EX-10.1






EXHIBIT 10.1




PROFESSIONAL SERVICES AGREEMENT




This Professional Services Agreement (this “Agreement”) is entered into effective January 25,
2006 (the “Effective Date”) by and between New Century Financial Corporation, a Maryland
corporation having a principal place of business at 18400 Von Karman, Suite 1000, Irvine, CA 92612
(“New Century”), and Accenture LLP, an Illinois registered limited liability partnership having a
principal place of business at 161 North Clark Street, Chicago, IL 60601 (“Supplier”).



WHEREAS, New Century and Supplier have engaged in extensive negotiations, discussions and due
diligence that have culminated in the formation of the contractual relationship described in this
Agreement;



WHEREAS, New Century desires to procure from Supplier, and Supplier desires to provide to New
Century and the Eligible Recipients, the human resources, payroll, procurement, accounts payable
and other business process products and services described in this Agreement, on the terms and
conditions specified herein;



NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, and of
other good and valid consideration, the receipt and sufficiency of which is hereby acknowledged,
New Century and Supplier (collectively, the “Parties” and each, a “Party”) hereby agree as follows:




	1.	 	INTRODUCTION






	 	1.1	 	Performance and Management by Supplier.






New Century desires that certain human resources, payroll, procurement, accounts payable and
other business process products and services described in this Agreement and the Exhibits
and Attachments hereto, be performed and managed by Supplier. Supplier has carefully
reviewed New Century’s requirements, has performed due diligence it deems necessary, and
desires to perform and manage such business process products and services for New Century
and the Eligible Recipients.




	 	1.2	 	Definitions.






Except as otherwise expressly provided in this Agreement, all capitalized terms used in this
Agreement shall have the meanings set forth in Exhibit 1.




	 	1.3	 	Other Terms.






The terms defined in this Article 1 and Exhibit 1 include the plural as well
as the singular and the derivatives of such terms. Unless otherwise expressly stated, the
words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular Article, Section, Subsection or other
subdivision. Article, Section, Subsection and Attachment references refer to articles,
sections and subsections of, and attachments to, this Agreement. The words “include” and
“including” shall not be construed as terms of limitation. The words “day,” “month,” and
“year” mean, respectively, calendar day, calendar month and calendar year. As stated in
Section 21.3, the word “notice” and “notification” and their derivatives means
notice or notification in writing. Other terms used in this Agreement are defined in the
context in which they are used and have the meanings there indicated.




	2.	 	CONTRACT DOCUMENTS






	 	2.1	 	Associated Contract Documents.






This Agreement includes each of the following exhibits and their attachments, all of which
are attached to this Agreement and incorporated into this Agreement by this reference.
Unless otherwise expressly stated, references to (i) specific Exhibits include all numbered
subsidiary attachments (e.g., references to Exhibit 3 include not only Exhibit
3, but also Attachments 3-A, 3-B, 3-C, etc.) and (ii) Exhibit 2 includes
Exhibits 2.1 through 2.5 (i.e., all Statements of Work).



	 	 	 
	Exhibit 1

	 	Definitions
	 
	 	 
	Exhibit 2

	 	Statement of Work
	 
	 	 
	Exhibit 2.1

	 	Payroll/HR Services
	 
	 	 
	Exhibit 2.2

	 	Procurement Services
	 
	 	 
	Exhibit 2.3

	 	Accounts Payable/T&E Services
	 
	 	 
	Exhibit 2.4

	 	SOX Support Services
	 
	 	 
	Exhibit 2.5

	 	Cross-Functional Services
	 
	 	 
	
 
	 	Attachment 2-A New Century Rules/New Century Code of Conduct
	 
	 	 
	Exhibit 3

	 	Service Levels

Attachment 3-A Service Levels Matrix

Attachment 3-B Service Level Definitions

Attachment 3-C Critical Deliverables

Attachment 3-D Severity Levels
	 
	 	 
	Exhibit 4

	 	Pricing and Financial Provisions

Attachment 4-A Pricing Forms

Attachment 4-B Financial Responsibility Matrix

Attachment 4-C Base Case

Attachment 4-D Resource Baselines

Attachment 4-E Termination Charges

Attachment 4-F Pass Through Expenses/Out-of-Pocket Expenses
	 
	 	 
	Exhibit 5

	 	Reserved
	 
	 	 
	Exhibit 6

	 	Governance
	 
	 	 
	Exhibit 7

	 	New Century Facilities
	 
	 	 
	Exhibit 8

	 	Supplier Facilities
	 
	 	 
	Exhibit 9

	 	Projects
	 
	 	 
	Exhibit 10

	 	Equipment
	 
	 	 
	Exhibit 11

	 	Software
	 
	 	 
	Exhibit 12

	 	Third Party Contracts
	 
	 	 
	Exhibit 13

	 	Reports
	 
	 	 
	Exhibit 14

	 	Satisfaction Survey
	 
	 	 
	Exhibit 15

	 	Key Supplier Personnel
	 
	 	 
	Exhibit 16

	 	Subcontractors
	 
	 	 
	Exhibit 17

	 	Termination Assistance Services
	 
	 	 
	Exhibit 18

	 	Termination/Expiration Rights
	 
	 	 
	Exhibit 19

	 	Reserved
	 
	 	 
	Exhibit 20

	 	Transition Plan

Attachment 20-A Transition Milestones and Deliverable Credits

Attachment 20-B Detailed Transition Plan
	 
	 	 
	Exhibit 21.1

	 	Direct New Century Competitors
	 
	 	 
	Exhibit 21.2

	 	Direct Supplier Competitors
	 
	 	 
	Exhibit 22

	 	Form of Non-Disclosure Agreement
	 
	 	 
	Exhibit 23

	 	Form of Invoice
	 
	 	 
	Exhibit 24

	 	Source Code Escrow Agreement – Release Conditions
	 
	 	 
	
 
	 	Attachment 24-A Subcontractor and Third Party Software Subject to Source Code

Escrow
	 
	 	 
	Exhibit 25

	 	Reserved
	 
	 	 
	Exhibit 26

	 	Eligible Recipients
	 
	 	 
	Exhibit 27

	 	Excluded Supplier Owned Materials







	3.	 	TERM






	 	3.1	 	Initial Term.






The initial Term of this Agreement shall commence as of 12:00:01 a.m., Eastern Time on the
Effective Date and continue until 11:59:59 p.m., Eastern Time, on December 31, 2012, unless
this Agreement is terminated as provided herein or extended as provided in Section
3.2 or 4.3(a)(2), in which case the Term shall end at 11:59:59 p.m., Eastern
Time, on the effective date of such termination or the date to which this Agreement is
extended.




	 	3.2	 	Extension.






By giving notice to Supplier no less than ninety (90) days prior to the expiration date of
the initial Term, New Century shall have the right to extend the Term for one (1) extension
period of up to one (1) year, on the same rates, charges and terms and conditions set forth
in this Agreement. Notwithstanding the notice period specified above, the elapsed time
between the expiration of the period within which to give notice of renewal or Supplier’s
receipt of notice of non-renewal and the cessation of Services shall be not less than one
hundred twenty (120) days. No Termination Charges shall be applicable to any termination on
or after the expiration of the initial Term, unless the termination occurs prior to the end
of the extension period elected by New Century, in which case New Century shall pay
Termination Charges calculated in accordance with Attachment 4-E.




	4.	 	SERVICES






	 	4.1	 	Overview.






	 	(a)	 	Services. Commencing on the Commencement Date (or, if later, the date on
which Supplier assumes responsibility for the Services in question in accordance with
the Transition Plan), Supplier shall provide the Services to New Century, and, upon
New Century’s request, to Eligible Recipients and Authorized Users designated by New
Century. The Services shall consist of the following, as they may evolve during the
Term of this Agreement or be supplemented, enhanced, modified or replaced, all in
accordance with the Change Control Procedures:






	 	(i)	 	The “Services” are comprised of the services, functions and
service-related responsibilities described in this: Agreement and its Exhibits
and Attachments, which include the following:






	 	(1)	 	Transition Services, as further described in
Section 4.2 and Exhibit 20;






	 	(2)	 	Ongoing Services, as further described in
Exhibit 2;






	 	(3)	 	Projects, as further described in Section
4.5;






	 	(4)	 	New Services, as further described in Section
11.5; and






	 	(5)	 	Termination Assistance Services, as described in
Section 4.3 and Exhibit 17.






	 	(b)	 	Included Services. If any services, functions or responsibilities not
specifically described in this Agreement are reasonably deemed to be an inherent,
necessary or customary part of the Services or are incidental to or reasonably
required for the proper performance or provision of the Services in accordance with
this Agreement, they shall be deemed to be included within the scope of the Services
to be delivered for the Charges, as if such services, functions or responsibilities
were specifically described in this Agreement.






	 	(c)	 	Required Resources. Except as otherwise expressly provided in this
Agreement, Supplier shall be responsible for providing the facilities, personnel,
Equipment, Software, technical knowledge, expertise and other resources necessary to
provide the Services.






	 	(d)	 	Supplier Responsibility. Supplier shall be responsible for the provision
of the Services in accordance with this Agreement even if, by agreement of the
Parties, such Services are actually performed or dependent upon services performed by
its Affiliates and Subcontractors.






	 	(e)	 	Electronic Delivery. To the maximum extent possible, and except as
otherwise directed by New Century or expressly provided in this Agreement, Supplier
shall deliver all Software, documentation, reports and other contract deliverables to
New Century and the Eligible Recipients at the designated New Century Site by
electronic transmission or by load and leave (where no tangible storage media is
physically transferred to New Century or the Eligible Recipients).






	 	4.2	 	Transition Services.






	 	(a)	 	Transition. During the Transition Period, Supplier shall perform the
Transition Services and provide the deliverables described in the Transition Plan,
which is attached to this Agreement as Exhibit 20. If any services,
functions or responsibilities not specifically described in the Transition Plan are
reasonably deemed to be an inherent, necessary or customary part of the Transition
Services or are reasonably required for the proper performance of the Transition
Services by Supplier in accordance with this Agreement, they shall be deemed to be
included within the scope of the Transition Services to be delivered at no additional
charge, other than the Transition Charges, as if such services, functions or
responsibilities were specifically described in the Transition Plan. During the
Transition Period, New Century will perform those tasks which are designated to be
New Century’s responsibility in the Transition Plan, in accordance with the agreed
upon schedule for the completion of such tasks, provided that, New Century shall not
be obligated to perform any tasks during the Transition Period that are not set forth
in such Transition Plan or otherwise in this Agreement. Unless otherwise agreed, New
Century shall not incur any charges, fees or expenses payable to Supplier in
connection with the Transition Services, other than those charges, fees and expenses
specified in Exhibit 4. In addition, to the extent Supplier knows or
reasonably should know of charges, fees or expenses payable to third parties in
connection with the Transition Services (other than those to be incurred by New
Century in connection with its performance of tasks designated in the Transition Plan
as New Century’s responsibility), such third party charges fees and expenses shall be
specified in Exhibit 4 and, if not specified, shall be deemed to be
Supplier’s responsibility and included in the Transition Charges payable to Supplier.






	 	(b)	 	Transition Plan. Exhibit 20 is an outline of the Transition Plan
that identifies (i) the transition activities to be performed by Supplier,
(ii) the date(s) by which each such activity or deliverable is to be completed
(“Transition Milestones”), and (iii) the Deliverable Credits associated with the
failure to meet specific Transition Milestones. Within thirty (30) days after the
Effective Date, Supplier shall deliver to New Century a detailed Transition Plan for
New Century’s review, comment and approval. The proposed detailed Transition Plan
shall describe in greater detail the specific transition activities to be performed
by Supplier, but, unless otherwise agreed by New Century, shall be consistent in all
material respects with the initial Transition Plan, including the activities,
deliverables, Transition Milestones and Deliverable Credits described therein. The
detailed Transition Plan shall identify and describe, among other things, (i) the
transition activities to be performed by Supplier and the significant components and
subcomponents of each such activity, (ii) the deliverables to be completed by
Supplier, (iii) the Transition Milestone for each such activity or deliverable, (iv)
a process and set of standards acceptable to New Century to which Supplier will
adhere in the performance of the Transition Services and that will enable New Century
to determine whether Supplier has successfully completed the transition and the
activities and deliverables associated with each Transition Milestone, in accordance
with the Acceptance criteria specified in the Transition Plan, (v) the contingency or
risk mitigation strategies to be employed by Supplier in the event of disruption or
delay, (vi) any transition responsibilities to be performed or transition resources
to be provided by New Century or the Eligible Recipients and (vii) a detailed work
plan identifying the specific transition activities to be performed by individual
Supplier Personnel on a weekly basis during the Transition Period. The detailed
Transition Plan also shall identify any related documents contemplated by the
Agreement and/or required to effectuate the transition to be executed by the Parties.






	 	(c)	 	Performance. Supplier shall, with New Century’s reasonable cooperation,
perform the Transition Services described in the Transition Plan in accordance with
the timetable and the Transition Milestones set forth in the Transition Plan.
Supplier shall provide all cooperation and assistance reasonably required or
requested by New Century in connection with New Century’s evaluation or testing of
the deliverables set forth in the Transition Plan in accordance with the Acceptance
criteria specified in the Transition Plan. Supplier shall perform the Transition
Services in a manner that, to the extent practicable, will not (i) disrupt or have an
unnecessary adverse impact on the business or operations of New Century or the
Eligible Recipients, (ii) degrade the Services then being received by New Century or
the Eligible Recipients, or (iii) disrupt or interfere with the ability of New
Century or the Eligible Recipients to obtain the full benefit of the Services, except
as may be otherwise provided in the Transition Plan. Prior to undertaking any
transition activity, Supplier shall discuss with New Century all known New
Century-specific material risks and shall not proceed with such activity until New
Century is reasonably satisfied with the plans with regard to such risks (provided
that, neither Supplier’s disclosure of any such risks to New Century, nor New
Century’s acquiescence in Supplier’s plans, shall operate or be construed as limiting
Supplier’ responsibilities under this Agreement). Supplier shall identify and
resolve, with New Century’s reasonable assistance, any problems that may impede or
delay the timely completion of each task in the Transition Plan that is Supplier’s
responsibility and shall use commercially reasonable efforts to utilize existing
dedicated transition resources to assist New Century with the resolution of any
problems that may impede or delay the timely completion of each task in the
Transition Plan that is New Century’s responsibility. New Century shall reasonably
cooperate with Supplier to address problems that are Supplier’s responsibility.






	 	(d)	 	Reports. Supplier shall meet at least weekly with New Century to report on
its progress in performing its responsibilities and meeting the timetable and
Transition Milestones set forth in the Transition Plan. Supplier also shall provide
written reports to New Century weekly regarding such matters, and shall provide oral
reports more frequently if reasonably requested by New Century. Promptly upon
receiving any information indicating that Supplier may not perform its
responsibilities or meet the timetable or Transition Milestones set forth in the
Transition Plan, Supplier shall notify New Century of delays and shall identify for
New Century’s consideration and approval specific measures to address such delay and
mitigate the risks associated therewith.






	 	(e)	 	Suspension or Delay of Transition Activities. New Century reserves the
right, in its sole discretion and subject to Change Control Procedures, to suspend or
delay the performance of the Transition Services and/or the transition of all or any
part of the Services. To the extent New Century exercises this right and New
Century’s decision is based, at least in material part, on Supplier’s failure to
perform in any material respect its obligations under this Agreement related to the
portion of the Transition Services delayed or suspended because of Supplier’s
failure, New Century shall not incur any additional Charges or reimbursable expenses
in connection with such decision. To the extent New Century’s decision is not based
in material part on Supplier’s failure to perform its obligations under this
Agreement, New Century shall reimburse Supplier for any additional costs reasonably
incurred by Supplier as a result of such decision, but only to the extent Supplier
notifies New Century of such costs after receiving notice of New Century’s intention
and prior to the implementation of such suspension or delay, obtains New Century’s
approval prior to implementing such delay or suspension and incurring such costs, and
uses commercially reasonable efforts to minimize such costs (and provided that if,
despite negotiating diligently and in good faith, the Parties are unable to agree on
the nature or extent of the costs to be reimbursed by New Century, New Century shall
elect to either proceed with the suspension or delay and submit the disagreement to
dispute resolution in accordance with Article 19 or proceed with the
transition of the Services in question in accordance with the original schedule).






	 	(f)	 	Failure to Meet Transition Milestones.






	 	(i)	 	If Supplier fails to meet a Transition Milestone, Supplier shall
pay New Century the Deliverable Credits specified in Exhibit 20 for such
Transition Milestone.






	 	(ii)	 	Neither the Transition Services nor the activities and
deliverables associated with individual Transition Milestones will be deemed
complete until New Century’s Acceptance of such activities and deliverables in
accordance with the Transition Plan, including the Acceptance criteria, testing
plans, and other processes and standards identified in the Transition Plan. New
Century shall not withhold Acceptance if the activities and deliverables comply
in all material respects with the Acceptance criteria specified in the
Transition Plan and Acceptance shall be deemed given if New Century agrees to
the commencement of the Services to be transitioned. 






	 	(g)	 	Termination for Cause. Notwithstanding the foregoing, New Century may terminate
this Agreement for cause in its entirety or by impacted sub-Functional Services Area
(i.e., HR Admin, Payroll, Recruiting, Procurement or Accounts Payable) if (i)
Supplier materially breaches its obligations with respect to the provision of
Transition Services and fails to cure such breach within thirty (30) days after its
receipt of notice specifying the breach and New Century’s intention to terminate, or
(ii) Supplier fails to meet a Transition Milestone and such failure constitutes a
material breach of this Agreement and Supplier fails to cure such breach within
thirty (30) days after its receipt of notice specifying the breach and New Century’s
intention to terminate. In all such events, subject to Section 18.3, New
Century may recover the damages suffered by New Century or the Eligible Recipients in
connection with such a termination, provided that, if such termination is based on
Supplier’s failure to meet a Transition Milestone, Supplier shall be entitled to
set-off against such damages any Deliverable Credits Supplier has paid for the
failure to meet such Transition Milestone. If New Century elects to terminate in part
in accordance with this Section 4.2(g), New Century may only terminate the
sub-Functional Service Area(s) to which the material breach pertains.






	 	4.3	 	Termination Assistance Services.






	 	(a)	 	Availability. As part of the Services, and for the Charges set forth in
Sections 4.3(b)(8) and 4.3(b)(9) and Exhibit 4, Supplier
shall provide to New Century, the Eligible Recipients and/or their designee(s) the
Termination Assistance Services described in Section 4.3(b) and Exhibit
17.






	 	(1)	 	Period of Provision. Supplier shall provide such Termination
Assistance Services to New Century and any Eligible Recipient, or their
designee(s), (i) commencing upon notice from New Century up to six (6) months
prior to the expiration of the Term or on such earlier date as New Century may
reasonably request, and continuing for up to twelve (12) months following the
effective date of the expiration of the Term (as such Term may be extended
pursuant to Section 3.2), (ii) commencing upon any notice of termination
(including notice based upon breach or default by New Century, breach or default
by Supplier, or termination in whole or in part for convenience by New Century)
of the Term with respect to all or any part of the Services, and continuing for
up to twelve (12) months following the effective date of such termination of all
or part of the Services, or (iii) commencing upon notice of termination of all
or part of the Services to an Eligible Recipient no longer Controlled by New
Century and, subject to the Change Control Procedures and Section 4.3(b)(8)
and (9), continuing for up to twelve (12) months following the effective
date of such termination.






	 	(2)	 	Extension of Services. New Century may elect, by giving notice
at least sixty (60) days prior to the originally specified termination or
expiration date, to extend the effective date of any expiration/termination of
all or part of the Services, in its sole discretion, provided that the total of
all such extensions will not exceed one hundred and eighty (180) days following
the originally specified termination or expiration date without Supplier’s prior
written consent. New Century also may elect, by giving notice at least sixty
(60) days prior notice, to extend the period following the effective date of any
expiration/termination for the performance of Termination Assistance Services,
provided that the period between the originally specified termination or
expiration date and the completion of all Termination Assistance Services is not
greater than fifteen (15) months. In each case, if New Century provides less
than sixty (60) days prior notice of an extension, Supplier shall nonetheless
use commercially reasonable efforts to comply with New Century’s request and
provide the requested Services and/or Termination Assistance Services.






	 	(3)	 	Firm Commitment. Supplier shall provide Termination Assistance
Services to New Century and any Eligible Recipients, or their designee(s)
regardless of the reason for the expiration or termination of the Term;
provided, if this Agreement is terminated by Supplier under Section
20.1(b) for failure to pay undisputed amounts or failure to pay disputed
amounts into escrow as and to the extent required under Section 12.4(d),
Supplier may require payment by New Century in advance for Termination
Assistance Services to be provided or performed under this Section 4.3.
At New Century’s request, Supplier shall provide Termination Assistance Services
directly to an Eligible Recipient or an Entity acquiring Control of an Eligible
Recipient; provided that, unless otherwise agreed by the Parties, all such
Termination Assistance Services shall be performed subject to and in accordance
with the terms and conditions of this Agreement.






	 	(4)	 	Performance. Supplier shall provide all Termination Assistance
Services subject to and in accordance with the terms and conditions of this
Agreement. Supplier shall perform the Termination Assistance Services with at
least the same degree of accuracy, quality, completeness, timeliness,
responsiveness and resource efficiency as it provided and was required to
provide for the same or similar Services during the Term. The quality and level
of performance of the Termination Assistance Services provided by Supplier
following the expiration or termination of the Term as to all or part of the
Services, or Supplier’s receipt of a notice of termination or non-renewal, shall
continue to meet or exceed the applicable Service Levels and shall not be
degraded or deficient in any respect; provided that, if New Century requests
less than all of the Services being performed by Supplier prior to the
originally specified expiration or termination date and the failure to request
any interdependent Service causes Supplier to be unable to perform the Services
in accordance with the Service Levels, using commercially reasonable efforts,
Supplier shall be relieved of responsibility for any resulting Service Level
default, but only if Supplier (i) promptly notifies New Century of its inability
to perform under such circumstances, (ii) cooperates with New Century to address
the resulting problem and thereby avoid any non-performance, (iii) identifies
and pursues commercially reasonable means to avoid or mitigate the impact of New
Century’s failure to request such Service, and (iv) uses commercially reasonable
efforts to perform notwithstanding the failure to request such Service.
Accordingly, Service Level Credits may still be assessed for any failure to meet
Service Levels during the period Termination Assistance Services are provided.
Supplier shall use commercially reasonable efforts to retain Supplier Personnel
(including all Key Supplier Personnel) reasonably considered by New Century to
be critical to the performance of the Services and Termination Assistance
Services on the New Century account through the completion of all relevant
Termination Assistance Services.






	 	(5)	 	Advance Payment. If New Century is obligated to pay in advance
for Termination Assistance Services, Supplier shall present an invoice for the
estimated Charges for such Termination Assistance Services, including any
Pass-Through Expenses and other reimbursable expenses, at least fifteen (15)
days prior to the beginning of the month in which such Services are to be
provided. Subject to Section 12.4, New Century shall then pay such
Charges on or before the first day of such month. The estimated Charges shall
then be reconciled with the actual Charges for Termination Assistance Services
provided in such month, and any additional Charges or credits will be reflected
on the next invoice delivered after the end of such month. If New Century
disputes and wishes to withhold any Charges, it shall so notify Supplier and
identify the basis for such dispute within ten (10) days of its receipt of such
invoice. The Parties shall use commercially reasonable efforts to resolve any
dispute relating to the Charges for Termination Assistance Services within five
(5) days of New Century stating the basis for its dispute. If such dispute is
not resolved within such time period, then the dispute shall be submitted to the
senior executives of each Party in accordance with Section 19.1 for
prompt resolution. If, in such event, New Century fails to pay undisputed
Charges for Termination Assistance Services on or before the first day of the
month and fails to cure such default within thirty (30) days of notice from
Supplier of its intention to terminate on this basis, Supplier may terminate the
relationship and thereafter be relieved of any further responsibility to provide
Termination Assistance Services.






	 	(6)	 	Termination of Termination Assistance Services. In addition to
Supplier’s rights under Section 4.3(a)(5), if New Century fails to pay
undisputed Charges for Termination Assistance Services as required, or fails to
place the disputed payment into escrow in accordance with Section
12.4(d) and, in either case, fails to cure such default within thirty (30)
days of notice from Supplier of its intention to terminate on this basis,
Supplier may terminate the relationship and thereafter be relieved of any
further responsibility to provide Termination Assistance Services.






	 	(b)	 	Scope of Termination Assistance Service. As part of the Termination
Assistance Services, Supplier shall timely transfer the control and responsibility
for all Services previously performed by or for Supplier to New Century, the Eligible
Recipients and/or their designee(s) and shall execute any documents reasonably
necessary to effect such transfers. Additionally, Supplier shall use commercially
reasonable efforts to provide any and all information and assistance requested by New
Century to allow:






	 	•	 	the Systems and processes associated with the Services to operate
efficiently;






	 	•	 	the Services to continue without interruption or adverse effect; and






	 	•	 	the orderly transfer of the Services to New Century, the Eligible
Recipients and/or their designee(s).






The Termination Assistance Services shall include, as requested by New Century, the
Services, functions and responsibilities set forth on Exhibit 17. In
addition, in connection with such termination or expiration, Supplier shall provide
the following Termination Assistance Services at New Century’s request and direction:




	 	(1)	 	General Support. Supplier shall (i) assist New Century, an
Eligible Recipient and/or their designee(s) in developing a written transition
plan for the transition of the Services to New Century, such Eligible Recipient,
or their designee(s), which plan shall include (as requested by New Century)
capacity planning, business process planning, facilities planning, human
resources planning, technology planning, telecommunications planning and other
planning necessary to effect the transition, (ii) perform programming and
consulting services as requested to assist in implementing the transition plan,
(iii) train personnel designated by New Century, an Eligible Recipient and/or
their designee(s) in the use of any business processes or associated Equipment,
Software, Systems, Materials or tools used in connection with the provision of
the Services, (iv) catalog all business processes, Software, New Century Data,
Equipment, Materials, Third Party Contracts and tools used to provide the
Services, (v) provide machine readable and printed listings and associated
documentation (including technical documentation) for source code for Software
owned by New Century and source code to which New Century is entitled under this
Agreement and assist in its re-configuration, (vi) provide technical
documentation for Software owned or licensed by New Century and for Software
owned or licensed by Supplier to the extent New Century is entitled to continue
using such Software following expiration or termination, (vii) analyze and
report on the space required for the New Century Data and the Software needed to
provide the Services; (viii) assist in the execution of a parallel operation,
data migration and testing process until the successful completion of the
transition to New Century, an Eligible Recipient and/or their designee(s), (ix)
create and provide copies of the New Century Data in the format and on the media
reasonably requested by New Century, an Eligible Recipient and/or their
designee(s), (x) provide a complete and up-to-date, electronic copy of the
Policy and Procedures Manual in the format and on the media reasonably requested
by New Century, an Eligible Recipient and/or their designee(s), and (xi) provide
other technical assistance as requested by New Century, an Eligible Recipient
and/or their designee(s).






	 	(2)	 	Hiring.






	 	(i)	 	New Century, the Eligible Recipients and/or their
designee(s) shall be permitted to undertake, without interference from
Supplier, Supplier Subcontractors (subject to Section
4.3(b)(2)(ii) below) or Supplier Affiliates (including
counter-offers), to hire, effective after the later of the expiration or
termination of the Term (including any extension under Section
4.3(a)(2)) or completion of any Termination Assistance Services
requested under Section 4.3(a)(1) or 4.3(b)(8), any Supplier
Personnel substantially dedicated to the performance of Services during
the twelve (12) month period prior to the expiration or termination date.
Supplier shall waive, and shall cause its Affiliates to waive, their
rights, if any, under contracts with such personnel restricting the
ability of such personnel to be recruited or hired by New Century, the
Eligible Recipients and/or their designee(s). Supplier shall provide New
Century, the Eligible Recipients and/or their designee(s) with reasonable
assistance in their efforts to hire such Supplier Personnel, and shall
give New Century, the Eligible Recipients and/or their designee(s)
reasonable access to such Supplier Personnel for interviews, evaluations
and recruitment. New Century shall endeavor to conduct the
above-described hiring activity in a manner that is not unnecessarily
disruptive of the performance by Supplier of its obligations under this
Agreement.






	 	(ii)	 	With respect to Subcontractors, Supplier shall use
commercially reasonable efforts to (A) obtain for New Century, the
Eligible Recipients and their designee(s) the rights specified in
Section 4.3(b)(2)(i), and (B) provide that such rights are not
subject to subsequent Subcontractor approval or the payment by New
Century, an Eligible Recipient or their designee(s) of any fees. If
Supplier is unable to obtain any such rights with respect to a
Subcontractor, it shall notify New Century in advance and shall not use
such Subcontractor without New Century’s approval (and absent such
approval, Supplier’s use of any such Subcontractor not identified in
Exhibit 18 shall obligate Supplier to obtain or arrange, at no
additional cost to New Century, the rights specified in Section
4.3(b)(2)(i), for New Century, the Eligible Recipients and their
designee(s) upon expiration or termination). New Century hereby approves
the use of the Subcontractors identified in Exhibit 18,
notwithstanding Supplier’s inability to obtain the rights described in
this Section 4.3(b)(2)(ii).






	 	(iii)	 	Promptly upon New Century providing notice for
provision of Termination Assistance Services pursuant to Section
4.3(a)(1), Supplier shall provide to New Century a list, organized by
location, of the Supplier Personnel who are eligible for solicitation for
employment pursuant to this Section 4.3(b)(2). Subject to
applicable Privacy Laws, such list shall specify each such Supplier
Personnel’s job title, annual total compensation, leave status and years
of service.






	 	(3)	 	Software. Subject to Sections 6.4(c) and 14.6
and excluding the Software identified on Exhibit 18, Supplier shall
provide to New Century, (and/or, to the extent applicable, the Eligible
Recipients and/or New Century’s designee) the rights designated in Section
14.6.






	 	(4)	 	Equipment. Subject to Section 6.4(c) and excluding the
Equipment leases identified on Exhibit 18, New Century shall have the
right (but not the obligation) to purchase, or assume the lease for, any
Equipment owned or leased by Supplier, Supplier Subcontractors or Supplier
Affiliates that is substantially dedicated to the performance of the Services.
Such Equipment shall be transferred in good working condition, reasonable wear
and tear excepted, as of the expiration or termination of the Term (including
any extension under Section 4.3(a)(2)) or the completion of any Services
requiring such Equipment requested by New Century under this Section
4.3, whichever is later. At New Century’s direction, Supplier shall extend
the right to purchase and/or assume the lease for such Equipment to the Eligible
Recipients and/or New Century’s designee(s), in accordance with the provisions
of this Section 4.3(b)(4). Supplier shall, at no additional charge to
New Century, maintain such Equipment through the date of transfer so as to be
eligible for the applicable manufacturer’s maintenance program. In the case of
Supplier-owned Equipment, Supplier shall grant to New Century, the Eligible
Recipients and/or their designee(s) a warranty of title and a warranty that such
Equipment is free and clear of all liens and encumbrances. Such conveyance by
Supplier to New Century, the Eligible Recipients and/or New Century’s
designee(s) shall be at the fair market value of such Equipment. At New
Century’s request, the Parties shall negotiate in good faith and agree upon the
form and structure of the purchase. In the case of leased Equipment to be
transferred to New Century, the Eligible Recipients and/or New Century’s
designee(s), Supplier shall (i) represent and warrant that the lease is not in
default, (ii) represent and warrant that all payments thereunder have been made
through the date of transfer, and (iii) notify New Century of any non-trivial
lessor defaults of which it is aware at the time.






	 	(5)	 	New Century Facilities, Equipment and Software. Supplier shall
vacate the New Century Facilities and return to New Century, if not previously
returned, any New Century owned Equipment, New Century leased Equipment, New
Century Owned Software, New Century licensed Third Party Software and New
Century Owned Materials, in condition at least as good as the condition when
made available to Supplier, ordinary wear and tear excepted. Supplier shall
vacate such New Century Facilities and return such Equipment, Software and
Materials at the expiration or termination of the Term (including any extension
under Section 4.3(a)(2)) or the completion of any Services requiring
such New Century Facilities, Equipment, Software and Materials requested by New
Century under this Section 4.3, whichever is later. At New Century’s
direction, Supplier will, as an alternative to returning Software to be returned
pursuant to this Section, certify in writing its destruction or other removal of
the Software from its Equipment.






	 	(6)	 	Supplier Subcontracts and Third Party Contracts. Supplier shall
inform New Century of all subcontracts or Third Party Contracts substantially
dedicated by Supplier, Supplier Subcontractors or Supplier Affiliates to the
performance of the Services. Unless and to the extent any such contract has
been identified on Exhibit 18 pursuant to Section 6.4(c),
Supplier shall, at New Century’s request, cause such Subcontractors, Supplier
Affiliates or third party contractors to permit New Century, the Eligible
Recipients and/or their designee(s) to assume prospectively any or all such
contracts or to enter into new contracts with New Century, the Eligible
Recipients and/or their designees on substantially the same terms and
conditions, including price. Supplier shall so assign the designated
subcontracts and Third Party Contracts to New Century, the Eligible Recipients
and/or their designee(s) as of the expiration or termination of the Term
(including any extension under Section 4.3(a)(2)) or the completion of
any Termination Assistance Services requiring such subcontracts or Third Party
Contracts requested by New Century under this Sections 4.3, whichever is
later. Unless and to the extent any such contract has been identified on
Exhibit 18 pursuant to Section 6.4(c), there shall be no charge
or fee imposed on New Century, the Eligible Recipients and/or their designee(s)
by Supplier or its Subcontractors, Affiliates or third party contractors for
such assignment. Supplier shall (i) represent and warrant that it is not in
default under such subcontracts and Third Party Contracts, (ii) represent and
warrant that all payments thereunder through the date of assignment are current,
and (iii) notify New Century of any Subcontractor’s or third party contractor’s
non-trivial default with respect to such subcontracts and Third Party Contracts
of which it is aware at the time.






	 	(7)	 	Other Subcontracts and Third Party Contracts. In addition to its
obligations under Section 4.3(b)(6), Supplier shall use commercially
reasonable efforts to make available to New Century, the Eligible Recipients
and/or their designee(s), pursuant to reasonable terms and conditions, any
Subcontractor or third party services then being utilized by Supplier in the
performance of the Services. Supplier shall retain the right to utilize any
such Subcontractor or third party services in connection with the performance of
services for any other Supplier customer. New Century and the Eligible
Recipients shall retain the right to contract directly with any Subcontractor or
third party previously utilized by Supplier to perform any Services.






	 	(8)	 	Extension of Services. As part of the Termination Assistance
Services, for a period of up to twelve (12) months following the originally
specified expiration or termination date, Supplier shall provide to the Eligible
Recipient(s), under the terms and conditions of this Agreement, at New Century’s
request, any or all of the Services being performed by Supplier for such
Eligible Recipients prior to the expiration or termination date, including those
Services described in Section 4.1 and Exhibit 2; provided that
New Century may extend the period for the provision of such Services as and to
the extent provided in Section 4.3(a)(2). New Century shall provide
Supplier with notice of the Services, if any, to be provided pursuant to this
provision (i) at least sixty (60) days prior to the expiration of the Term or
the effective date of a termination for convenience, or (ii) within thirty (30)
days after the effective date of a termination for cause (provided that, in the
event of a termination for cause, Supplier shall continue to provide the
Services provided prior to such termination during the thirty (30) day period
unless instructed otherwise by New Century. To the extent New Century requests
such Services, New Century will pay Supplier the Charges specified in
Exhibit 4 that New Century would have been obligated to pay Supplier for
such Services if this Agreement had not yet expired or been terminated. To the
extent New Century requests a portion (but not all) of the Services included in
a particular Charge, the amount to be paid by New Century will be equitably
adjusted in proportion to the portion of the Services included in the applicable
Charge that Supplier will not be providing or performing.






