensure that all Sub-contractors comply with obligations akin to those set out in Schedules 17 (Human Resources Provisions), 5 (Sub-Contractor List and Service Provider Tools), 7 (Security - IT and Physical), and 21 (Data Transfer and Processing).

17.2

The Customer acknowledges and agrees that the consent required pursuant to clause 17.1 has been granted in respect of those Approved Sub-contractors identified in Schedule 5 (Sub-Contractor List) and any Sub-contractor it formally requires the Service Provider to use in connection with the provision of the Services pursuant to clause 14.6.

17.3

The Customer may revoke its approval of a Sub-contractor if it has good faith doubts about the Sub-contractor’s ability to perform the sub-contracted Services.

17.4

The Service Provider shall on request advise the Customer of the impact of any revocation action pursuant to clause 17.3 by the Customer including any impact on the timetable and the Charges.

17.5

If the Customer wishes to proceed with the revocation action pursuant to clause 17.3 then any changes shall be agreed through the Contract Change Control Procedure.

17.6

The Parties agree that there will be no impact on the Charges if the Customer revokes its approval of a Sub-contractor as a result of any fraud, fraudulent misrepresentation, Wilful Default or Wilful Abandonment or any other criminal act by a Sub-contractor or its employees.

17.7

If the Customer consents to the Service Provider’s proposed use of a Sub-contractor to perform the Services (or part thereof) the Service Provider shall remain fully responsible and liable for the acts and omissions of the Sub-contractors to the same extent as if such acts and omissions were those of the Service Provider.

17.8

Subject to ensuring that all Service Provider Applicable Regulations and the Customer Applicable Regulations that it has been made aware of pursuant to clause 20.1 in relation to the same are complied with (provided always that compliance with Customer Applicable Regulations shall be deemed where the Service Provider complies with and has taken the steps agreed between the parties pursuant to clause 20.1), the Service Provider may engage any of its Affiliates to provide Services and Deliverables to the Customer and the Customer Group under this Agreement. Notwithstanding anything to the contrary in this Agreement, the Service Provider will remain fully liable for Services and Deliverables provided under this Agreement by its Affiliates.

18.

DATA AND SECURITY REQUIREMENTS

18.1

The Service Provider shall comply with the current Standards and Policies relating to IT and security and the requirements of Schedule 7 (Security - IT and Physical) at no additional cost to the Customer. If the Standards and Policies change these will be notified to the Service Provider by the Customer in accordance with clause 4.1.6 and the Service Provider will review such changes, and notify the Customer of any implications of such

18.2

The Service Provider shall provide ongoing training for all the Service Provider Personnel employed or engaged in the provision of the Services in compliance with the Standards and Policies.

18.3

Without limiting clause 18.1, the Service Provider shall comply and shall ensure that all Sub-contractors comply with vetting procedures and policies in respect of all Service Provider Personnel that comply with Good Industry Practice.

18.5

The Customer shall retain exclusive rights and ownership of all of Customer Data and the Customer Data shall not be:

18.5.1

used by the Service Provider for any purpose other than as required under the Agreement in connection with providing the Services;

18.5.2

disclosed, sold, assigned, leased or otherwise provided to third parties by the Service Provider; or

18.5.3

commercially exploited or otherwise used by or on behalf of the Service Provider, its affiliates, officers, directors, employees, or agents, other than in accordance with the Agreement.

18.6

Upon request by the Customer and at its election and at no additional charge, the Service Provider shall promptly return to the Customer the Customer Data in the format and on the media as reasonably requested by the Customer, or erase or destroy Customer Data in the Service Provider’s possession, power or control (except that the Service Provide may retain one copy for legal records) and, if requested by the Customer to do so, shall provide the Customer with confirmation in writing signed by a corporate officer of the Service Provider.

18.7

The Service Provider shall protect the Customer’s data in its possession, power or control so as to not lose, damage, destroy or corrupt the Customer Data.

18.8

Pursuant to the requirements of Schedule 7 (Security - IT and Physical) and the obligations in relation to the provision of the Security Services set out in Annex 2 of Schedule 2 (Service Descriptions), the Service Provider shall establish and maintain all appropriate technical and organisational controls to safeguard against the destruction, loss or alteration of Customer Data and that are no less rigorous than those maintained by the Service Provider for the Service Provider’s own information of a similar nature or that otherwise comply with Good Industry Practice.

18.9

Service Provider Personnel must not attempt to access, or allow access to, Customer Data to which they are not entitled or that is not required for the performance of the Services by Service Provider Personnel.

18.10

The Service Provider acknowledges its obligations with respect to data security set out in this clause 18.8 and 18.9 apply to the same extent to any of the Customer’s Confidential Information that is received by the Service Provider. Similarly, the Customer shall ensure that any Service Provider Confidential Information is kept securely in a manner consistent with the data security requirements imposed on the Service Provider under clauses 18.8 and 18.9.

18.11

The Service Provider acknowledges that the Customer is subject to the New York Department of Financial Services Cybersecurity Regulation (23 NYCRR Part 500) (“NYDFS”) and that the Service Provider’s compliance with clauses 18.8 and 18.9 in relation to Customer Confidential Information is required for the Customer to comply with NYDFS. The Service Provider will also reasonably assist the Customer to comply

19.

DISASTER RECOVERY

19.1

Without prejudice to any Services relating to disaster recovery or business continuity the Parties may agree, the Service Provider shall manage and maintain internal disaster recovery and business continuity policies and procedures consistent with Good Industry Practice and the requirements of Schedule 16 (Business Continuity and Disaster Recovery Plan) throughout the Term at no additional cost to the Customer.

20.