In addition to the foregoing, to the extent New Century requests that all or
part of the Services be provided to an Eligible Recipient no longer Controlled
by New Century, New Century shall reimburse Supplier for any additional
license fees reasonably incurred by Supplier for Third Party Software or
Software owned by Subcontractors that are not Affiliates of Supplier to the
extent such Software is required to perform the requested Services (provided
Supplier notifies New Century of such additional license fees, obtains New
Century’s approval prior to incurring such fees, and uses commercially
reasonable efforts to minimize such additional license fees to the extent
possible).




	 	(9)	 	Rates and Charges. Except as provided in Section
4.3(b)(8), if New Century requests that Supplier provide or perform
Termination Assistance Services in accordance with this Agreement, New Century
shall pay Supplier the COLA-adjusted rates and charges specified in Exhibit
4 for the Supplier Personnel or resources required to perform such
Termination Assistance Services. To the extent rates and charges for such
Supplier Personnel or resources are not specified in Exhibit 4, New
Century shall pay Supplier a negotiated fee, which shall be no less favorable to
New Century than the most favorable rates available under then-current New
Century/Supplier contracts for like services or Supplier’s then current
commercially available rates for such personnel or resources. Notwithstanding
the foregoing, Supplier shall use commercially reasonable efforts to provide the
Termination Assistance Services requested by New Century using Supplier’s
program management personnel (provided that the Termination Assistance Services
include the continued provision of Services pursuant to Section
4.3(b)(8)) or other Supplier Personnel then assigned to the engagement for
whom New Century is not obligated to pay an additional Charge (including
Supplier Personnel not assigned on a dedicated basis as long the performance of
such Termination Assistance Services does not cause such personnel to materially
exceed the time they ordinarily devote to the New Century engagement on a
monthly basis). To the extent Supplier is able to do so, New Century shall
incur no additional charge for such Termination Assistance Services. If the
Termination Assistance Services requested by New Century cannot be provided by
Supplier using such Supplier Personnel without impacting Supplier’s ability to
meet the Service Levels and/or its other obligations under the Agreement,
Supplier shall so advise New Century and New Century, in its sole discretion,
may forego or delay any work activities or temporarily or permanently adjust the
work to be performed by Supplier, the schedules associated therewith or the
Service Levels to permit the performance of such Termination Assistance Services
using such personnel.






	 	4.4	 	Right to In-source or Use Third Parties.






	 	(a)	 	Right of Use. Nothing in this Agreement shall be construed as a
requirements contract, and subject to Section 5(f) of Exhibit 4, this
Agreement shall not be interpreted to prevent New Century or any Eligible Recipient
from obtaining from third parties (each, a “New Century Third Party Contractor”), or
providing to itself, any or all of the Services or any other products or services.
Nor shall anything in this Agreement be construed or interpreted as limiting New
Century’s right or ability during the Term to change the requirements of New Century
or the Eligible Recipients, move parts of Functional Service Areas in and out of
scope, add or delete Eligible Recipients or increase or decrease its demand for
Services. Subject to Section 5(f) of Exhibit 4, to the extent New Century or
an Eligible Recipient obtains from New Century Third Party Contractors, or provides
to itself, any of the Services, the amount to be paid to Supplier by New Century will
be equitably adjusted downward in accordance with Exhibit 4. Similarly,
subject to Section 5(f) of Exhibit 4, to the extent New Century adds or
deletes Eligible Recipients or increases or decreases its demand for Services, the
amount to be paid to Supplier by New Century will be adjusted in accordance with
Exhibit 4 and the rates specified therein.






	 	(b)	 	Supplier Cooperation. Supplier shall reasonably cooperate with and work in
good faith with New Century or New Century Third Party Contractors as described in
this Section 4.4 and Exhibit 2 or requested by New Century. Such
cooperation may include: (A) timely providing access to any facilities being used to
provide the Services, as necessary for New Century personnel or New Century Third
Party Contractors to perform the work assigned to them; (B) timely providing
reasonable electronic and physical access to the business processes and associated
Equipment, Software and/or Systems to the extent necessary and appropriate for New
Century personnel or New Century Third Party Contractors to perform work related to
or in furtherance of the Services; (C) timely providing then available written
requirements, standards, policies or other documentation for the business processes
and associated Equipment, Software or Systems procured, operated, supported or used
by Supplier in connection with the Services as necessary for New Century personnel or
New Century Third Party Contractors to perform the work assigned to them; (D)
providing, to the extent practicable and within Supplier’s control, that there is no
degradation in the provision of the Services caused by the adjustments made by
Supplier in transferring Services to a third party, New Century or an Eligible
Recipient; or (E) any other cooperation reasonably necessary for New Century
personnel or New Century Third Party Contractors to perform the work in question.
New Century shall require New Century personnel and New Century Third Party
Contractors to comply with Supplier’s reasonable security, safety and confidentiality
requirements (including, in the case of New Century Third Party Contractors, the
execution of a non-disclosure agreement substantially in the form attached as
Exhibit 22), and, to the extent performing work on Software, Equipment or
Systems for which Supplier has operational responsibility, to comply with Supplier’s
reasonable standards, methodologies, and procedures. Such cooperation shall be
provided at no additional Charge to New Century unless and to the extent such
cooperation requires additional Supplier resources, in which case it shall be treated
as a Project.






	 	(c)	 	Notice by Supplier. Supplier shall use commercially reasonable efforts to
immediately notify New Century when it becomes aware that an act or omission of a New
Century Third Party Contractor will cause, or has caused, a problem or delay in
providing the Services, and shall use commercially reasonable efforts to work with
New Century, the Eligible Recipients and the New Century Third Party Contractor to
prevent or circumvent such problem or delay. Supplier shall do so at no additional
Charge to New Century unless and to the extent such work requires additional Supplier
resources, in which case it shall be treated as a Project. Supplier shall cooperate
with New Century, the Eligible Recipients and New Century Third Party Contractors to
resolve differences and conflicts arising between the Services and other activities
undertaken by New Century, the Eligible Recipients or New Century Third Party
Contractors. Any notification provided by Supplier in accordance with this
Section 4.4(c) shall not in and of itself excuse Supplier from the
performance of any of its obligations under this Agreement.






	 	4.5	 	Projects.






	 	(a)	 	Procedures and Performance. Supplier shall perform Projects requested and
approved by New Century in accordance with Section 10 of Exhibit 4. A
“Project” is a discrete unit of non-recurring work that is related to or in
furtherance of the Services, but that is not an inherent or necessary part of the
day-to-day Services, and is not required to be performed by Supplier to meet the
existing Service Levels (other than Service Levels related to Project performance).
A Project may consist of or include work that would otherwise be treated as New
Services. The Supplier Personnel assigned to perform such Projects shall possess the
training, education, experience, competence and skill to perform such work. The New
Century Project Executive or his or her designee shall request, define and set the
priority for such Projects. Supplier shall use commercially reasonable efforts to
maintain appropriate continuity of personnel assigned to perform Projects.






	 	(b)	 	Additional Work or Reprioritization. The New Century Project Executive or
his or her designee may identify new or additional work activities to be performed by
Supplier Personnel (under a new or amended Project Order, where appropriate)
(including work activities that would otherwise be treated as Projects or New
Services) or reprioritize or reset the schedule for existing work activities to be
performed by such Supplier Personnel. Notwithstanding Section 4.5(a), to the
extent the work activities requested by New Century can be provided by Supplier using
Supplier’s program management personnel or other Supplier Personnel then assigned to
the engagement for whom New Century is not obligated to pay an additional Charge
(including Supplier Personnel not assigned on a dedicated basis as long as the
performance of such Project does not cause such personnel to exceed the time they
ordinarily devote to the New Century engagement on a monthly basis, including the
time ordinarily counted toward Baseline Project FTE Hours) without impacting the
established schedule for other tasks or the performance of the Services in accordance
with the Service Levels, there will be no additional charge to New Century for such
work and the FTE hours associated with such work shall not be counted against the
Baseline Project FTE Hours. If the work activities requested by New Century cannot
be provided by Supplier using personnel then assigned to New Century without
impacting the Service Levels, New Century, in its sole discretion, may forego or
delay any work activities or temporarily or permanently adjust the work to be
performed by Supplier, the schedules associated therewith or the Service Levels to
permit the performance of the requested work using such personnel.






	 	4.6	 	Service Revisions






	 	(a)	 	Financial Responsibility For Changes.






	 	(i)	 	Supplier Responsibility. Without limiting New Century’s right of
approval under Section 9.6(c), unless otherwise set forth in this
Agreement (including Section 15.10) or expressly approved by New
Century, Supplier shall bear all charges, fees and costs associated with any
change (i) desired by Supplier, or (ii) necessitated by a change in Supplier
Laws (excluding Payroll Laws, and Privacy Laws applicable to the provision of
Services because of the presence of New Century or Eligible Recipient employees
in the relevant jurisdiction and not because of the presence in such
jurisdiction of Supplier Personnel or a Supplier Facility from which the
impacted Services are provided), including all charges, fees and costs
associated with (i) the design, installation, implementation, testing and
rollout of such change, (ii) any modification or enhancement to, or substitution
for, any impacted business process or associated Software, Equipment, System,
Services or Materials, (iii) any increase in the cost to New Century or the
Eligible Recipients of operating, maintaining or supporting any impacted
business process or associated Software, Equipment, System, Services or
Materials, and (iv) any increase in Resource Unit usage resulting from such
change. Notwithstanding the preceding sentence, New Century shall bear the
charges, fees and costs if the change is (i) initiated by New Century, or (ii)
an optional change offered by Supplier and requested by New Century.






	 	(ii)	 	New Century Changes (Service Revisions). Without limiting the
provisions of Section 4.6(a)(i) or 15.10(g), in the event (i) New
Century requests a change to the Services, (ii) a change provided for under this
Agreement is not designated as a change for which Supplier is financially
responsible, or (iii) a change is necessitated by a change in New Century Laws,
Payroll Laws or Privacy Laws applicable to the provision of Services because of
the presence of New Century or Eligible Recipient employees in the jurisdiction
in question (a “Service Revision”), Supplier shall promptly evaluate such
Service Revision to determine the impact of such Service Revision on the ongoing
Services, including any impact on the level of effort, resources or expense
associated with the performance of the changed Services and any resulting impact
on the Base Charges or ARC/RRC Rates for such Services, which determination
shall be made in accordance with Sections 4.6(a)(ii)(1), (2), (3) and
(4) of this Agreement. To the extent relevant, Supplier shall prepare
for New Century a proposal (a “Service Revision Proposal”) describing in detail
the impact of such Service Revision on the ongoing Services and any resulting
changes to the Base Charges or ARC/RRC Rates. The Parties shall then negotiate
in good faith and seek to agree upon the Service Revision Proposal and shall
modify such proposal as and to the extent appropriate. If the Service Revision
Proposal is approved by New Century, Supplier shall implement the Service
Revision in accordance with the Service Revision Proposal and the Base Charges
and/or ARC/RRC Rates appearing in Exhibit 4 shall be modified
accordingly. If the Parties disagree and New Century nevertheless directs
Supplier to proceed with such Service Revision, Supplier shall promptly
implement such Service Revision under the pricing set forth in the Service
Revision Proposal and the Parties shall submit the disagreement to the dispute
resolution process set forth in Article 19.






For avoidance of doubt, it is understood and agreed that the foregoing applies
only to changes in the ongoing Services and the Base Charges and ARC/RRC Rates
associated therewith and that the implementation of a Service Revision and any
resources or effort expended in connection therewith will be treated as a
Project in accordance with Section 4.5 of this Agreement and Section
10 of Exhibit 4.




For purposes of the foregoing:




	 	(1)	 	No Charge Service Revision. To the extent the
Service Revision:






	 	(a)	 	does not require increased levels of
effort, resources or expense from Supplier; or






	 	(b)	 	requires increased levels of effort,
resources or expense from Supplier that can be offset by
reductions in effort, resources or expense required of Supplier
prior to the Service Revision, including through efficiencies
realizable through the performance of the Services as so changed;






(each such Service Revision, a “No Charge Revision”), there shall be no
increase in the Base Charges or ARC/RRC Rates associated with such
change.




	 	(2)	 	Potential Charge Impacting Service Revision.
Subject to Section 4.6(a)(ii)(4) and 11.5, to the extent
the Service Revision:






	 	(a)	 	requires increased levels of effort,
resources or expense from Supplier that cannot be offset by other
reductions in effort, resources or expense required of Supplier
prior to the Service Revision, associated with such Service
Revision; and






	 	(b)	 	the Service Revision is not a No
Charge Revision or a change that is Supplier’s responsibility
pursuant to Section 4.6(a)(i) or 4.6(a)(ii)(1);






the Base Charges and/or ARC/RRC Rates for the impacted Services shall
be subject to increase as set forth in the approved Service Revision
Proposal.




	 	(3)	 	Decreased Charge Service Revision. Subject to
Sections 4.6(a)(ii)(4) and  11.5 of this Agreement and
Section 5(f) of Exhibit 4, to the extent the Service Revision
permits reduced levels of effort, resources or expense from Supplier, the
Base Charges and/or ARC/RRC Rates for the impacted Services, shall be
reduced as set forth in the approved Service Revision Proposal.






	 	(4)	 	Notwithstanding the foregoing, to the extent the
net increase or decrease in the level of effort, resources or expense
associated with any Service Revision and the resulting increase or
decrease in the applicable Base Charges and/or ARC/RRC Rates, measured on
an annualized basis, would be less than or equal to $5,000 (the
“Individual De Minimus Change Threshold Amount”), and the net increase or
decrease associated with all such de minimus changes in a Functional
Service Area in any Contract Year would be less than or equal to $25,000
(the “Aggregate De Minimus Change Threshold Amount”), there shall be no
change in the Base Charges and/or ARC/RRC Rates for the applicable
Functional Service Area. In addition, if the net increase or decrease in
the level of effort, resources or expense associated with all Service
Revisions exceeding the Individual De Minimus Change Threshold Amount
and/or the Aggregate De Minimus Change Threshold Amount implemented in a
Functional Service Area in any Contract Year and the resulting increase
or decrease in the applicable Base Charges and/or ARC/RRC Rates, measured
in the aggregate and on an annualized basis, would be less than or equal
to $50,000 (the “Aggregate Change Threshold Amount”), there shall be no
change in the applicable Base Charges and/or ARC/RRC Rates for the
applicable Functional Service Area. Notwithstanding the foregoing, to
the extent the net increase or decrease in the level of effort, resources
or expense associated with all Service Revisions falling below the
Individual De Minimus Change Threshold Amount, the Aggregate De Minimus
Change Threshold Amount and/or the Aggregate Change Threshold Amount,
measured in the aggregate for all Contract Years, would exceed
$1,550,000, such changes shall result in an increase or decrease in the
applicable Base Charges and/or ARC/RRC Rates for the applicable
Functional Service Area even though such changes would not otherwise
result in such an increase or decrease.






	 	4.7	 	Contract Management Responsibility.






	 	(a)	 	Supplier, acting through the Supplier Account Executive (or his or her
designees(s)), shall remain responsible for the administration of this Agreement on a
day-to-day basis on behalf of Supplier (including decisions, consents, notices,
acceptances and approvals) and only Supplier, acting through the Supplier Account
Executive (or his or her designees(s)) shall be authorized to act on behalf of
Supplier or to amend, modify, change, waive or discharge their rights and obligations
under this Agreement.






	 	(b)	 	New Century, acting through the New Century Project Executive (or his or her
designees(s)) shall remain responsible for the administration of this Agreement on a
day-to-day basis on behalf of New Century and the Eligible Recipients (including
decisions, consents, notices, acceptances and approvals) and only New Century, acting
through the New Century Project Executive (or his or her designees(s)) shall be
authorized to act on behalf of New Century and the Eligible Recipients or to amend,
modify, change, waive or discharge their rights and obligations under this Agreement.






	 	4.8	 	Reliance on Instructions and Information.






	 	(a)	 	In performing its obligations under this Agreement, Supplier will be entitled
to reasonably rely upon any instructions, authorizations, and/or approvals
communicated to Supplier in accordance with this Agreement or the Policy and
Procedures Manual by the New Century Project Executive or, as to areas of competency
specifically identified by the New Century Project Executive, by other New Century
personnel identified by the New Century Project Executive, from time to time, as
having authority to provide the same on behalf of New Century in such person’s area of
competency.






	 	(b)	 	Supplier shall not be responsible for errors or inaccuracies in Supplier’s
work product resulting from errors or inaccuracies in the data or information provided
to Supplier for processing, unless and to the extent the errors or inaccuracies in
Supplier’s work product are attributable to the failure of Supplier or Supplier
Personnel to comply with Supplier’s obligations under this Agreement (including the
failure of Supplier or Supplier Personnel to adhere to applicable processes and
controls that, if adhered to, would have enabled Supplier or Supplier Personnel to
identify and timely correct such errors or inaccuracies, even if caused by New
Century),






	5.	 	REQUIRED CONSENTS






	 	5.1	 	Administrative Responsibility.






At no additional cost to New Century, Supplier shall undertake all administrative activities
necessary to obtain all Required Consents. At Supplier’s request, New Century will
cooperate with Supplier in obtaining the Required Consents by executing appropriate New
Century approved written communications and other documents prepared or provided by
Supplier. With New Century’s approval, Supplier may exercise for the benefit of New
Century and the Eligible Recipients any rights Supplier has to utilize license rights or
other applicable rights under Supplier’s existing third party licenses, leases or contracts,
and the Parties shall cooperate in minimizing or eliminating any costs associated therewith.




	 	5.2	 	Financial Responsibility.






Supplier shall pay all transfer, re-licensing or termination fees or expenses associated
with obtaining any Required Consents or terminating any licenses or agreements as to which
Supplier is unable to obtain such Required Consents.




	 	5.3	 	Contingent Arrangements.






If, despite using all commercially reasonable efforts, Supplier is unable to obtain a
Required Consent, with respect to New Century licensed Third Party Software, Supplier shall,
at New Century’s option and with New Century’s consent, (i) replace the New Century license
for such Third Party Software with a Supplier license; (ii) replace such Third Party
Software with other Software offering substantially similar features and functionality, or
(iii) secure the right for Supplier to manage the New Century licensed Third Party Software
on behalf of New Century. In the event of (i) or (ii), New Century shall reimburse Supplier
for the charges for such Third Party Software to the extent they are equal to or less than
the charges for which New Century would have been responsible had the Required Consent been
obtained. If, despite using all commercially reasonable efforts, Supplier is unable to
obtain a Required Consent with respect to any other New Century Third Party Contract, then,
unless and until such Required Consent is obtained, Supplier shall manage such Third Party
Contract on New Century’s behalf and perform all obligations and enforce all rights under
such Third Party Contract as if Supplier were a party to the agreement in New Century’s
place. If, despite using commercially reasonable efforts, management of such Third Party
Contract is not legally or contractually possible or Supplier is unable to obtain any other
Required Consent, the Parties shall discuss and agree upon commercially reasonable
alternative approaches as are necessary and sufficient to provide the Services without such
Required Consent. Except as otherwise expressly provided herein, the failure to obtain any
Required Consent shall not relieve Supplier of its obligations under this Agreement and
Supplier shall not be entitled to any additional compensation or reimbursement in connection
with obtaining or failing to obtain any Required Consent or implementing any alternative
approach.




	6.	 	FACILITIES, SOFTWARE, EQUIPMENT, AND CONTRACTS ASSOCIATED WITH THE PROVISION OF SERVICES






	 	6.1	 	Service Facilities.






	 	(a)	 	Service Facilities.






	 	(i)	 	Supplier and its Affiliates and Subcontractors shall provide the
Services at or from (i) the New Century Facilities described on Exhibit
7, (ii) the Supplier Facilities described on Exhibit 8, or (iii) any
other service location approved by New Century. Supplier shall provide New
Century with reasonable notice of its intention to relocate the provision of a
Service to a new or different Supplier Facility not identified on Exhibit
8 and shall obtain New Century’s approval prior to doing so (provided that
Supplier shall not be obligated to obtain New Century’s approval with respect to
Supplier Facilities to which Section 6.1(a)(ii), 6.1(a)(iii) or
6.1(a)(iv) applies). Supplier shall be financially responsible for all
additional costs, taxes or expenses related to or resulting from any
Supplier-initiated relocation to a new or different Supplier Facility, including
any costs or expenses incurred or experienced by New Century or any Eligible
Recipient as a result of such relocation; provided that, within thirty (30) days
after New Century has been notified of the potential relocation, New Century
notifies Supplier of any New Century controlled costs and expenses (excluding
any taxes) that will be incurred or experienced by New Century or any Eligible
Recipient as a result of such relocation.






	 	(ii)	 	Notwithstanding Section 6.1(a)(i) above, Supplier may
relocate Services from an approved Supplier Facility in the United States to
another Supplier Facility in the United States, provided: (A) Supplier provides
notice to New Century at least sixty (60) days prior to the effective date of
such relocation; (B) the Supplier Facility to which the Services are to be
relocated is comparable or superior in all material respects to the approved
Supplier Facility from which such Services had previously been performed; (C)
the Supplier Facility to which the Services are to be relocated complies with
all relevant requirements and Supplier obligations under this Agreement; (D) the
Supplier Facility to which the Services are to be relocated presents no greater
risk from a disaster recovery or business continuity perspective; (E) Supplier
promptly provides New Century with information and documentation demonstrating
that such Supplier Facility complies with the criteria specified in Subsections
(B), (C) and (D) and provides New Century with a reasonable opportunity to
independently verify such compliance; (F) Supplier remedies any known
non-compliance with the criteria specified in Subsections (B), (C) and (D) prior
to relocating the Services in question; and (G) Supplier agrees to be
financially responsible for any additional costs, taxes or expenses related to
or resulting from such relocation, including any costs or expenses (e.g., audit
or Sarbanes-Oxley compliance costs) incurred or experienced by New Century or
any Eligible Recipient as a result of such relocation; provided that, within
thirty (30) days after New Century has been notified of the potential
relocation, New Century notifies Supplier of any New Century controlled costs
and expenses (excluding any taxes) that will be incurred or experienced by New
Century or any Eligible Recipient as a result of such relocation.






	 	(iii)	 	Notwithstanding Section 6.1(a)(i) above, Supplier may
relocate Services from an approved Supplier Facility in Bangalore, India, to
another Supplier Facility located in the same metropolitan area and country,
provided: (A) Supplier provides notice to New Century at least sixty (60) days
prior to the effective date of such relocation; (B) the Supplier Facility to
which the Services are to be relocated is comparable or superior in all material
respects to the approved Supplier Facility from which such Services had
previously been performed; (C) the Supplier Facility to which the Services are
to be relocated complies with all relevant requirements and Supplier obligations
under this Agreement; (D) the Supplier Facility to which the Services are to be
relocated presents no greater risk from a disaster recovery or business
continuity perspective; (E) Supplier promptly provides New Century with
information and documentation demonstrating that such Supplier Facility complies
with the criteria specified in Subsections (B), (C) and (D) and provides New
Century with a reasonable opportunity to independently verify such compliance;
(F) Supplier remedies any known non-compliance with the criteria specified in
Subsections (B), (C) and (D) prior to relocating the Services in question; and
(G) Supplier agrees to be financially responsible for any additional costs,
taxes or expenses related to or resulting from such relocation, including any
costs or expenses (e.g., audit or Sarbanes-Oxley compliance costs) incurred or
experienced by New Century or any Eligible Recipient as a result of such
relocation; provided that, within thirty (30) days after New Century has been
notified of the potential relocation, New Century notifies Supplier of any New
Century controlled costs and expenses (excluding any taxes) that will be
incurred or experienced by New Century or any Eligible Recipient as a result of
such relocation.






	 	(iv)	 	Notwithstanding Section 6.1(a)(i) above, Supplier may
temporarily provide a portion of the Services (not to exceed 20% of the Service
in question) on an overflow basis from an approved Supplier Facility identified
as “secondary” on Exhibit 8, provided: (A) Supplier provides notice to
New Century of its intention to do so at least sixty (60) days prior to the
first use of such “secondary” Supplier Facility for this purpose; (B) such
Supplier Facility is comparable or superior in all material respects to the
approved Supplier Facility from which such Services are ordinarily performed;
(C) such Supplier Facility complies with all relevant requirements and Supplier
obligations under this Agreement; (D) such Supplier Facility presents no greater
risk from a disaster recovery or business continuity perspective; (E) Supplier
promptly provides New Century with information and documentation demonstrating
that such Supplier Facility complies with the criteria specified in Subsections
(B), (C) and (D) and provides New Century with a reasonable opportunity to
independently verify such compliance; (F) Supplier remedies any known
non-compliance with the criteria specified in Subsections (B), (C) and (D) prior
to performing the Services in question from such facility; and (G) Supplier
agrees to be financially responsible for any additional costs, taxes or expenses
related to or resulting from the performance of Services from such Supplier
Facility, including any costs or expenses (e.g., audit or Sarbanes-Oxley
compliance costs) incurred or experienced by New Century or any Eligible
Recipient as a result of such relocation; provided that, within thirty (30) days
after New Century has been notified of the potential relocation, New Century
notifies Supplier of any New Century controlled costs and expenses (excluding
any taxes) that will be incurred or experienced by New Century or any Eligible
Recipient as a result of the use of such Supplier Facility in this manner.






	 	(b)	 	New Century Facilities. New Century shall provide Supplier with the use of
and access to the New Century Facilities (or equivalent space) described in
Exhibit 7 for the periods specified therein solely as necessary for Supplier
to perform its obligations under this Agreement. All New Century owned or leased
assets provided for the use of Supplier under this Agreement shall remain in New
Century Facilities unless New Century otherwise agrees. In addition, all
improvements or modifications to New Century Facilities requested by Supplier shall
be (i) subject to review and approval in advance by New Century, (ii) in strict
compliance with New Century’s then-current policies, standards, rules and procedures,
and (iii) performed by and through New Century at Supplier’s expense. Supplier
acknowledges and agrees that the facilities to be provided by New Century are
sufficient for performing the Services and for satisfying Supplier’s responsibilities
under this Agreement. THE NEW CENTURY FACILITIES ARE PROVIDED BY NEW CENTURY TO
SUPPLIER ON AN AS-IS, WHERE-IS BASIS. NEW CENTURY EXPRESSLY DISCLAIMS ANY
WARRANTIES, EXPRESS OR IMPLIED, AS TO THE NEW CENTURY FACILITIES, OR THEIR CONDITION
OR SUITABILITY FOR USE BY SUPPLIER.






	 	(c)	 	Furniture, Fixtures and Equipment. At the New Century Facilities described
in Exhibit 7, New Century shall provide office space and office furniture for
the number of Supplier Personnel and for such periods specified in Exhibit 7.
The office space and office furniture provided by New Century for the use of
Supplier Personnel will be generally comparable to (i) the office space and office
furniture provided to New Century Personnel prior to the Commencement Date, or (ii)
the then-standard office space and office furniture provided to similarly situated
New Century employees. Supplier shall be financially responsible for providing all
other office space, office furniture and fixtures needed by Supplier or Supplier
Personnel to provide the Services, and for all upgrades, replacements and additions
to such office furniture or fixtures; provided that such office furniture and
fixtures must be approved in advance by New Century and meet New Century’s
then-current standards; and provided further that Supplier shall use commercially
reasonable efforts to purchase and use surplus New Century furniture and fixtures to
the extent available. Supplier Personnel using the office facilities provided by New
Century will be accorded reasonable access to the communications wiring in such
facilities (including fiber, copper and wall jacks, subject to Section
6.1(d)) and the use of certain shared office equipment and services, such as
photocopiers, local and long distance telephone service for New Century-related
calls, telephone handsets, Internet connectivity, mail service, office support
service (e.g., janitorial), heat, light, and air conditioning; provided that such
access and usage shall be solely for and in connection with the provision of Services
by such Supplier Personnel; provided further that, the extent, if any, to which
Supplier Personnel require access to the New Century network will be defined and
agreed upon during the Transition Period; and provided further that Supplier shall
reimburse New Century for the additional incremental costs incurred by New Century or
the Eligible Recipients if and to the extent Supplier’s technology solution, service
delivery model and/or inefficiency cause its usage or consumption of such resources
to exceed historical levels. Supplier shall be responsible for providing all other
office related equipment, and services needed by Supplier or Supplier Personnel at
such New Century Facilities to provide the Services, and for upgrades, improvements,
replacements and additions to such equipment, or services.






	 	(d)	 	Supplier’s Responsibilities Regarding New Century’s Network. To the extent
any Equipment provided or used by Supplier or Supplier Personnel is connected
directly to the network(s) of New Century or any Eligible Recipient, such Equipment
(and all Software installed thereon) shall be (i) subject to review and approval in
advance by New Century (Supplier shall cooperate with New Century in the testing,
evaluation and approval of such Equipment), (ii) in compliance with New Century’s
then-current security policies, architectures, standards, rules and procedures, and
(iii) in compliance with New Century’s then-current hardware and software
specifications. Supplier shall not install or permit the installation of any other
software on such Equipment without New Century’s prior approval. Supplier shall
promptly investigate any security breach of New Century’s networks or Systems where
such breach is associated with Supplier Personnel or the performance of the Services.
Supplier shall notify New Century of each such security breach and permit New
Century to participate in the planning and conducting of any audit or investigation
of such breach. Supplier shall promptly (i) report the findings of any such audit or
investigation to New Century, (ii) provide New Century with a copy of any written
report prepared in connection therewith, and (iii) to the extent in Supplier’s areas
of responsibility and control, prepare and (following New Century approval) implement
a remediation plan to remediate the effects of the security breach and prevent its
recurrence.






	 	(e)	 	Supplier’s Responsibilities. Except as provided in Sections 6.1(a),
(b) and (c) and Section 6.4, Supplier shall be financially and
operationally responsible for providing all furniture, fixtures, Equipment,
connectivity, space and other facilities required to perform the Services and all
upgrades, improvements, replacements and additions to such furniture, fixtures,
Equipment, connectivity, space and facilities. Without limiting the foregoing,
Supplier shall provide (i) all maintenance, site management, site administration,
and similar services for the Supplier Facilities, and (ii) uninterrupted power supply
services for the Supplier Facilities.






	 	(f)	 	Physical Security. New Century is responsible for the physical security of
the New Century Facilities. Supplier shall not permit any person to have access to,
or control of, any such area unless such access or control is permitted in accordance
with control procedures approved by New Century or any higher standard agreed to by
New Century and Supplier. Supplier shall be solely responsible for compliance by
Supplier Personnel with such control procedures, including obtaining advance approval
to the extent required.






	 	(g)	 	Standards, Requirements and Procedures at New Century Facilities. Except
as provided in Section 6.1(f), Supplier shall adhere to and enforce, and
cause Supplier Personnel to adhere to and enforce, the operational, safety and
security standards, requirements and procedures then in effect at the New Century
Facilities, as such standards, requirements and procedures may be modified by New
Century from time to time, subject to Section 6.3(a).






	 	(h)	 	Employee Services. Subject to applicable security requirements, New
Century shall permit Supplier Personnel to use certain employee facilities (e.g.,
designated parking facilities, cafeteria, and common facilities) at the New Century
Facilities that are generally made available to the employees and contractors of New
Century or the Eligible Recipients. The employee facilities in question and the
extent of Supplier Personnel’s permitted use shall be specified in writing by New
Century and shall be subject to modification without advance notice in New Century’s
sole discretion and without any change to Supplier’s pricing. Supplier Personnel
will not be permitted to use employee facilities designated by New Century for the
exclusive use of certain New Century or Eligible Recipient employees and will not be
entitled to the provision or reimbursement of paid parking.






	 	(i)	 	Use of New Century Facilities.






	 	(i)	 	Unless Supplier obtains New Century’s prior written agreement,
which New Century may withhold in its sole discretion, Supplier shall use the
New Century Facilities, and the Equipment and Software located therein, only to
provide the Services to New Century and the Eligible Recipients.






	 	(ii)	 	New Century reserves the right to relocate any New Century
Facility from which the Services are then being provided by Supplier to another
geographic location within the United States; provided that, in such event, New
Century will provide Supplier with comparable office space in the new geographic
location. In such event, New Century shall pay the applicable labor rate(s) for
additional personnel reasonably required by Supplier and for the incremental
Out-of-Pocket Expenses reasonably incurred by Supplier in physically relocating
to such new geographic location; provided that such relocation is not expressly
contemplated in this Agreement, and that Supplier notifies New Century of such
additional required personnel and incremental Out-of-Pocket Expenses, obtains
New Century’s approval prior to using such personnel or incurring such expenses,
and uses commercially reasonable efforts to minimize such personnel and
expenses. Any relocation implemented pursuant to this provision shall be subject
to the Change Control Procedures to the extent that such relocation impacts
Supplier’s delivery of the Services.






	 	(iii)	 	New Century also reserves the right to direct Supplier to cease
using all or part of the space in any New Century Facility from which the
Services are then being provided by Supplier and to thereafter use such space
for its own purposes. In such event, New Century shall reimburse Supplier for
any reasonable incremental Out-of-Pocket Expenses incurred by Supplier in
leasing substitute space and physically relocating to such space and any
reasonable incremental labor costs incurred by Supplier in physically relocating
to such space; provided that such relocation is not expressly contemplated in
this Agreement and that Supplier notifies New Century of such incremental
Out-of-Pocket Expenses, obtains New Century’s approval prior to incurring such
expenses; and uses commercially reasonable efforts to minimize such expenses.
Any relocation implemented pursuant to this provision shall be subject to the
Change Control Procedures to the extent that such relocation impacts Supplier’s
delivery of the Services.






	 	(j)	 	Conditions for Return. When the New Century Facilities are no longer to be
used by Supplier as contemplated by this Section 6.1 and/or Exhibit 7
or are otherwise no longer required for performance of the Services, Supplier shall
notify New Century as soon as practicable and shall vacate and return such New
Century Facilities (including any improvements to such facilities made by or at the
request of Supplier) to New Century in substantially the same condition as when such
facilities were first provided to Supplier, subject to reasonable wear and tear.






	 	(k)	 	No Violation of Laws. Supplier shall (i) treat, use and maintain the New
Century Facilities in a reasonable manner, and (ii) provide that neither Supplier nor
any of its Subcontractors commits, and use all reasonable efforts to provide that no
business visitor or invitee commits, any act in violation of any Laws applicable to
the use of such Supplier occupied New Century Facility or any act in violation of New
Century’s insurance policies or in breach of New Century’s obligations under the
applicable real estate leases in such Supplier occupied New Century Facilities (in
each case, to the extent Supplier has received notice of such insurance policies or
real estate leases or should reasonably be expected to know of such obligations or
limitations).






	 	6.2	 	Use of Supplier Facilities.






During the Term, Supplier shall provide to New Century, at no charge and consistent with the
confidentiality obligations contained in this Agreement and reasonable security requirements
applicable generally to such facilities, (i) reasonable access to the areas within Supplier
Facilities from which the Services are being performed, and (ii) access to reasonable
work/conference space at such Supplier Facilities for the discharge of New Century’s rights
under the Agreement. In addition, at New Century’s request, Supplier shall provide
reasonable access to and use of such Supplier Facilities by New Century personnel and/or New
Century Third Party Contractors as and to the extent provided in Section 4.4(b).




	 	6.3	 	New Century Rules/Employee Safety.






	 	(a)	 	New Century Rules and Compliance. In using the New Century Facilities to
perform the Services, Supplier shall observe and comply with all New Century
policies, rules, and regulations applicable generally to such New Century Facilities
which have been communicated to Supplier or Supplier Personnel in advance by such
means as are generally used by New Century to disseminate such information to its
employees or contractors, including those set forth on Attachment 2-A and
those applicable to specific New Century Sites (collectively, “New Century Rules”).
The Parties acknowledge and agree that, as of the Commencement Date, Supplier is
fully informed as to the New Century Rules as of such date. Supplier shall be
responsible for the promulgation and distribution of New Century Rules to Supplier
Personnel as and to the extent necessary and appropriate. Additions or modifications
to the New Century Rules may be (i) communicated orally by New Century or an Eligible
Recipient directly to Supplier and Supplier Personnel, (ii) disclosed to Supplier and
Supplier Personnel in writing, (iii) conspicuously posted at a New Century Facility,
(iv) electronically posted, or (v) communicated to Supplier or Supplier Personnel by
means generally used by New Century to disseminate such information to its employees
or contractors. Supplier and Supplier Personnel shall observe and comply with such
additional or modified New Century Rules; provided that, if such additional or
modified New Century Rules cause Supplier to be unable to perform its obligations
under this Agreement or to meet the applicable Service Levels, despite using
commercially reasonable efforts, Supplier shall be relieved of responsibility for any
resulting performance failure, but only if Supplier (i) promptly notifies New Century
of its inability to perform under such circumstances, (ii) cooperates with New
Century to address the resulting problem and thereby avoid any non-performance, (iii)
identifies and pursues commercially reasonable means to avoid or mitigate the impact
of such additional or modified New Century Rules, and (iv) uses commercially
reasonable efforts to perform notwithstanding such rules.