REGULATORY MATTERS AND AUDIT RIGHTS

20.1

The Service Provider shall comply with all Service Provider Applicable Regulations. Without prejudice to the generality of the foregoing, the Customer may notify the Service Provider of (i) any Customer Applicable Regulations it specifically requires the Service Provider to comply with (including any requirements set out in the Standards and Policies to either comply with Customer Applicable Regulations referenced there or to ensure compliance with Customer Applicable Regulations by following certain policies or procedures) and/or (ii) if it requires compliance with what would otherwise be a Service Provider Applicable Regulation in a Customer specific way (such specific compliance becoming compliance with a Customer Applicable Regulation for the purposes of this Agreement and the definition of Service Provider Applicable Regulation). Once any such Customer Applicable Regulations are identified, the Parties will agree how they are to be complied with. For the avoidance of doubt, such notifications may relate to compliance with Customer Applicable Regulations in any jurisdictions worldwide in which the Customer or its Affiliates operate or do business from time to time. The Service Provider shall make any modifications to the Services as reasonably necessary as a result of changes to Service Provider Applicable Regulations at no extra cost to the Customer. Where the relevant modification is required to address a change in Customer Applicable Regulations the effect on cost and delivery shall be assessed and agreed via the Contract Change Control Procedure.

20.2

The Service Provider recognises that the Customer and its Affiliates are subject to regulation by (or has regulatory responsibilities in respect of) the regulatory authorities in the jurisdictions in which it operates and that, in particular, the Customer has regulatory responsibilities in respect of:

20.3

Subject to clause 26 (Confidential Information) and the applicable terms in clauses 20.5 and 20.6 (External Audits), the Service Provider shall provide such cooperation with all applicable regulatory authorities as may reasonably be requested by the Customer or otherwise required by such authorities and in any event shall cooperate with both the Customer and any regulatory authorities in responding to any enquiries made by such authorities. Such cooperation shall be provided at the Customer’s reasonable cost. The Service Provider’s obligations under this clause 20.3 shall include:

20.3.1

providing, on request, such assistance as the Customer may reasonably require to prove its compliance with its regulatory requirements in the context of the Services;

20.3.2

providing to the Customer such information and/or documentation as a regulatory authority may request in its supervision of the performance of the Services and it consents to such information and

20.3.3

in addition to the Customer’s own audit rights hereunder, permitting a regulator to carry out audits of the Service Provider where such regulator requires the right to do so.

20.4

The Customer (or its nominee) shall be entitled to audit the Service Provider’s conformance with its obligations under the Agreement (including to verify the Charges) and the relevant Service Provider’s facilities in each case in respect of:

20.6

In conducting an audit, the Customer (or its nominee) shall comply with the Service Provider’s reasonable security and confidentiality procedures and shall not be permitted to have [***] access to the Service Provider’s shared facilities and systems. The Service Provider shall be entitled to reasonable relief if there is any disruption to the Services as a direct result of the Customer carrying out an audit.

20.7

Subject to the restrictions in clauses 20.4 20.5 and 20.6 (other than in relation to the frequency of audits), the Customer (or its nominee) shall be entitled to undertake no more than [ *** ] further audits in that same year across the Agreement as a whole and/or in respect of each Service Tower, (with the Service Provider providing all reasonable co-operation) at its own cost (at the Service Provider’s relevant day rate), unless such audits reveal fraud or a breach of the Agreement (including all instances of overcharging), in which case the cost of the audit shall be borne by the Service Provider.

20.8

If, as a result of an audit, it is determined that the Service Provider has overcharged the Customer, the Customer shall notify the Service Provider of the amount of such overcharge and the Service Provider shall promptly pay to the Customer the amount of the overcharge, plus interest at a rate of two percent (2%) above the annual base rate of the Bank of England from time to time calculated from the date of receipt by the Service Provider of the overcharged amount until the date of payment to the Customer.

20.9

In the event any such audit by the Customer or its agents reveals an overcharge to the Customer by the Service Provider of five percent (5%) or more of a particular fee category, the Service Provider shall reimburse the Customer for the cost of such audit in addition to the repayment of the sum plus interest at the rate set out above.

20.10

The Service Provider agrees that the restrictions on the number of audits and the notice period for such audits set out in clause 20.4 will not apply to audits required for legal or regulatory reasons. Such audits shall be conducted at the Customer’s cost where the number set out in clause 20.4 has been exceeded.

20.11

If any audit by an auditor designated by the Customer or a regulatory authority having jurisdiction over the Customer results in the Customer being notified that it is not in compliance with any generally accepted accounting principle or audit requirement relating to the Services, then provided that the non-compliance resulted from the Service Provider’s default, the Service Provider shall, at its own expense and within the period of time specified by such auditor or regulatory authority, bring the Services into compliance. If the Service Provider fails to bring the Services into compliance within a reasonable time the Customer shall be entitled to terminate this Agreement on the grounds of the Service Provider’s irremediable material breach of contract on the provision of written notice.

20.12

The Service Provider shall maintain and retain in a manner that complies with Good Industry Practice accurate records (including complete financial records of its operations and activities specifically related to the Services) in relation to the provision of the Services provided to the Customer during the Term for seven (7) years after the termination or expiry of the Agreement and make the same available to the Customer and its auditors.

20.13

The Service Provider shall provide all reasonable assistance and information in relation to the conduct of the audit at its own cost. For the avoidance of doubt such information shall not include the provision of any background cost or overhead information or any of the Service Provider internal reports relating to the Services (although the Service Provider shall act reasonably in this regard).

20.14

The Service Provider shall establish and maintain a system of internal audits to provide management with assurance that a quality assurance system is being utilised, is effective, meets customer and business needs and continues to improve (“ Internal Audits ”).

20.15

The Service Provider shall maintain internal controls lists in a manner consistent with Good Industry Practice and provide confirmation of the same at least once per year.

21.

CUSTOMER DEPENDENCIES

21.1

The Service Provider’s sole and exclusive remedy for the Customer failing to meet any of its Customer Dependencies is set out in this clause 21 and the Service Provider shall not be entitled to sue the Customer for breach of contract or terminate the Agreement due to a failure of the Customer to meet the Customer Dependencies.

21.2

The Service Provider shall be excused from failures to perform its obligations under this Agreement if the Customer delays or fails to provide the Customer Dependencies but only:

21.2.1

to the extent that such failure causes Service Provider’s failure to perform;

21.2.2

provided that such acts or omissions are not undertaken by the Customer at the Service Provider’s direction or with the Service Provider’s written consent;

21.2.3

provided that the Service Provider gives the Customer prompt written notice of the Customer’s failure to perform the Customer Dependencies; and

21.2.4

provided the Service Provider uses Commercially Reasonable Efforts to mitigate the adverse consequences of the Customer’s failure and continues to provide the Services.

21.3

Provided the Service Provider has complied with the obligations set out in clause 21.2 and has obtained the Customer’s prior written approval, the Service Provider will be entitled to receive a reasonable adjustment in the timeframes set out in the Transition Plan or schedule to deliver and reimbursement of its reasonable, demonstrable, unavoidable costs incurred directly as a result of the Customer’s failure to perform the relevant Customer Dependency (with such costs being calculated by reference to the time spent and the Rate Card).

21.4

The Service Provider shall only be entitled to relief under this clause 21 from the date on which it notifies the Customer in accordance with clause 21.2.3.

22.

CHARGES

22.1

The Service Provider’s pricing shall not be subject to or contingent upon any due diligence to be performed after the Effective Date or, if earlier, the relevant Service Commencement Date, except in respect of Inflight Projects and/or New Services.

22.2

In the event the Parties agree that a particular pass-through expense is to be paid directly by the Customer, such pass-through expense shall not be subject to any mark-up and the Service Provider shall provide the Customer with the original third party invoice together with a statement that the Charges are proper and valid and should be paid by the Customer.

22.3

In consideration for the provision of the Services the Customer shall pay to the Service Provider all undisputed Charges within [ *** ] days of receipt of a correctly rendered invoice.

22.4

In the event of late payment, the Service Provider reserves the right to charge interest on amounts overdue at a rate of two percent (2%) above the annual base rate of the Bank of England from time to time.

22.5

Except as otherwise agreed by the Parties in writing, no rates or charges other than those set out in clauses 22.3, 22.4 and Schedule 10 shall be applicable to the provision of the Services under this Agreement.

22.6

The Service Provider shall only be entitled to invoice the Customer for its expenses if such expenses have been approved in writing in advance and are incurred in accordance with the version of the Customer’s expenses policy notified to the Service Provider from time to time.

22.7

The Service Provider shall maintain complete and accurate records of, and supporting documentation for, the amounts billable to and payments made by the Customer under this Agreement and the Service Provider shall provide the Customer with documentation and other information with respect to each invoice as may be reasonably requested by the Customer to verify accuracy and compliance with the provisions of the Agreement.

22.8

The Customer shall have the right to deduct from amounts owed by the Customer to the Service Provider amounts that the Service Provider is obliged to pay to or credit to the Customer under the Agreement.

22.9

The Customer may withhold payment of particular charges that the Customer reasonably and in good faith disputes on notice to the Service Provider.

22.10

If the Customer disputes a part of an invoice, the Service Provider shall re-issue an invoice (with the original invoice date) for the undisputed Charges and the Customer shall pay such undisputed Charges in accordance with clause 22.3. The Service Provider shall also re-issue a separate invoice for the disputed Charges (with the original invoice date). The Parties shall diligently pursue an expedited resolution of such dispute in accordance with clause 49 (Dispute Resolution).

23.

TAX

23.1

All prices are exclusive of value added tax or any other locally applicable equivalent sales taxes (“ VAT ”), which is payable at the rate and as prescribed by law.

23.2

Unless otherwise agreed between the Parties, the Service Provider will be responsible for all other taxes which are incurred as a result of its provision of the Services under this Agreement.

23.3

The Customer shall be entitled to deduct the sums required to pay any withholding taxes, demanded by any taxation authority, from payment to the Service Provider. Upon becoming aware that it must make a tax deduction, the Customer must notify the Service Provider accordingly.

23.4

If the Customer does deduct any amounts pursuant to clause 23.3, it shall pay such sums to the relevant taxation authority within the period for payment permitted by law, and furnish the Service Provider with evidence of payment of the relevant amount from the relevant tax authority. The Customer shall upon request reasonably assist the Service Provider with obtaining relevant basic information about such tax obligations and shall use reasonable efforts to assist the Service Provider with reclaiming such withholding tax, where any double-tax treaties or similar rules in the jurisdiction allow for tax reclaims to reduce the Service Provider’s tax burden, or with claiming a foreign tax credit.

23.5

If VAT or other taxes are payable on damages payable or paid under this Agreement, then the Party liable for payment of such damages must pay any such VAT or other taxes in addition to the relevant amount of damages upon production of a valid VAT or other appropriate tax invoice by the other Party.

24.1.1

the Charges applicable to the Services it provides under this Agreement shall be competitive and offer value for money to the Customer; and

24.1.2

the Performance Standards applicable to the Services shall accord with Good Industry Practice,

25.1

Each Party shall retain its rights in its own Pre-existing IPR and the Service Provider shall retain its rights in the Service Provider IPR. Except as provided in this clause 25 (Intellectual Property Rights), neither Party shall gain by virtue of the Agreement any rights of ownership in any IPR owned by the other Party or any third party.

25.2

The Service Provider shall procure that all Service Provider Personnel waive all Moral Rights in any Service Provider IPR (excluding any Third Party Materials) provided to, or used by, the Customer in connection with the Agreement.

25.3

Developed IPR shall be solely owned by the Customer and shall vest in the Customer [***] provided always that such Developed IPR in any Deliverable [***]. The Customer shall and shall procure that its personnel shall give the Service Provider or its designees, all reasonable assistance and execute all documents necessary to assist or enable the Service Provider to [***] in the rejected Deliverable at the Service Provider’s cost.

25.5

To the extent that title and/or ownership rights may not automatically vest in the Customer as contemplated by clause 25.3, the Service Provider agrees to irrevocably assign, transfer and convey to the Customer all rights, title and ownership in the Developed IPR. The Service Provider shall and shall procure that Service Provider Personnel shall give the Customer or its designees, all reasonable assistance and execute all documents necessary to assist or enable the Customer to perfect, preserve, register or record its rights in the Developed IPR at the Customer’s cost.