	 	(b)	 	Safety and Health Compliance. Supplier and Supplier Personnel shall
familiarize themselves with the premises and operations at each New Century Facility
at, to or from which Services are rendered and the New Century Rules applicable to
each such Facility. Supplier and Supplier Personnel shall observe and comply with
all Laws applicable to the use of each New Century Facility, including environmental
Laws and Laws regarding occupational health and safety. Supplier and Supplier
Personnel also shall observe and comply with all New Century Rules with respect to
safety, health, security and the environment and shall take commercially reasonable
precautions to avoid injury, property damage, spills or emissions of hazardous
substances, materials or waste, and other dangers to persons, property or the
environment. To the extent required by New Century, Supplier Personnel shall receive
prescribed training prior to entering certain New Century Facilities.






	 	6.4	 	Software, Equipment and Third Party Contracts.






	 	(a)	 	Financial Responsibility. Each Party shall be financially responsible for
any third party fees or expenses incurred on or after the Commencement Date (or, if
later, the date on which Supplier assumes responsibility for the Services in question
in accordance with the Transition Plan) associated with Software, Equipment,
Equipment leases and Third Party Contracts for which such Party is financially
responsible under Exhibit 2 or Attachment 4-B (excluding Third Party
Contracts administered by Supplier on a pass-through basis, which are addressed in
Section 11.2). Unless otherwise expressly provided, each Party also shall be
financially responsible for any third party fees or expenses on or after the
Commencement Date (or, if later, the date on which Supplier assumes responsibility
for the Services in question in accordance with the Transition Plan) associated with
new, substitute or replacement Software, Equipment, Equipment leases or Third Party
Contracts (including Upgrades, enhancements, new versions or new releases of such
Software or Equipment) for which such Party is financially responsible under
Exhibit 2 or Attachment 4-B.






	 	(b)	 	Operational Responsibility. With respect to Software, Equipment, Equipment
leases and Third Party Contracts for which Supplier is operationally responsible
under Exhibit 2 or Attachment 4-B, Supplier shall be responsible for
(i) the evaluation, procurement, testing, installation, rollout, use, support,
management, administration, operation and maintenance of such Software, Equipment,
Equipment leases and Third Party Contracts; (ii) the evaluation, procurement,
testing, installation, rollout, use, support, management, administration, operation
and maintenance of new, substitute or replacement Software, Equipment, Equipment
leases and Third Party Contracts (including Upgrades, enhancements, new versions or
new releases of such Software); (iii) the performance, availability, reliability,
compatibility and interoperability of such Software, Equipment and Third Party
Contracts each in accordance with this Agreement, including the Service Levels and
Change Control Procedures; (iv) the compliance with and performance of the
operational, administrative and contractual obligations specified in the applicable
licenses, leases and contracts (provided that, in the case of New Century licenses,
leases and contracts, Supplier has received copies of such licenses, leases and
contracts or has otherwise been notified of such operational, administrative and
contractual obligations); (v) the administration and exercise as appropriate of all
rights available under such licenses, leases and contracts (provided that, in the
case of New Century licenses, leases and contracts, Supplier has received copies of
such licenses, leases and contracts or has otherwise been notified of the rights
available therein); and (vi) the payment of any fees, penalties, charges, interest or
other expenses due and owing under or with respect to such licenses, leases and
contracts that are incurred, caused by or result from Supplier’s failure to comply
with or perform its obligations under this Section 6.4(b) (except to the
extent that such failure directly results from a breach by New Century of its
obligations under this Agreement).






	 	(c)	 	Rights Upon Expiration/Termination. With respect to all Third Party
Software licenses, Equipment leases and Third Party Contracts used by Supplier in
providing the Services to New Century and for which Supplier is financially
responsible under Exhibit 2 or Attachment 4-B, Supplier shall use
commercially reasonable efforts to (i) obtain for New Century, the Eligible
Recipients and/or their designee(s) the license, sublicense, assignment and other
rights specified in Sections 4.3(b) and 14.6, (ii) provide that the
granting of such license, sublicense, assignment and other rights is not subject to
subsequent third party approval or the payment by New Century, the Eligible
Recipients or their designee(s) of license, assignment or transfer fees, (iii)
provide that the terms, conditions and prices applicable to New Century, the Eligible
Recipients and/or their designee(s) following expiration or termination are no less
favorable than those otherwise applicable to Supplier, and at least sufficient for
the continuation of the activities comprising the Services, and (iv) provide that
neither the expiration/termination of this Agreement nor the assignment of the
license, lease or contract will trigger less favorable terms, conditions or pricing.
If Supplier is unable to obtain any such rights, it shall notify New Century in
advance and shall not use such Third Party Software license, Equipment lease or Third
Party Contract without New Century’s approval (and absent such approval, Supplier’s
use of any such Third Party Software license, Equipment lease or Third Party Contract
shall obligate Supplier to obtain or arrange, at no additional cost to New Century,
for such license, sublicense, assignment or other right for New Century, the Eligible
Recipients and their designee(s) upon expiration or termination). New Century hereby
approves Supplier’s use of the Third Party Software licenses, Equipment leases and
Third Party Contracts identified in Exhibit 18, notwithstanding Supplier’s
failure to obtain the rights and conditions described in this Section 6.4(c).
If New Century consents to Supplier’s use of specific Third Party Software licenses,
Equipment leases or Third Party Contracts under these circumstances, such consent
shall be deemed to be conditioned on Supplier’s commitment to use commercially
reasonable efforts to cause such third party to agree at expiration or termination of
this Agreement or the completion of Termination Assistance Services to permit New
Century, the Eligible Recipients and/or their designee(s) to assume prospectively the
license, lease or contract in question or to enter into a new license, lease or
contract with New Century, the Eligible Recipients and/or their designee(s) on
substantially the same terms and conditions, including price. If New Century
consents to Supplier’s use of specific Third Party Software licenses, Equipment
leases or Third Party Contracts under these circumstances, such Third Party Software
licenses, Equipment leases or Third Party Contracts shall be added to Exhibit
18. It is understood and agreed that, with respect to a proposed replacement for
a Third Party Software license, Equipment lease or Third Party Contract listed on
Exhibit 18 as of the Effective Date, New Century will not withhold its
consent on this basis if and to the extent the rights available to New Century, the
Eligible Recipients and their designee(s) with respect to the proposed replacement
are equal to or greater than those available with respect to the original item.






	 	(d)	 	Evaluation of Third Party Software, Equipment. In addition to its
obligations under Section 6.4(a) and (b) and in order to facilitate
New Century’s control of architecture, standards and plans pursuant to Section
9.5, Supplier shall use commercially reasonable efforts to evaluate any Third
Party Software and Equipment selected by or for New Century or an Eligible Recipient
to determine whether such Software and Equipment will adversely affect New Century’s
environment, New Century’s ability to interface with and use the Software, Equipment
and Systems and/or Supplier’s ability to provide the Services. Supplier shall
complete and report the results of such evaluation to New Century within a reasonable
period of time, not to exceed thirty (30) days after its receipt of New Century’s
request; provided, that Supplier shall use commercially reasonable efforts to respond
more quickly in the case of a pressing business need or an emergency situation.






	 	6.5	 	Notice of Defaults.






New Century and Supplier shall promptly inform the other Party in writing of any breach of,
or misuse or fraud in connection with, any Third Party Contract, Equipment lease or Third
Party Software license used in connection with the Services of which it becomes aware and
shall cooperate with the other Party to prevent or stay any such breach, misuse or fraud.




	7.	 	SERVICE LEVELS






	 	7.1	 	General.






	 	(a)	 	General Performance Standards. Beginning on the Commencement Date (or, if
later, the date on which Supplier assumes responsibility for the Services in question
in accordance with the Transition Plan), Supplier shall perform each Service at
levels of accuracy, quality, completeness, timeliness, responsiveness and resource
efficiency that are at least equal to the verifiable levels received by New Century
or the Eligible Recipients prior to such date. In addition, Supplier shall perform
the Services at levels of accuracy, quality, completeness, timeliness,
responsiveness, resource efficiency and productivity that are equal to or higher than
the accepted industry standards of top tier providers of human resources, payroll,
procurement, accounts payable and other in-scope business process outsourcing
services.






	 	(b)	 	Service Levels. Beginning on the applicable Service Commencement Date,
Supplier shall perform the Services so as to meet or exceed the Service Levels as set
forth in Exhibit 3. To the extent the Parties have established a Service
Level for a specific Service, the obligations described in Section 7.1(a)
shall not be construed to alter, expand or supersede such Service Level.






	 	(c)	 	Multiple Service Levels. If more than one Service Level applies to any
particular obligation of Supplier, Supplier shall perform in accordance with any and
all such Service Levels.






	 	7.2	 	Service Level Credits; Deliverable Credits.






	 	(a)	 	Service Level Credits. Supplier recognizes that New Century is paying
Supplier to deliver the Services at specified Service Levels. If Supplier fails to
meet such Service Levels, then, in addition to other remedies available to New
Century, Supplier shall pay or credit to New Century the performance credits
specified in Exhibit 3 (“Service Level Credits”) in recognition of the
diminished value of the Services resulting from Supplier’s failure to meet the agreed
upon level of performance, and not as a penalty. Under no circumstances shall the
imposition of Service Level Credits be construed as New Century’s sole or exclusive
remedy for any failure to meet the Service Levels. However, if New Century recovers
monetary damages from Supplier as a result of Supplier’s failure to meet a Service
Level, Supplier shall be entitled to set-off against such damages any Service Level
Credits paid for the failure giving rise to such recovery, as reduced by any
applicable earnback pursuant to Exhibit 3. Fifty percent (50%) of the
Service Level Credits incurred by Supplier pursuant to this provision shall be
counted toward the overall liability cap specified in Section 18.3(b).






	 	(b)	 	Deliverable Credits. Supplier recognizes that New Century is paying
Supplier to provide certain Critical Deliverables by the time and in the manner
agreed by the Parties. If Supplier fails to meet its obligations with respect to
such Critical Deliverables, then, in addition to other remedies available to New
Century, Supplier shall pay or credit to New Century the amounts (the “Deliverable
Credits”) specified in Exhibits 3 and/or 20 or established by New
Century as part of the Project approval process on a case by case basis in
recognition of the diminished value of the Services resulting from Supplier’s failure
to meet the agreed upon level of performance, and not as a penalty. If New Century
recovers monetary damages from Supplier as a result of Supplier’s failure to meet its
obligations with respect to one (1) or more Critical Deliverables, Supplier shall be
entitled to set-off against such damages any Deliverable Credits paid for the
failures giving rise to such recovery. Fifty percent (50%) of the Deliverable
Credits incurred by Supplier pursuant to this provision shall be counted toward the
overall liability cap specified in Section 18.3(b).






	 	7.3	 	Problem Analysis.






If Supplier fails to provide Services in accordance with the Service Levels and/or this
Agreement, Supplier shall (after restoring service or otherwise resolving any immediate
problem) (i) promptly investigate and report on the causes of the problem; (ii) provide a
Root Cause Analysis of such failure as soon as practicable after such failure or at New
Century’s request (iii) correct the problem as soon as practicable (regardless of cause or
fault) or coordinate the correction of the problem if Supplier does not have responsibility
for the cause of the problem; (iv) advise New Century of the status of remedial efforts
being undertaken with respect to such problem; (v) demonstrate to New Century’s reasonable
satisfaction that the causes of such problem have been or will be corrected on a permanent
basis and (vi) take commercially reasonable actions to prevent any recurrence of such
problem if the cause of the problem or solution is in Supplier’s areas of responsibility or
control. Supplier shall use commercially reasonable efforts to complete the Root Cause
Analysis within fifteen (15) days of a failure; provided that, if it is not capable of being
completed within fifteen (15) days using reasonable diligence, Supplier shall complete such
Root Cause Analysis as quickly as possible and shall notify New Century prior to the end of
the initial fifteen (15) day period as to the status of the Root Cause Analysis and the
estimated completion date. Supplier shall perform the Root Cause Analyses as part of the
Services and at no additional Charge to New Century; however, if the Root Cause Analysis
reveals that the problem is not attributable to Supplier’s failure to perform its
responsibilities under this Agreement, remedial action by Supplier Personnel (other than
members of the program management office) to correct such problem shall be treated as a
Project pursuant to Section 4.5 of this Agreement and Section 10 of Exhibit
4.




	 	7.4	 	Continuous Improvement Reviews.






	 	(a)	 	Improvement of Services Quality. Supplier acknowledges that the quality of
the Services provided in certain Service areas can and will be improved during the
Term, and Supplier agrees that the Service Levels in such Service areas will be
enhanced periodically in recognition of the anticipated improvement in service
quality, as specified in Exhibit 3. Supplier shall improve the quality of
the Services provided in such areas to meet or exceed the enhanced Service Levels and
shall do so at no additional charge to New Century.






	 	(b)	 	Increase of Service Levels. In addition to the foregoing, New Century and
Supplier shall periodically review the Service Levels and the performance data
collected and reported by Supplier in accordance with Exhibit 3 and relevant
industry data and trends on an annual basis (or more frequently if requested by New
Century). Supplier shall give New Century any assistance it reasonably requires to
review and verify such data. As part of such review process, the Parties shall, at
no additional cost to New Century, increase certain Service Levels in accordance with
Exhibit 3. In addition, subject to Sections 4.6 and 11.5 and
Exhibit 3, the Parties shall agree, to the extent reasonable and appropriate,
to (i) increase the Service Levels to reflect improved performance capabilities
associated with advances in the proven processes, technologies and methods available
to perform the Services; (ii) add new Service Levels to permit further measurement or
monitoring of the accuracy, quality, completeness, timeliness, responsiveness,
cost-effectiveness, or productivity of the Services; (iii) modify or increase the
Service Levels to reflect changes in the processes, architecture, standards,
strategies, needs or objectives defined by New Century; and (iv) modify or increase
the Service Levels to reflect agreed upon changes in the manner in which the Services
are performed by Supplier. All changes to the Service Levels pursuant to this
Section shall be implemented in accordance with Exhibit 3 and the Change
Control Procedures.






	 	7.5	 	Measurement and Monitoring.






On or before the Commencement Date, Supplier shall implement measurement and monitoring
tools and metrics as well as standard reporting procedures, in accordance with Exhibit
3, to measure and report Supplier’s performance of the Services at a level of detail
sufficient to verify Supplier’s compliance with the applicable Service Levels. New Century
or its designee shall have the right to audit all such measurement and reporting tools,
performance metrics and reporting procedures. Supplier shall provide New Century with
on-line access to up-to-date problem management data and other data regarding the status of
service problems, service requests and user inquiries. Supplier also shall provide New
Century with access to the data used by Supplier to calculate its performance against the
Service Levels and the measurement and monitoring tools and procedures utilized by Supplier
to generate such data for purposes of audit and verification. New Century shall not be
required to pay any amount in addition to the Charges for such measurement and monitoring
tools or the resource utilization associated with their use.




	 	7.6	 	Satisfaction Surveys.






	 	(a)	 	General. At specified intervals, Supplier shall conduct the satisfaction
surveys described in Exhibits 2 and 14 in accordance with the survey
protocols and procedures specified therein. To the extent Supplier engages an
independent third party to perform all or any part of any satisfaction survey, such
third party shall be approved in advance by New Century. Supplier shall be
responsible for the cost of all such surveys conducted pursuant to this Section
7.6(a) and Exhibit 14.






	 	(b)	 	New Century Conducted Surveys. In addition to the satisfaction surveys to
be conducted pursuant to Section 7.6(a), New Century may survey satisfaction
with Supplier’s performance in connection with and as part of broader satisfaction
surveys periodically conducted by New Century. At New Century’s request, Supplier
shall review and comment on the survey questions, protocols, procedures and the
execution of such surveys. If New Century engages a third party to conduct a survey
of the Services and such third party will have access to Supplier Confidential
Information, New Century shall require such third party to execute a non-disclosure
agreement with New Century.






	 	(c)	 	Survey Follow-up. If the results of any satisfaction survey conducted
pursuant to Section 7.6(a) or (b) indicate that the level of
satisfaction with Supplier’s performance is less than the target level specified in
Exhibits 3 and/or 14, Supplier shall promptly: (i) conduct a Root
Cause Analysis as to the cause of such dissatisfaction; (ii) develop an action plan
to address and improve the level of satisfaction; (iii) present such plan to New
Century for its review, comment and approval; and (iv) take action in accordance with
the approved plan and as necessary to improve the level of satisfaction. New Century
and Supplier shall establish a schedule for completion of such Root Cause Analysis
and the preparation and approval of the action plan which shall be reasonable and
consistent with the severity and materiality of the problem; provided, that the time
for completion of the Root Cause Analysis and the preparation and approval of the
action plan shall not exceed thirty (30) days from the date such user survey results
are finalized and reported. Supplier’s action plan developed hereunder shall specify
the specific measures to be taken by Supplier and the dates by which each such action
shall be completed. Within thirty (30) days after the completion of the measures
described in such action plan, Supplier shall conduct follow-up surveys with the
affected New Century users and management to confirm that the cause of any
dissatisfaction has been addressed and that the level of satisfaction has improved.
Supplier shall perform the Root Cause Analyses as part of the Services and at no
additional Charge to New Century; however, if the Root Cause Analysis reveals that
the dissatisfaction is not attributable to Supplier’s failure to perform its
responsibilities under this Agreement, remedial action by Supplier Personnel (other
than members of the program management office) to correct such problem shall be
treated as a Project pursuant to Section 4.5 of this Agreement and Section 10
of Exhibit 4. The Parties recognize that Supplier’s failure to take the
actions set forth in such action plan by the agreed upon dates may have an adverse
impact on the business and operations of New Century and the Eligible Recipients.
Accordingly, if Supplier fails to take the actions set forth in the action plan by
the agreed upon dates, then, in addition to any other remedies available to New
Century under this Agreement, at law or in equity, Supplier shall pay to New Century
the applicable Deliverable Credits specified in such action plan for such failure.






	 	7.7	 	Notice of Adverse Impact.






If a Supplier Personnel becomes aware of any failure by Supplier to comply with its
obligations under this Agreement or any other situation arising in the performance of the
Services that said Supplier Personnel knows or, given his or her position and duties,
reasonably should know has a significant chance of (i) impacting, in a non-trivial adverse
respect, the maintenance of a company’s financial integrity or internal controls, the
accuracy of its financial, accounting, production quality or human resources records and
reports, or, with specific regard to New Century, compliance with New Century Rules, New
Century Standards or applicable Laws; or (ii) having any other material adverse impact on
the Services in question or the impacted business operations of New Century or the Eligible
Recipients, then, Supplier shall expeditiously inform New Century in writing of such
situation and the impact or expected impact and Supplier and New Century shall meet to
formulate an action plan to minimize or eliminate the impact of such situation.




	8.	 	PROJECT PERSONNEL






	 	8.1	 	Key Supplier Personnel.






	 	(a)	 	Approval of Key Supplier Personnel.






	 	(i)	 	Exhibit 15 identifies certain positions in each
Functional Service Area to be held by Key Supplier Personnel. Supplier shall
identify and obtain New Century’s approval of all Key Supplier Personnel prior
to the Commencement Date. The positions designated by New Century and the Key
Supplier Personnel that have been selected and approved as of the Effective Date
are listed in Exhibit 15.






	 	(ii)	 	Before assigning an individual to act as one of the Key Supplier
Personnel, whether as an initial assignment or a subsequent assignment, Supplier
shall notify New Century of the proposed assignment, shall introduce the
individual to appropriate New Century representatives, shall provide reasonable
opportunity for New Century representatives to interview the individual, and
shall provide New Century with a resume and, subject to applicable Law and
Supplier’s standard personnel practices, such other information about the
individual as may be reasonably requested by New Century. If New Century in
good faith objects to the proposed assignment, the Parties shall attempt to
resolve New Century’s concerns on a mutually agreeable basis. If the Parties
have not been able to resolve New Century’s concerns within five (5) business
days of New Century communicating its concerns, Supplier shall not assign the
individual to that position and shall propose to New Century the assignment of
another individual of suitable ability and qualifications.






	 	(iii)	 	New Century may from time to time change the positions
designated as Key Supplier Personnel under this Agreement with Supplier’s
approval which shall not be unreasonably withheld.






	 	(b)	 	Continuity of Key Supplier Personnel. Supplier shall cause each of the Key
Supplier Personnel to devote the level of effort specified in Exhibit 15 to
the provision of Services under this Agreement for, at a minimum, the period
specified in Exhibit 15 from the date he or she assumes the position in
question (provided that, in the case of Key Supplier Personnel assigned prior to the
Commencement Date, the minimum period shall be the period specified in Exhibit
15 from the Commencement Date). Supplier shall not transfer, reassign or remove
any of the Key Supplier Personnel (except as a result of voluntary resignation,
involuntary termination for cause, illness, disability, or death) or announce its
intention to do so during the specified period without New Century’s prior approval.
In the event of the voluntary resignation, involuntary termination for cause,
illness, disability or death of one of its Key Supplier Personnel during or after the
specified period, Supplier shall (i) give New Century as much notice as reasonably
possible of such development, and (ii) expeditiously identify and obtain New
Century’s approval of a suitable replacement. In addition, even after the period
specified in Exhibit 15, Supplier shall transfer, reassign or remove one of
its Key Supplier Personnel only after (i) giving New Century at least forty (40) days
prior notice of such action, (ii) identifying and obtaining New Century’s approval of
a suitable replacement at least thirty (30) days prior to such transfer, reassignment
or removal, (iii) providing New Century with a plan describing the steps and
knowledge transfer necessary to transition responsibility to the replacement, and
(iv) demonstrating to New Century’s reasonable satisfaction that such action will not
have an adverse impact on Supplier’s performance of its obligations under this
Agreement. Unless otherwise agreed, Supplier shall not transfer, reassign or remove
more than one (1) of the Key Supplier Personnel in any six (6) month period.






	 	(c)	 	Retention and Succession. Supplier shall implement and maintain a
reasonable retention strategy designed to retain Key Supplier Personnel on the New
Century account for the prescribed period. Supplier shall also maintain active
succession plans for each of the Key Supplier Personnel positions.






	 	8.2	 	Supplier Account Executive.






Supplier shall designate a “Supplier Account Executive” for this New Century engagement who,
unless otherwise agreed by New Century, shall maintain his or her office in the designated
New Century Facility in Irvine, California. The Supplier Account Executive shall (i) be one
of the Key Supplier Personnel; (ii) be a full time employee of Supplier; (iii) allocate the
level of effort set forth in Exhibit 15 to managing the Services; (iv) remain in
this position for a minimum period of two (2) years from the initial assignment (except as a
result of voluntary resignation, involuntary termination for cause, illness, disability, or
death); (v) serve as the single point of accountability for the Services, (vi) be the single
point of contact to whom all New Century communications concerning this Agreement may be
addressed; (vii) have authority to act on behalf of Supplier in all day-to-day matters
pertaining to this Agreement; (viii) have day-to-day responsibility for service delivery,
billing and relationship management; and (ix) have day-to-day responsibility for ensuring
customer satisfaction and attainment of all Service Levels.




	 	8.3	 	Supplier Personnel Are Not New Century Employees.






Except as otherwise expressly set forth in this Agreement, the Parties intend to create an
independent contractor relationship and nothing in this Agreement shall operate or be
construed as making New Century (or the Eligible Recipients) and Supplier partners, joint
venturers, principals, joint employers, agents or employees of or with the other. No
officer, director, employee, agent, Affiliate, contractor or subcontractor retained by
Supplier to perform work on New Century’s behalf hereunder shall be deemed to be an officer,
director, employee, agent, Affiliate, contractor or subcontractor of New Century or the
Eligible Recipients for any purpose. Supplier, not New Century or the Eligible Recipients,
has the right, power, authority and duty to supervise and direct the activities of the
Supplier Personnel and to compensate such Supplier Personnel for any work performed by them
on the behalf of New Century or the Eligible Recipients pursuant to this Agreement.
Supplier, and not New Century or the Eligible Recipients, shall be responsible and therefore
solely liable for all acts and omissions of Supplier Personnel, including acts and omissions
constituting negligence, gross negligence, willful misconduct and/or fraud.




	 	8.4	 	Replacement, Qualifications, and Retention of Supplier Personnel.






	 	(a)	 	Sufficiency and Suitability of Personnel. Supplier shall assign (or cause
to be assigned) sufficient Supplier Personnel to provide the Services in accordance
with this Agreement and such Supplier Personnel shall possess suitable competence,
ability and qualifications and shall be properly educated and trained for the
Services they are to perform.






	 	(b)	 	Requested Replacement. In the event that New Century determines lawfully
and in good faith that the continued assignment to New Century of any individual
Supplier Personnel (including Key Supplier Personnel) is not in the best interests of
New Century or the Eligible Recipients, then New Century shall give Supplier notice
to that effect requesting that such Supplier Personnel be replaced. Supplier shall
have ten (10) business days following New Century’s request for removal of such
Supplier Personnel in which to investigate the matters forming the basis of such
request, correct any deficient performance and provide New Century with assurances
that such deficient performance shall not recur (provided that, if requested to do so
by New Century, Supplier shall immediately remove (or cause to be removed) the
individual in question from all New Century Facilities or Sites pending completion of
Supplier’s investigation and discussions with New Century). If, following such ten
(10) business day period, New Century is not reasonably satisfied with the results of
Supplier’s efforts to correct the deficient performance and/or to prevent its
recurrence, Supplier shall, as soon as possible, remove and replace such Supplier
Personnel with an individual of suitable ability and qualifications, without cost to
New Century. Nothing in this provision shall operate or be construed to limit
Supplier’s responsibility for the acts or omission of the Supplier Personnel, or be
construed as joint employment.






	 	(c)	 	Reserved.






	 	(d)	 	Turnover Rate and Data. Supplier shall use commercially reasonable efforts
to keep the turnover rate of Supplier Personnel to a level comparable to or better
than the industry average for large, well-managed service providers performing
services similar to the Services. If New Century believes that the turnover rate of
Supplier Personnel is excessive and so notifies Supplier, Supplier shall within
fifteen (15) business days (i) provide New Century with data concerning Supplier’s
turnover rate, (ii) meet with New Century to discuss the reasons for the turnover
rate, (iii) submit a proposal for reducing the turnover rate for New Century’s review
and approval, and (iv) agree to a program for reducing the turnover rate, all at no
additional cost to New Century. Notwithstanding any transfer or turnover of Supplier
Personnel, Supplier shall remain obligated to perform the Services without
degradation and in accordance with the Service Levels.






	 	(e)	 	Restrictions on Performing Services to Competitors. Except as otherwise
set forth in Exhibit 15, neither Supplier nor any Subcontractor shall cause
or permit any Key Supplier Personnel to perform similar services or market such
services directly or indirectly for or to a Direct New Century Competitor either
while engaged in the provision of Services or during the twelve (12) months
immediately following the termination of his or her involvement in the provision of
such Services without New Century’s prior written consent. This restriction shall
not apply to the extent such Services are terminated for convenience by New Century
or for cause by Supplier prior to the expiration of the Agreement.






	 	(f)	 	Supplier Personnel. Supplier shall use commercially reasonable efforts to
verify (i) that Supplier Personnel are authorized to work in any country in which
they are assigned to perform Services and (ii) that Supplier Personnel have not been
convicted of or accepted responsibility for a felony or a misdemeanor involving a
dishonest act (or comparable offense in countries outside the United
States). To the extent allowed by applicable Laws, Supplier shall perform,
or have performed at its expense, a reasonable background check on all Supplier
Personnel assigned to work hereunder, provided that, if a satisfactory background
check was completed in connection with the hiring of such Supplier Personnel, it need
not be repeated. At a minimum, for Supplier employees employed in the United States,
the background check shall include a five (5) year criminal history check for
Supplier’s entry-level employees and a seven (7) year criminal history check for
Supplier’s employees other than entry-level employees. For Supplier employees
employed outside the United States, Supplier shall use commercially reasonable
efforts to meet the same criteria, subject to general business practices in the
respective country and industry, and further subject to reasonable availability of
information and documentation. For avoidance of doubt, in India and the Philippines,
Supplier will ask applicants and/or employees about their criminal histories, but
will not conduct searches of criminal records. If, in the future, Supplier changes
its current practice and begins conducting criminal records searches in India and/or
the Philippines for like personnel, Supplier will conduct such searches of then
current and future Supplier Personnel. All results from background checks, finger
printing and drug testing and any other similar procedures applicable to Supplier
Personnel shall be deemed the Confidential Information of Supplier. Supplier
represents and warrants that it will not assign Supplier Personnel to perform
Services who it knows or who the background check reveals to have been convicted of
(1) any felony (or comparable offense in countries outside the United States), (2)
any misdemeanor involving a violent act or an act of dishonesty for which the record
has not been sealed or expunged (or comparable offense in countries outside the
United States) or (3) any illegal drug use (excluding, in the case of California,
marijuana offenses that are more than two (2) years old).






	 	(g)	 	Notice by Supplier. Supplier shall provide New Century not less than
ninety (90) days notice of the expiration of any collective bargaining agreement with
unionized Supplier Personnel if the expiration of such agreement or any resulting
labor dispute could potentially interfere with or disrupt the business or operations
of New Century or an Eligible Recipient or impact Supplier’s ability to timely
perform its duties and obligations under this Agreement.






	 	8.5	 	Restrictions on Changes in Supplier Staffing/Facilities.






	 	(a)	 	Supplier shall not move Services in a Functional Service Area or
sub-Functional Service Area (e.g., Procurement, Accounts Payable, Human Resources,
Payroll) provided from an approved Supplier Facility in one country to a Supplier
Facility in another country from which such Services had not previously been provided
by Supplier without New Century’s prior approval.






	 	(b)	 	To the extent Services in the same Functional Service Area or
sub-Functional Service Area are provided by Supplier Personnel from Supplier
Facilities in different countries, Supplier shall not change the extent to which such
Services are provided by Supplier Personnel from each such Supplier Facility and
country by more than fifteen percent (15%), in the aggregate, without New Century’s
prior approval, except for temporary moves that are the result of volume
fluctuations, Projects or business continuity efforts. In addition, even if such a
change in Supplier staffing is less than fifteen percent (15%), but more than five
percent (5%) in the aggregate, Supplier shall use commercially reasonable efforts to
provide New Century with advance notice of each such change. For avoidance of doubt,
the foregoing is measured as the cumulative impact of the movement of FTEs and work
between and among Supplier Facilities and countries, not by any single change, and
changes attributable solely to changes in service volumes are not subject to the
limits described in this Section 8.5(b).






	 	8.6	 	Conduct of Supplier Personnel.






	 	(a)	 	Conduct and Compliance. While at New Century Facilities, Supplier
Personnel shall (i) comply with the New Century Rules, as further described in
Section 6.3, (ii) comply with reasonable requests of New Century or the
Eligible Recipients personnel pertaining to personal and professional conduct, (iii)
attend workplace training offered by New Century and/or the Eligible Recipients at
New Century’s request, and (iv) otherwise conduct themselves in a businesslike
manner.






	 	(b)	 	Identification of Supplier Personnel. Except as specifically authorized by
New Century, Supplier Personnel shall clearly identify themselves as Supplier
Personnel and not as employees of New Century and/or the Eligible Recipients. This
shall include any and all communications, whether oral, written or electronic, unless
and to the extent authorized by New Century in connection with the performance of
specific Services. Each Supplier Personnel shall wear a badge issued by New Century
indicating that he or she is a “contractor” when at a New Century Site or Facility.






	 	(c)	 	Restriction on Marketing Activity. Except for marketing representatives
designated in writing by Supplier to New Century, none of the Supplier Personnel
shall conduct any marketing activities to New Century or Eligible Recipient employees
at New Century Facilities or Sites (including marketing of any New Services), other
than, subject to Section 13.1, reporting potential marketing opportunities to
Supplier’s designated marketing representatives.






	 	8.7	 	Substance Abuse.






	 	(a)	 	Employee Removal. To the extent permitted by applicable Laws, Supplier
shall immediately remove (or cause to be removed) any Supplier Personnel who is known
to be or reasonably suspected of engaging in substance abuse while at New Century
Facility or Site, in a New Century vehicle or while performing Services. In the case
of reasonable suspicion, such removal shall be pending completion of the applicable
investigation. Substance abuse includes the sale, attempted sale, possession or use
of illegal drugs, drug paraphernalia, or, to the extent not permitted on at New
Century Facilities or New Century Sites, alcohol, or the misuse of prescription or
non-prescription drugs.






	 	(b)	 	Substance Abuse Policy. Supplier represents and warrants that it has and
will maintain substance abuse policies, in each case in conformance with applicable
Laws, and Supplier Personnel will be subject to such policies. Supplier represents
and warrants that it shall require its Subcontractors and Affiliates providing
Services to have and maintain such policy in conformance with applicable Law and to
adhere to this provision.






	9.	 	SUPPLIER RESPONSIBILITIES






	 	9.1	 	Policy and Procedures Manual.






	 	(a)	 	Delivery and Contents. As part of the Services, and at no additional cost
to New Century, Supplier shall deliver to New Century a reasonably complete draft of
the Policy and Procedures Manual(s) with respect to the Services to be transitioned
to Supplier on the Commencement Date, for New Century’s review, comment and approval,
on or before the applicable Transition Milestone date specified in Exhibit
20. Thereafter, as part of the Services, and at no additional cost to New
Century, Supplier shall deliver to New Century a reasonably complete draft of the
Policy and Procedures Manual with respect to each remaining Service (or, if such
Policy and Procedures Manual already exists, any additional portions of such Policy
and Procedures Manual pertaining to such Service), for New Century’s review, comment
and approval, on or before the Transition Milestone date specified in Exhibit
20 for each such Service. In each case, New Century shall have at least fifteen
(15) days to review the draft Policy and Procedures Manual and provide Supplier with
reasonable comments and revisions. Supplier shall then incorporate such comments and
revisions ,as appropriate, into the Policy and Procedures Manual and shall deliver a
final version to New Century at least five (5) business days prior to the scheduled
transition date for the applicable Service for New Century’s final approval. At a
minimum, each Policy and Procedures Manual shall include the following:






	 	(i)	 	a detailed description of the Services and the manner
in which each will be performed by Supplier, including (A) the Equipment,
Software, and Systems to be procured, operated, supported or used; (B)
documentation (including operations manuals, user guides, specifications,
policies/procedures and disaster recovery/business continuity plans)
providing further details regarding such Services; (C) the specific
activities to be undertaken by Supplier in connection with each Service,
including, where appropriate, the direction, supervision, monitoring,
staffing, reporting, planning and oversight activities to be performed by
Supplier under this Agreement; (D) the checkpoint reviews, testing,
acceptance, controls and other procedures to be implemented and used to
assure service quality; and (F) subject to Section 15.10, the
processes, methodologies and controls to be implemented and used by
Supplier to comply with applicable Laws;






	 	(ii)	 	the procedures for New Century/Supplier interaction and
communication, including (A) call lists; (B) procedures for and limits on
direct communication by Supplier with New Century personnel; (C) problem
management and escalation procedures; (D) priority and project procedures;
(E) Acceptance testing and procedures; (F) Quality Assurance procedures,
internal controls and Change Control Procedures; (G) the Project formation
process and implementation methodology; and (H) annual and quarterly
financial objectives, budgets, and performance goals; and






	 	(iii)	 	practices and procedures addressing such other issues
and matters as New Century shall reasonably require.