25.6

The Service Provider shall ensure that where it develops Developed IPR for the Customer, it shall deliver the same [***] with appropriate Documentation and that both versions shall be able to be used by a reasonably skilled programmer familiar with the relevant software language.

25.7

The Service Provider shall ensure that all Documentation related to any software Deliverable (or a component thereof) is up to date at the date of delivery.

25.8

Subject to clause 25.10, 25.11 and 25.12, the Service Provider grants to the Customer and the Customer Group a [***] world-wide, non-exclusive, non-transferable (subject to clause 39) licence [***] to use the Service Provider owned Service Provider Pre-existing IPR:

25.8.1

that is provided to the Customer and/or the Customer Group as part of the Services during the Term and [***] where necessary for the Customer’s and the Customer Group’s use and receipt of the Services (which right includes the right for the Customer Group’s agents and subcontractors to [***]; and

25.8.2

[***] where such Service Provider’s Pre-existing IPR is embedded into a Deliverable,

25.10.1

The Service Provider shall obtain the Customer’s prior written consent before embedding in any Deliverables or using or providing to Customer or installing in the Customer’s environment any Third Party Materials or its own Digital Products or Service Provider Tools (each as defined in clause 25.11).

25.10.2

Where Service Provider does propose to use Third Party Materials with Customer’s consent (including any non-Cognizant owned Service Provider Tools) then, subject always to clause 25.12, it shall use Commercially Reasonable Efforts [ *** ], to procure the grant to the Customer and the Customer Group and, to the extent necessary, its sub-contractors, agents and representatives of a world-wide, non-exclusive licence to use, modify, enhance and maintain the Third Party Materials to be embedded in the Deliverables or to be made available to the Customer specifically to provide the Services to the Customer.

25.10.3

Notwithstanding the foregoing, the Parties agree that it may not be possible to procure such a licence under clause 25.10.2 and that, in addition to addressing the variations required by clause 25.12 the Parties may need to either: (i) agree further variations to the terms of this Agreement and appropriate pass through terms from the third party in respect of such Third Party Materials only; or (ii) arrange for such Third Party Materials to be licensed directly to the Customer Group. In this latter case, the Service Provider shall [ *** ].

25.11.1

The Parties acknowledge and agree that from time to time the Service Provider may propose the use of its own proprietary products that are typically licenced on stand-alone terms (the “ Digital Products ”) and that subject always to agreement between the Parties as to such terms, any such Digital Products shall [ *** ].

25.11.2

As part of delivering the Services, the Customer acknowledges that Service Provider Personnel may also utilise proprietary software, methodologies, tools, specifications, drawings, sketches, models, samples, records, documentation, works of authorship, creative works, ideas, know-how, data or other materials which have been or are originated, developed, licensed, purchased, or acquired by Service Provider or its Affiliates or Sub-contractors (collectively, “ Service Provider Tools ”). Where necessary to deliver the Services, Customer consents to installation in its environment of the Service Provider Tools listed in Schedule 5 (Sub-contractors and Service Provider Tools) or the applicable SOW but agrees and acknowledges that it (and its agents and sub-contractors) will not directly or independently use (and will not have any right to so use) any such Service Provider Tools unless otherwise specifically agreed by the Parties in writing via the Contract Change Control Procedure or in a SOW.

25.12.1

In the event that an element of the Services to be provided by the Service Provider is to be procured from and passed through to the Customer from a commercially available off the shelf package software provider, cloud services provider or similar provider of software, hardware or solutions on standard terms (a “ COTS Vendor ”), then the Parties will [***].

25.12.2

The Parties agree that as at the Effective Date, save for those COTS Vendors listed in Schedule 19 (COTS Vendors) to whom the terms listed in Schedule 19 (COTS Vendor Usage Restrictions and Related Obligations) apply, there are no COTS Vendors in scope and thus clause 25.12.1 does not apply to the scope of the Services set out in the Agreement as at the Effective Date.

25.12.3

The Service Provider shall not change the Services after the Effective Date such that a new COTS Vendor in respect of which the Service Provider would wish to apply this clause is introduced into delivery of the Services without the prior written consent of the Customer. For the avoidance of doubt, if the Service Provider wishes to change the Services (including end-to-end solutions) and an element of such Services will be provided on a pass through basis using a new COTS Vendor not listed in Schedule 19 then the Service Provider and the Customer shall agree through the Contract Change Control Procedure what COTS Vendors will be used and the terms that will apply, updating Schedule 19 accordingly.

25.13

The Customer grants to the Service Provider and its Affiliates [***] provided by or on behalf of the Customer or any of its Affiliates to the Service Provider in connection with its delivery of the Services for the sole purpose of providing the Services to the Customer for the Term (which includes any applicable Termination Assistance period).

25.14

The Service Provider shall ensure that the Source Code in the Service Provider Software embedded in Deliverables (excluding any Third Party Materials which are instead subject always to the provisions of clause 25.10 and which may or may not be subject to escrow depending on the terms agreed with the third party vendor in question) together with any related Documentation, is deposited in escrow pursuant to the terms of the Escrow Agreement.

25.15

The Service Provider and the Customer mutually undertake to sign the Escrow Agreement promptly following delivery of any Deliverable to which clause 25.14 applies. The Service Provider additionally undertakes to procure that the relevant escrow agent promptly signs the Escrow Agreement.

25.16

Nothing contained in the Agreement shall restrict either Party from the use of any general ideas, concepts, know-how, methodologies, processes, technologies, algorithms or techniques retained in the unaided mental impressions of such Party’s personnel relating to the Services which either Party, individually or jointly, develops or discloses under the Agreement provided that in doing so such Party does not:

26.

CONFIDENTIAL INFORMATION

26.1

Subject to clause 26.2, each Receiving Party will treat and keep all confidential information of the Disclosing Party as secret and confidential and will not, without the Disclosing Party's written consent, directly or indirectly communicate or disclose (whether in writing or orally or in any other manner) Confidential Information to any other person other than in accordance with the terms of this Agreement.