Supplier shall incorporate New Century’s then current policies and procedures in
the Policy and Procedures Manual as appropriate and as reasonably requested by New
Century.




	 	(b)	 	Order of Precedence. In the event of a conflict between the provisions of
this Agreement and the Policy and Procedures Manual, the provisions of this Agreement
shall control unless the Parties expressly agree otherwise and such agreement is set
forth in the relevant portion of the Policy and Procedures Manual.






	 	(c)	 	Maintenance, Modification and Updating. Supplier shall maintain the Policy
and Procedures Manual so as to be accessible electronically to New Century management
and Authorized Users via a secure web site in a manner consistent with New Century’s
security policies. Supplier shall promptly modify and update the Policy and
Procedures Manual monthly to reflect changes in the operations or procedures
described therein and to comply with New Century Standards, the Technology and
Business Process Plan and Strategic Plans as described in Section 9.5.
Supplier shall provide the proposed changes in the manual to New Century for review,
comment and approval. To the extent any such change poses a non-trivial risk of (i)
increasing New Century’s total costs of receiving the Services (as described in
Section 9.6(c)(i)); (ii) having a non-trivial adverse impact or require
changes, as described in Section 9.6(c)(ii)-(vi), or (iii) violating or being
inconsistent with the New Century Standards or Strategic Plans (as described in
Section 9.6(c)(vii)), Supplier shall not implement such change without first
obtaining New Century’s approval, which New Century may withhold in its sole
discretion.






	 	(d)	 	Annual Review. The Parties shall meet to perform a formal annual review of
the Policy and Procedures Manual on each anniversary of the Commencement Date.






	 	9.2	 	Reports.






	 	(a)	 	Reports. Supplier shall provide New Century with the reports described in
Exhibit 13 and Section 11 of Exhibit 4, in the format and at the
frequencies provided therein. In addition, from time to time, New Century may
identify additional Reports to be generated by Supplier and delivered to New Century
on an ad hoc or periodic basis, as further described in Section 11 of Exhibit
4. The Reports described in Exhibit 13 and, to the extent reasonably
possible, all other Reports shall be provided to New Century by secure on-line
connection in an electronic format capable of being accessed by Microsoft Office
components and downloadable by New Century, with the information contained therein
capable of being displayed graphically and accessible from a web browser.






	 	(b)	 	Back-Up Documentation. As part of the Services, Supplier shall provide New
Century with such documentation and other information available to Supplier as may be
reasonably requested by New Century from time to time in order to verify the accuracy
of the Reports provided by Supplier. In addition, Supplier shall provide New Century
with sufficient documentation and other information reasonably requested by New
Century from time to time to verify that Supplier’s performance of the Services is in
compliance with the Service Levels and this Agreement.






	 	(c)	 	Correction of Errors. As part of the Services and at no additional charge
to New Century, Supplier shall promptly correct any errors or inaccuracies in or with
respect to the Reports or other contract deliverables provided by Supplier or its
agents or Subcontractors.






	 	9.3	 	Governance; Meetings.






	 	(a)	 	Governance Model. The Parties shall manage their relationship under this
Agreement using the governance model described in Exhibit 6.






	 	(b)	 	Meetings. During the Term, representatives of the Parties shall meet
periodically or as requested by New Century to discuss matters arising under this
Agreement, including any such meetings provided for under the Transition Plan, the
Policy and Procedures Manual or Exhibit 6. Each Party shall bear its own
costs in connection with the attendance and participation of such Party’s
representatives in such meetings.






	 	(c)	 	Agenda and Minutes. For each such meeting, upon New Century request,
Supplier shall prepare and distribute an agenda, which will incorporate the topics
designated by New Century. Supplier shall distribute such agenda in advance of each
meeting so that the meeting participants may prepare for the meeting. In addition,
upon New Century request, Supplier shall record and promptly distribute minutes for
every meeting for review and approval by New Century.






	 	(d)	 	Authorized User and Eligible Recipient Meetings. Supplier shall notify the
New Century Project Executive in advance of scheduled meetings with Authorized Users
or Eligible Recipients (other than meetings pertaining to the provision of specific
Services on a day-to-day basis) and shall invite the New Century Project Executive to
attend such meetings or to designate a representative to do so.






	 	9.4	 	Quality Assurance and Internal Controls.






	 	(a)	 	Supplier shall develop and implement Quality Assurance and internal control
(e.g., financial and accounting controls, organizational controls, input/output
controls, system modification controls, processing controls, system design controls,
and access controls) processes and procedures, including implementing tools and
methodologies such that the Services are performed in an accurate and timely manner,
in accordance with (i) the Service Levels and other requirements of this Agreement,
(ii) generally accepted accounting principles, (iii) the generally accepted practices
of top tier providers of human resources, payroll, procurement, accounts payable and
other in-scope business process outsourcing services, (iv) subject to Section
15.10, applicable Laws, and (v) the industry standards described in Section
9.4(c) below. Such processes, procedures and controls shall include
verification, checkpoint reviews, testing, acceptance, and other procedures for New
Century to assure the quality and timeliness of Supplier’s performance. Without
limiting the generality of the foregoing, Supplier shall:






	 	(i)	 	Maintain a strong control environment and internal
control structure in day-to-day operations, to assure that the following
fundamental control objectives are met: (1) financial and operational
information is valid, complete and accurate; (2) operations are performed
efficiently and achieve effective results, consistent with the requirements
of this Agreement; (3) assets are safeguarded; and (4) actions and
decisions of the organization are in compliance with Laws;






	 	(ii)	 	Build or transition the following basic control
activities into work processes: (1) accountability clearly defined and
understood; (2) access properly controlled; (3) adequate supervision; (4)
transactions properly authorized; (5) transactions properly recorded; (6)
transactions recorded in proper accounting period; (7) policies,
procedures, and responsibilities documented; (8) adequate training and
education; (9) adequate separation of duties; (10) competency of personnel;
and (11) recorded assets compared with existing assets;






	 	(iii)	 	Develop and execute a process to ensure periodic
control self-assessments are performed at least annually with respect to
all Services;






	 	(iv)	 	Conduct investigations of suspected fraudulent
activities within Supplier’s organization that impact or could impact New
Century or the Eligible Recipients. Supplier shall promptly notify New
Century of any such suspected fraudulent activity and the results of any
such investigation, including the financial impact, as they relate to New
Century or the Eligible Recipients. At Supplier’s request, New Century
shall provide reasonable assistance to Supplier in connection with any such
investigation;






	 	(v)	 	Comply with all applicable requirements and guidelines
established by New Century in order to assist New Century to meet the
requirements of the Sarbanes-Oxley Act of 2002 and implementing regulations
promulgated by the United States Securities and Exchange Commission and
Public Company Accounting Oversight Board;






	 	(vi)	 	Comply with the New Century Code of Business Conduct
and Ethics; and






	 	(vii)	 	Implement compliance measures approved by New Century
to satisfy Sarbanes-Oxley requirements, including, without limitation,
certification as to internal controls.






	 	(b)	 	Supplier shall submit such processes, procedures and controls to New
Century for its review, comment and approval at least thirty (30) days prior to the
Commencement Date and shall use commercially reasonable efforts to finalize such
processes, procedures and controls and obtain New Century’s final approval on or
before the Commencement Date. Upon New Century’s approval, such processes and
procedures shall be included in the Policy and Procedures Manual. Prior to the
approval of such processes and procedures by New Century, Supplier shall adhere to
New Century’s then current policies procedures, and controls. No failure or
inability of the quality assurance procedures to disclose any errors or problems with
the Services shall excuse Supplier’s failure to comply with the Service Levels and
other terms of this Agreement.






	 	(c)	 	Industry Standards, Certifications and Compliance Supplier has achieved
and, to the extent relevant, will maintain certification or compliance with the
following industry standards:






	 	(i)	 	eSCM (eSourcing Capability Model) – Supplier’s
Bangalore Delivery Center has been assessed at eSCM Level 3.






	 	(ii)	 	CMM (Capability Maturity Model) – Supplier’s
delivery centers in India and Manila have been assessed at CMM-SW Level
5.






	 	(iii)	 	ISO 9001:2000 – Supplier’s BPO Global Delivery
Centers in India and Manila have all been audited against the 9001:2000
standards and have been certified.






	 	(iv)	 	COPC (Customer Operations Performance Center Inc.)
– Supplier’s CCS operation in the Bangalore Delivery Center is certified
to the COPC-2000® Standard.






	 	(v)	 	BS 7799 (British Standard 7799) – Supplier’s
Bangalore Delivery Centers have received certification in BS 7799.






	 	9.5	 	Processes, Procedures, Architecture, Standards and Planning.






	 	(a)	 	Supplier Support. As reasonably requested by New Century, Supplier shall
assist New Century on an on-going basis in defining (A) the standards, policies,
practices, processes, procedures and controls to be adhered to and enforced by
Supplier in the performance of the Services; and (B) the associated IT technologies
architectures, standards, products and systems to be provided, operated, managed,
supported and/or used by Supplier in connection therewith (collectively, the “New
Century Standards”). Supplier also shall assist New Century on an annual basis in
preparing Strategic Plans and short-term implementation plans. The assistance to be
provided by Supplier shall include: (i) active participation with New Century
representatives on permanent and ad-hoc committees and working groups addressing such
issues; (ii) assessments of the then-current New Century Standards; (iii) analyses of
the appropriate direction for such New Century Standards in light of business
priorities, business strategies, competitive market forces, and changes in
technology; (iv) the provision of information to New Century regarding Supplier’s
technology, business processes and telecommunications strategies for its own
business; and (v) recommendations regarding standards, processes, procedures and
controls and associated technology architectures, standards, products and systems.
With respect to each recommendation, Supplier shall provide the following at a level
of detail sufficient to permit New Century to make an informed business decision: (i)
the projected cost to New Century and the Eligible Recipients and cost/benefit
analyses; (ii) the changes, if any, in the personnel and other resources Supplier,
New Century and/or the Eligible Recipients will require to operate and support the
changed environment; (iii) the resulting impact on the total costs of New Century and
the Eligible Recipients; (iv) the expected performance, quality, responsiveness,
efficiency, reliability, security risks and other service levels; and (v) general
plans and projected time schedules for development and implementation. Assistance
provided by Supplier Personnel (other than members of the program management office)
pursuant to this provision shall be treated as a Project pursuant to Section
4.5 of this Agreement and Section 10 of Exhibit 4.






	 	(b)	 	New Century Authority and Supplier Compliance. New Century shall have
final authority to promulgate New Century Standards and Strategic Plans and to modify
or grant waivers from such New Century Standards and Strategic Plans. Supplier shall
(i) comply with and implement the New Century Standards and Strategic Plans in
providing the Services, (ii) work with New Century to enforce the New Century
Standards and Strategic Plans, (iii) modify the Services, as and to the extent
necessary and on a schedule to conform to such New Century Standards and Strategic
Plans, and (iv) obtain New Century’s prior written approval for any deviations from
such New Century Standards and Strategic Plans, all in accordance with the Change
Control Procedures.






	 	(c)	 	Financial, Forecasting and Budgeting Support. To support New Century’s
forecasting and budgeting processes, Supplier shall provide the following information
regarding the costs to be incurred by New Century and/or the Eligible Recipients in
connection with the Services and the cost/benefit to New Century and/or the Eligible
Recipients associated therewith: (i) actual and forecasted utilization of Resource
Units; (ii) actual and forecasted changes in the total cost or resource utilization
of New Century and the Eligible Recipients associated with changes to the
environment; and (iii) opportunities to modify or improve the Services, to reduce the
Charges, Pass-Through Expenses or retained expenses incurred by New Century. Such
information shall be provided at New Century’s request, and at no additional charge
to New Century, in accordance with the schedule reasonably established by New
Century.






	 	(d)	 	Technology and Business Process Plan. Supplier shall develop and, upon
approval, implement an annual technology and business process plan that is, to the
extent practicable, consistent with the New Century Standards and Strategic Plan and
that will, to the extent practicable, enable New Century to achieve its business,
human resources, payroll, procurement, accounts payable and information technology
objectives and strategies (“Technology and Business Process Plan”). The development
of the Technology and Business Process Plan will be an iterative process that
Supplier shall carry out in consultation with New Century. The timetable for
finalization of the Technology and Business Process Plan shall be set each year
having regard to the timetable for the Strategic Plan.






	 	(i)	 	Process. The process for developing and approving the Technology
and Business Process Plan shall be as follows. Supplier shall provide a draft
Technology and Business Process Plan each year that includes multi-year
implementation plans to achieve multi-year objectives. New Century shall review
the draft Technology and Business Process Plan and provide requested amendments.
Supplier shall incorporate any such amendments, unless it reasonably believes
that any requested amendment would not assist New Century to achieve its
objectives and strategies. New Century and Supplier shall escalate any
disagreements about requested amendments to the draft Technology and Business
Process Plan in accordance with the dispute resolution procedure in Article
19. Following approval by New Century, the draft Technology and Business
Process Plan will replace the previous plan. Approval of the Technology and
Business Process Plan by New Century shall not relieve Supplier of any
obligation under this Agreement in relation to its provision of the Services.






	 	(ii)	 	Contents. In the Technology and Business Process Plan, Supplier
shall, among other things, include plans for: (A) refreshing Equipment and
Software (consistent with the refresh cycles defined in Section 9.12);
(B) adopting new technologies and business processes as part of the Technology
and Business Process Evolution of the Services, as defined in this Agreement;
and (C) maintaining flexibility as described in Section 9.12. In the
Technology and Business Process Plan, Supplier shall also present implementation
plans for the achievement of the Strategic Plan and the New Century Standards.






	 	(iii)	 	Compliance and Reporting. Supplier shall comply with the
Technology and Business Process Plan at all times, unless New Century agrees to
depart from the Technology and Business Process Plan. Any such agreement to
depart from the Technology and Business Process Plan from the date on which it
is signed by New Century will not relieve Supplier of its responsibilities under
the previous plan prior to the date of such agreement.






	 	9.6	 	Change Control.






	 	(a)	 	Compliance with Change Control Procedures. In making any change in the
human resources, payroll, procurement, accounts payable or other standards,
processes, procedures and controls or associated IT technologies, architectures,
standards, products, Software, Equipment, Systems, Services or Materials provided,
operated, managed, supported or used in connection with the Services, Supplier shall
comply with the change control procedures specified in the Policy and Procedures
Manual (“Change Control Procedures”).






	 	(b)	 	Responsibility For Supplier Required Changes. Subject to Section
4.6(a)(i), Supplier may make changes to the Services, without New Century’s
approval, other than those changes described in Section 9.6(c) and (d), as
long as Supplier complies with the Change Control Procedures.






	 	(c)	 	New Century Approval – Cost, Adverse Impact. Supplier shall make no change
that poses a non-trivial risk of (i) increasing New Century’s total cost of receiving
the Services; (ii) requiring material changes to, or having a non-trivial adverse
impact on, New Century’s or an Eligible Recipient’s business, operations,
environments, facilities, business processes, systems, software, utilities, tools or
equipment (including those provided, managed, operated, supported and/or used on
their behalf by New Century Third Party Contractors); (iii) requiring New Century or
the Eligible Recipients to install a new version, release, upgrade of, or replacement
for, any Software or Equipment or to modify any Software or Equipment, (iv) having a
material adverse impact on the functionality, interoperability, performance,
accuracy, speed, responsiveness, quality or resource efficiency of the Services; (v)
having an adverse impact on the cost, either actual or planned, to New Century of
terminating all or any part of the Services or exercising its right to in-source or
use third parties; (vi) having an adverse impact on the functionality,
interoperability, performance, accuracy, speed, responsiveness, quality, cost or
resource efficiency of New Century’s Retained Systems and Business Processes or (vii)
violating or being inconsistent with New Century Standards or Strategic Plans as
specified in Section 9.5, without first obtaining New Century’s approval,
which approval New Century may withhold in its sole discretion.






	 	(d)	 	New Century Legal Approval – IVR/VRU Solution. In addition to the
foregoing, Supplier shall not implement or use in performing the Services an IVR or
VRU solution having one or more of the following characteristics without first
obtaining the approval of the New Century General Counsel or his or her designee: (i)
the entry by callers of distinct verification data that is compared to information
stored in a database to determine if the caller is qualified to continue using the
system; (ii) the IVR system provides the caller with computer generated confirmation
numbers; (iii) the use by callers of temporary PINs with the ability to change the
PIN; or (iv) the generation of automatic screen pops at the operator terminal based
on caller-specific information entered by the caller.






	 	(e)	 	Information for Exercise of Strategic Authority. In order to facilitate
New Century’s strategic control pursuant to Section 9.5, Supplier shall
provide New Century with such information as New Century shall reasonably request in
writing prior to making any proposed change requested by New Century or, if
initiated by Supplier, as to which New Century’s approval is required under
Section 9.6(d). Such information shall include, at a minimum, a description
of the proposed rights of New Century and the Eligible Recipients with respect to
ownership and licensing (including any related restrictions) relating to such
Software, Equipment or other technology or Materials.






	 	(f)	 	Temporary Emergency Changes. Notwithstanding anything to the contrary in
this Agreement, Supplier may make temporary changes required by an emergency if it
has been unable to contact New Century to obtain approval after making reasonable
efforts. Supplier shall document and report such emergency changes to New Century
not later than the next business day after the change is made. Such changes shall
not be implemented on a permanent basis unless and until approved by New Century.






	 	(g)	 	Implementation of changes. Supplier shall use commercially reasonable
efforts to schedule and implement all changes so as not to (i) disrupt or adversely
impact the business or operations of New Century or the Eligible Recipients, (ii)
degrade the Services then being received by them, or (iii) interfere with their
ability to obtain the full benefit of the Services.






	 	(h)	 	Planning and Tracking. On a monthly basis, Supplier shall prepare, with
New Century’s participation and approval, a rolling quarterly “look ahead” schedule
for ongoing and planned changes for the next three (3) months. The status of changes
will be monitored and tracked by Supplier against the applicable schedule.






	 	9.7	 	Software Currency.






	 	(a)	 	Currency of Supplier Owned Software. Subject to and in accordance with
Sections 6.4, 9.5, 9.6, 9.7(c) and (d), and 9.12, Exhibit 4 and
Attachment 4-B, Supplier will maintain reasonable currency for Supplier
Owned Software and provide maintenance and support for new releases and versions of
such Software. At New Century’s direction, Supplier shall operate, maintain and
support multiple releases or versions of Supplier Owned Software on a temporary
basis for a reasonable period of time during a technology or business transition
(e.g., a software upgrade or business unit acquisition), subject to Section
4.5 of this Agreement and Section 10 of Exhibit 4. without any increase
in the Monthly Base Charges. For purposes of this Section, “reasonable currency”
shall mean that, unless otherwise directed by New Century, (i) Supplier shall
maintain Supplier Owned Software at the then current Major Release, and (ii)
Supplier shall install Minor Releases promptly or, if earlier, as requested by New
Century.






	 	(b)	 	Currency of Third Party Software. Subject to and in accordance with
Sections 6.4, 9.5, 9.6, 9.7(c), and 9.12, Exhibit 4 and
Attachment 4-B, Supplier shall maintain reasonable currency for Third Party
Software for which it is financially responsible under this Agreement and provide
maintenance and support for new releases and versions to the extent it is
operationally responsible for such Third Party Software. At New Century’s
direction, Supplier shall operate, maintain and support multiple releases or
versions of Third Party Software on a temporary basis for a reasonable period of
time during a technology or business transition (e.g., a software upgrade or
business unit acquisition), subject to Section 4.5 of this Agreement and
Section 10 of Exhibit 4. For purposes of this Section, “reasonable
currency” shall mean that, unless otherwise directed or agreed by New Century, (i)
Supplier shall keep Third Party Software within Major Release levels maintained and
supported by the appropriate third party vendor, and (ii) Supplier shall install
Minor Releases promptly or earlier, if requested by New Century.






	 	(c)	 	Evaluation and Testing. Prior to installing a new Major Release or Minor
Release, Supplier shall evaluate and test such Release to verify that it will perform
in accordance with this Agreement and the New Century Standards and Strategic Plans
and that it will not pose a non-trivial risk of (i) increasing New Century’s total
costs of receiving the Services (as described in Section 9.6(c)(i)); (ii)
having a non-trivial adverse impact or require changes, as described in Section
9.6(c)(ii)-(vi); or (iii) violating or being inconsistent with the New Century
Standards or Strategic Plans (as described in Section 9.6(c)(vii). The
evaluation and testing performed by Supplier shall be at least consistent with the
reasonable and accepted industry norms applicable to the performance of such Services
and shall be at least as rigorous and comprehensive as the evaluation and testing
usually performed by highly qualified service providers under such circumstances.






	 	(d)	 	Updates by New Century. New Century and the Eligible Recipients shall have
the right, but not the obligation, to install new releases of, replace, or make other
changes to Applications Software or other Software for which New Century is
financially responsible under this Agreement.






	 	9.8	 	Access to Specialized Supplier Skills and Resources.






Upon New Century’s request, Supplier shall provide New Century and the Eligible Recipients
with prompt access to Supplier’s specialized services, personnel and resources pertaining to
the standards, processes and procedures for human resources, payroll, procurement, accounts
payable and other in-scope business processes and services and associated software,
equipment and systems on an expedited basis taking into account the relevant circumstances
(the “Specialized Services”). The Parties acknowledge that the provision of such
Specialized Services may, in some cases, constitute a New Service or Project for which
Supplier is entitled to additional compensation, but in no event shall Supplier be entitled
to any additional compensation for New Services under this subsection unless the New Century
Project Executive and Supplier Account Executive, or their authorized designee, expressly
agree upon such additional compensation or Supplier’s entitlement to additional compensation
is established through the dispute resolution process. If New Century authorizes Supplier
to proceed but the Parties disagree as to whether the authorized work constitutes New
Services and New Century reasonably believes that such work is material and is required on
an urgent basis in connection with either Party’s compliance with its legal, regulatory or
contractual obligations, Supplier shall proceed with such work for up to sixty (60) days and
the disagreement shall be submitted to dispute resolution pursuant to Article 19.




	 	9.9	 	Annual Reviews.






Annually, the Parties shall conduct a detailed review of the Services then being performed
by the Supplier. As part of this review, the Parties shall review the actual service
volumes against the forecasted monthly volumes for the previous year, and forecast the
service volumes for the next year. In addition, the Parties shall examine: (i) whether the
Charges are consistent with New Century’s forecasts, industry norms and the Supplier’s
representations; (ii) the quality of the performance and delivery of the Services; (iii)
whether the Supplier has delivered cost saving or efficiency enhancing proposals; (iv) the
level and currency of the technologies and business processes employed; (v) the
Finance/Employee business processes; (vi) business and technology strategy and direction;
and (vii) such other things as New Century may reasonably require.




	 	9.10	 	Audit Rights.






	 	(a)	 	Contract Records. Supplier shall, and shall cause its Affiliates and,
subject to Section 9.11(a), its Subcontractors (other than Shared
Subcontractors) to, maintain complete and accurate records of and supporting
documentation for all Charges, all New Century Data and all transactions,
authorizations, changes, implementations, soft document accesses, reports, filings,
returns, analyses, procedures, controls, records, data or information created,
generated, collected, processed or stored by Supplier in the performance of its
obligations under this Agreement (“Contract Records”). Subject to Section
15.10, Supplier shall maintain such Contract Records in accordance with
applicable Laws. Supplier shall retain Contract Records in accordance with New
Century’s record retention policy (as such policy may be modified from time to time
and provided to Supplier in writing) during the Term and any Termination Assistance
Services period and thereafter through the end of the second full calendar year after
the calendar year in which Supplier stopped performing Services (including
Termination Assistance Services requested by New Century under Section
4.3(b)(8)) (the “Audit Period”).






	 	(b)	 	Operational Audits. During the Audit Period (as defined in Section
9.10(a)), Supplier shall, and shall cause its Affiliates and, subject to
Section 9.11(a), its Subcontractors to, provide to New Century (and internal
and external auditors, inspectors, regulators and other representatives that New
Century may designate from time to time, including customers, vendors, licensees and
other third parties to the extent New Century or the Eligible Recipients are legally
or contractually obligated to submit to audits by such entities) access during normal
business hours to appropriate Supplier Personnel, to the facilities at or from which
Services are then being provided and to Supplier records and other pertinent
information (excluding internal audit reports generated by Supplier, but including
disclosure of any finding, recommendation or conclusion in such audit reports
relating to non-compliance with Supplier’s obligations under this Agreement), only to
the extent relevant to the Services and Supplier’s obligations under this Agreement.
Such access shall be provided for the purpose of performing audits and inspections,
to (i) verify the integrity of New Century Data, (ii) examine the systems that
process, store, support and transmit that data, (iii) examine the adequacy of and
compliance with the internal controls (e.g., financial controls, human resource
controls, organizational controls, input/output controls, system modification
controls, processing controls, system design controls, and access controls) and the
security, disaster recovery and back-up practices and procedures; (iv) examine
Supplier’s performance of the Services; (v) verify Supplier’s reported performance
against the applicable Service Levels; (vi) examine Supplier’s measurement,
monitoring and management tools; and (vii) enable New Century and the Eligible
Recipients to meet applicable legal, regulatory and contractual requirements
(including those associated with the Sarbanes-Oxley Act of 2002 and the implementing
regulations promulgated by the United States Securities and Exchange Commission and
Public Company Accounting Oversight Board), in each case to the extent relevant to
the Services and Supplier’s performance of its obligations under this Agreement.
Supplier shall use commercially reasonable efforts to (i) provide any assistance
reasonably requested by New Century or its designee in conducting any such audit,
including installing and operating audit software, (ii) make requested personnel,
records and information available to New Century or its designee, and (iii) in all
cases, provide such assistance, personnel, records and information in an expeditious
manner to facilitate the timely completion of such audit. As between the Parties,
New Century shall be responsible for any auditor’s fees and costs associated with
such audit, unless the audit reveals a significant breach of this Agreement, in
which case Supplier shall promptly reimburse New Century for such reasonable and
actual fees and costs.






	 	(c)	 	Financial Audits. During the Audit Period (as defined in Section
9.10(a)), Supplier shall, and shall cause its Affiliates and, subject to
Section 9.11(a), its Subcontractors to, provide to New Century (and internal
and external auditors, inspectors, regulators and other representatives that New
Century may designate from time to time, including customers, vendors, licensees and
other third parties to the extent New Century or the Eligible Recipients are legally
or contractually obligated to submit to audits by such entities) access during normal
business hours to appropriate Supplier Personnel and to Contract Records and other
pertinent information to conduct financial audits (excluding internal audit reports
generated by Supplier, but including disclosure of any finding, recommendation or
conclusion in such audit reports relating to non-compliance with Supplier’s
obligations under this Agreement), all to the extent relevant to the performance of
Supplier’s obligations under this Agreement. Such access shall be provided for the
purpose of performing audits and inspections to (i) verify the accuracy and
completeness of Contract Records, (ii) verify the accuracy and completeness of
Charges and any Pass-Through Expenses and Out-of-Pocket Expenses, (iii) examine the
adequacy of and compliance with the financial controls, processes and procedures
utilized by Supplier, (iv) verify Supplier’s performance of its other financial and
accounting obligations under this Agreement, and (v) enable New Century and the
Eligible Recipients to meet applicable legal, regulatory and contractual
requirements, in each case to the extent relevant to the Services and/or the Charges
for such Services. Supplier shall use commercially reasonable efforts to (i) provide
any assistance reasonably requested by New Century or its designee in conducting any
such audit, (ii) make such personnel, records and information available to New
Century or its designee, and (iii) in all cases, provide such assistance, personnel,
records and information in a reasonably expeditious manner to facilitate the timely
completion of such audit. If any such audit reveals an overcharge by Supplier, and
Supplier does not successfully dispute the amount questioned by such audit in
accordance with Article 19, Supplier shall promptly pay to New Century the
amount of such overcharge, together with interest from the date of Supplier’s receipt
of such overcharge at the lesser of the then current “Prime Rate” set forth in the
“Money Rates” table in The Wall Street Journal (“Prime Rate”) plus two percent
(2%) or the maximum rate allowed by law. As between the Parties, New
Century shall be responsible for any auditor’s fees and costs associated with any
such audit, unless such audit reveals an overcharge of more than three percent (3%)
of the audited Charges in any Charges category, in which case Supplier shall promptly
reimburse New Century for the reasonable and actual cost of such audit, including
reasonable auditors’ fees.






	 	(d)	 	Audit Assistance. New Century and certain Eligible Recipients may be
subject to regulation and audit by governmental bodies, standards organizations,
other regulatory authorities, customers or other parties to contracts with New
Century or an Eligible Recipient under applicable Laws, rules, regulations, standards
and contract provisions. If a governmental body, standards organizations, other
regulatory authority or customer or other party to a contract with New Century or an
Eligible Recipient exercises its right to examine or audit New Century’s or an
Eligible Recipient’s books, records, documents or accounting practices and procedures
pursuant to such Laws, rules, regulations, standards or contract provisions, Supplier
shall provide all assistance requested by New Century or the Eligible Recipient in
responding to such audits or requests for information and shall do so in an
expeditious manner to facilitate the prompt closure of such audit or request.






	 	(e)	 	General Procedures. Audits conducted pursuant to this Section 9.10
shall be subject to the following terms to the extent applicable:






	 	(i)	 	Notwithstanding the intended breadth of New Century’s audit
rights, neither New Century nor any third party conducting an audit on behalf of
New Century shall be given access to (A) the Confidential Information of other
Supplier customers, (B) Supplier locations that are not related to New Century,
the Eligible Recipients or the Services, or (C) Supplier’s internal costs,
except to the extent such costs are the basis upon which New Century is charged
(e.g., reimbursable expenses, Out-of-Pocket Expenses, Pass-Through Expenses or
cost-plus Charges), or (D) any other Confidential Information of Supplier that
is not directly relevant for the purposes of the audit (unless and to the
extent, in the case of New Century and the Eligible Recipients, they have access
to such Confidential Information in the course of receiving the Services or
performing their obligations under this Agreement or are otherwise entitled to
such Confidential Information under this Agreement).






	 	(ii)	 	In performing audits, New Century shall endeavor to avoid
unnecessary disruption of Supplier’s operations and unnecessary interference
with Supplier’s ability to perform the Services in accordance with the Service
Levels.






	 	(iii)	 	Following any audit, New Century shall conduct (in the case of
an internal audit), or request its external auditors or examiners to conduct, an
exit conference with Supplier to obtain factual concurrence with issues
identified in the review.






	 	(iv)	 	New Century shall be given adequate private workspace in which to
perform an audit, plus access to photocopiers, telephones, facsimile machines,
computer hook-ups, and any other facilities or equipment needed for the
performance of the audit.






	 	(v)	 	New Century shall provide Supplier with reasonable prior written
notice of an audit, excluding an audit initiated by government auditors,
inspectors, and regulators.






	 	(vi)	 	New Century shall not use a Direct Supplier Competitor (or a
significant Supplier Subcontractor under this Agreement) to conduct such audits.






	 	(vii)	 	New Century shall require external auditors (excluding
government auditors, inspectors, regulators) and other third parties involved in
conducting an audit on behalf of New Century to execute a non-disclosure
agreement substantially in the form attached hereto as Exhibit 22,
unless and to the extent they have already executed a non-disclosure agreement
with comparable protections.






	 	(viii)	 	Except as provided in Section 9.10(b), (c) or (i), New Century shall
bear all third party fees and expenses and all expenses of New Century and
Eligible Recipient in connection with audits initiated by New Century pursuant
to this Section 9.10.






	 	(f)	 	Supplier Internal Audit. If Supplier determines as a result of its own internal
audit that it has overcharged New Century, then Supplier shall promptly pay to New
Century the amount of such overcharge, together with interest from the date of
Supplier’s receipt of such overcharge at the lesser of the then current “Prime Rate”
set forth in the “Money Rates” table in The Wall Street Journal (“Prime Rate”) plus
two percent (2%) or the maximum rate allowed by law.






	 	(g)	 	Supplier Response. Supplier and New Century shall meet promptly upon the
completion of an audit conducted by or for New Century pursuant to this Section
9.10 (i.e., an exit interview) and/or issuance of an interim or final report to
Supplier and New Century following such an audit. Supplier shall respond to each
exit interview and/or audit report in writing within fifteen (15) days. Supplier and
New Century shall develop and agree upon an action plan and specific milestone dates
to promptly address and resolve any deficiencies, concerns and/or recommendations
identified in such exit interview and/or audit report and Supplier shall
expeditiously undertake remedial action in accordance with the Change Control
Procedures and such action plan and the dates specified therein to the extent
necessary to comply with Supplier’s obligations under this Agreement. Supplier shall
undertake such remedial action at its own expense to the extent Supplier is not
complying with agreed upon and approved processes and/or its other obligations under
this Agreement. With respect to key control deficiencies and other control
deficiencies deemed significant by New Century or its external auditors under the
Sarbanes-Oxley Act of 2002 (or the implementing regulations promulgated by the United
States Securities and Exchange Commission and Public Company Accounting Oversight
Board), Supplier shall remediate such deficiencies in accordance with Sections 3.0(2)
and 4.0(3) of Exhibit 2.4.






	 	(h)	 	Supplier Response to External Audits. If an external audit conducted by a
governmental body, standards organization, regulatory authority, customer or other
external party pursuant to this Section 9.10 results in a finding that
Supplier is not in compliance with any applicable Law or any standard required by
this Agreement, including any generally accepted accounting principle or other audit
requirement relating to the performance of its obligations under this Agreement,
Supplier shall, at its own expense (unless such non-compliance is the result of a
change in Law, in which case the cost shall be allocated in accordance with
Section 15.10(g)) and, within the time period reasonably specified by such
auditor, address and resolve the deficiency(ies) identified by such external audit,
in the manner approved by New Century, to the extent necessary to comply with
Supplier’s obligations under this Agreement.






	 	(i)	 	SAS70 Audit. In addition to its other obligations under this Section
9.10, Supplier shall cause a Type II Statement of Auditing Standards (“SAS”) 70
audit (or equivalent audit) to be conducted at least annually for each Supplier
shared services facility at or from which the Services are provided to New Century
and/or the Eligible Recipients. Supplier shall permit New Century to provide input
into the planning of each such audit, and shall accommodate New Century’s
requirements and concerns to the extent reasonably practicable. Unless otherwise
agreed by the Parties, such audit shall be conducted so as to result in a final audit
report dated September 30 and delivered to New Century by approximately November 1,
but no later than November 15. Supplier shall provide New Century with a report from
each SAS 70 audit to facilitate annual compliance reporting by New Century and the
Eligible Recipients under the Sarbanes-Oxley Act of 2002 (and implementing
regulations promulgated by the United States Securities and Exchange Commission and
Public Company Accounting Oversight Board) and comparable Laws in other
jurisdictions. Supplier shall respond to each such report in accordance with
Section 9.10(g).






To the extent New Century provides reasonable notice and requests that, in addition
to the Type II SAS 70 audit described above, Supplier conduct a New
Century-specific Type II SAS 70 audit, Supplier shall do so at New Century’s
expense (provided, Supplier notifies New Century of such expense, obtains New
Century’s approval, and uses commercially reasonable efforts to minimize such
expense). If, however, Supplier undertakes additional or different Type II SAS 70
audits (or equivalent audits) of Supplier Facilities at, from or through which
Services are provided to New Century and/or the Eligible Recipients (other than
customer-specific audits requested and paid for by other Supplier customers),
Supplier shall accord New Century the rights described in the preceding paragraph
with respect to such audits.




	 	(j)	 	Audit Costs.






	 	(i)	 	Except as provided in Section 9.10(j)(ii) below, Supplier
and its Subcontractors shall provide the Services described in this Section
9.10 as part of the Monthly Base Charges and at no additional Charge to New
Century.






	 	(ii)	 	As part of the Monthly Base Charges, Supplier shall provide, at
New Century’s request, up to 240 FTE hours of audit assistance for audits
initiated by New Century in any Contract Year (the “Baseline Audit FTE Hours”).
The New Century Relationship Manager or his or her designee shall request,
define and set the priority for such audit assistance. Supplier shall report
monthly on the level of effort expended by Supplier in the performance of such
audit assistance and shall not exceed the Baseline Audit FTEs without New
Century’s prior approval. Subject to Sections 9.10(j)(iii), (iv) and
(v), if New Century authorizes Supplier to exceed the Baseline Audit FTEs in
any Contract Year, New Century shall either pay Supplier for such additional FTE
hours at the rates specified in Exhibit 4 or apply such additional FTE
hours against the Baseline Project FTEs described in Section 10 of Exhibit
4.






Notwithstanding the preceding paragraph and subject to Section 4.5(b),
to the extent audit assistance can be provided by Supplier using Supplier’s
program management personnel without impacting the established schedule for
other tasks or the performance of the Services in accordance with the Service
Levels, there will be no additional charge to New Century for such work and
the FTE hours associated with such work shall not be counted against the
Baseline Audit FTE Hours.




	 	(iii)	 	Notwithstanding Section 9.10(j)(ii), to the extent the
level of audit assistance requested by New Century and provided by Supplier
Personnel in connection with any audit initiated by New Century is, in the
aggregate, eight (8) FTE hours or less, there shall be no additional Charge to
New Century for such assistance and such FTE hours shall not be counted against
the Baseline Audit FTE pool described in Section 9.10(j)(ii) above.






	 	(iv)	 	Notwithstanding Section 9.10(j)(ii), to the extent the
audit assistance requested by New Century can be provided by Supplier using
personnel already assigned to New Century without impacting Service Levels,
there will be no additional charge to New Century for such audit assistance. If
the audit assistance requested by New Century cannot be provided by Supplier
using personnel then assigned to New Century without impacting Service Levels,
New Century may forego or delay any work activities or temporarily or
permanently adjust the work to be performed by Supplier, the schedules
associated therewith or the Service Levels to permit the performance of such
audit assistance using personnel already assigned to perform the Services.






	 	(v)	 	Notwithstanding Section 9.10(j)(ii), there will be no
additional charge to New Century for audit assistance if New Century possesses
prior to such audit a reasonable and demonstrable basis for believing that
Supplier has breached any material obligation(s) under this Agreement or New
Century uncovers evidence of such a breach in the course of such audit and such
evidence could not reasonably have been uncovered during prior audits.






	 	9.11	 	Subcontractors.






	 	(a)	 	Use of Subcontractors. Except as provided in Section 9.11(c),
Supplier shall not subcontract any of its responsibilities under this Agreement
without New Century’s prior approval. Prior to entering into a subcontract with
respect to the Services, Supplier shall (i) give New Century reasonable prior notice
of the subcontract, specifying the components of the Services affected, the scope of
the proposed subcontract, the identity and qualifications of the proposed
Subcontractor, and the reasons for subcontracting the work in question, the location
of the Subcontractor facilities from which the Services will be provided, the extent
to which the subcontract will be dedicated, the Subcontractor’s acceptance of
Section 9.10 and willingness to submit to reasonable audit requirements in
light of the services provided by such Subcontractor, and the Subcontractor’s
willingness to grant the rights described in Section 6.4(c) upon expiration
or termination; and (ii) subject to Section 9.11(c) and (d), obtain New
Century’s prior approval of such Subcontractor.






	 	(b)	 	Right to Revoke Approval. New Century shall have the right during the Term
to revoke its prior approval of a Subcontractor and direct Supplier to replace such
Subcontractor as soon as possible, at no additional cost to New Century, if the
Subcontractor has engaged in criminal or other willful misconduct that has caused or
is reasonably likely to cause significant harm to New Century’s business reputation
and/or standing in the marketplace if such Subcontractor were to continue to perform
under this Agreement. Supplier shall have a reasonable opportunity to investigate
New Century’s concerns, address the Subcontractor’s misconduct and provide New
Century with a written action plan setting forth details as to how to address such
misconduct and prevent its recurrence.  If New Century is not reasonably
satisfied with the Supplier’s efforts to address the Subcontractor’s misconduct
and/or to ensure its non-recurrence, the Supplier shall, as soon as possible, remove
and replace such Subcontractor. Supplier shall continue to perform its obligations
under the Agreement, notwithstanding the removal of the Subcontractor. New Century
shall have no responsibility for any termination charges or cancellation fees that
Supplier may be obligated to pay to a Subcontractor as a result of the removal of
such Subcontractor at New Century’s request or the withdrawal or cancellation of the
Services then performed by such Subcontractor as permitted under this Agreement.






	 	(c)	 	Shared Subcontractors. Supplier may, in the ordinary course of business,
enter into subcontracts with total estimated annual revenue of less than $500,000 per
subcontract (i) for third party services or products that are not a material portion
of the Services, that are not exclusively dedicated to New Century and that do not
include regular direct contact with New Century or Eligible Recipient personnel or
the performance of services at New Century Sites, or (ii) with temporary personnel
firms for the provision of temporary contract labor (collectively, “Shared
Subcontractors”); provided, that such Shared Subcontractors possess the training and
experience, competence and skill to perform the work in a skilled and professional
manner; and provided further that the total estimated annual revenue of all
subcontracts for temporary contract labor, in the aggregate, shall not exceed
$1,000,000 without New Century’s prior approval. Supplier shall not be required to
obtain New Century’s prior approval of Shared Subcontractors. If, however, New
Century expresses dissatisfaction with the services or products of a Shared
Subcontractor, Supplier shall work in good faith to resolve New Century’s concerns on
a mutually acceptable basis.






	 	(d)	 	Supplier Affiliates. Supplier may, in the ordinary course of business,
enter into subcontracts with wholly owned subsidiaries of Accenture Ltd. Supplier
shall provide notice of such subcontracts to New Century, but shall not be required
to obtain New Century’s prior approval, unless and to the extent the terms of the
subcontract are inconsistent with New Century’s rights and Supplier’s obligation
under this Agreement.






	 	(e)	 	Supplier Responsibility. Unless otherwise approved by New Century, the
terms of a subcontract shall not preclude New Century from exercising its rights or
Supplier from complying with its obligations under this Agreement, including: (i)
confidentiality and intellectual property rights and obligations; (ii) New Century’s
approval rights; (iii) compliance with New Century Standards, Strategic Plans and
applicable Laws; (iv) compliance with New Century’s policies and directions; (v)
audit rights as described in Section 9.10 as applicable; (vi) Key Supplier
Personnel; and (vii) insurance coverage with coverage types and limits consistent
with the scope of the work to be performed by such Subcontractors. In addition, the
terms of such subcontract with a Subcontractor identified in Attachment 24-A
must provide for the placement of source code into escrow as and to the extent
provided in Section 14.3(e)(ii) and Attachment 24-A. Supplier shall
be responsible for all of the acts and omissions of the Subcontractors and
Subcontractor personnel in connection with this Agreement and for the performance of
all Subcontractors and Subcontractor personnel providing any of the Services
hereunder. Supplier shall be New Century’s sole point of contact regarding the
Services, including with respect to payment. Notwithstanding the terms of the
applicable subcontract, the approval of such Subcontractor by New Century or the
availability or unavailability of Subcontractor insurance, Supplier shall be and
remain responsible and liable for any failure by any Subcontractor or Subcontractor
personnel to perform in accordance with this Agreement or to comply with any duties
or obligations imposed on Supplier under this Agreement to the same extent as if such
failure to perform or comply was committed by Supplier or Supplier employees.






	 	9.12	 	Technology and Business Process Evolution.






	 	(a)	 	Obligation to Evolve. Supplier acknowledges and agrees that its current
technologies and business processes shall continue to evolve and change over time,
and at a minimum, shall remain consistent with the accepted practices of top tier
providers of human resources, payroll, procurement, accounts payable and other
in-scope business process outsourcing services and the business, human resources,
payroll, procurement and accounts payable objectives and competitive needs of New
Century and the Eligible Recipients. Subject to Section 9.5, Supplier shall
provide the Services using current technologies and business processes that will
support New Century and the Eligible Recipients in taking advantage of advances in
the industry and support their efforts to maintain competitiveness in the markets in
which it competes. In addition, subject to Section 9.5, 9.6  and
11.5, Supplier shall make such current technologies and business processes
available to New Century to perform human resources, payroll, procurement, accounts
payable and related functions on behalf of itself and/or the Eligible Recipients.






	 	(b)	 	Annual Technology and Business Process Audit. New Century may elect to
conduct an annual technology and business process audit to benchmark Supplier’s then
current technologies and business processes against the accepted practices of
top-tier providers of human resources, payroll, procurement, accounts payable and
other in-scope business process outsourcing services. If any such audit reveals that
the technologies and business process then utilized by Supplier are not at a level
consistent with Supplier’s obligation under Section 9.12(a), (e), (f), (g) or
(h) or the then current Technology and Business Process Plan, then New Century
and the Supplier shall review the results of the audit and, subject to Supplier’s
right to dispute the audit findings, Supplier shall promptly develop and, upon
approval, implement a corrective action plan to address the reported deficiency(ies)
to the extent it is commercially reasonable to do so. For the avoidance of doubt,
nothing in this Section 9.12(b) shall (i) reduce New Century’s rights under
Section 11.10 or (ii) reduce Supplier’s obligation to perform the Service in
conformity with the Service Levels, as described in Exhibit 3.






	 	(c)	 	Obligation to Propose Technology and Business Process Evolutions. Supplier
shall identify and propose the implementation of Technology and Business Process
Evolutions that are likely to: (i) improve the efficiency and effectiveness of the
Services (including cost savings); (ii) improve the efficiency and effectiveness of
the human resources, payroll, procurement, accounts payable and related functions
performed by or for New Century and the Eligible Recipients; (iii) result in cost
savings or revenue increases to New Century and the Eligible Recipients in areas of
their business outside the Services; or (iv) enhance the ability of New Century and
the Eligible Recipients to conduct their business and serve their customers. Subject
to its non-disclosure obligation under other customer contracts, Supplier shall
obtain information regarding Technology and Business Process Evolution from other
customer engagements and shall communicate such information to New Century on an
ongoing basis.






	 	(d)	 	Supplier Briefings. At least semi-annually, Supplier shall meet with New
Century to formally brief New Century regarding such Technology and Business Process
Evolutions of possible interest or applicability to New Century and the Eligible
Recipients. Such briefings shall include Supplier’s assessment of the business
impact, performance improvements and cost savings associated with such Technology and
Business Process Evolutions. In addition to members of Supplier’s then-current
project management team, such briefings shall include subject matter experts not then
assigned to the New Century engagement with specialized knowledge and consulting
experience in the financial services industry and the provision of human resources,
payroll, procurement, accounts payable and other in-scope business process
outsourcing services. Where requested by New Century, Supplier shall develop and
present to New Century proposals for: (i) implementing Technology and Business
Process Evolutions or (ii) changing the direction of New Century’s then current
strategy.






	 	(e)	 	Supplier Developed Advances. If Supplier develops or implements
technological advances in or changes to the business processes and services and
associated technologies used to provide the same or substantially similar services to
other Supplier customers or Supplier develops or implements new or enhanced
processes, services, software, tools, products or methodologies to be offered to such
customers (collectively, “New Advances”), Supplier shall, subject to Section
11.5, (i) use commercially reasonable efforts to offer New Century the
opportunity to serve as a pilot customer in connection with the implementation of
such New Advances; and (ii) even if New Century declines such an opportunity, offer
New Century the opportunity to be among the first of the Supplier customer base to
implement and receive the benefits of any New Advances after such New Advances are
made commercially available.






	 	(f)	 	Flexibility. Supplier shall use commercially reasonable efforts to provide
the Services using technologies and business process strategies that are flexible
enough to allow integration with new technologies or business processes, or
significant changes in New Century’s or an Eligible Recipient’s business objectives
and strategies. For example, Equipment should have sufficient scalability and be
sufficiently modular to allow integration of new technologies without the need to
replace whole, or significant parts of, systems or business processes (e.g., made to
be a one-to-many model) to enable New Century’s and/or the Eligible Recipients’
business to become more scalable and flexible.






	 	(g)	 	Equipment Implementation and Refresh. Supplier shall be fully responsible
for the implementation of new Equipment in the ordinary course of Technology and
Business Process Evolution. Supplier shall refresh all Equipment in accordance with
the Technology and Business Process Plan, and as necessary to provide the Services in
accordance with the Service Levels and satisfy its other obligations under this
Agreement. If Supplier is aware that these strategies differ from generally accepted
practice (or there are any other areas of concern in relation to such strategies) it
shall provide New Century with notice of that fact and, upon request, provide New
Century with further information as to how to more closely align the strategies with
generally accepted practice.






	 	(h)	 	Software Implementation and Refresh. Unless otherwise agreed. Supplier
shall be fully responsible for the implementation of new or changed Software, tools
and methodologies in the ordinary course of Technology and Business Process Evolution
(other than New Century licensed Third Party Software). Supplier shall: (i) refresh
such Software in accordance with Section 9.7 of this Agreement and the
Technology and Business Process Plan; and (ii) provide training to New Century
personnel regarding the use of such new or changed Software, tools and methodologies.






	 	(i)	 	Included in Monthly Base Charges. Supplier shall deploy, implement and
support Technology and Business Process Evolution, New Advances and the Technology
and Business Process Plan throughout the Term. As a general principle, the
deployment, implementation and support of Technology and Business Process Evolution
and the Technology and Business Process Plan are included in the Monthly Base
Charges. However, the Parties acknowledge and agree that, in certain circumstances,
the deployment, implementation and/or support of Technology and Business Process
Evolution, New Advances and/or the Technology and Business Process Plan may be
subject to Sections 4.5, 4.6 or 11.5.






	 	9.13	 	Network Configuration Data.






Supplier (i) shall provide New Century (and New Century Third Party Contractors) with
network configuration data with respect to the network provided and used by Supplier to
provide Services to New Century and/or the Eligible Recipients; and (ii) hereby grants New
Century (and New Century Third Party Contractors) the right to use such data in connection
with the performance of ancillary services (e.g., security reviews or audits) or the
exercise of New Century’s other rights under this Agreement.




	10.	 	NEW CENTURY RESPONSIBILITIES






	 	10.1	 	Responsibilities.






In addition to New Century’s responsibilities as expressly set forth elsewhere in this
Agreement, New Century shall be responsible for the following:




	 	(a)	 	New Century Project Executive. New Century shall designate one (1)
individual to whom all Supplier communications concerning this Agreement may be
addressed (the “New Century Project Executive”), who shall have the authority to act
on behalf of New Century and the Eligible Recipients in all day-to-day matters
pertaining to this Agreement. New Century may change the designated New Century
Project Executive from time to time by providing notice to Supplier. Additionally,
New Century will have the option, but will not be obligated, to designate additional
representatives who will be authorized to make certain decisions (e.g., regarding
emergency maintenance) if the New Century Project Executive is not available.






	 	(b)	 	Cooperation. New Century shall cooperate with Supplier by, among other
things, making available, as reasonably requested by Supplier, management decisions,
information, approvals and acceptances so that Supplier may accomplish its
obligations and responsibilities hereunder.






	 	(c)	 	Requirement of Writing. To the extent Supplier is required under this
Agreement to obtain New Century’s approval, consent or agreement, such approval,
consent or agreement must be in writing and must be signed by or directly transmitted
by electronic mail from the New Century Project Executive or an authorized New
Century representative. Notwithstanding the preceding sentence, the New Century
Project Executive may agree in advance in writing that as to certain specific matters
oral approval, consent or agreement will be sufficient.






	 	(d)	 	Security. New Century and the Eligible Recipients shall comply with the
Supplier or Subcontractor security requirements specified in the Policy and
Procedures Manual relating to use of Supplier or Subcontractor computer networks.






	 	10.2	 	Out of Scope Responsibilities.






Without limiting Supplier’s obligation under this Agreement, the Parties acknowledge and
agree that, in addition to New Century’s responsibilities specified elsewhere in this
Agreement, New Century is responsible for: (i) management oversight of New Century
accounting matters, determining New Century accounting policies, and authorizing,
interpreting and creating specifications for New Century financial reporting information;
(ii) establishing, maintaining and evaluating the effectiveness of its disclosure controls
and procedures and internal controls (with the assistance of Supplier, as further described
in Sections 9.4, 9.10 and Exhibit 2.4); and (iii) determining when, whether
and how the recommendations made by Supplier and Supplier Affiliates regarding New Century
finance policies and procedures are to be implemented by New Century. The Parties also
acknowledge and agree (i) that the Services exclude tax advice and accounting functions that
by law are provided by, or reserved to, certified or chartered public accountants, or the
provision of legal advice that by law is provided by, or reserved to, licensed lawyers; and
(ii) that, as of the Effective Date, the Parties do not believe any Supplier obligations,
responsibilities or function described in Exhibit 2 or elsewhere in the Agreement
can be so characterized.




	 	10.3	 	Savings Clause.






Supplier’s failure to perform its responsibilities under this Agreement or to meet the
Service Levels shall be excused if and to the extent such Supplier non-performance is caused
by any of the following (collectively, “Excused Performance Conditions”):




	 	(i)	 	the wrongful or tortious actions of New Century, an Eligible Recipient or a New
Century Third Party Contractor performing obligations on behalf of New Century under
this Agreement;






	 	(ii)	 	the failure of New Century, an Eligible Recipient or such a New Century Third
Party Contractor to perform New Century’s obligations under this Agreement (including
the failure to perform within the specified time period, or if no time period is
specified, within a reasonable period of time);






	 	(iii)	 	any service or resource reduction or other special production job, testing
procedure or other service which is given priority as requested or approved by New
Century and agreed to by the Parties in accordance with the Change Control Procedures;






	 	(iv)	 	any material change implemented by New Century without notice to Supplier and,
to the extent applicable, without using the Change Control Procedures;






	 	(v)	 	any refusal by New Century to approve additional travel requested by Supplier
as and to the extent provided in Section 9(i) of Exhibit 4;






	 	(vi)	 	the failure of New Century Owned Materials and New Century licensed Third Party
Materials for which New Century is operationally responsible; or






	 	(vii)	 	a force majeure event, as further described in Section 18.2.






Supplier shall be excused in the foregoing circumstances only if (A) Supplier, upon becoming
aware of such Excused Performance Condition, expeditiously notifies New Century of such
Excused Performance Condition and its inability to perform under such circumstances, (B)
Supplier provides New Century with a reasonable opportunity to address such Excused
Performance Condition and thereby avoid such Supplier non-performance, (C) Supplier
identifies and pursues commercially reasonable means to avoid or mitigate the impact of such
Excused Performance Condition, (D) Supplier uses commercially reasonable efforts to perform
notwithstanding such Excused Performance Condition, and (E) if requested by New Century in
instances in which causation is not readily determinable, Supplier conducts a Root Cause
Analysis and thereby demonstrates that such Excused Performance Condition is the cause of
Supplier’s non-performance. Supplier acknowledges and agrees that the circumstances
described in this Section 10.3, as well as those described in Section 18.2
of this Agreement, Section 17 of Exhibit 3 and Section 9(i) of Exhibit 4,
are the only circumstances in which its failure to perform its responsibilities under this
Agreement or to meet the Service Levels will be excused and that Supplier shall not assert
any other act or omission of New Century or the Eligible Recipients as excusing any such
failure on Supplier’s part.




With respect to the Excused Performance Conditions described in subparts (i), (ii), (iv) and
(v), New Century shall reimburse Supplier for the incremental labor charges and
Out-of-Pocket Expenses reasonably incurred by Supplier to meet the Service Levels and
perform its other responsibilities under this Agreement despite such Excused Performance
Conditions; provided that (i) to the extent practicable, Supplier notifies New Century of
such additional incremental charges and expenses and obtains New Century’s approval prior to
incurring such costs; and (ii) Supplier uses commercially reasonable efforts to minimize
such costs (if and to the extent New Century declines to approve certain reasonable
additional costs, Supplier shall not be obligated to proceed with the efforts associated
therewith). New Century, in its sole discretion, may forego or delay any work activities or
temporarily adjust the work to be performed by Supplier, the schedules associated therewith
or the Service Levels to permit the performance of such activities in accordance with
Section 4.5(b).




	 	10.4	 	Third Party Products.






	 	(a)	 	New Century acknowledges that Supplier (or a Supplier Affiliate, such as
Proquire) has alliance relationships with various third party product and services
vendors. As part of many such relationships, Supplier or a Supplier Affiliate is
able to resell certain products and services and/or may receive compensation from
vendors in the form of fees or other benefits in connection with the marketing,
technical and other assistance provided by Supplier. New Century acknowledges that
such relationships may be beneficial to Supplier and assist in its performance of the
Services hereunder. Unless otherwise agreed on a case-by-case basis, this
Section 10.4 shall not apply with respect to the Services described in
Exhibit 2.2.






	 	(b)	 	Unless otherwise agreed, to the extent Supplier proposes to resell products
or services to New Century or an Eligible Recipient through a Supplier Affiliate,
such as Proquire, Supplier shall disclose the fact that the Supplier is using
Proquire (or such other Supplier Affiliate) and that Proquire (or such other Supplier
Affiliate) will be collecting a reseller fee on such purchases. New Century may, in
its sole discretion, decline to purchase products or services through Proquire (or
such other Supplier Affiliate) and, if New Century declines to do so, such decision
shall not be held against New Century in connection with the calculation of TCO
Savings under Attachment 3-B.






	11.	 	CHARGES, FINANCIAL TERMS






	 	11.1	 	General.






	 	(a)	 	Payment of Charges. In consideration of Supplier’s performance of the
Services, New Century shall pay Supplier the applicable Charges set forth in
Exhibit 4. Supplier shall use commercially reasonable efforts to periodically
identify methods of reducing such Charges and will notify New Century of such methods
and the estimated potential savings associated with each such method. New Century
shall not be obligated to pay any Charges for the Services in addition to those set
forth in Exhibit 4. Any costs incurred by Supplier prior to the Commencement
Date are included in the Charges as set forth in Exhibit 4 and are not to be
separately paid or reimbursed by New Century.






	 	(b)	 	Incidental Expenses. Supplier acknowledges that, except as expressly
provided otherwise in this Agreement, incidental expenses that Supplier incurs in
performing the Services (including management, travel and lodging, document
reproduction and shipping, desktop Equipment and other office Equipment required by
Supplier Personnel, and long-distance telephone, but excluding Out-of-Pocket Expenses
to be reimbursed by New Century in accordance with Exhibit 4) are included in
the Charges set forth in this Exhibit 4. Accordingly, such Supplier expenses
are not separately reimbursable by New Century unless New Century has agreed in
advance and in writing to reimburse Supplier for such expenses.






	 	(c)	 	Charges for Contract Changes. Unless otherwise agreed, changes in the
Services (including changes in New Century Standards, New Century Rules, Strategic
Plans, Technology and Business Process Plans, business processes, Software, Equipment
and Systems) and changes in the rights or obligations of the Parties under this
Agreement (collectively, “Contract Changes”) shall result in changes in the
applicable Charges only if and to the extent (i) the Agreement expressly provides for
a change in the Supplier Charges in such circumstances; (ii) the agreed upon Charges
or pricing methodology expressly provides for a price change in such circumstances;
or (iii) the Contract Change meets the definition of a Project, Service Revision or
New Service as each is further described in Sections 4.5, 4.6 and 11.5
respectively.






	 	(d)	 	Eligible Recipient Services.






	 	(i)	 	Eligible Recipients. Supplier shall provide the
Services to Eligible Recipients designated by New Century in Exhibit
26. To the extent a designated Eligible Recipient will receive less
than all of the Services, New Century shall identify the categories of
Services to be provided by Supplier to such Eligible Recipient. New
Century shall be responsible for any Charges associated with the provision
of Services to an Eligible Recipient and for any failure by an Eligible
Recipient to comply with New Century’s obligations under this Agreement in
connection with such Services. New Century shall be responsible for all of
the acts and omissions of the Eligible Recipients in connection with the
Agreement and/or their receipt of the Services hereunder. It is understood
and agreed that, while Eligible Recipients are not Parties to or third
party beneficiaries of this Agreement, they may bring claims for damages or
indemnification to New Century and New Century may assert such claims on
behalf of such Eligible Recipients. It is further understood and agreed
that Supplier shall be and remain responsible and liable for a claim for
damages or indemnification asserted by New Century on behalf of an Eligible
Recipients to the same extent as if the subject matter of the claim had
been suffered and asserted on its own behalf.






	 	(ii)	 	New Eligible Recipients. From time to time New Century
may request that Supplier provide Services to Eligible Recipients not
previously receiving such Services. Except as provided in Section
11.5 or Exhibit 4 or otherwise agreed by the Parties, such
Services shall be performed for new Eligible Recipients in the United
States in accordance with the terms, conditions and prices (excluding any
non-recurring transition or start-up activities specific to such Eligible
Recipients) then applicable to the provisions of the same Services to
existing Eligible Recipients in the United States. The Parties shall use
the Change Control Procedures in adding new Eligible Recipients.






	 	(iii)	 	Election Procedure. In the event of a transaction
described in clause (c) or (d) within the definition of
Eligible Recipient, New Century may elect, on behalf of the Eligible
Recipient in question, either (i) that such Eligible Recipient shall
continue to obtain Services in some or all Functional Service Areas subject
to and in accordance with the terms and conditions of this Agreement for
the remainder of the Term, (ii) that the Entity shall obtain some or all of
the Services under a separate agreement between Supplier and such Entity
containing the same terms and conditions as this Agreement or (iii) that
the Term shall be terminated as to such Eligible Recipient with respect to
some or all Services as of a specified date, subject to its receipt of
Termination Assistance Services pursuant to Section 4.3. If the
Services are provided under a separate agreement, the Entity executing such
agreement shall be financially responsible for Charges for such Services if
on the date of execution such Entity would be deemed “creditworthy” under
the Supplier rating system for new customers as consistently applied and
New Century shall have no financial responsibility for Charges for Services
provided to such Entity after such date. If the Entity would not be deemed
creditworthy under such rating system and New Century is unwilling to
remain financially responsible for Charges for Services to be provided
under a separate agreement, Supplier may decline to enter into such an
agreement with such Entity.






	 	(e)	 	Limited Agency. New Century hereby appoints Supplier as its limited agent
during the Term solely for the purposes of and to the extent required for the
administration of Pass-Through Expenses in accordance with Section 11.2
and/or the performance of Procurement Services in accordance with Section
11.3 and Exhibit 2. New Century shall provide, on a timely basis, such
affirmation of Supplier’s authority to the applicable third parties as Supplier may
reasonably request.






	 	(f)	 	Reimbursement for Substitute Payment. If either Party in error pays to a
third party an amount for which the other Party is responsible under this Agreement,
the Party that is responsible for such payment shall promptly reimburse the paying
Party for such amount.






	 	11.2	 	Pass-Through Expenses.






	 	(a)	 	Procedures and Payment. Unless otherwise agreed by the Parties, New
Century shall pay all Pass-Through Expenses directly to the applicable vendors
following review, validation and approval of such Pass-Through Expenses by Supplier.
No new Pass-Through Expenses may be added without New Century’s prior consent, which
it may withhold in its sole discretion. Before submitting an invoice to New Century
for any Pass-Through Expense, Supplier shall (i) review and validate the invoiced
charges, (ii) identify any errors or omissions, and (iii) communicate with the
applicable vendor and use commercially reasonable efforts to correct any errors or
omissions, resolve any questions or issues and obtain any applicable credits,
rebates, discounts or other incentives for New Century. Supplier shall deliver to New
Century the original vendor invoice, together with any documentation supporting such
invoice and a statement that Supplier has reviewed and validated the invoiced
charges, within ten (10) days after Supplier’s receipt thereof; provided that, if
earlier, Supplier shall use commercially reasonable efforts to deliver such invoice,
documentation and statement at least five (5) business days prior to the date on
which payment is due; and provided further that, if it is not possible to deliver
such invoice, documentation and statement at least five (5) business days prior to
the due date, Supplier shall promptly notify New Century and, at New Century’s
option, either request additional time for review and validation or submit the
invoice for payment subject to subsequent review and validation. In addition, if the
vendor offers a discount for payment prior to a specified date, Supplier shall use
commercially reasonable efforts to deliver such invoice and associated documentation
to New Century at least five (5) days prior to such date. To the extent Supplier
fails to comply with its obligations hereunder, it shall be financially responsible
for any discounts lost or any late fees or interest charges incurred by New Century
and/or the Eligible Recipients. For the avoidance of doubt, Pass-Through Expenses do
not include amounts owed by any Eligible Recipient to a third party in connection
with Supplier’s performance of the Services under Exhibit 2.2.






To the extent Supplier fails to process any invoice in accordance with this
provision within ninety (90) days after the payment due date of such invoice,
Supplier shall be financially responsible for payment of twelve (12%) percent of
the invoiced amounts. In addition, to the extent Supplier fails to process any such
invoice in accordance with this provision within one hundred eighty (180) days
after the payment due date of such invoice, Supplier shall be financially
responsible for payment of all of the invoiced amounts.




	 	(b)	 	Efforts to Minimize. Supplier shall continually seek to identify methods
of reducing and minimizing New Century’s retained and Pass-Through Expenses and will
use commercially reasonable efforts to notify New Century of such methods and the
estimated potential savings associated with each such method.






	 	11.3	 	Procurement.






Supplier shall procure certain products and services for which New Century will be
financially responsible on an Out-of Pocket Expense basis, as further described in
Exhibit 4. In addition, as part of the Procurement Services, Supplier shall procure
certain products and services by purchase, lease, license or contract on behalf of New
Century and the Eligible Recipients, as further described in Exhibit 2.




In procuring such products and services, Supplier shall comply with the following:




	 	(a)	 	In procuring such products and services basis, Supplier shall: (i) give New
Century and the Eligible Recipients the benefit of Supplier’s most favorable vendor
arrangements where permitted by such vendors; (ii) use commercially reasonable
efforts to obtain the most favorable pricing and terms and conditions then available
from any source for such products and services; (iii) to the extent practicable, use
the aggregate volume of Supplier’s procurements on behalf of itself, New Century, the
Eligible Recipients and other customers as leverage in negotiating such pricing or
other terms and conditions; and (iv) adhere to the procurement procedures specified
in the Policy and Procedures Manual, as such procedures may be modified from time to
time by the Parties. Supplier shall adhere to New Century’s product and services
standards as specified by New Century or set forth in the Policies and Procedures
Manual and as applicable to Supplier’s obligations under this Section 11.3
and shall not deviate from such standards without New Century’s prior approval. To
the extent an authorized New Century representative specifies the vendor, pricing
and/or terms and conditions for a procurement, Supplier shall not deviate from such
instructions without New Century’s prior approval. Unless otherwise agreed by the
Parties, the procurement price of such products and services shall be treated as an
Out-of-Pocket Expense and shall be passed through to New Century without Supplier
markup.






	 	(b)	 	Supplier may, with New Century’s prior approval, use master agreements
existing as of the Commencement Date between New Century and various third party
vendors to procure products and services requested by New Century. Supplier’s use of
such New Century master agreements shall be conditioned on and subject to the
following: (i) New Century obtaining any Required Consents to the use of such master
agreements; (ii) Supplier complying with the terms and conditions of such master
agreements; and (iii) Supplier accepting responsibility for curing any breaches by
Supplier of such master agreements.






	 	(c)	 	Supplier also may use existing agreements between Supplier and third party
vendors if permitted by such agreement or enter into new agreements with third party
vendors to procure such products and services. Supplier’s use of such agreements
shall be conditioned on and subject to the following: (i) New Century approving in
advance the terms, conditions and pricing of such agreements and any financial or
other commitments made therein by or on behalf of New Century or the Eligible
Recipients; (ii) Supplier complying with the terms and conditions of such agreements
and accepting responsibility for meeting any minimum volumes; (iii) Supplier passing
through to New Century any refunds, credits, discounts or other rebates to the extent
such amounts are directly allocable to New Century or the Eligible Recipients; (iv)
Supplier retaining responsibility for curing any breaches by Supplier or Supplier
Personnel of such agreements; and (v) such agreements offering more favorable pricing
and equivalent or better terms and conditions for the requested product or service
than the master agreements existing as of the Commencement Date between New Century
and third party vendors.






	 	(d)	 	If, at any time, New Century determines that the pricing and terms and
conditions available through Supplier are not as favorable as those New Century could
obtain on its own, New Century reserves the right to select and negotiate with the
provider of such third party products and services and Supplier shall comply with New
Century’s decision with respect thereto.






	 	(e)	 	With respect to all products and services procured by Supplier for New
Century and/or the Eligible Recipients pursuant to this Section 11.3,
Supplier shall pass through, or otherwise provide, to New Century and/or the
applicable Eligible Recipient(s) all benefits offered by the manufacturers and/or
vendors of such products and services (including all warranties, refunds, credits,
rebates, discounts, training, technical support and other consideration offered by
such manufacturers and vendors) except to the extent otherwise agreed by New Century.
If Supplier is unable to pass through any such benefit to New Century and/or the
applicable Eligible Recipient(s), it shall notify New Century in advance and shall
not procure such product or service without New Century’s prior approval.






	 	11.4	 	Taxes.






The Parties’ respective responsibilities for taxes arising under or in connection with this
Agreement shall be as follows:




	 	(a)	 	Income Taxes. Each Party shall be responsible for its own Income Taxes.






	 	(b)	 	Sales, Use and Property Taxes. Each Party shall be responsible for any
sales, lease, use, personal property, stamp, duty or other such taxes on Equipment,
Software or property it owns or leases from a third party, including any lease
assigned pursuant to this Agreement, and/or for which it is financially responsible
under this Agreement.






	 	(c)	 	Recoverable Taxes. All sums payable under or in connection with this
Agreement shall be exclusive of Recoverable Taxes, and each Party shall, in addition
to such sums, pay such Recoverable Taxes properly chargeable thereon on receipt of a
valid invoice.






	 	(d)	 	Taxes on Goods or Services Used by Supplier. Supplier shall be responsible
for all sales, service, value-added, lease, use, personal property, excise,
consumption, and other taxes and duties, including Recoverable Taxes, payable by
Supplier on any goods or services used or consumed by Supplier in providing the
Services (including services obtained from Subcontractors) where the tax is imposed
on Supplier’s acquisition or use of such goods or services and the amount of tax is
measured by Supplier’s costs in acquiring or procuring such goods or services and not
by New Century’s cost of acquiring such goods or services from Supplier.






	 	(e)	 	Service Taxes.






	 	(i)	 	New Century shall be financially responsible for all
Service Taxes assessed against either Party on the Services as a whole, or
on any particular Service by a Tax Authority in a jurisdiction in which New
Century and/or the Eligible Recipients are physically located and receive
the Services (“New Century Service Taxes”). If new or higher New Century
Service Taxes become applicable to the Services as a result of either Party
moving all or part of its operations to a different jurisdiction (e.g., New
Century opening a new office, Supplier relocating performance of Services
to a shared service center or assigning this Agreement to an Affiliate) the
Party initiating such move shall be financially responsible for such new or
higher New Century Service Taxes. If new or higher New Century Service
Taxes become applicable to such Services after the Effective Date for any
other reason (e.g., tax law changes, but not volume changes) the Parties
shall negotiate in good faith and diligently seek to agree upon legally
permissible means of avoiding or minimizing such new or higher New Century
Service Taxes and/or an allocation or sharing of financial responsibility
for such additional New Century Service Taxes. If the Parties are unable
to agree upon such measures within thirty (30) days, New Century may elect
to terminate the Agreement in its entirety, or to terminate any portions
impacted by such new or additional Service Taxes. If New Century elects to
terminate on this basis, New Century shall pay the Reduced Termination
Charge specified in Attachment 4-E. To the extent that New Century
requires Supplier to continue performance of the Services (as an extension
or continuation of the Services under Section 3.2 or 4.3),
New Century shall pay such new or additional Service Taxes.