26.2.1

the Receiving Party needs to disclose the Confidential Information of the Disclosing Party to any of its employees, Affiliates (and their employees) or Sub-contractors and/or in the case of the Service Provider, COTS Vendors in order to fulfil its obligations, exercise its rights under this Agreement or to receive the benefit of the Services, provided always that the Receiving Party shall ensure that every person to whom disclosure is made pursuant to this clause 26.2.1 uses such Confidential Information solely for such purposes, and complies with this clause 26 to the same extent as if it were a Party to this Agreement;

26.2.3

such Confidential Information is in the public domain at the Service Commencement Date or at a later date comes into the public domain, other than as a result of breach of this Agreement;

26.2.4

the Receiving Party obtains or has available such Confidential Information from a source other than the Disclosing Party without breaching any obligation of confidence;

26.2.5

subject to clause 26.3, such Confidential Information is required to be disclosed pursuant to any Relevant Law or the rules of any Regulator or stock exchange; or

26.2.6

the Receiving Party can show such Confidential Information was independently developed by it otherwise than in connection with this Agreement.

26.3

Notwithstanding clause 26.1, the Customer may disclose Confidential Information to its solicitors, auditors, insurers, accountants or other operational or service-related advisers for the purposes of reporting to or seeking advice from the relevant Party provided that neither Party may pass commercially sensitive information of the other to its competitors, notwithstanding any other provision of this Agreement or a SOW. In such circumstances as this Clause 26.3 permits disclosure of Service Provider Confidential Information, the Customer shall ensure that every person to whom disclosure is made pursuant to this clause 26.3 uses such Confidential Information solely for such purposes and complies with this clause 26 to the same extent as if it were a Party to this Agreement. Prior to making any disclosure under 26.2.5 the Receiving Party shall, unless prohibited from doing so by Relevant Law, provide the Disclosing Party with prompt notice of such request(s) so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or Disclosing Party grants a waiver hereunder, Receiving Party may furnish that portion (and only that portion) of the Confidential Information which the Receiving Party is legally compelled to disclose and will exercise its reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished.

27.

DATA PROTECTION

27.1

The categories of personal data to be processed by the Service Provider, categories of data subjects whose personal data will be processed, and the nature and purpose of processing activities to be performed under this agreement is set out in Schedule 21 (Data Transfer and Processing) of this Agreement as enhanced or clarified in relation to an SOW in the applicable SOW.

27.2

Each Party shall comply with its respective obligations under applicable Data Protection Legislation and, without prejudice to the foregoing, the Service Provider shall not process Customer Personal Data in a manner that will or is likely to result in the Customer breaching its obligations under Data Protection Legislation provided that the Customer gives reasonable written notice to the Service Provider of such obligations.

27.3

Upon termination or expiry of this agreement, the Service Provider shall, at the Customer’s request, promptly delete or return all Customer Personal Data and delete the copies thereof (unless otherwise required by Data Protection Legislation) and shall certify to the Customer that it has done so.

27.4

The Parties acknowledge that, in respect of all Customer Personal Data processed by the Service Provider for the purpose of the provision of Services under this Agreement:

27.4.1

the Customer alone shall determine the purposes for which and the manner in which such Customer Personal Data will be processed by the Service Provider;

27.5

Where in connection with this Agreement the Service Provider processes Customer Personal Data as the data processor of the Customer, the Service Provider shall:

27.5.1

process Customer Personal Data only on behalf of the Customer, only for the purposes of performing this Agreement and only in accordance with instructions contained in this Agreement or as otherwise received from time to time; the Service Provider shall notify the Customer prior to taking any further

27.5.2

not otherwise modify, amend, disclose or permit the disclosure of any of the Customer Personal Data to any third party (including a data subject) unless specifically authorised or directed to do so in writing by the Customer;

27.5.3

implement and maintain appropriate technical and organisational measures to protect Customer Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. Upon the Customer’s request, the Service Provider shall provide the Customer with a written description of the technical and organisational measures implemented by itself and its Sub-contractors as well as copies of all documentation relevant to such compliance including, protocols, procedures, guidance, training and manuals;

27.5.4

ensure the reliability of any of the Service Provider Personnel with access to Customer Personal Data, that such access is granted on a ‘need to know’ basis, and that they are subject to binding obligations of confidentiality with respect to Customer Personal Data;

27.5.5.1

all binding guidance and recommendations from the relevant supervisory authorities in countries where the Customer is established;

27.5.6

[***] provide full cooperation and assistance to the Customer as the Customer may require to allow the Customer to comply with its obligations as a data controller, including in relation to data security, data breach notification, data protection impact assessment, prior consultation with data protection authorities, any enquiry, notice or investigation received from a data protection authority, and the fulfilment of data subject’s rights;

27.5.7

promptly and without delay (but in any event within [***] hours of becoming aware of it), notify the Customer in writing of any actual or [***] unauthorised disclosure, loss, destruction, compromise, damage, alteration, or theft of Customer Personal Data (including unauthorised access to or use of the Customer Systems or data, improper handling or disposal of data, theft of information or technology assets, and/or the inadvertent or intentional disclosure of Customer Personal Data) or any incident which may give rise to a personal data breach (as such term is defined under the GDPR); and

27.5.8

subject to clause 20.4, permit physical inspections of the Service Provider’s relevant premises dedicated to the Customer and/or the Services, by the Customer or its representatives to ensure compliance with this clause 27.

27.6

The Service Provider shall nominate a representative within its organisation who shall have responsibility to respond to Customer queries regarding the processing of Customer Personal Data and the Service Provider shall ensure that it responds to such queries promptly.

27.7

Save to the extent an alternative approach is agreed in relation to a COTS Vendor pursuant to clause 25.12.1, the Service Provider shall not authorise any third party or Sub-contractor to process Customer Personal Data other than with the prior written consent of the Customer (for the avoidance of doubt, written consent shall be deemed given for authorised Sub-contractors listed in this Agreement and Service Provider Affiliates).

27.8

Save to the extent an alternative approach is agreed in relation to a COTS Vendor pursuant to clause 25.12.1, where the Service Provider is a processor with respect to the Customer Personal Data, it shall impose obligations on its Sub-contractors and Affiliates that are the same as or equivalent to those set out in this clause 27 by way of written agreement, and shall remain fully liable to the Customer for any failure by a Sub-contractor to fulfil its obligations in relation to the Customer Personal Data.