	 	(ii)	 	Supplier shall be financially responsible for all
Service Taxes assessed against either Party on the provision of the
Services as a whole, or on any particular Service by a Tax Authority in a
jurisdiction from which such Services are provided by Supplier (“Supplier
Service Taxes”), unless and to the extent such jurisdiction is also the
jurisdiction in which New Century and/or the Eligible Recipients are
physically located and receive the Service on which the Service Tax is
assessed. If new or higher Supplier Service Taxes become applicable to the
Services as a result of either Party moving all or part of its operations
to a different jurisdiction, the Party initiating such move shall be
financially responsible for such new or higher Supplier Service Taxes. If
new or higher Supplier Service Taxes become applicable to such Services
after the Effective Date for any other reason (e.g., tax law changes, but
not volume changes), Supplier shall, within thirty (30) days, prepare a
detailed proposal identifying all viable and legally permissible means of
avoiding or minimizing such new or higher Supplier Service Taxes without
adversely impacting the quality or price of the Services or the business
objectives or requirements of New Century and the Eligible Recipients,
including the possibility of modifying or reducing the nature or scope of
the Services to be delivered from such jurisdiction, or migrating the
delivery of such Services to Supplier Facilities in other jurisdictions. In
preparing its proposal, Supplier shall give due consideration to any
legally permissible means of avoiding or minimizing such Service Taxes
proposed by New Century. Following New Century’s receipt and review of
Supplier’s proposal, the Parties shall negotiate in good faith and
diligently seek to agree upon legally permissible means of avoiding or
minimizing such new or higher Supplier Service Taxes and/or an allocation
or sharing of financial responsibility for such additional Supplier Service
Taxes. If the Parties are unable to agree upon such measures within thirty
(30) days, Supplier may elect to terminate the Agreement in its entirety,
or to terminate any portions impacted by such new or additional Supplier
Service Taxes. If Supplier elects to terminate on this basis, Supplier
shall provide at least six months advance notice of such termination and
shall provide all Termination Assistance Services requested by New Century
pursuant to Section 4.3. During the six-month notice period and
Termination Assistance Services period there will be no adjustment to the
Charges to compensate Supplier for such new or higher Supplier Service
Taxes. Nor will New Century be obligated to pay any Termination Charge in
connection with such termination.






	 	(iii)	 	If required under applicable Laws, Supplier shall
invoice New Century for the full amount of the Service Taxes and then
credit or reimburse New Century for that portion of such Service Taxes for
which Supplier is financially responsible under this provision.






	 	(f)	 	Withholding. Any withholding tax or other tax of any kind that New Century
is required by applicable Law to withhold and pay on behalf of Supplier with respect
to amounts payable to Supplier under this Agreement shall be deducted from said
amount prior to remittance to Supplier. New Century will provide to Supplier
reasonable assistance, which shall include the provision of documentation as required
by revenue authorities, to enable Supplier to claim exemption from or obtain a
repayment of such withheld taxes and will, upon request, provide Supplier with a copy
of the withholding tax certificate.






	 	(g)	 	Notice of New Taxes. Supplier shall use commercially reasonable efforts to
promptly notify New Century when it becomes aware of any new taxes (including changes
to existing taxes) to be passed through and/or collected by New Century under this
Section. Such notification (which may be separate from the first invoice reflecting
such taxes or other charges) shall contain an explanation of such taxes, including
the effective date of each new taxes. To the extent Supplier is to provide Services
to an Eligible Recipient located outside the United States, the Parties shall agree
to structure the associated transaction in a manner to minimize the tax consequences
of such transaction, including possibly entering into a local operating agreement
within the country in which the Services are to be provided.






	 	(h)	 	Efforts to Minimize Taxes. Supplier shall cooperate fully with New Century
to enable New Century to more accurately determine its own tax liability and to
minimize such liability to the extent legally permissible. Supplier’s invoices shall
separately state the Charges that are subject to taxation and the amount of taxes
included therein. Each Party will provide and make available to the other any resale
certificates, information regarding out-of-state or out-of-country sales or use of
equipment, materials, or services, and other exemption certificates or information
reasonably requested by either Party.






	 	(i)	 	Tax Audits or Proceedings. Each Party shall promptly notify the other
Party of, and coordinate with the other Party, the response to and settlement of any
claim for taxes asserted by applicable taxing authorities for which the other Party
is financially responsible hereunder. With respect to any claim arising out of a
form or return signed by a Party to this Agreement, such Party will have the right to
elect to control the response to and settlement of the claim, but the other Party
will have the right to participate in the responses and settlements to the extent of
its potential responsibility or liability. Each Party also shall have the right to
challenge the imposition of any tax liability for which it is financially responsible
under this Agreement or, if necessary, to direct the other Party to challenge the
imposition of any such tax liability. If either Party requests the other to
challenge the imposition of any tax liability, such other Party shall do so (unless
and to the extent it assumes financial responsibility for the tax liability in
question), and, the requesting Party shall reimburse the other for all fines,
penalties, interest, additions to taxes or similar liabilities imposed in connection
therewith, plus the reasonable legal, accounting and other professional fees and
expenses it incurs. Each Party shall be entitled to any tax refunds or rebates
obtained with respect to the taxes for which such Party is financially responsible
under this Agreement.






	 	(j)	 	Tax Filings. Each Party represents, warrants and covenants that it will
file appropriate tax returns, and pay applicable taxes owed arising from or related
to the provision of the Services in applicable jurisdictions. Supplier represents,
warrants and covenants that it is registered to and will collect and remit Service
Taxes in all applicable jurisdictions.






	 	11.5	 	New Services.






	 	(a)	 	Procedures. If New Century requests that Supplier perform any New Services
reasonably related to the Services, Supplier shall, if it is interested in pursuing
the opportunity, promptly prepare a New Services proposal for New Century’s
consideration, at no additional charge to New Century. If Supplier is not interested
and will not submit a proposal, Supplier shall so notify New Century within three (3)
business days of its receipt of New Century’s request. If Supplier is interested,
Supplier shall deliver a New Services proposal to New Century within ten (10)
business days of its receipt of New Century’s request; provided, that Supplier shall
use commercially reasonable efforts to respond more quickly in the case of a pressing
business need or an emergency situation. New Century shall provide such information
as Supplier reasonably requests in order to prepare such New Service proposal. Such
New Services proposal shall include, among other things, the following at a level of
detail sufficient to permit New Century to make an informed business decision: (i) a
project plan, fixed price or price estimate and payment structure for the New
Service; (ii) a breakdown of such price or estimate, (iii) a description of the
service levels to be associated with such New Service, (iv) a schedule for commencing
and completing the New Service, (v) a description of the new hardware or software to
be provided by Supplier in connection with the New Service, (vi) a description of the
software, hardware and other resources, including Resource Unit utilization,
necessary to provide the New Service, (vii) any additional facilities or labor
resources to be provided by New Century or the Eligible Recipients in connection with
the proposed New Service, (viii) any risks associated with the New Service and/or the
integration of the New Service into the existing environment, and (ix) in the case of
any Developed Materials to be created through the provision of the proposed New
Services, any ownership rights therein that differ from the provisions of Section
14.2. New Century may accept or reject any New Services proposal in its sole
discretion and Supplier shall not be obligated to perform any New Services to the
extent the applicable proposal is rejected. Unless the Parties otherwise agree, if
New Century notifies Supplier that it accepts Supplier’s proposal, Supplier shall
perform the New Services and be paid in accordance with the proposal submitted by
Supplier and the provisions of this Agreement (except to the extent otherwise
provided in the accepted proposal). Upon New Century’s acceptance of a Supplier
proposal for New Services, the scope of the Services will be expanded and this
Agreement will be modified to include such New Services. Notwithstanding any
provision to the contrary, (i) Supplier shall act reasonably and in good faith in
formulating such pricing proposal, (ii) Supplier shall use commercially reasonable
efforts to identify potential means of reducing the cost to New Century, including
utilizing Subcontractors as and to the extent appropriate, (iii) such pricing
proposal shall be no less favorable to New Century than the pricing and labor rates
set forth herein for the same or like Services, and (iv) such pricing proposal shall
take into account the existing and future volume of business between New Century and
Supplier.






	 	(b)	 	Use of Third Parties. New Century may elect to solicit and receive bids
from third parties to perform any New Services. If New Century elects to use third
parties to perform New Services, (i) such New Services shall not be deemed “Services”
under the provisions of this Agreement, and (ii) Supplier shall cooperate with such
third parties as provided in Section 4.4.






	 	(c)	 	Services Evolution and Modification. The Parties anticipate that the
Services will evolve and be supplemented, modified, enhanced or replaced over time to
keep pace with technological advancements and improvements in the methods of
delivering Services and changes in the businesses of New Century and the Eligible
Recipients. The Parties acknowledge and agree that these changes will modify the
Services and will not be deemed to result in New Services unless the changed services
meet the definition of New Services.






	 	(d)	 	Authorized User and Eligible Recipient Requests. Supplier shall promptly
inform the New Century Project Executive of requests for New Services from Authorized
Users or Eligible Recipients, and shall submit any proposals for New Services to the
New Century Project Executive or his or her designee. Supplier shall not agree to
provide New Services to any Authorized Users or Eligible Recipients without the prior
written approval of the New Century Project Executive or his or her designee. If
Supplier fails to comply in all material respects with the preceding sentence, it
shall receive no compensation for any services rendered to any person or entity in
violation of the immediately preceding sentence.






	 	(e)	 	Efforts to Reduce Costs and Charges. From time to time, New Century may
request that the Parties work together to identify ways to achieve reductions in the
cost of service delivery and corresponding reductions in the Charges to be paid by
New Century by modifying or reducing the nature or scope of the Services to be
performed by Supplier, the applicable Service Levels or other contract requirements.
If requested by New Century, Supplier shall promptly prepare a proposal at a level of
detail sufficient to permit New Century to make an informed business decision and
shall use commercially reasonable efforts to identify any feasible means of achieving
the desired reductions without adversely impacting business objectives or
requirements identified by New Century. In preparing such a proposal, Supplier shall
give due consideration to any means of achieving such reductions proposed by New
Century. Supplier shall negotiate in good faith with New Century about each
requested reduction in Charges and, without disclosing the actual cost of providing
the Services, shall identify for New Century if and to what extent the cost of
service delivery may be reduced by implementing various changes in the contract
requirements. New Century shall not be obligated to accept or implement any
proposal; and Supplier shall not be obligated to implement any change that affects
the terms of this Agreement unless and until such change is reflected in a written
amendment to this Agreement.






	 	11.6	 	Extraordinary Events.






	 	(a)	 	Definition. As used in this Agreement, an “Extraordinary Event” means a
circumstance in which an event or discrete set of events has occurred or is planned
with respect to the business of New Century or the Eligible Recipients that results
or will result in a change in the scope, nature or volume of the Services that New
Century or the Eligible Recipients will require from Supplier, and which is expected
to cause the estimated average monthly usage of any chargeable Resource Unit to
increase or decrease by twenty-five percent (25%) or more. Examples of the kinds of
events that might cause such substantial increases or decreases include the
following:






	 	(i)	 	changes in locations where the Eligible Recipients
operate;





	 	 	 
	(ii)

(iii)

(iv)

	 	changes in products of, or in markets served by, the Eligible Recipients;

mergers, acquisitions, divestitures or reorganizations of the Eligible Recipients;

changes in the method of service delivery;







	 	(v)	 	changes in the applicable regulatory environment;





	 	 	 
	(vi)

(vii)

(viii)

	 	changes in New Century’s policy, technology or processes;

changes in market priorities; or

changes in the business units being serviced by Supplier.







	 	(b)	 	Consequence. If an Extraordinary Event occurs, New Century may, at its
option, request more favorable pricing with respect to applicable Charges for any
Functional Service Area specified in Exhibit 4 in accordance with the
following:






	 	(1)	 	Supplier and New Century shall mutually determine on a reasonable
basis the efficiencies, economies, savings and resource utilization reductions,
if any, resulting from such Extraordinary Event and, upon New Century’s
approval, Supplier shall then proceed to implement such efficiencies, economies,
savings and resource utilization reductions as quickly as practicable and in
accordance with the agreed upon schedule. As the efficiencies, economies,
savings or resource utilization reductions are realized, the Charges specified
on Exhibit 4 and any affected Resource Baselines shall be promptly and
equitably adjusted to pass through to New Century the full benefit of such
efficiencies, economies, savings and resource utilization reductions realized as
a result of the Extraordinary Event; provided that, New Century shall reimburse
Supplier for any net costs or expenses incurred to realize such efficiencies,
economies, savings or resource utilization reductions if and to the extent
Supplier (i) notifies New Century of such additional costs and obtains New
Century’s approval prior to incurring such costs, (ii) uses commercially
reasonable efforts to identify and consider practical alternatives, and
reasonably determines that there is no other more practical or cost effective
way to obtain such savings without incurring such expenses, and (iii) uses
commercially reasonable efforts to minimize the additional costs to be
reimbursed by New Century.






	 	(2)	 	Except as provided in Section 4.6 of this Agreement or
Section 5(e) of Exhibit 4, an Extraordinary Event shall not result in
Charges to New Century being higher than such Charges would have been if the
ARCs, RRCs, and other rates and charges then specified in Exhibit 4 had
been applied. New Century may, at its sole option, elect, for each
Extraordinary Event, at any time to forego its rights under this Section
11.6 and instead, apply ARCs, RRCs, and other rates and charges specified in
Exhibit 4 to adjust the Charges.






	 	11.7	 	Reserved.






	 	11.8	 	Proration.






Periodic charges under this Agreement are to be computed on a calendar month basis, and
shall be prorated for any partial month on a calendar day basis.




	 	11.9	 	Refundable Items.






If Supplier should receive a refund, credit, discount or other rebate for goods or services
paid for by New Century and/or the Eligible Recipients on a Pass-Through Expense or
Out-of-Pocket Expense basis, then Supplier shall (i) notify New Century of such refund,
credit, discount or rebate and (ii) promptly pay the full amount of such refund, credit,
discount or rebate to New Century or such Eligible Recipient.




	 	11.10	 	New Century Benchmarking Reviews.






	 	(a)	 	Benchmarking Review. Beginning on or after December 31, 2007, and from
time to time thereafter, New Century may, at its expense and subject to this
Section 11.10, engage the services of an independent third party (a
“Benchmarker”) to compare the quality and cost of the Services under this Agreement,
in the aggregate or by sub-Functional Service Area (i.e., HR Admin, Payroll,
Recruiting, Procurement or Accounts Payable), against the quality and cost of other
top tier service providers performing similar services to confirm that New Century is
receiving from Supplier pricing and levels of service that are competitive with
market rates, prices and service levels, given the nature, volume and type of
Services provided by Supplier hereunder (“Benchmarking”). In making this comparison,
the Benchmarker shall consider the following factors and normalize the prices as and
to the extent appropriate: (i) whether supplier transition charges are paid by the
customer as incurred or amortized over the term of this Agreement; (ii) the extent to
which supplier pricing includes the purchase of the customer’s existing assets; (iii)
the extent to which supplier pricing includes the cost of acquiring future assets;
(iv) the extent to which this Agreement calls for Supplier to provide and comply with
unique New Century requirements; (v) whether Service Taxes are included in such
pricing or stated separately in supplier invoices; (vi) the jurisdictions to which
the Services are provided; (vii) the applicable service levels; (viii) the term of
the agreement; and (ix) any required financial engineering or investments. New
Century shall not initiate more than one Benchmarking of each sub-Functional Service
Area in any Contract Year.






	 	(b)	 	General. Prior to selecting the Benchmarker, New Century shall confer in
good faith with Supplier as to the Benchmarker and methodology to be employed, but
shall not be obligated to proceed in accordance with Supplier’s views and
recommendations. The Benchmarker engaged by New Century shall execute a
non-disclosure agreement substantially in the form attached hereto as Exhibit
22, and shall not be a Direct Supplier Competitor. Supplier shall cooperate with
New Century and the Benchmarker and shall (i) provide the Benchmarker reasonable
access to any premises, equipment, personnel or documents, and (ii) provide any
assistance required by the Benchmarker to conduct the Benchmarking, all at Supplier’s
cost and expense; provided, however, that Supplier will not be required to provide
any information relating to Supplier’s margins, costs or cost elements unless and to
the extent cost is the basis on which New Century pays. The Benchmarking shall be
conducted so as not to unreasonably disrupt Suppliers’ operations under this
Agreement






	 	(c)	 	Result of Benchmarking. If following normalization, the Benchmarker finds
that the Charges paid by New Century for all Services or for any sub-Functional
Service Area are greater than the lowest thirty-three percent (33%) of the prices
charged by other top tier service providers for work of a similar nature, type or
volume, (the “Benchmark Standard”), the Parties shall meet and negotiate in good
faith as to the elimination of any such unfavorable variance. If the Parties are
unable to agree upon such measures, New Century may, at its option, terminate the
Services in whole or in part, and may thereafter obtain such Services from a third
party or perform such Services for itself. If the Services are terminated on this
basis, New Century shall pay the Reduced Termination Charge specified in
Attachment 4-E. If the Services are terminated in part, Supplier’s Charges
shall be equitably adjusted to reflect the Services no longer performed by Supplier.
Notwithstanding the foregoing, to the extent Supplier agrees to eliminate the
unfavorable variance by moving some or all of the impacted Supplier Personnel or
Services to Supplier Facilities in other geographic locations (and agrees to do so at
no cost to New Century and without change in the Services or Service Levels or
Supplier’s other obligations under the Agreement), and New Century declines to
approve such move, Supplier shall be relieved of further obligation to eliminate such
variance and New Century shall not be entitled to terminate on this basis.






	 	(d)	 	Supplier Review and Dispute. New Century shall provide Supplier with a
copy of the Benchmarker’s report and Supplier shall have ten (10) days to review such
report and contest the Benchmarker’s findings. If the Parties are unable to agree
upon the validity of such findings, the matter shall be resolved pursuant to the
dispute resolution procedures set forth in Article 19. Agreed upon
adjustments in Supplier’s Charges shall be implemented effective as of the date the
Benchmarker’s report was first provided to Supplier.






	12.	 	INVOICING AND PAYMENT






	 	12.1	 	Invoicing.






	 	(a)	 	Invoice. Within five (5) days after the beginning of each month, Supplier
shall present New Century with a single consolidated invoice for (i) the Monthly Base
Charges for the then current calendar month, (ii) the Solution License Fee and/or
Solution License Install Fee (other than the eight (8) monthly Solution License
Install Fee payments, which are addressed in the next paragraph), if any, specified
in Attachment 4-A for the then current calendar month, (iii) ARCs and RRCs
for the month preceding the most recent month, (iv) Project Charges for the month
preceding the most recent month or, if different, in accordance with the terms of the
applicable Project Order, (v) Out-of-Pocket Expenses for the month preceding the most
recent month, and (vi) Service Level Credits and Deliverable Credits, if any,
incurred in the month preceding the most recent month (the “Monthly Invoice”). The
Monthly Invoice shall be delivered to New Century, at its request, at the address(es)
listed in Section 21.3, and/or electronically.






In addition to the foregoing, Supplier shall provide a separate invoice for each of
the eight monthly Solution License Install Fee payments tied to the achievement by
Supplier of specific Transition Milestone(s), as further described in Exhibit
4 and Attachment 20-A (“Transition Milestone Payment(s)”). Supplier
shall invoice New Century for each such monthly Transition Milestone Payment
following Supplier’s completion of the Transition Milestone associated with such
Transition Milestone Payment. If Supplier fails to achieve the Transition
Milestone associated with any such monthly Transition Milestone Payment, then
Supplier shall not invoice New Century for such monthly Transition Milestone
Payment until such Transition Milestone is met.




	 	(b)	 	Form and Data. Each invoice shall be in the form specified in Exhibit
23 and shall (i) comply with all applicable legal, regulatory and accounting
requirements, and (ii) allow New Century to validate volumes and fees. Each invoice
shall include the pricing calculations and related data utilized to establish the
Charges and sufficient information to validate the service volumes and associated
Charges. The data underlying each invoice shall be delivered to New Century
electronically (if requested by New Century) in a form and format compatible with New
Century’s accounting systems.






	 	(c)	 	Credits. To the extent a Service Level Credit, Deliverable Credit or other
credit may be due to New Century pursuant to this Agreement, Supplier shall provide
New Century with an appropriate credit against amounts then due and owing; if no
further payments are due to Supplier, Supplier shall pay such amounts to New Century
within thirty (30) days.






	 	(d)	 	Time Limitation. If Supplier fails to provide an invoice to New Century
for any amount within ninety (90) days after the month in which the Services in
question are rendered or the expense incurred, Supplier shall incur a reduction of
twelve (12%) percent in the amount that could otherwise have been invoiced for such
month. In addition, if Supplier fails to provide an invoice to New Century for any
amount within one hundred eighty (180) days after the month in which the Services in
question are rendered or the expense incurred, Supplier shall waive any right it may
otherwise have had to invoice for and collect such amount.






	 	(e)	 	Accounting. Except as otherwise provided in this Agreement, each Party
shall be responsible for the manner in which it accounts for, and maintains its
records with respect to, amounts paid with respect to the Services.






	 	12.2	 	Payment.






Payment Due Date. Subject to the other provisions of this Article 12, each
Monthly Invoice provided for under Section 12.1 shall be due and payable within
twenty-five (25) days after receipt by New Century of such Monthly Invoice unless the amount
in question is disputed in accordance with Section 12.4. Subject to the other
provisions of this Article 12, each invoice for Transition Milestone Payments
provided for under Section 12.1 shall be due and payable within twenty-five (25)
days after receipt by New Century of such invoice unless the amount in question is disputed
in accordance with Section 12.4. Any undisputed amount due under this Agreement for
which a time for payment is not otherwise specified also shall be due and payable within
twenty-five (25) days.




Payments to Supplier by New Century shall be paid in U.S. dollars, by wire transfer only,
and no requests for cash payments shall be made by Supplier. All payments to Supplier by
New Century shall be made directly to Supplier, not to third parties, other than to
Supplier’s account with a reputable bank.




If New Century fails to pay any undisputed portion of the Charges within ten (10) days after
the due date for such payment, it shall pay interest on the unpaid amount from the day after
such due date at the lesser of the then current “Prime Rate” set forth in the “Money Rates”
table in The Wall Street Journal (“Prime Rate”) plus two percent (2%) or the maximum rate
allowed by law.




	 	12.3	 	Set Off.






With respect to any amount to be paid or reimbursed by New Century hereunder, New Century
may set off against such amount any undisputed amount that Supplier is obligated to pay New
Century hereunder.




	 	12.4	 	Disputed Charges.






New Century may withhold payment of particular Charges that New Century reasonably disputes
in good faith subject to the following:




	 	(a)	 	Notice of Dispute. If Supplier’s invoice includes detail and supporting
documentation required by this Agreement, New Century shall notify Supplier on or
before the payment due date of such invoice if it disputes any of the Charges in such
invoice.






	 	(b)	 	Notice of Insufficient Detail, Documentation and Dispute. If Supplier’s
invoice does not include the detail and supporting documentation required by this
Agreement, New Century shall so notify Supplier within fifteen (15) days of its
receipt of such invoice. Supplier shall promptly provide such reasonable detail
and supporting documentation. Within seven (7) business days after receiving such
detail and documentation, New Century shall notify Supplier if it disputes any of the
Charges in the invoice in question and shall pay any undisputed Charges.






	 	(c)	 	Description and Explanation. If New Century disputes any Supplier Charges,
New Century shall so notify Supplier in accordance with Section 12.4(a) or
(b) and shall provide a description of the particular Charges in dispute and an
explanation of the reason why New Century disputes such Charges. The Parties shall
endeavor in good faith to resolve any such dispute in an expeditious manner.






	 	(d)	 	Escrow. To the extent the disputed Charges exceed, in the aggregate, an
amount equal to the average monthly Charges for the preceding six (6) months (i.e.,
the total Charges for the preceding six (6) months, divided by six) (the “Escrow
Trigger”), New Century shall pay or deposit certain disputed amounts into an interest
bearing escrow account for the benefit of both Parties at a financial institution
reasonably acceptable to Supplier until such dispute has been resolved. At its
option, New Century shall pay or deposit into such escrow account either (i) all
amounts then in dispute, including those below the Escrow Trigger, or (ii) the amount
in dispute that caused New Century to exceed the Escrow Trigger and all disputed
amounts in excess of such Escrow Trigger. If New Century opts for the latter course
and Supplier subsequently prevails with respect to disputed amounts not placed in
escrow, New Century shall pay interest on the amounts ultimately paid from the day
after the due date through the date of payment at the lesser of the then current
“Prime Rate” set forth in the “Money Rates” table in The Wall Street Journal (“Prime
Rate”) plus two percent (2%) or the maximum rate allowed by law. To the extent
disputed amounts are placed into escrow, the prevailing party shall be entitled to
such escrowed amounts and interest earned on such escrowed amounts upon resolution of
the dispute.






	 	(e)	 	Continued Performance. Each Party agrees to continue performing its
obligations under this Agreement while any dispute is being resolved unless and until
such obligations are terminated by the termination or expiration of this Agreement.






	 	(f)	 	No Waiver. Neither the failure to dispute any Charges or amounts prior to
payment nor the failure to withhold any amount shall constitute, operate or be
construed as a waiver of any right New Century may otherwise have to dispute any
Charge or amount or recover any amount previously paid.






	13.	 	NEW CENTURY DATA AND OTHER CONFIDENTIAL INFORMATION






	 	13.1	 	Confidential Information.






Nothing in this Section 13.1 is intended to limit the obligations of Supplier under
Sections 13.2 and 13.3 of this Agreement with respect to the New Century
Data addressed in such Sections and, to the extent the provisions of Sections 13.2
or 13.3 conflict with the provisions of this Section 13.1 as they pertain to
New Century Data, the provisions of Sections 13.2 or 13.3 shall control over
the provisions of Section 13.1, as applicable.




	 	(a)	 	Confidential Information. Supplier and New Century each acknowledge that
the other possesses and will continue to possess information that has been developed
or received by it, has commercial value in its or its customers’ business and is not
generally available to the public. Except as otherwise specifically agreed in
writing by the Parties, “Confidential Information” means (i) this Agreement and the
terms hereof and thereof (including rates and pricing), (ii) all information marked
confidential, restricted or proprietary by either Party, and (iii) any other
information that is treated as confidential by the disclosing Party (the “Disclosing
Party”) and would reasonably be understood to be confidential, whether or not so
marked. In the case of New Century and the Eligible Recipients, Confidential
Information also shall include Software provided to Supplier by New Century or an
Eligible Recipient, Developed Materials, New Century Data, New Century Personal Data,
Authorized User information, attorney-client privileged materials, attorney work
product, customer lists, customer contracts, customer information, rates and pricing,
information with respect to competitors, strategic plans, account information,
research information, information that contains trade secrets, financial/accounting
information (including assets, expenditures, mergers, acquisitions, divestitures,
billings collections, revenues, finances, forecasts and budgets), human resources and
employee or personnel information (including payroll information), marketing/sales
information, information regarding businesses, plans, operations, mergers,
acquisitions, divestitures, third party contracts, licenses, internal or external
audits, law suits, regulatory compliance or other information or data of New Century,
an Eligible Recipient, an Authorized User or a New Century Third Party Contractor
obtained, received, transmitted, processed, stored, archived, or maintained by
Supplier under this Agreement. In the case of Supplier, Confidential Information
shall also include financial information, account information, information regarding
Supplier’s business plans and operations, and Supplier-Owned Materials.






	 	(b)	 	Disclosure of Confidential Information.






	 	(i)	 	The Disclosing Party represents and warrants that it has the
right to disclose its Confidential Information to the receiving Party (the
“Receiving Party”), subject to the confidentiality obligations contained in this
Section 13.1.






	 	(ii)	 	During the term of this Agreement and at all times thereafter as
specified in Section 13.5, each Receiving Party (A) shall hold
Confidential Information received from a Disclosing Party in confidence and
shall use such Confidential Information only for the purposes of fulfilling its
obligations or exercising its rights under this Agreement and for no other
purposes, and (B) shall not disclose, provide, disseminate or otherwise make
available any Confidential Information of the Disclosing Party to any third
party without the express written permission of the Disclosing Party, unless
expressly permitted by Section 13.1(b)(iii) or 13.1(b)(iv) below
or elsewhere in this Agreement. Each Receiving Party shall use at least the
same degree of care to safeguard and to prevent disclosure and misuse of the
Disclosing Party’s Confidential Information to third parties as the Receiving
Party employs to avoid unauthorized disclosure, publication, dissemination,
destruction, loss, or alteration of its own information (or information of its
customers) of a similar nature, but not less than reasonable care.






	 	(iii)	 	A Receiving Party may disclose Confidential Information of the
Disclosing Party to its employees, directors, attorneys, financial advisors,
contractors and agents provided that (A) such person or entity has a need to
know the Confidential Information for purposes of performing his or her
obligations under or with respect to this Agreement or as otherwise required
within such person’s scope of responsibility, (B) such disclosure is made
pursuant to an obligation of confidentiality upon such person or entity that is
no less stringent than that set forth in this Section 13.1, and (C) such
disclosure is not in violation of Law. The Receiving Party assumes full
responsibility for the acts or omissions of any person or entity to whom it
discloses Confidential Information of the Disclosing Party regarding their use
of such Confidential Information and must take commercially reasonable measures
to protect the Confidential Information from disclosure or use in contravention
of this Agreement.






	 	(iv)	 	A Receiving Party may disclose Confidential Information of a
Disclosing Party as required to satisfy any legal requirement of a competent
government body, provided that, promptly upon receiving any such request, the
Receiving Party, to the extent it may legally do so, gives notice to the
Disclosing Party of the Confidential Information to be disclosed and the
identity of the third party requiring such disclosure prior to the making such
disclosure in order that the Disclosing Party may interpose an objection to such
disclosure, take action to assure confidential handling of the Confidential
Information, or take such other action as it deems appropriate to protect the
Confidential Information. The Receiving Party shall use commercially reasonable
efforts to cooperate with the Disclosing Party in its efforts to seek a
protective order or other appropriate remedy or, in the event such protective
order or other remedy is not obtained, to obtain assurance that confidential
treatment will be accorded such Confidential Information. The Disclosing Party
shall reimburse the Receiving Party for costs reasonably incurred by the
Receiving Party in providing cooperation requested by the Disclosing Party if
and to the extent the focus of the proceeding giving rise to such disclosure
requirement is the Disclosing Party, not the Receiving Party; provided that the
Receiving Party notifies Disclosing Party in advance of such costs, obtains
Disclosing Party’s approval prior to incurring such costs, and uses commercially
reasonable efforts to minimize such costs; and provided further that the
disclosure requirement is not triggered by the Receiving Party’s breach of its
obligations under this Agreement.






	 	(v)	 	Unless expressly permitted by this Agreement, neither Party shall
(A) make any use or copies of the Confidential Information of the other Party
except as expressly contemplated by this Agreement, (B) possess or acquire any
right in or assert any lien against the Confidential Information of the other
Party, (C) sell, assign, transfer, lease, encumber, or otherwise dispose of or
disclose the Confidential Information of the other Party to third parties or
commercially exploit, or permit a third party to commercially exploit, such
Confidential Information, or (D) refuse for any reason (including a default or
material breach of this Agreement by the other Party) to promptly provide the
other Party’s Confidential Information (including any copies thereof) to the
other Party if requested to do so.






	 	(vi)	 	Notwithstanding the foregoing, New Century may disclose
Confidential Information relating to the financial or operational terms of this
Agreement and/or Supplier’s performance hereunder (e.g., applicable Service
Levels and measurements of Supplier’s performance with respect to such Service
Levels) in connection with a benchmarking under Section 11.10. In
addition, New Century may disclose Confidential Information relating to
descriptions of the Services provided by Supplier, the applicable Service Levels
and/or measurements of Supplier’s performance with respect to such Service
Levels in connection with the solicitation of proposals for or the procurement
of the same or similar services from prospective New Century Third Party
Contractors; provided, however, New Century may not divulge Supplier’s pricing
for the Services in connection with any such solicitation or procurement.






	 	(vii)	 	Each Party shall take reasonable and appropriate steps to cause
its employees to comply with these confidentiality provisions.






	 	(c)	 	Exclusions. Notwithstanding the above, Section 13.1(b) shall not
apply to any particular information which the Receiving Party can demonstrate (i) is,
at the time of disclosure to it, generally available to the public other than through
a breach of the Receiving Party’s or, to the Receiving Party’s knowledge, through a
breach of a third party’s confidentiality obligations; (ii) after disclosure to it,
is published by the Disclosing Party or otherwise becomes generally available to the
public other than through a breach of the Receiving Party’s or, to the Receiving
Party’s knowledge, through a breach of a third party’s confidentiality obligations;
(iii) was lawfully in the possession of the Receiving Party immediately prior to the
time of disclosure to it; (iv) is received from a third party having a lawful right
to disclose such information; or (v) is independently developed by the Receiving
Party without reference to the Disclosing Party’s Confidential Information.






	 	(d)	 	Loss of Confidential Information. Each Party shall (i) immediately notify
the other Party of any possession, use, knowledge, disclosure, or loss of such other
Party’s Confidential Information in contravention of this Agreement of which such
Party becomes aware, (ii) promptly furnish to the other Party all known details and
assist such other Party in investigating and/or preventing the reoccurrence of such
possession, use, knowledge, disclosure, or loss, (iii) cooperate with the other Party
in any investigation or litigation deemed necessary by such other Party in connection
with such possession, use, knowledge, disclosure, or loss, and (iv) promptly use
commercially reasonable efforts to prevent further possession, use, knowledge,
disclosure, or loss of Confidential Information in contravention of this Agreement.
Each Party shall bear any costs it incurs in complying with its obligations under
Subparts (i) and (ii) above. In addition, to the extent such possession, use,
knowledge, disclosure, or loss is attributable to the failure of a Party or its
personnel to comply with such Party’s obligations under this Agreement, such Party
shall bear any costs it incurs in complying with Subparts (iii) and (iv). To the
extent such possession, use, knowledge, disclosure, or loss is attributable to any
other reason, the Party whose Confidential Information is the subject of such
activity shall reimburse the other Party for any Out-of-Pocket Expenses reasonably
incurred by the other Party in complying with Subparts (iii) and (iv).






	 	(e)	 	No Implied Rights. Nothing contained in this Section 13.1 shall be
construed as obligating a Party to disclose its Confidential Information to the other
Party, or as granting to or conferring on a Party, expressly or impliedly, any rights
or license to any Confidential Information of the other Party.






	 	(f)	 	Return or Destruction of Confidential Information. Each Party shall
securely store the other Party’s Confidential Information as further specified in
this Article 13 until such Confidential Information is returned or destroyed
as described in this Section. Except as provided below with respect to Contract
Records or as otherwise specified herein, each Party shall destroy all documentation
in any medium that contains or refers to the other Party’s Confidential Information
(or the portion of such Confidential Information specified by the other Party) or
shall return such documentation to the other Party or its designee, in the format
and on the media maintained by Supplier or specified in this Agreement (or in a
format and on media requested by New Century at New Century’s expense, provided
Supplier notifies New Century of such expense, and New Century approves such expense
in advance), (i) within thirty (30) days of the expiration or termination of this
Agreement and completion of each Party’s obligations hereunder, including, with
respect to Supplier, all periods of Termination Assistance Services requested by New
Century, and (ii) with respect to New Century Confidential Information, at any time
New Century requests such Confidential Information or, with respect to particular
Confidential Information, within thirty (30) days of the date that such Confidential
Information is no longer required by Supplier to perform its obligations under this
Agreement. Such documentation shall include all copies of a Party’s Confidential
Information in the other Party’s possession or under the other Party’s control. The
Party returning or destroying the other Party’s Confidential Information shall
deliver to the other Party written certification of its compliance with this
paragraph signed by an authorized representative of such Party.






Notwithstanding the foregoing, either Party may retain one copy of the other
Party’s Confidential Information in its legal department as and to the extent
required to comply with applicable Laws or enforce its rights under this Agreement;
provided that such Confidential Information shall be returned or destroyed in
accordance with this provision upon the expiration of the period specified in the
applicable Law, the expiration of the applicable statute of limitations and the
final resolution of any pending dispute.