27.9

Pursuant to clause 17 (Sub-contractors), where the Service Provider is subject to an obligation in relation to Customer Personal Data or the Customer is granted a right in respect of the Service Provider, the Service

27.10

The Service Provider shall not process and/or transfer any Customer Personal Data in or to any country outside the European Economic Area without the prior written consent of the Customer.

27.11

If, for the purposes of the performance of this Agreement, the Service Provider or any of its Sub-contractors wishes to process and/or transfer any Customer Personal Data in or to a country outside the European Economic Area without prejudice to clause 27.10, the Service Provider shall comply with such other instructions and shall carry out such other actions as the Customer may notify in writing, including:

27.11.1

providing details of how the Service Provider will ensure an adequate level of protection for any such Customer Personal Data so as to ensure the Customer’s compliance with Data Protection Legislation; and

27.11.2

implementing any data transfer mechanism provided by the applicable Data Protection Legislation, such as the appropriate model contractual clauses approved by the European Commission as set out in Schedule 21 (Data Transfer and Processing), to allow for the lawful processing of Personal Data in a country outside the European Economic Area pursuant to the applicable Data Protection Legislation.

28.

PUBLICITY

28.1

The Service Provider shall not make any public announcement (whether written or oral) about the existence of the Agreement or that it is providing Services to the Customer without the Customer’s prior written consent (which may be withheld in its complete discretion). For the purposes of clause 12.6, the Customer’s consent to disclosure by the Service Provider is deemed to be given only to the extent that such disclosure is required for the Service Provider to comply with its obligations under clause 12.6.

28.2

In no circumstance shall either Party be authorised to use any of the other Party’s logos, trademarks or any other representations related to the other Party’s brand (including noting the other Party or its personnel as a referee) without the other Party’s prior written consent (which may be withheld in its complete discretion).

29.

REPRESENTATIONS AND WARRANTIES

29.1

Each Party represents, warrants and undertakes to the other, as at the date of this Agreement:

29.1.1

that it has the power and authority to enter into and perform its obligations under this Agreement;

29.1.2

that it has all necessary rights, licences, permissions and consents to provide (in the case of the Service Provider) or receive (in the case of the Customer) the Services; and

29.1.3

that the signing of this Agreement does not violate any law or constitute a default under any other agreement that that Party has entered into.

29.2

The Service Provider represents, warrants and undertakes to the Customer on a continuing basis throughout the term that:

29.2.1

it shall not conduct itself in a way so as to adversely affect the Customer’s public image (except that this clause 29.2.1 shall not preclude the Service Provider from enforcing its right under this Agreement);

29.2.2

it is not insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to it;

29.2.3

it shall allocate sufficient resources to provide the Services in accordance with the contractual requirements and use Commercially Reasonable Efforts to use the resources efficiently and services necessary to provide the Services;

29.2.4

it shall not knowingly and/or negligently insert or include, or permit or cause any Service Provider personnel to insert or include, any known Virus into any items provided to the Customer or the Customer Systems;

29.2.5

it shall use the latest available versions of anti-virus software available from an industry accepted anti-virus software vendor to check for and delete malicious software and Viruses from the Service Provider’s IT systems;

29.2.6

it shall co-operate with the Customer to reduce the effect of any virus found and assist the Customer to mitigate any losses (including without limitation, loss of operational efficiency and loss or corruption of the Customer’s data) and to restore the system, products, Deliverables and Services to their desired operating efficiency, such assistance to be at the Customer’s reasonable and demonstrable cost unless the Service Provider is in breach of clause 29.2.4 or clause 29.2.5;

29.2.7

it has undertaken all diligence it requires (including in relation to the Customer’s existing services) in order to plan and perform the Services and that accordingly its prices and estimates are robust and may be relied upon by the Customer;

29.2.8

it is skilled and experienced in the provision of services akin to the Services and in using the tools, methodologies and procedures it is proposed that it will use in the delivery of Services hereunder;

29.2.9

all information it provides to the Customer during the Term shall, at the time it is supplied, be true and accurate in all material respects;

29.2.10.2

any provisions agreed between the Parties under clause 20.1 in relation to Customer Applicable Regulations

29.2.11

it shall at all times conduct the performance of the Services in such a manner that shall ensure that the Customer does not fail to comply with the Customer Applicable Regulations that have been notified to the Service Provider in writing (if any) as a result of or in connection with its receipt of the Services provided that the Customer explains in writing how the Service Provider is expected to comply with these obligations; and

29.2.12

it shall comply with any reasonable Customer request or instruction that enables the Customer to comply with its regulatory requirements (if any) in respect of the Services at mutually agreed terms. Any Customer requests or instructions which fall outside of the scope of the Services shall be agreed through the Contract Change Control Procedure.

29.3

The Customer warrants that, to the extent that Customer Personal Data is provided to the Service Provider for processing (as that term is defined in the Data Protection Legislation), the Customer or relevant Customer Affiliate providing such Customer Personal Data shall have a legal basis on which to do so in respect of such Customer Personal Data.

29.4

Except as expressly set out in this Agreement, all other warranties, express or implied, shall be excluded to the fullest extent permitted by law.

30.1.1

Subject to clauses 30.1.2 and 30.1.3, each Party will indemnify, defend and hold harmless the other Party and its Affiliates and their respective officials, employees, agents and assigns (“ Representatives ”) against any claims, losses, damages, costs (including reasonable legal fees), expenses and liabilities agreed in a settlement or awarded against the other Party and/or its Representatives as a result of any infringement (or claim of infringement) of any third party IPR caused by or alleged to have occurred because of:

30.1.1.1.

in the case of indemnification by the Service Provider to the Customer, Customer or its Affiliates possession of the Developed IPR in any Deliverables provided by the Service Provider to the Customer or its Affiliates; [ *** ]; and

30.1.2

The Parties agree that the indemnifying party shall be relieved of its obligation to indemnify the indemnified party pursuant to clause 30.1.1 if and to the extent that the infringement claim arises due to (i) use of the material that is subject to the relevant indemnity claim other than in accordance with or as envisaged by this Agreement; or using infringing material after a fix or remedy has been provided (whether pursuant to clause 30.3 or otherwise); (ii) use of an allegedly infringing item or any part thereof in combination with any equipment, software or data not approved for use by the indemnifying party, or use in any manner by the indemnified party (or its Affiliates) for which the allegedly infringing item was not designed; or (iii) where the Service Provider is the indemnifying party, any modification or alteration of the allegedly infringing item by a person or entity other than Service Provider or its Affiliates or Sub-contractors unless such modification or alteration was made on the instructions [ *** ] provided by or on behalf of the Service Provider or its Affiliates or Sub-contractors.