Subject to the preceding paragraph, Contract Records shall be retained by Supplier
for the Audit Period specified in Section 9.10(a) unless and to the extent
Supplier is directed by New Century to deliver such Contract Records to New Century
prior to the expiration of such Audit Period.




In no event shall a party withhold any Confidential Information of the other party
as a means of resolving any dispute.




	 	13.2	 	New Century Data.






Nothing in this Section 13.2 is intended to limit the obligations of Supplier under
Sections 13.1 and 13.3 of this Agreement with respect to the Confidential
Information addressed in such Sections. To the extent that the provisions of Section
13.1 pertaining to New Century Data conflict with the provisions of this Section
13.2, the provisions of Section 13.2 shall control over the provisions of
Section 13.1. To the extent that the provisions of Section 13.3 pertaining
to Personal Data conflict with the provisions of this Section 13.2, the provisions
of Section 13.3 shall control over the provisions of Section 13.2.




	 	(a)	 	Ownership of New Century Data. New Century Data shall be and remain, as
between the Parties, the property of New Century and/or the relevant Eligible
Recipient regardless of whether Supplier or New Century is in possession of the New
Century Data. Supplier shall not possess or assert any lien or other right against
or to New Century Data although Supplier may use such New Century Data in the
performance of the Services under this Agreement and as otherwise permitted by this
Agreement. Supplier shall not sell, assign, lease, or encumber New Century Data.
Supplier shall not disclose to or allow access by third parties to New Century Data,
unless expressly provided for in this Agreement, including in Section
13.1(b)(iii). Supplier shall not commercially exploit, or permit a third party to
commercially exploit, New Century Data on behalf of Supplier or any other person or
entity.






New Century Data shall be made available to New Century, upon its request, in the
form and format reasonably requested by New Century.




	 	(b)	 	Safeguarding of New Century Data.






	 	(i)	 	Supplier shall develop and maintain a comprehensive data security
program, which shall include reasonable and appropriate technical,
organizational and security measures against the destruction, loss, unauthorized
access or alteration of New Century Data in the possession of Supplier or its
Subcontractors or Affiliates, and which shall be no less rigorous than (i) those
maintained by Supplier for its own information of a similar nature, and (ii)
the accepted practices of top tier providers of human resources, payroll,
procurement, accounts payable and other in-scope business process outsourcing
services. Supplier shall be responsible to ensure that Subcontractors access and
use the New Century Data in compliance with this Agreement.






The data security program, including associated technical, organizational and
security measures shall comply in all material respects with the following:




	 	(A)	 	Subject to Section 15.10, all applicable
Laws;






	 	(B)	 	New Century Standards, including information
technology, record retention, security, privacy standards maintained in
effect by New Century; and






	 	(C)	 	ISO 17799 as it may be modified or replaced from
time to time, subject to the Change Control Procedures.






The content and implementation of data security program and associated
technical, organizational and security measures shall be fully documented in
writing by Supplier. Supplier shall permit New Century to review such
documentation and/or to inspect Supplier’s compliance with such program in
accordance with Section 9.10.




	 	(ii)	 	Under no circumstances shall Supplier make any changes to the
data security program that would materially weaken any technical, organizational
or security measures in place to safeguard New Century Data, or result in
Supplier’s failure to meet any of the minimum standards set forth above without
New Century’s prior approval. Under no circumstances shall Supplier or Supplier
Personnel attempt to access or allow access to New Century Data that is not
required for the performance of Supplier’s obligations or otherwise permitted
under this Agreement.






	 	(iii)	 	Supplier shall periodically inform New Century of the evolution
of industry practices, procedures and safeguards for data security pertaining to
the Services.






	 	(iv)	 	New Century shall have the right to establish backup security for
any New Century Data and to keep backup and files for such New Century Data in
its possession if it chooses. Supplier shall provide New Century with downloads
of New Century Data, as requested by New Century and at New Century’s expense,
to enable New Century to maintain such backup copies (provided Supplier notifies
New Century of such expense in advance, obtains New Century’s approval prior to
incurring such expense, and uses commercially reasonable efforts to minimize
such expense to the extent possible).






	 	(v)	 	In the event Supplier discovers or is notified of a breach or
potential breach (of a volume or nature that a reasonable person would believe
posed a material risk) of security relating to New Century Data in the
possession or control of Supplier or its Subcontractors or Affiliates, Supplier
shall, in addition to its obligations pursuant to Sections 6.1(d),
expeditiously (i) notify New Century of such breach or potential breach, (ii)
investigate (with New Century’s participation if so desired by New Century) such
breach or potential breach and perform a risk assessment, Root Cause Analysis
and corrective action plan thereon, (iii) provide a written report to New
Century of such risk assessment, Root Cause Analysis and action plan, (iv)
remediate such breach or potential breach of security to the extent within
Supplier’s or its Subcontractor’s or Affiliate’s areas of control, (iv) take
commercially reasonable actions to prevent the recurrence of such breach or
potential breach of security, and (v) to the extent such breach or potential
breach is within Supplier’s or its Subcontractor’s or Affiliate’s areas of
control, provide New Century with reasonable assurances that such breach or
potential breach will not recur.






	 	(vi)	 	To the extent Supplier removes New Century Data from any media
under Supplier’s control that is taken out of service, Supplier shall destroy or
securely erase such media in accordance with the Policy and Procedures Manual.
Under no circumstances shall Supplier use or re-use media on which New Century
Data has been stored to deliver data to a third party (including another
Supplier customer but excluding a Subcontractor or Supplier Affiliate) unless
such New Century Data has been securely erased in accordance with the Policy and
Procedures Manual.






	 	(vii)	 	To the extent Supplier has access to cardholder payment card
information including acct #, expiration date and 3 digit code on systems that
the Supplier controls, Supplier shall comply, as set forth in the Policy and
Procedures Manual, with the Payment Card Industry (“PCI”) security standards
dated June 30, 2005, to the extent applicable, and, subject to the Change
Control Procedures, any later promulgated changes to such standard.






	 	13.3	 	Personal Data.






In addition to the provisions of Sections 13.1 and 13.2, the following
privacy and data protection provisions shall apply to Personal Data. To the extent any of
the provisions of this Article 13 purporting to apply to Personal Data conflict with
provisions of this Section 13.3, the provisions of Section 13.3 shall
control over such other provisions.




	 	(a)	 	Supplier shall hold any Personal Data that it receives in confidence and in
compliance with (1) Supplier’s obligations under this Agreement, the Exhibits and
Attachments hereto and the Policy and Procedures Manual, and (2) the security program
described in Section 13.2(b)(i) 






	 	(i)	 	Supplier shall process and store all Personal Data in (1) the
United States, (2) the jurisdiction in which the data subject resides (or, in
the case of a data subject residing in the European Economic Area (“EEA”), in
the EEA) or (3) India and such other jurisdictions set forth in the Policy and
Procedures Manual and shall not transfer, process, or maintain New Century Data
in any other jurisdiction without the prior consent of New Century.






	 	(ii)	 	Supplier shall not transfer Personal Data from a country within
the European Economic Area to countries deemed by the European Union not to have
adequate protection without first ensuring that the standard contractual clauses
approved by the European Commission in Commission Decision as the standard
contractual clauses for the transfer of personal data to processors in third
countries under Directive 95/46/EC, 2002 O.J. L6/52 are in place between the New
Century Affiliate that is the Data Exporter and the Data Importer.






	 	(iii)	 	Supplier shall maintain technical, organizational and security
measures to protect the confidentiality of Personal Data processed in the EU
consistent with the security program developed pursuant to Section
13.2(b)(i) and this Section 13.3.






	 	(iv)	 	The Parties acknowledge that, for purposes of the European Data
Protection Legislation, Supplier will act as a Data Processor in relation to all
Personal Data it accesses under this Agreement, that New Century is the Data
Controller with respect to such Personal Data, and that Supplier will only act
in accordance with New Century’s reasonable instructions in relation to such
Personal Data. New Century hereby authorizes Supplier to process Personal Data
in accordance with this Agreement.






	 	(b)	 	Supplier agrees that Supplier and Supplier Personnel will not use any
Personal Data for any purpose other than the fulfillment of the terms and conditions
of this Agreement. Supplier as well as its employees, agents and Subcontractors
shall not process or disseminate Personal Data to any third party or transfer
Personal Data without the approval of New Century unless expressly provided for in
this Agreement. Supplier shall take appropriate action to cause:






	 	(i)	 	Any Supplier Personnel who have access to Personal Data pursuant
to this Agreement to be advised of, and comply with, the terms and conditions of
this Section 13.3; and






	 	(ii)	 	Any Supplier Personnel who have access to Personal Data to be
trained regarding their handling of such Personal Data.






Supplier shall be responsible for any failure of Supplier Personnel to comply with
the terms and conditions regarding Personal Data set forth in this Section
13.3.




	 	(c)	 	When interfacing with New Century or the applicable Eligible Recipient
regarding Personal Data, Supplier shall only disclose or transmit Personal Data to
those New Century or Eligible Recipient employees and New Century Third Party
Contractors authorized by the New Century Project Executive or his or her designee or
identified in the Policy and Procedures Manual.






	 	(d)	 	Reserved.






	 	(e)	 	Reserved.






	 	(f)	 	Reserved.






	 	(g)	 	New Century shall notify Supplier of any:






	 	(i)	 	Limitation in any privacy notice used by New Century to the
extent that such limitation may affect Supplier’s use or disclosure of Personal
Data; and






	 	(ii)	 	Restriction on the use or disclosure of Personal Data to which
New Century agreed to the extent that such restriction may affect Supplier’s use
or disclosure of such Personal Data.






Supplier agrees to promptly implement any such limitation or restriction as directed
by New Century.




	 	(h)	 	If Supplier has knowledge of any unauthorized disclosure of or access to
Personal Data in the possession or control of Supplier or its Subcontractors or
Affiliates, Supplier shall:






(i) Expeditiously report such unauthorized disclosure or access to New Century,




	 	(ii)	 	Mitigate, to the extent practicable, any harmful effect of such
disclosure or access that is known to Supplier or its agents, and






	 	(iii)	 	Cooperate with New Century in providing any notices regarding
impermissible disclosures caused by such disclosure or access which New Century
deems appropriate. Such cooperation shall be provided as a Project, in
accordance with Section 4.5 and Section 10 of Exhibit 4, unless
and to the extent such access or disclosure is attributable to the failure of
Supplier or Supplier Personnel to comply with Supplier’s obligations under this
Agreement.






To the extent such unauthorized disclosure or access is attributable to a breach by
Supplier or Supplier Personnel of Supplier’s obligations under this Agreement with
respect to Personal Data, Supplier shall bear (A) the costs incurred by Supplier in
complying with its legal obligations relating to such breach, and (B) in addition to
any other damages for which Supplier may be liable for under this Agreement, the
following costs incurred by New Century or the Eligible Recipient in complying with
their legal obligations relating to such breach, including to the extent applicable,
(1) the cost of providing notice to affected individuals, (2) the cost of providing
notice to government agencies, credit bureaus, and/or other required entities, (3)
the cost of providing affected individuals with credit monitoring services for a
specific period not to exceed twelve (12) months, to the extent the disclosure of the
affected individual’s Personal Data could lead to a compromise of the data subject’s
credit or credit standing, (4) call center support for such affected individuals for
a specific period not to exceed thirty (30) days, and (5) the cost of any other
measures required under applicable Law.




	 	(i)	 	Reserved.






	 	(j)	 	As reasonably requested by New Century, Supplier shall de-identify or
summarize all or any specified PHI in the format and on the media prescribed by New
Century and promptly deliver such Data to New Century or a designated New Century
Third Party Contractor. Unless otherwise agreed, activities undertaken by Supplier
in response to such a request shall be treated as a Project, in accordance with
Section 4.5 and Section 10 of Exhibit 4.






	 	(k)	 	With respect to Personal Medical Data constituting “protected health
information” (“PHI”), as such term is defined by the HIPAA Privacy Rule, to the extent
Supplier is serving as a Business Associate or a subcontractor to a Business Associate
or is otherwise deemed to be a Business Associate under HIPAA, Supplier shall:






	 	(i)	 	Subject to Section 15.10, implement the technical,
organizational and security measures, including administrative, physical and
technical safeguards in the security program described in Section
13.2(b)(i) to protect the confidentiality, integrity and availability of
Personal Medical Data constituting electronic PHI (“ePHI”) created, received,
maintained or transmitted by Supplier or Supplier Personnel. Supplier shall
cause any Subcontractors or Supplier Personnel who have access to ePHI to agree
in writing to protect the confidentiality, integrity and availability of ePHI
as required by the HIPAA Security Rule.






Supplier shall expeditiously report to New Century any successful unauthorized
access, use, disclosure, modification, or destruction of ePHI or interference
with system operations in an information system containing PHI of which
Supplier becomes aware. Supplier also shall report the aggregate number of
unsuccessful, unauthorized attempts to access, use, disclose, modify or
destroy ePHI or interfere with systems operations in an information system
under Supplier’s control containing PHI, of which Supplier becomes aware,
provided that:




	 	A.	 	such reports will be provided only as frequently as
the Parties mutually agree, but no more than once per calendar quarter,
and






	 	B.	 	if the HIPAA Security Rule is amended to remove the
requirement for reporting “unsuccessful” attempts to use, disclose,
modify or destroy ePHI from the definition of “Security Incident,” this
paragraph shall no longer apply as of the effective date of such
amendment. For purposes of this provision, Security Incident shall have
the meaning given in HIPAA Security Regulations, 45 CFR Part 164, as such
regulations may be amended from time to time, and






	 	C.	 	this provision shall not require the reporting of
“pings” or similar request-response utilities used to determine whether a
specific Internet Protocol (IP) address, or host, exists or is
accessible.






	 	(ii)	 	Subject to Section 15.10, at New Century’s request,
Supplier shall provide access to PHI contained in a “designated record set” (as
such term is defined by the HIPAA Privacy Rule) of a person currently or
formerly covered by a Plan to New Century or the person currently or formerly
covered by the Plan who is requesting such Data. Supplier also shall amend PHI
in its possession as directed by New Century. Subject to Section 15.10,
such access and amendment shall be provided at a time and in a format permitted
by the HIPAA Privacy Rule.






	 	(iii)	 	Subject to Section 15.10, Supplier shall document all
disclosures by Supplier or Supplier Personnel of PHI to provide a person
currently or formerly covered by the Plan with an accounting of disclosures as
required by the HIPAA Privacy Rule. Supplier shall, upon New Century’s request,
provide such an accounting to New Century or the person currently or formerly
covered by the Plan requesting such Data at a time and in a format permitted by
the HIPAA Privacy Rule as specified by New Century.






	 	(iv)	 	Without limiting New Century’s obligations under Section
15.10, New Century shall notify Supplier of any (A) limitations in the
Plan’s privacy notice to the extent that such limitation may affect Supplier’s
use or disclosure of PHI; (B) changes in, or revocation of, permission by a
person currently or formerly covered by the Plan to use or disclose PHI to the
extent that such change may affect Supplier’s use or disclosure of the Data; and
(C) restriction to the use or disclosure of PHI to which the Plan agreed to the
extent that such restriction may affect Supplier’s use or disclosure of the
Data. Supplier agrees to implement such limitation, change or restriction as
required by HIPAA regarding PHI, in accordance with Section 15.10.






	 	(v)	 	In addition to permitting audits by New Century as described
above, Supplier shall make available to the Secretary of the U.S. Department of
Health and Human Services, upon request, its internal practices, books and
records relating to the use and disclosure of PHI received from, or created or
received by Supplier on behalf of, a Plan, for purposes of determining the
Plan’s compliance with the HIPAA Privacy Rule. If the Secretary contacts the
Supplier directly regarding the availability of such practices, books and
records for such purposes, Supplier shall provide New Century with written
notice of such contact from the Secretary as soon as possible.






	 	(vi)	 	The following terms, when used in the Agreement or any Exhibit to
the Agreement, shall have the meanings specified below: (A) “Business Associate”
shall have such meaning as set forth in the HIPAA Privacy Rule; (B) “Covered
Entity” shall have such meaning as set forth in the HIPAA Privacy Rule; (C)
electronic PHI shall have such meaning as set forth in the HIPAA Security Rule;
(D) “HIPAA” means the Health Insurance Portability and Accountability Act of
1996, as may be amended from time to time; (E) “HIPAA Privacy Rule” means the
HIPAA privacy regulations, codified at 45 C.F.R. Part 160 and Part 164, Subparts
A and E; (F) “HIPAA Security Rule” means the HIPAA security regulations,
codified at 45 C.F.R. Part 160 and Part 164, Subparts A and C; and (G)
“Protected Health Information” shall have such meaning as set forth in the HIPAA
Privacy Rule.






	 	13.4	 	File Access.






New Century shall have ready, secure access to, and the right to review and retain a copy
of, all New Century Confidential Information in the possession or control of Supplier or its
Affiliates and Subcontractors. Such access shall be provided to New Century by the means
and in the format specified in the Agreement and/or reasonably requested by New Century. At
no time shall New Century’s Confidential Information be stored or held by Supplier in a form
or manner not readily accessible to New Century in this manner.




	 	13.5	 	New Century Data — Correction and Restoration.






	 	(a)	 	Corrections. The correction of any errors or inaccuracies in or with
respect to New Century Data shall be performed by the Party that has operational
responsibility for inputting such New Century Data into the applicable System. To
the extent (i) Supplier is operationally responsible for inputting such data, -or,
(ii) such errors or inaccuracies are attributable to the failure of Supplier or
Supplier Personnel to comply with Supplier’s obligations under this Agreement,
Supplier shall bear the cost of correcting such errors or inaccuracies. In all other
circumstances, New Century shall bear the costs of correcting such errors or
inaccuracies.






	 	(b)	 	Re-running of Corrected Data. If the correction of errors or inaccuracies
as described above necessitates the re-running of corrected New Century Data and
thereby results in the usage of additional Resource Units, New Century shall pay the
applicable Resource Unit charge set forth in Exhibit 4, unless the underlying
errors or inaccuracies are attributable to the failure of Supplier or Supplier
Personnel to comply with Supplier’s obligations under this Agreement (including the
failure of Supplier or Supplier Personnel to adhere to applicable processes and
controls that, if adhered to, would have enabled Supplier or Supplier Personnel to
identify and timely correct such errors or inaccuracies, even if caused by New
Century), in which case Supplier shall be financially responsible for any additional
Resource Units usage resulting from the re-running of corrected data.






	 	(c)	 	Restoration of Data. The restoration of any destroyed, lost or altered New
Century Data shall be performed by the Party that has operational responsibility for
maintaining the System on which such New Century Data resides and for creating and
maintaining backup copies of such New Century Data. To the extent (i) Supplier is
operationally responsible for performing such restoration or (ii) such destruction,
loss or alteration is attributable to the failure of Supplier or Supplier Personnel
to comply with Supplier’s obligations under this Agreement, Supplier shall bear the
cost of restoring such data (provided that, if Supplier has complied with its
obligation to create and maintain backup copies of New Century Data, its obligation
to restore data shall be limited to data restoration from available backup copies
and/or using generally accepted data restoration techniques).






	 	13.6	 	Survival.






Supplier’s obligations under this Article with respect to Personal Data shall survive the
expiration or termination of this Agreement and shall be perpetual. The Parties’
obligations under this Article with respect to all other Confidential Information shall
survive the expiration or termination of this Agreement for a period of five (5) years from
the later of (i) the expiration or termination of this Agreement (including all periods of
Termination Assistance Services), or (ii) the return or destruction of Confidential
Information in accordance with Sections 13.1 (but not including accounting
information pertaining to this Agreement that Supplier is required to maintain pursuant to
applicable Laws); provided, however, that the passage of this five (5) year period shall not
absolve either Party of responsibility for any breach of this Article 13 occurring
prior to the expiration of such five (5) year period.




	14.	 	OWNERSHIP OF MATERIALS






	 	14.1	 	New Century Owned and Licensed Materials.






	 	(a)	 	Ownership of New Century Owned Materials. For purposes of this Agreement,
New Century shall be the sole and exclusive owner of (i) all intellectual property,
Software and other Materials owned by New Century or the Eligible Recipients as of
the Effective Date, including New Century Owned Software and other Materials owned by
New Century and the Eligible Recipients, (ii) all enhancements and Derivative Works
of such intellectual property, Software and Materials, including all United States
and foreign patent, copyright and other intellectual property rights in such
Materials, and (iii) certain Developed Materials, as provided in Section 14.2
(collectively, “New Century Owned Materials”).






	 	(b)	 	License to New Century Owned Materials. As of the Commencement Date, New
Century hereby grants Supplier and, to the extent necessary for Supplier to provide
the Services, to Subcontractors designated by Supplier that sign a written agreement
to be bound by terms comparable to the terms contained herein applicable to such
Materials (such agreement shall be agreed to by the Parties and shall include the
terms specified in this Section as well as those pertaining to the ownership of such
Materials and any Derivative Works developed by the Parties, the scope and term of
the license, the restrictions on the use of such Materials, the obligations of
confidentiality, etc.) a non-exclusive, non-transferable, royalty-free limited right
and license during the Term (and thereafter to the extent necessary to perform any
Termination Assistance Services requested by New Century) to access, use, execute,
reproduce, display, perform, modify and distribute the New Century Owned Materials
for the express and sole purpose of providing the Services. New Century shall remain
financially and administratively responsible for the maintenance of the New Century
Owned Software. Supplier and its Subcontractors shall have no right to the source
code to such New Century Owned Materials unless and to the extent approved in advance
by New Century. New Century Owned Materials shall remain the property of New
Century. Supplier and its Subcontractors shall not (i) use any New Century Owned
Materials for the benefit of any person or Entity other than New Century or the
Eligible Recipients, (ii) separate or uncouple any portions of the New Century Owned
Materials, in whole or in part, from any other portions thereof, or (iii) reverse
assemble, reverse engineer, translate, disassemble, decompile or otherwise attempt to
create or discover any source or human readable code, underlying algorithms, ideas,
file formats or programming interfaces of the New Century Owned Materials by any
means whatsoever, without the prior approval of New Century, which may be withheld at
New Century’s sole discretion. Except as otherwise requested or approved by New
Century, Supplier and its Subcontractors shall cease all use of New Century Owned
Materials upon the end of the Term and the completion of any Termination Assistance
Services requested by New Century pursuant to Section 4.3(b)(1) or 4.3(b)(8)
and shall certify such cessation to New Century in a notice signed by an officer of
Supplier and each applicable Subcontractor. THE NEW CENTURY OWNED MATERIALS ARE
PROVIDED BY NEW CENTURY TO SUPPLIER AND ITS SUBCONTRACTORS ON AN AS-IS, WHERE-IS
BASIS. NEW CENTURY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, AS TO SUCH NEW CENTURY OWNED MATERIALS, OR THE CONDITION OR SUITABILITY OF
SUCH MATERIALS FOR USE BY SUPPLIER OR ITS SUBCONTRACTORS TO PROVIDE THE SERVICES,
INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.






	 	(c)	 	License to New Century Third Party Materials. Subject to Supplier having
obtained any Required Consents, New Century hereby grants to Supplier, for the sole
purpose of performing the Services and solely to the extent of New Century’s
underlying rights, the same rights of access and use as New Century possesses under
the applicable software licenses with respect to New Century licensed Third Party
Materials. New Century also hereby grants such rights to Subcontractors designated
by Supplier if and to the extent necessary for Supplier to provide the Services;
provided that, Supplier shall pay all incremental fees, costs and expenses associated
with the granting of such rights to such Subcontractors. Supplier and its
Subcontractors shall comply with the duties, including use restrictions and
nondisclosure obligations, imposed on New Century by such licenses (provided that
Supplier has received copies of such licenses or has otherwise been notified of such
duties, obligations and restrictions). In addition, each Subcontractor shall sign a
written agreement to be bound by terms comparable to the terms contained herein
applicable to such Materials (such agreement shall be agreed to by the Parties and
shall include the terms specified in this Section as well as those pertaining to the
ownership of such Materials and any Derivative Works developed by the Parties, the
scope and term of the license, the restrictions on the use of such Materials, and the
obligations of confidentiality, etc.). Except as otherwise requested or approved by
New Century (or the relevant licensor), Supplier and its Subcontractors shall cease
all use of such Third Party Materials upon the end of the Term and the completion of
any Termination Assistance Services requested by New Century pursuant to Section
4.3(b)(8). THE NEW CENTURY LICENSED THIRD PARTY MATERIALS ARE PROVIDED BY NEW
CENTURY TO SUPPLIER AND ITS SUBCONTRACTORS ON AN AS-IS, WHERE-IS BASIS. NEW CENTURY
EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, AS TO
SUCH NEW CENTURY LICENSED THIRD PARTY MATERIALS, OR THE CONDITION OR SUITABILITY OF
SUCH MATERIALS FOR USE BY SUPPLIER OR ITS SUBCONTRACTORS TO PROVIDE THE SERVICES,
INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.






	 	14.2	 	Developed Materials.






	 	(a)	 	New Century Ownership of Derivative Works of New Century Owned Materials.
Unless the Parties agree otherwise, New Century shall be the sole and exclusive owner
of all Developed Materials that are Derivative Works of New Century Owned Materials,
including all United States and foreign patent, copyright and other intellectual
property rights in such Materials. Such Developed Materials shall be considered
works made for hire (as that term is used in Section 101 of the United States
Copyright Act, 17 U.S.C. § 101, or in analogous provisions of other applicable Laws)
owned by New Century. If any such Developed Materials may not be considered a work
made for hire under applicable Law, Supplier hereby irrevocably assigns, and shall
assign, to New Century without further consideration, all of Supplier’s right, title
and interest in and to such Developed Materials, including United States and foreign
patent, copyright and other intellectual property rights. Supplier acknowledges that
New Century and the successors and assigns of New Century shall have the right to
obtain and hold in their own name any patent, copyright and other intellectual
property rights in and to such Developed Materials. Supplier agrees to execute any
documents and take any other actions reasonably requested by New Century, and at New
Century’s expense, to effectuate the purposes of this Section 14.2(a). New
Century hereby grants Supplier certain license and other rights with respect to such
Developed Materials, as described in Section 14.1(b). New Century may, in
its sole discretion and upon such terms and at such financial arrangement as New
Century and Supplier may agree, grant Supplier a license to use such Developed
Materials for other purposes and to sublicense such Developed Materials.






	 	(b)	 	New Century Ownership of New Century–Specific Developed Materials. Except
as provided in Sections 14.2(d) and (e) or otherwise agreed by the Parties,
New Century shall be the sole and exclusive owner of the United States and foreign
copyrights in all Developed Materials that are (i) created in accordance with the
customized requirements of New Century or the Eligible Recipients, (ii) usable only
by New Century or the Eligible Recipients or in conjunction with New Century Owned
Materials, (iii) specific to the businesses of New Century or the Eligible
Recipients, or (iv) Deliverables (subparts (i) through (iv), collectively, “New
Century–Specific Developed Materials”). For purposes of this provision, Deliverables
shall mean Developed Materials (i) required to be delivered to New Century or the
Eligible Recipients pursuant to this Agreement and specific to New Century or the
Eligible Recipients, or (ii) developed at the specific request of or paid for by New
Century. Such New Century–Specific Developed Materials shall be considered works
made for hire (as that term is used in Section 101 of the United States Copyright
Act, 17 U.S.C. § 101, or in analogous provisions of other applicable Laws) owned by
New Century. If any such New Century–Specific Developed Materials may not be
considered a work made for hire under applicable Law, Supplier hereby irrevocably
assigns, and shall assign, to New Century without further consideration, all of
Supplier’s right, title and interest in and to such Developed Materials. Supplier
acknowledges that New Century and the successors and assigns of New Century shall
have the right to obtain and hold in their own name any patent, copyright and other
intellectual property rights in and to such New Century–Specific Developed Materials.
Supplier agrees to execute any documents and take any other actions reasonably
requested by New Century, and at New Century’s expense, to effectuate the purposes of
this Section 14.2(a). New Century hereby grants Supplier certain license and
other rights with respect to such New Century–Specific Developed Materials, as
described in Section 14.1(b). The Parties shall maintain a list of New
Century–Specific Developed Materials categorized as Software in Exhibit 11.
New Century may, in its sole discretion and upon such terms and at such financial
arrangement as New Century and Supplier may agree, grant Supplier a license to use
the portion of such Developed Materials comprising copyrightable works for other
purposes and to sublicense such Developed Materials. In addition, in connection with
the approval of a Project for the development of Software that would otherwise be
treated as a New Century–Specific Developed Material, the Parties may agree to the
ownership of such Developed Material by Supplier, subject to financial and other
terms and arrangements agreed upon by the Parties.






Notwithstanding the foregoing, the Parties acknowledge and agree that any idea,
design, concept, technique, invention, discovery or improvement constituting
patentable subject matter and first conceived of and reduced to practice in the
course of creating New Century–Specific Developed Materials pursuant to this
Section 14.2(b) may be freely used by either Party, and that any patent
rights in such New Century–Specific Developed Materials shall be jointly owned by
New Century and Supplier, in all cases without the requirement of either Party to
account to the other Party.




	 	(c)	 	Source Code and Documentation. Supplier shall, promptly as it is developed
by Supplier, provide New Century with the source code, if any, and object code and
documentation for all New Century owned Developed Materials, as described in
Sections 14.2(a) and (b). Such source code and technical documentation shall
be sufficient to allow a reasonably knowledgeable and experienced programmer to
maintain and support such Materials; and the user documentation for such Materials
shall accurately describe in terms understandable by a typical Authorized User the
functions and features of such Materials and the procedures for exercising such
functions and features.






	 	(d)	 	Supplier Owned Developed Materials. Notwithstanding Sections 14.2(a)
and (b), unless the Parties agree otherwise, Supplier shall be the sole and
exclusive owner of all Developed Materials that are Derivative Works of Supplier
Owned Materials (as defined in Section 14.3(a)), including all United States
and foreign patent, copyright and other intellectual property rights in such
Materials. In addition, except as provided in Sections 14.2(b) and (e) or
otherwise agreed by the Parties, Supplier shall be the sole and exclusive owner of
all other Developed Materials that are not Derivative Works of New Century Owned
Materials, including all United States and foreign patent, copyright and other
intellectual property rights in such Materials. If the ownership of such Developed
Materials does not automatically vest in Supplier, New Century hereby irrevocably
assigns, and shall assign, to Supplier without further consideration, all of New
Century’s right, title and interest in and to such Developed Materials. New Century
acknowledges that Supplier and the successors and assigns of Supplier shall have the
right to obtain and hold in their own name any intellectual property rights in and to
such Supplier owned Developed Materials. New Century agrees to execute any documents
and take any other actions reasonably requested by Supplier, and at Supplier’s
expense to effectuate the purposes of this Section 14.2(d). Supplier hereby
grants New Century and the Eligible Recipients certain license and other rights with
respect to such Developed Materials, as described in Sections 14.3(b) and
14.6.






	 	(e)	 	Third Party Materials. The ownership of Derivative Works of Third Party
Materials created in connection with the Services shall, as between Supplier and New
Century, be considered Developed Materials owned by the Party that is the licensee of
such Third Party Materials. For purposes of the foregoing, Supplier shall be deemed
the licensee of Third Party Materials licensed by its Subcontractors or Affiliates
and New Century shall be deemed the licensee of Third Party Materials licensed by New
Century Affiliates or the Eligible Recipients. Each Party acknowledges and agrees
that its ownership of such Derivative Works may be subject to or limited by the terms
of the underlying agreement with the owner of the underlying Third Party Materials;
provided that, if a Derivative Work is to be made of Third Party Materials provided
by Supplier, Supplier shall notify New Century in advance and obtain New Century’s
consent prior to proceeding with such Derivative Work if the terms of any such
agreement will preclude or limit, as applicable, New Century’s license rights in and
to such Derivative Work as contemplated in Sections 14.3 and 14.6.






	 	(f)	 	Disclosure by Supplier of Developed Materials. Supplier shall promptly
disclose in writing to New Century each Developed Material that is developed in
connection with the Services. With respect to each disclosure, Supplier shall
indicate the features or concepts that it believes to be new or different.






	 	14.3	 	Supplier Owned and Licensed Materials.






	 	(a)	 	Ownership of Supplier Owned Materials. For purposes of this Agreement,
Supplier shall be the sole and exclusive owner of the (i) intellectual property,
Software and Materials lawfully owned by Supplier or its Affiliates or Subcontractors
prior to the Effective Date, (ii) intellectual property, Software and Materials
acquired by Supplier or its Affiliates or Subcontractors on or after the Effective
Date, other than acquisitions of Materials from Third Parties specifically for
transfer to New Century or an Eligible Recipient in connection with the performance
of the Services, (iii) Developed Materials created by or for Supplier or its
Affiliates or Subcontractors as and to the extent provided in Sections
14.2(d) and (e), (iv) Materials developed by or on behalf of Supplier or
its Affiliates or Subcontractors other than in the course of the performance of its
obligations under this Agreement or as otherwise provided in Article 14,
including all United States and foreign patent, copyright and other intellectual
property rights in such Materials described in clauses (i) through (iv) of this
paragraph (“Supplier Owned Materials”).






	 	(b)	 	License to Supplier Owned Materials. As of the Commencement Date, Supplier
hereby grants to New Century and the Eligible Recipients, at no additional charge, a
world-wide non-exclusive, royalty-free limited right and license, with the right to
grant sublicenses, to access, use, execute, reproduce, display, perform, modify,
enhance, distribute internally and create Derivative Works of the Supplier Owned
Materials (including all modifications, replacements, Upgrades, enhancements,
methodologies, tools, documentation, materials and media related thereto, but
excluding Supplier Owned Materials identified on Exhibit 27) during the Term
and any Termination Assistance Services period, solely for the benefit and use of New
Century, the Eligible Recipients and their respective Affiliates, to (i) receive the
full benefit of the Services provided by Supplier, (ii) perform or have performed
human resources, payroll, procurement, accounts payable and other in-scope services
for their internal business purposes,, (iii) monitor, access, interface with or use
the Materials and Software then being used by Supplier and (iv) perform or have
performed ancillary services and functions for their internal business purposes,
including related information technology services and functions ((i)-(iv)
collectively, “Internal Business Purposes”); provided that, to the extent a third
party uses the Supplier Owned Materials on behalf of or for the benefit of New
Century, such third party shall sign a written agreement to be bound by terms
comparable to the terms contained herein applicable to such Materials (such agreement
shall be agreed to by the Parties and shall include the terms specified in this
Section as well as those pertaining to the ownership of such Materials and any
Derivative Works developed by the Parties, the scope and term of the license, the
restrictions on the use of such Materials, and the obligations of confidentiality,
etc.). New Century shall have no rights to the source code to such Supplier Owned
Materials unless and to the extent approved in advance, in writing, by Supplier. New
Century shall not (i) separate or uncouple any portions of the Supplier Owned
Materials, in whole or in part, from any other portions thereof, or (ii) reverse
assemble, reverse engineer, translate, disassemble, decompile or otherwise attempt to
create or discover any source or human readable code, underlying algorithms, ideas,
file formats or programming interfaces of the Supplier Owned Materials by any means
whatsoever. Supplier Owned Materials shall remain the property of Supplier. The
rights and obligations of New Century and the Eligible Recipients with respect to
such Supplier Owned Materials following the expiration or termination of the
Agreement or termination of any Service are set forth in Section 14.6.