30.1.3

The Parties recognise that each of them may make available certain Third Party Materials to the other and that such Third Party Materials may not benefit from IPR indemnification protection equivalent to that set out in clause 30.1.1 above. [ *** ].

30.2

In addition to the indemnities provided in clause 30.1.1 (IPR Indemnity) and Schedule 17 (Human Resources Provisions), the Service Provider will indemnify, defend and hold harmless the Customer and its Affiliates and their respective officials, employees, agents and assigns (“ Customer Indemnities ”) against any claims, losses, damages, costs (including reasonable legal fees), expenses and liabilities agreed in a settlement or awarded against the Customer and/or the Customer Personnel as a result of any of the following:

30.3

Without prejudice to its obligations pursuant to clause 30.1.1, if any Deliverable or service other item or material provided by the Service Provider or the provision of the Services by the Service Provider is, or in the Service Provider’s reasonable judgement is likely to become, the subject of a claim (an “ Infringing Item ”), the Service Provider [***] will [ *** ]:

30.4

The following procedures will apply with respect to any indemnification arising in connection with the Agreement:

30.4.1

as soon as reasonably practicable after receipt by an indemnified party of written notice of the assertion or the commencement of any claim, demand, action, cause of action or other proceeding by a third party, whether by legal process or otherwise (a “ Claim ”), but no later than fourteen (14) days following receipt of written notice from the indemnified party relating to any Claim, the indemnifying party will notify the indemnified party in writing that it will assume control of the defence and settlement of such Claim (the “ Notice ”);

30.4.2

if the indemnifying party delivers the Notice relating to any claim within the required notice period, the indemnifying party will be entitled to have sole control over the defence and settlement of such Claim;

30.4.3

if the indemnifying party fails to assume the defence of any such Claim within the prescribed period of time, then the indemnified party may [ *** ]; and

30.4.4

subject to the payment of its reasonable costs, the indemnified Party shall provide reasonable assistance to the indemnifying Party, including reasonable assistance to the indemnifying Party’s employees, agents, independent contractors and Affiliates, as applicable. Notwithstanding any provision of this clause 30 to the contrary, the indemnifying Party will not consent to the entry of any judgment or enter into any settlement that provides for injunctive or other non-monetary relief affecting the indemnified Party without the prior written consent of the indemnified Party, such consent not to be unreasonably withheld or delayed.

31.

FORCE MAJEURE

31.1

Neither Party shall be liable for default or delay in the performance of its obligations under the Agreement:

31.1.1

if the default or delay is caused by a cause beyond the reasonable control of such Party (it being agreed that causes beyond the reasonable control of a Party shall not include strikes or lock outs of its own personnel); and

31.1.2

provided the non-performing Party is without fault in causing the default or delay and the default or delay could not have been prevented by reasonable precautions (which for these purposes shall include complying with that Party’s Disaster Recovery Plan and/or Business Continuity Plan or, if of a higher standard, disaster recovery plans consistent with Good Industry Practice) or circumvented by workarounds.

31.2.2

the Party continues to use its best efforts to recommence performance or observance whenever and to whatever extent possible without delay.

31.3

A Force Majeure Event shall not relieve the Service Provider of its obligations to supply the Services in conjunction with implementing its Disaster Recovery Plans or Business Continuity Plans, including requiring that essential personnel report to work during an emergency, and any or all personnel work at a contingency location.

31.4

In the event that a Force Majeure Event interrupts the provision of one or more Service Towers within the Run Services for in excess of thirty (30) days the Customer may terminate the affected Service Tower(s) or if more than two (2) Service Towers are affected, all of them in whole or in part on the provision of written notice. If the Force Majeure Event interrupts the provision of Change Management Services (or part of them) for in excess of thirty (30) days, the Customer may terminate only the affected Change Management Services-related SOWs in whole or in part on the provision of written notice.

32.

STEP IN

32.1

If:

32.1.1

any default or non-performance by the Service Provider occurs and as a result, the performance of any business critical service is prevented, hindered, degraded or delayed for more than two (2) consecutive days;

32.1.2

the Service Provider is excused from the performance of the Services pursuant to a Force Majeure Event;

32.1.4

the circumstances in paragraph 13.1 of Schedule 15 (Exit) occur, then, without limiting any other rights it may have, the Customer may take control of the part of the Services affected by the Service Provider default or non-performance, or the Force Majeure Event and in the case of clause 32.1.3, the Customer shall take control of the part of the Services affected by the regulatory direction (in each

32.2

In exercising its rights of Step In the Customer may perform any act that the Customer deems reasonably necessary in order to restore the Services (including by engaging a third party service provider) or may direct the Service Provider to procure those Services from a third party supplier provided that the Customer: (i) complies with the Service Provider’s reasonable security and confidentiality policies as notified to the Customer; (ii) procures that any third party that it engages signs an Agreed Form NDA, with an obligation to erect “ethical walls” within its own organisation to protect the Service Provider’s confidentiality, if the third party stepping in is a competitor of the Service Provider; (iii) does not have unsupervised access to the Service Provider’s facilities and shared computing environment; and (iv) does not require the Service Provider to disclose its commercially sensitive information to any third party.

32.3

Where a third party supplier is engaged in connection with a Step In, the Service Provider shall be liable for the payment of [***] for as long as the failure to perform continues (save for where the Step In is a result of a Force Majeure Event), and the Customer shall not be charged for Services that are not provided to the Customer as a result of a Force Majeure Event or the Service Provider’s default or non-performance. The Service Provider shall either pay directly or reimburse the Customer for any such third party costs incurred. Such payments made by the Service Provider may be credited against the Charges or paid by way of cheque or direct debit to the Customer, at the Customer’s option.

32.4

In the event of the Customer exercising its right of StepIn, the Service Provider shall co-operate with the Customer (and its agents or representatives, including any applicable third party supplier) and provide reasonable assistance at no charge to the Customer to restore such Customer function or the Services or any part of them as soon as reasonably possible, including giving the Customer (and its agents or representatives, including any applicable third party services provider) reasonable access to the Service Provider’s premises, Equipment, Material and Software, to the extent reasonably necessary for the purpose of restoring such Customer function or the Services or any part of them to the level required under this Agreement.

32.5

As soon as reasonably practicable following the restoration of the affected Customer function or the affected part of the Services (meaning that its performance is no longer substantially prevented, hindered, degraded or delayed) to the Customer’s reasonable satisfaction or a Regulator lifting its Step In requirement, the Service Provider shall resume the performance of the relevant Services.

32.6

Without prejudice to the caps set out in clause 34, nothing in this clause 32 limits the Service Provider’s liability to the Customer with respect to any default or non-performance by the Service Provider under this Agreement provided always that the Service Provider shall be relieved of its obligations to deliver the Services affected by any Step In during the period the Customer or any third party supplier has taken over delivery of such Services.

33.

ENHANCED CO-OPERATION

33.1

Where the Customer requires the right to do so in order to obtain an improved understanding of the Services or to assist the Service Provider to improve its performance (including in particular in the circumstances set out in clause below), the Parties agree that the Customer may nominate a certain number of its employees, agents or contractors (subject to clause 32.4), to be seconded to the Service Provider or any of its subcontractors (“ Consultants ”) provided that the Parties agree the role and responsibilities of such Consultants and the desired outcomes of involvement. The number of Consultants shall be the minimum reasonably necessary (as determined by the Customer acting reasonably) for the limited purposes described in this clause 33.1 and the Customer agrees to appoint Consultants with a level of seniority appropriate to the tasks they shall be engaged in and to provide the Service Provider with at least five (5) Business Days’ notice of its intention to exercise its rights under this clause 33.

33.2

The circumstances that the Parties agree shall entitle the Customer to invoke its rights under clause 33.1 include where:

33.2.1

the Customer is entitled, or has reasonable grounds for believing that it will be entitled, to terminate the Agreement in whole or in part for cause;

33.2.2

the Service Provider is not performing any of the services in accordance with the Minimum Service Levels (if any);

33.2.3

the Service Provider is or the Customer has reasonable grounds for believing that the Service Provider is reasonably likely to be in material breach of its obligations under the Agreement;

33.2.4

the Customer has reasonable grounds to suspect acts of fraud are being committed by the Service Provider, any Sub-contractor or any Service Provider Personnel;

33.2.5

the Service Provider causes the Customer to breach its legal or regulatory obligations; or

33.2.6

the Service Provider fails to provide the Services in accordance with the Agreement (whether such failure amounts to a material breach of contract or not) and that failure causes, or is in the Customer’s opinion likely to cause:

33.2.6.1

delay in delivery of the Services that means that the Service Provider will not be able to meet any Key Milestone date;

33.2.6.2

the degradation or unavailability of the Services which, in the Customer’s opinion, is unlikely to be resolved within a reasonable period of time; or

33.2.6.3

the Customer to incur a material loss, liability or cost whether direct or indirect or to suffer any adverse publicity.

33.3

No Consultant shall become an employee of the Service Provider, or have a legal entitlement to any benefits conferred by the Service Provider on its employees, as a result of his or her secondment under this clause 33.

33.4

A Consultant may not be an employee of any entity who competes with the Service Provider in the field of system integration services unless they are an employee of the Customer.

33.5

The Consultants shall be given full access to all information (other than commercially sensitive information or information related to the Charges) that is available to all relevant Service Provider Personnel and that is related to the performance of the Services that are relevant to the purposes described in clauses 33.1 and 33.2 and shall be able to make suggestions related to any element of the performance of the Services provided that the Consultant: (i) complies with the Service Provider’s reasonable security and confidentiality policies as notified to the Consultant; (ii) signs an Agreed Form NDA; and (iii) does not have unsupervised access to the Service Provider’s facilities and shared computing environment.

33.7

If the Service Provider does follow a suggestion of a Consultant, then the Service Provider shall be fully responsible for all consequences that flow from the suggestion as if it were the Service Provider’s own suggestion.

33.8

By exercising its right under this clause, the Customer shall not, and shall not be deemed to, assume any obligation to resolve any issue or problem with the Services or relieve the Service Provider of any obligation or liability in relation to that event. Without limiting the foregoing, nothing in this clause 33.8 shall be construed to limit the Service Provider’s obligation to continue to perform the Services in accordance with all applicable Service Levels or Milestone dates.

33.9

If the Customer exercises its rights under this clause, the Parties shall carry out a monthly review to agree on whether the secondment shall continue. In any case, a secondment under this clause may be terminated by the Customer at any time by giving written notice to the Service Provider, but shall in any event cease when the secondment has been effective for a continuous period of ninety (90) days (or such longer period as may be

33.9.1

the event giving rise to the appointment of the Consultants under this clause has ceased and/or has been resolved or remedied; and

33.9.2

the Service Provider has demonstrated to the Customer’s reasonable satisfaction that the Service Provider has taken all reasonable measures to ensure that the event giving rise to the appointment of the Consultants shall not reoccur.

33.10

Subject to clause 33.11, the Customer shall be responsible for paying the Consultants’ reasonable and demonstrable fees for the duration of the secondment, plus any reasonable, actual and demonstrable travel and subsistence costs incurred by the Consultants in relation to their secondment under this clause provided that the salaries of the Consultants are reasonable given their level of seniority and experience and Good Industry Practice (“ Consultant Costs ”).