	 	(c)	 	Embedded Materials. To the extent that Supplier Owned Materials are
embedded in any Developed Materials owned by New Century pursuant to Sections
14.2(a) and (b), Supplier shall not be deemed to have assigned its
intellectual property rights in such Supplier Owned Materials to New Century, but
Supplier hereby grants to New Century a worldwide, perpetual, irrevocable,
non-exclusive, fully paid-up license, with the right to grant sublicenses, to use,
execute, reproduce, display, perform, modify, enhance, distribute internally and
create Derivative Works of such Supplier Owned Materials (including all
modifications, replacements, Upgrades, enhancements, methodologies, tools,
documentation, materials and media related thereto) solely for the benefit and use of
New Century, the Eligible Recipients and their respective Affiliates for their
Internal Business Purposes, so long as such Supplier Owned Materials remain embedded
in such Developed Materials and are not separately exploited. With respect to New
Century’s access and use of any Supplier Owned Materials, New Century will comply
with any applicable use restrictions that are identified in writing to, and
acknowledged by, New Century. New Century will establish an access control procedure
to limit New Century’s access and use accordingly. Following the expiration or
termination of the Term and the termination of the Service(s) for which such
Materials were used, Supplier shall, at New Century’s request, provide Upgrades,
maintenance, support and other services for such embedded Supplier Owned Materials if
and to the extent provided for in Section 14.6(b).






	 	(d)	 	License to Supplier Third Party Materials. As of the Commencement Date and
subject to Supplier having obtained any Required Consents, Supplier hereby grants to
New Century and the Eligible Recipients, at no additional charge, a non-exclusive,
royalty-free right and license, with the right to grant sublicenses, to access and/or
use the Third Party Materials as to which Supplier holds the license or for which
Supplier is financially responsible under this Agreement (including all
modifications, substitutions, Upgrades, enhancements, methodologies, tools,
documentation, materials and media related thereto), during the Term and any
Termination Assistance Services period, solely for the benefit and use of New
Century, the Eligible Recipients and their respective Affiliates for their Internal
Business Purposes; provided that, to the extent a third party uses such Third Party
Materials on behalf of or for the benefit of New Century, such third party shall sign
a written agreement to be bound by terms comparable to the terms contained herein
applicable to such Materials (such agreement shall be agreed to by the Parties and
shall include the terms specified in this Section as well as those pertaining to the
ownership of such Materials and any Derivative Works developed by the Parties, the
scope and term of the license, the restrictions on the use of such Materials, and the
obligations of confidentiality, etc.). With respect to New Century’s access and use
of any such Third Party Materials, New Century will comply with any applicable use
restrictions that are identified in writing to, and acknowledged by, New Century. New
Century will establish an access control procedure to limit New Century’s access and
use accordingly. The rights and obligations of New Century, the Eligible Recipients
and New Century Third Party Contractors with respect to such Supplier licensed Third
Party Materials following the expiration or termination of the Agreement or
termination of any Service are set forth in Section 14.6.






	 	(e)	 	Source Code Escrow.






	 	(i)	 	Supplier Software. At New Century’s request, Supplier
shall deposit into escrow with an escrow agent mutually agreed by the
Parties (or the current escrow agent, if the Software is already maintained
in escrow) the source code and related documentation for Software owned by
Supplier or Supplier Affiliates. The escrow release conditions shall be as
specified in Exhibit 24.






	 	(ii)	 	Third Party and Subcontractor Software. Supplier shall
cause certain Third Party Software and certain Software owned by
Subcontractors that are not Supplier Affiliates, in each case, as
identified in Attachment 24-A, to be placed into escrow with
Supplier as the beneficiary of such escrow. The Software placed into
escrow shall include, at a minimum, the source code for proprietary,
customized or uniquely configured Software critical to Supplier’s service
delivery solution and/or the performance of Supplier’s obligations under
this Agreement.






	 	14.4	 	Other Materials.






This Agreement shall not confer upon either Party intellectual property rights in Materials
of the other Party (to the extent not covered by this Article 14) unless otherwise
so provided elsewhere in this Agreement.




	 	14.5	 	General Rights.






	 	(a)	 	Copyright Legends. Each Party agrees to reproduce copyright legends which
appear on any portion of the Materials which may be owned by the other Party or third
parties.






	 	(b)	 	Residuals. Nothing in this Agreement shall restrict any employee or
representative of a Party from using general ideas, concepts, practices, learning or
know-how relating to the processing of human resources, payroll, procurement and
accounts payable transactions that are retained in the unaided memory of such
employee or representative after performing the obligations of such Party under this
Agreement, except to the extent that such use infringes upon any patent, copyright or
other intellectual property right of a Party or its Affiliates (or, in the case of
Supplier, any Eligible Recipient); provided, however, that this Section
14.5(b) shall not (i) be deemed to limit either Party’s obligations under this
Agreement with respect to the disclosure or use of Confidential Information, or (ii)
operate or be construed as permitting an employee or representative of Supplier to
disclose, publish, disseminate or use (a) the source of any Confidential Information
of New Century or an Eligible Recipient, (b) any financial, statistical or personnel
information of New Century or an Eligible Recipient, or (c) the business plans of New
Century or the Eligible Recipients. For avoidance of doubt, an individual’s memory
is not considered unaided if the individual has intentionally memorized the
Confidential Information for the purpose of retaining and subsequently using or
disclosing it or the individual identifies the information as Confidential
Information upon recollection. In addition, for avoidance of doubt, the foregoing
would not permit Supplier Personnel to use Confidential Information of New Century or
an Eligible Recipient (other than ideas, concepts, practices, learning and know-how
relating generally to the processing of human resources, payroll, procurement and
accounts payable transactions) for any purpose other than the provision of Services
under this Agreement.






Except as otherwise provided in this Agreement, this Agreement shall nor operate or
be construed to prevent Supplier from acquiring, marketing, developing,
distributing, licensing or using for itself or others, services, products or
technology that are the same as or similar to those provided to New Century by
Supplier pursuant to this Agreement.




	 	(c)	 	No Implied Licenses. Except as expressly specified in this Agreement,
nothing in this Agreement shall be deemed to grant to one Party, by implication,
estoppel or otherwise, license rights, ownership rights or any other intellectual
property rights in any Materials owned by the other Party or any Affiliate of the
other Party (or, in the case of Supplier, any Eligible Recipient).






	 	(d)	 	Incorporated Materials. Should either Party incorporate into Developed
Materials any intellectual property subject to third party patent, copyright or
license rights, any ownership or license rights granted herein with respect to such
Materials shall be limited by and subject to any such patents, copyrights or license
rights; provided that, prior to incorporating any such intellectual property in any
Materials, the Party incorporating such intellectual property in the Materials has
disclosed this fact and obtained the prior approval of the other Party.






	 	14.6	 	New Century Rights Upon Expiration or Termination of Agreement.






As part of the Termination Assistance Services, Supplier shall provide the following to New
Century, New Century Affiliates and the Eligible Recipients with respect to Materials and
Software:




	 	(a)	 	New Century Owned Materials and Developed Materials. With respect to New
Century Owned Materials, Supplier shall, at no cost to New Century:






	 	(i)	 	deliver to New Century all New Century Owned Materials
and all copies thereof in the format and medium in use by Supplier in
connection with the Services as of the date of such expiration or
termination; and






	 	(ii)	 	following confirmation by New Century that the copies
of the New Century Owned Materials delivered by Supplier are acceptable and
the completion by Supplier of any Termination Assistance Services for which
such Materials are required, destroy or securely erase all other copies of
such Materials then in Supplier’s possession and cease using such Materials
and any information contained therein for any purpose.






	 	(b)	 	Supplier Owned Materials. With respect to Materials owned by Supplier,
Supplier Affiliates or (subject to Section 6.4(c)) Subcontractors and used by
them to provide the Services:






	 	(i)	 	Unless New Century has otherwise agreed in advance,
Supplier hereby grants to New Century and the Eligible Recipients (or, at
New Century’s election, to their designee(s)) a worldwide, perpetual,
non-exclusive, non-transferable, irrevocable, fully paid-up license to use,
execute, reproduce, display, perform, distribute internally, modify,
enhance and create Derivative Works and to permit a third party to use,
execute, reproduce, display, perform, distribute internally, modify,
enhance and create Derivative Works of such Supplier Owned Materials
(excluding those identified in Exhibit 18) solely for the internal
benefit or use of New Century, New Century Affiliates and the Eligible
Recipients in the performance of human resources, payroll, recruiting,
procurement or accounts payable services, as applicable, upon the
expiration or termination of the Term (provided that, to the extent a third
party uses such Supplier Owned Materials pursuant to this provision, such
third party shall sign a written agreement to be bound by terms comparable
to the terms contained herein applicable to such Materials (such agreement
shall be agreed to by the Parties and shall include the terms specified in
this Section as well as those pertaining to the ownership of such Materials
and any Derivative Works developed by the Parties, the scope and term of
the license, the restrictions on the use of such Materials, and the
obligations of confidentiality, etc.);






	 	(ii)	 	Supplier shall deliver to New Century and the Eligible
Recipients (or, at New Century’s election, to their designee(s)) (A) a copy
of Supplier Owned Materials and related documentation to which New Century
is entitled to use under Section 14.6(b)(i), and (B) the source
code and object code for such Supplier Owned Materials to the extent such
code is reasonably necessary to permit them to use such Supplier Owned
Materials solely as contemplated in Section 14.6.(b)(i) and






	 	(iii)	 	At New Century’s request, Supplier may, but is not
required to, provide to New Century (or, at New Century’s election, to the
Eligible Recipients or to their designee(s)), Upgrades, maintenance,
support and other services for some or all such Supplier Owned Materials.
If Supplier opts to do so, it shall provide such Upgrades, maintenance,
support and other services on Supplier’s then-current standard terms and
conditions for such services. If Supplier declines to do so, Supplier
shall provide to New Century and the Eligible Recipients (or, at New
Century’s election, to their designee(s)) the source code and object code
for such Supplier Owned Materials, excluding those identified in
Exhibit 18.






Unless New Century has otherwise agreed in advance, New Century and the Eligible
Recipients (and, to the extent applicable, New Century’s designee(s)) shall not be
obligated to pay any license or transfer fees in connection with its receipt of the
licenses and other rights above. Supplier shall not use any Supplier Owned
Materials for which it is unable to offer such license or other rights without New
Century’s prior written approval (and absent such approval, Supplier’s use of any
such Supplier Owned Materials shall obligate Supplier to provide, at no additional
cost, such license and other rights to New Century, New Century Affiliates, the
Eligible Recipients and New Century’s designees). New Century hereby approves the
use of the Supplier Owned Materials identified in Exhibit 18,
notwithstanding Supplier’s inability to obtain some or all of the rights described
in this Section 14.6(b) with respect to such Supplier Owned Materials.




Notwithstanding the foregoing, if New Century is terminated for cause for failing
to pay undisputed amounts, New Century’s right to continue using such Supplier
Owned Materials following the expiration or termination of the Term and the
Termination Assistance Services period shall be suspended to and until such
undisputed amounts are paid.




	 	(c)	 	Third Party Materials. Unless New Century has otherwise agreed in advance
in accordance with Section 6.4(c), with respect to Third Party Materials
licensed by Supplier or Supplier Affiliates or Subcontractors and used by them to
provide the Services (excluding Third Party Materials identified in Exhibit
18), Supplier hereby grants to New Century and the Eligible Recipients (or, at
New Century’s election, to their designee(s)) a sublicense (with the right to grant
sublicenses) offering the same rights and warranties with respect to such Third Party
Materials available to Supplier (or Supplier Affiliates or Subcontractors), on the
same terms and conditions, for the benefit and use of New Century, New Century
Affiliates and the Eligible Recipients upon the expiration or termination of the
Term; provided that, during the Termination Assistance Services period, Supplier may,
with New Century’s approval, substitute one of the following for such sublicense:






	 	(i)	 	the assignment to New Century and the Eligible
Recipients (or, at New Century’s election, to their designee(s))of the
underlying license for such Third Party Materials;






	 	(ii)	 	the procurement for New Century and the Eligible
Recipients (or, at New Century’s election, to their designee(s)) of a new
license to such Third Party Materials solely for the internal benefit or
use of New Century, New Century Affiliates and the Eligible Recipients
(with terms at least as favorable as those in the license held by Supplier
or its Affiliates, and with the right to grant sublicenses, unless in each
case New Century has otherwise agreed in advance in accordance with
Section 6.4(c)); or






	 	(iii)	 	the procurement for New Century and the Eligible
Recipients (or, at New Century’s election, to their designee(s)) of a
substitute license for such Third Party Materials sufficient to perform,
without additional cost, support or resources and at the levels of
performance and efficiency required by this Agreement, the functions of
such Third Party Materials necessary to enable New Century or its designee
to provide the Services after the expiration or termination of the Term.






In addition, Supplier shall deliver to New Century and the Eligible Recipients (or,
at New Century’s election, to their designee(s)) a copy of such Third Party
Materials (including source code, to the extent it has been available to Supplier)
and related documentation and shall cause maintenance, support and other services
to continue to be available to New Century and the Eligible Recipients (or, at New
Century’s election, to their designee(s)) to the extent it has been available to
Supplier. Unless New Century has otherwise agreed in advance in accordance with
Section 6.4(c), New Century and the Eligible Recipients shall not be
obligated to pay any license or transfer fees in connection with its receipt of the
licenses, sublicenses and other rights specified in this Section 14.6(c).
Supplier shall not use any Third Party Materials for which it is unable to offer
such license, sublicense or other rights without New Century’s prior approval (and
absent such approval, Supplier’s use of any such Third Party Materials shall
obligate Supplier to provide, at no additional cost, such licenses, sublicenses and
other rights). New Century, however, shall be obligated to make monthly or annual
payments attributable to periods after the expiration or termination of the Term
with respect to the Services for which such Third Party Materials were used for the
right to use and receive maintenance or support related thereto, but only to the
extent Supplier would have been obligated to make such payments if it had continued
to hold the licenses in question or New Century has agreed in advance to make such
payments. New Century hereby approves the use of the Third Party Materials
identified in Exhibit 18, notwithstanding Supplier’s inability to obtain
some or all of the rights described in this Section 14.6(c) with respect to
such Third Party Materials.




To the extent New Century has agreed in advance to pay any fees in connection with
its receipt of such licenses, sublicenses or other rights, Supplier shall, at New
Century’s request, identify the licensing and sublicensing options available to New
Century and the Eligible Recipients and the license or transfer fees associated
with each. Supplier shall use commercially reasonable efforts to obtain the most
favorable options and the lowest possible transfer, license, relicense, assignment
or termination fees for Third Party Materials. Supplier shall not commit New
Century or the Eligible Recipients to paying any such fees or expenses without New
Century’s prior approval. If the licensor is willing to offer more than one form
of license to New Century, New Century (not Supplier) shall select the form of
license to be received by New Century, the Eligible Recipients or their
designee(s).




To the extent a third party receives a license or sublicense to use such Third
Party Materials pursuant to this provision, such third party shall sign a written
agreement to be bound by terms comparable to the terms contained herein applicable
to such Materials (such agreement shall be agreed to by the Parties and shall
include the terms specified in this Section as well as those pertaining to the
ownership of such Materials and any Derivative Works developed by the Parties, the
scope and term of the license, the restrictions on the use of such Materials, and
the obligations of confidentiality, etc.




	15.	 	REPRESENTATIONS, WARRANTIES AND COVENANTS






	 	15.1	 	Work Standards.






Supplier represents, warrants and covenants that (i) the Services shall be rendered with
promptness, due care, skill and diligence; and (ii) the Services shall be executed in a
workmanlike manner, in accordance with the Agreement and the accepted practices of top tier
providers of human resources, payroll, procurement, accounts payable and other in-scope
business process outsourcing services; (iii) Supplier shall use adequate numbers of
qualified individuals with suitable training, education, experience, know-how, competence
and skill to perform the Services; (iv) Supplier shall provide such individuals with
training as to new products and services prior to the implementation of such products and
services in the New Century/Eligible Recipients environment; and (v) Supplier shall have the
resources, capacity, expertise and ability in terms of Equipment, Software, know-how and
personnel to provide the Services.



	 	 	 
	15.2

15.3

15.4

	 	Reserved.

Reserved.

Software.







	 	(a)	 	Ownership and Use. Supplier represents, warrants and covenants that it is
either the owner of, or authorized to use, any and all Supplier-provided Software
used by Supplier in providing the Services. New Century’s sole and exclusive
remedies for breach of this representation and warranty are set forth in Sections
17.1(c), 17.1 (e) and 17.4 (provided, however, that, except as
provided in Section 17.4(e), this shall not operate or be construed as
relieving Supplier of its performance obligations under this Agreement, including its
obligation to provide the Services in accordance with the applicable Service Levels).






	 	(b)	 	Performance. Supplier represents, warrants and covenants that any Supplier
Owned Software will perform in Compliance with its Specifications and will provide
the functions and features and operate in the manner described therein so as not to
adversely impact in any material respect Supplier’s delivery or New Century’s and the
Eligible Recipient’s receipt of the Services. In the event any Supplier Owned
Software (excluding Supplier Owned Developed Materials, which are addressed in
Section 15.4(c)) fails to perform in accordance with the preceding sentence,
Supplier shall expeditiously repair such Software or replace such Software with
conforming Software. The repair or replacement of such Software shall be New
Century’s sole and exclusive remedy for any breach of such warranty (provided,
however, that this shall not operate or be construed as relieving Supplier of its
performance obligations under this Agreement, including its obligation to provide the
Services in accordance with the applicable Service Levels).






	 	(c)	 	Developed Materials Compliance Warranty. Supplier warrants and covenants
that New Century Owned Developed Materials, New Century-Specific Developed Materials
and Supplier Owned Developed Materials (excluding Developed Materials created and
owned by Supplier Subcontractors or other third parties from whom Supplier procures
Developed Materials) will be free from material errors in operation and performance,
will Comply with the applicable documentation and Specifications and will provide the
functions and features and operate in the manner described in Exhibits 2 or
20 or otherwise agreed by the Parties for one hundred eighty (180) days (the
“Warranty Period”). New Century shall notify Supplier of any defects in such
Supplier-warranted Developed Material that cause it not to Comply with the applicable
documentation or Specifications during the Warranty Period, and shall provide
Supplier with adequate information to identify the circumstances in which such
defects were discovered. New Century’s sole and exclusive remedy for any breach of
such warranty shall be the correction by Supplier of any defects in such warranted
item that cause it not to not to Comply with the applicable documentation or
Specifications (provided, however, that this shall not operate or be construed as
relieving Supplier of its performance obligations under this Agreement, including its
obligation to provide the Services in accordance with the applicable Service Levels).
During such Warranty Period, Supplier shall correct any failure to Comply at no
Charge to New Century and shall use commercially reasonable efforts to do so as
expeditiously as possible. New Century will provide to Supplier access, in a timely
manner, to any technical support, facilities, hardware, software or information in
New Century’s possession necessary for Supplier to complete such work.






	 	(d)	 	Warranty Exclusions. Notwithstanding the foregoing, the warranties
described in Sections 15.4(b) and (c) will not apply to the extent Supplier
Owned Software or a Supplier-warranted Developed Material fails to perform in
accordance with such warranty as a result of a defect arising from (i) a
modifications made by New Century or its contractors or subcontractors, without the
knowledge or approval of Supplier, (ii) the malfunction of any New Century-supplied
software or equipment, (iii) New Century operation of the Supplier-warranted item
other than in accordance with the applicable documentation or design, or on hardware
not recommended, supplied or approved by Supplier or in the applicable
Specifications, or (iv) the occurrence of a force majeure event as and to the extent
provided in Section 18.2. In any such event, the warranty described herein
with respect to the portion of the Supplier-warranted item so affected will be
ineffective as to such defect, and the Parties will seek to establish mutually agreed
alternative arrangements thereto through the Change Control Procedures.






	 	(e)	 	Excluded Developed Materials. With respect to Developed Materials excluded
from the warranty described in Section 15.4(c), Supplier shall pass through
or assign to New Century the rights Supplier obtains from the manufacturers and/or
vendors of such products and services (including warranty and indemnification
rights), all to the extent that such rights are assignable (provided, however, that
this shall not operate or be construed as relieving Supplier of its performance
obligations under this Agreement, including its obligation to provide the Services in
accordance with the applicable Service Levels).






	 	15.5	 	Reserved.






	 	15.6	 	Authorization.






Each Party represents, warrants and covenants to the other that:




	 	(a)	 	Corporate/Partnership Existence. It is a corporation (or in the case of
Supplier, a limited liability partnership) duly incorporated (or in the case of
Supplier, organized), validly existing and in good standing under the Laws of its
State of incorporation or organization;






	 	(b)	 	Corporate Power and Authority. It has the requisite corporate (or in the
case of Supplier, partnership) power and authority to execute, deliver and perform
its obligations under this Agreement;






	 	(c)	 	Legal Authority. It has obtained all licenses, authorizations, approvals,
consents or permits required to perform its obligations under this Agreement under
all applicable federal, state or local laws and under all applicable rules and
regulations of all authorities having jurisdiction over the Services, except to the
extent the failure to obtain any such license, authorizations, approvals, consents or
permits is, in the aggregate, immaterial;






	 	(d)	 	Due Authorization. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this Agreement
have been duly authorized by the requisite corporate (or in the case of Supplier,
partnership) action on the part of such Party; and






	 	(e)	 	No Violation or Conflict. The execution, delivery, and performance of this
Agreement shall not constitute a violation of any judgment, order, or decree; a
material default under any material contract by which it or any of its material
assets are bound; or an event that would, with notice or lapse of time, or both,
constitute such a default or give rise to any right of termination or acceleration.






	 	15.7	 	Inducements; New Century Code of Business Conduct and Ethics.






	 	(a)	 	Inducements. Supplier represents, warrants and covenants that it has not
given and will not give commissions, payments, kickbacks, lavish or extensive
entertainment, or other inducements of more than minimal value (as defined in the New
Century Code of Business Conduct and Ethics) to any employee or agent of New Century
in connection with this Agreement. New Century represents, warrants and covenants
that, to the best of its knowledge and belief, it (and its employees and agents) have
not accepted and will not accept or request commissions, payments, kickbacks, lavish
or extensive entertainment, or other inducements of more than minimal value from
Supplier in connection with this Agreement. Supplier also represents, warrants and
covenants that, to the best of its knowledge, no officer, director, employee, agent
or representative of Supplier has given any such payments, gifts, entertainment or
other thing of value to any employee or agent of New Century. New Century also
represents, warrants and covenants that, to the best of its knowledge and belief, no
officer, director, employee, agent or representative of New Century has requested or
accepted any such payments, gifts, entertainment or other thing of value from
Supplier. Supplier also acknowledges that the giving of any such payments, gifts,
entertainment, or other thing of value is strictly in violation of New Century policy
on conflicts of interest, and may result in a material breach of this Agreement.






	 	(b)	 	New Century Code of Business Conduct and Ethics. Supplier represents,
warrants and covenants that, in the performance of the Services and its other
contractual obligations hereunder, it shall comply with the New Century Code of
Business Conduct and Ethics, as set forth in Attachment 2-A, as such Code of
Business Conduct and Ethics may be reasonably modified from time to time. To the
extent modifications to the New Century Code of Business Conduct and Ethics impact
the performance of the Services, such modifications shall be implemented through the
Change Control Procedures.






	 	15.8	 	Malicious Code.






Each Party shall cooperate with the other Party and shall take commercially reasonable
actions and precautions consistent with Exhibit 2 to prevent the introduction and
proliferation of Malicious Code into Supplier’s, New Century’s or an Eligible Recipient’s
environment or any System used by Supplier to provide the Services and to notify the other
Party expeditiously of any Malicious Code in any such environment or System of which it
becomes aware. Without limiting Supplier’s other obligations under this Agreement, in the
event Malicious Code is found in Equipment, Software or Systems managed or supported by
Supplier and used by Supplier to provide the Services, Supplier shall, at no additional
charge to New Century, eliminate and reduce the effects of such Malicious Code on such
Equipment, Software or Systems and, if the Malicious Code causes a loss of operational
efficiency or loss of data in or to Equipment, Software or Systems, mitigate such losses and
restore such data with generally accepted data restoration techniques.




	 	15.9	 	Disabling Code.






Supplier shall not, without the prior written consent of New Century, knowingly insert into
the Software any code designed to disable or otherwise shut down all or any portion of the
Software, Equipment and/or Systems. With respect to any disabling code that may be part of
the Software, Supplier shall not invoke or cause to be invoked such disabling code at any
time, including upon expiration or termination of this Agreement to the extent New Century
is entitled to continue using such Software, without New Century’s prior written consent.
Supplier also shall not knowingly use Third Party Software containing disabling code without
the prior approval of New Century. For purposes of this provision, code that serves the
function of ensuring software license compliance (including passwords) shall not be deemed
disabling code.




	 	15.10	 	Compliance with Laws.






	 	(a)	 	Compliance by Supplier. Subject to Section 15.10(b), (e), (f), (g)
and (h), Supplier represents, warrants and covenants that, with respect to
the provision of the Services and the performance of any of its other legal and
contractual obligations hereunder, it is and shall be in compliance in all material
respects with all Laws applicable to the provision of the Services and the
performance of any of its other legal and contractual obligations hereunder on the
Commencement Date and shall remain in compliance with such Laws for the Term and any
Termination Assistance Services period, including identifying and procuring
applicable permits, certificates, approvals and inspections required under such Laws.
If a charge of non-compliance by Supplier with any such Laws occurs, Supplier shall
promptly notify New Century of such charge.






	 	(b)	 	Compliance by New Century. Subject to Section 15.10(a), (e), (f)
and (g), New Century represents, warrants and covenants that, with respect to
the performance by New Century and the Eligible Recipients of New Century’s legal and
contractual obligations under this Agreement, it is and shall be in compliance in all
material respects with all Laws applicable to the performance by New Century and the
Eligible Recipients of New Century’s legal and contractual obligations under this
Agreement for the entire Term of the Agreement and any Termination Assistance
Services period. If a written charge of non-compliance by New Century with any such
Laws occurs, New Century shall promptly notify Supplier of such charge.






	 	(c)	 	Compliance Data and Reports. At no additional charge, Supplier shall
provide New Century with data and reports in Supplier’s possession reasonably
requested by New Century and/or required by the Agreement to enable New Century to
comply with all applicable Laws. At no charge to Supplier, New Century shall provide
Supplier with data and reports in New Century’s possession reasonably requested by
Supplier to enable Supplier to comply with Supplier Laws.






	 	(d)	 	Notice of Laws. Supplier shall notify New Century of any Supplier Laws and
changes in Supplier Laws that may impact Supplier’s delivery or New Century’s receipt
of Services. New Century shall notify Supplier of any New Century Laws and any
changes in New Century Laws that may impact Supplier’s delivery or New Century’s
receipt of Services. Each Party’s program management team (including, in the case of
Supplier, its service delivery managers) shall use commercially reasonable efforts to
notify the other of Laws and changes in Laws about which they become aware in the
other Party’s area of responsibility, but without assuming an affirmative obligation
of inquiry and without relieving the other Party of its obligations hereunder. At
New Century’s request, Supplier Personnel shall participate in New Century provided
compliance training programs.






	 	(e)	 	Currency. In addition to its obligation under Section 15.10(d)
with respect to Supplier Laws, Supplier shall maintain general familiarity with New
Century Laws to the extent such Laws are applicable to Supplier’s performance of the
Services or its other obligations under this Agreement, including:






	 	•	 	Sarbanes-Oxley Act of 2002 and implementing regulations
promulgated by the United Securities and Exchange Commission and Public
Accounting Oversight Board;






	 	•	 	Federal privacy legislation, including Gramm-Leach-Bliley
Act, and ongoing federal agency privacy reforms;






	 	•	 	State privacy legislation, California Financial Information
Privacy Act, California On-Line Privacy Protection Act, “Shine the Light Law”,
and California Safeguard Law AB1950);






	 	•	 	Fair Credit Reporting Act;






	 	•	 	Home Mortgage Disclosure Act (HMDA);






	 	•	 	Office of Federal Contract Compliance Program (OFCCP); and






	 	•	 	Real Estate Settlement Procedures Act (RESPA).






	 	(f)	 	Interpretation of Laws or Changes in Laws. New Century shall be responsible
for interpreting New Century Laws or changes in New Century Laws and, with Supplier’s
cooperation and assistance, for identifying the impact of such New Century Laws or
changes in New Century Laws on Supplier’s performance and New Century’s and/or the
Eligible Recipients’ receipt and use of the Services. Supplier shall be responsible
for interpreting Supplier Laws or changes in Supplier Laws and, with New Century’s
cooperation and assistance, for identifying the impact of such Supplier Laws or
changes in Supplier Laws on Supplier’s performance and New Century’s and/or the
Eligible Recipients’ receipt and use of the Services. To the extent the impact of
any Supplier Law or change in Supplier Law cannot be readily identified by Supplier,
the Parties shall cooperate in good faith to identify and agree upon the impact on
Supplier’s performance and New Century’s and/or the Eligible Recipients’ receipt and
use of the Services. In addition, in the case of Privacy Laws and Laws applicable to
Payroll Services, if the Parties are unable to agree upon such impact, New Century
shall retain the right, in its sole discretion, to interpret such Supplier Law or
change in Supplier Law and determine its impact. In addition, if Supplier reasonably
concludes, after due inquiry, that the compliance obligations associated with any
Supplier Law or change in Supplier Law are unclear or that there is more than one
reasonable approach to achieving compliance, Supplier may escalate the issue to New
Century for a final decision.






	 	(g)	 	Implementation of Changes in Laws. In the event of any changes in Laws
(including New Century Laws to the extent Supplier receives notice of such New
Century Laws from New Century or as otherwise provided in Section 15.10(d)
and (e)), Supplier shall implement any necessary modifications to the
Services prior to the deadline imposed by the regulatory or governmental body having
jurisdiction for such requirement or change. Changes necessitated by a change in
Supplier Laws (excluding Payroll Laws, as well as Privacy Laws applicable to the
provision of Services because of the presence of New Century or Eligible Recipient
employees in the relevant jurisdiction and not because of the presence in such
jurisdiction of Supplier Personnel or a Supplier Facility from which the impacted
Services are provided) shall be implemented by Supplier at no additional Charge to
New Century. The implementation of changes necessitated by a change in New Century
Laws, Payroll Laws or Privacy Laws applicable to the provision of Services because of
the presence of New Century or Eligible Recipient employees in the jurisdiction in
question shall be treated as a Project in accordance with Section 4.5 of this
Agreement and Section 10 of Exhibit 4; provided that, to the extent the
benefits of such a Project are to be made available to Supplier and/or one or more
other Supplier customers, the Charges and/or number of FTE hours associated with such
Project shall be allocated on a pro rata basis to New Century, Supplier and/or such
other Supplier customer(s). At New Century’s request, Supplier Personnel shall
participate in New Century provided regulatory compliance training programs.






	 	(h)	 	Termination. In the event that any change in Laws (excluding Laws
governing Service Taxes, which are covered in Section 11.4(e)) results in an
increase of ten percent (10%) or more in the estimated average monthly Charges in any
Functional Service Area or otherwise has a material adverse impact on the quality of
Supplier’s performance of the Services and New Century would not have incurred such
additional cost or impact if it had not outsourced the Services in question to
Supplier, then New Century may, at its option, terminate the Agreement or the
impacted Functional Service Area(s) by giving Supplier at least ninety (90) days
prior notice and designating a date upon which such termination shall be effective.
If New Century elects to terminate on this basis, New Century shall pay the Reduced
Termination Charge specified in Attachment 4-E, and to the extent that New
Century requires Supplier to continue performance of the Services (as an extension or
continuation of the Services under Section 3.2 or 4.3), New Century
shall pay Supplier the increased monthly Charges for such extension or continuation
period.






	 	15.11	 	Interoperability.






Interoperability. Supplier covenants that, subject to Section 9.6, the Software,
Equipment and Systems provided by Supplier and used to provide the Services will be
interoperable with the software, equipment and systems used by New Century or the Eligible
Recipients to provide the same or similar services and/or which may deliver records to,
receive records from, or otherwise interact with the Software, Equipment and Systems to
receive the Services as and to the extent provided in the applicable Specifications.




	 	15.12	 	Disclaimer.






EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
REPRESENTATIONS, CONDITIONS OR WARRANTIES TO THE OTHER PARTY, WHETHER EXPRESS OR IMPLIED,
INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, AND
FITNESS FOR A PARTICULAR PURPOSE,




SUBJECT TO AND WITHOUT LIMITING SUPPLIER’S OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING
SERVICE LEVELS, SUPPLIER DOES NOT REPRESENT OR WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION
OF ANY SOFTWARE.




	16.	 	INSURANCE AND RISK OF LOSS






	 	16.1	 	Insurance.






	 	(a)	 	Requirements. To the extent such coverage is commercially available on
reasonable terms, Supplier agrees to keep in full force and effect and maintain at
its sole cost and expense the following policies of insurance with the specified
limits of liability during the term of this Agreement:






	 	(i)	 	Workers’ Compensation and Employer’s Liability
Insurance in full compliance with the applicable Laws of the state and/or
country in which the work is to be performed or the country of hire
(whichever is applicable).






	 	•	 	The limits of liability of Workers’ Compensation Insurance shall
be statutory or if outside of the United States, not less than the
limits required by applicable Law.






	 	•	 	In the United States, the limits of liability of Employer’s
Liability Insurance with minimum limits of $1,000,000 per employee
per accident and $1,000,000 per employee per occurrence by disease.






	 	(ii)	 	Commercial General Liability Insurance (including
coverage for Contractual Liability, Premises-Operations, Completed
Operations—Products, and Independent Contractors), providing coverage for
bodily injury (including death), personal injury, defamation and property
damage with limits of not less than $5,000,000 per occurrence and
$10,000,000 in the aggregate.






	 	(iii)	 	Commercial Business Automobile Liability Insurance,
including coverage for all owned, non-owned, leased, and hired vehicles,
providing coverage for bodily injury and property damage liability, with
combined single limits of not less than $5,000,000 per occurrence and
$10,000,000 in the aggregate.






	 	(iv)	 	Professional Liability (also known as Errors and
Omissions Liability) Insurance covering acts, errors and omissions of
Supplier or Supplier Personnel arising out of Supplier’s performance of the
Services in the amount of $20,000,000 per claim and in the aggregate.






	 	(v)	 	Commercial Crime Insurance in the amount of $20,000,000
per loss and in the aggregate.






	 	(vi)	 	All Risks Property Insurance that insures loss or
damage to Supplier’s owned or leased Equipment and Supplier’s other
property, including loss or damage due to fire, flood, wind, earthquake or
sprinkler leakage, in an amount not less than the full replacement cost of
such Equipment and property.






	 	(b)	 	Approved Companies. To the extent such coverage is commercially available
on reasonable terms insurance shall be procured with insurance companies that
maintain a rating of at least “A-” and are at least a Financial Size Category VII, as
both criteria are defined in the most current publication of Best’s Policyholder
Guide.






	 	(c)	 	Endorsements.






Supplier shall maintain the following endorsements to its policy or policies of
insurance as are necessary to cause the policy or policies to comply with the
requirements stated herein.




	 	(i)	 	Supplier’s insurance policies as required herein under
Sections 16.1(a)(ii) and (iii) shall name New Century and
New Century Affiliates and their respective officers, directors, employees,
agents, subsidiaries, and successors, as Additional Insureds for claims of
personal injury, bodily injury, death and property damage for which
Supplier would be liable under this Agreement. If these policies do not
contain a standard Insurance Services Office separation of insureds
provision, they shall be endorsed to provide cross-liability coverage.
These policies shall have no cross suits exclusion, or any similar
exclusion that excludes coverage for claims brought by one insured under
the policy against another insured under the policy.






	 	(ii)	 	The Supplier insurance policies required under
Section 16.1(a)(v) shall name New Century and New Century
Affiliates as loss payees for any and all liability arising at any time in
connection with the performance of Supplier or employees of Supplier or
Supplier Affiliates under this Agreement.






	 	(iii)	 	Supplier shall provide written notice of cancellation
to New Century within ten (10) business days of the effective date of any
such cancellation. Should any policy expire or be canceled during the Term
and should Supplier thereafter fail to immediately procure replacement
insurance, if it is commercially available on reasonable terms, then such
failure to obtain such replacement insurance, if it is commercially
available on reasonable terms, shall be deemed to be a material breach.






	 	(iv)	 	To the extent pertaining to Supplier’s indemnity or
other obligations under this Agreement, the insurance required under this
Section 16.1 shall be primary insurance and any other valid
insurance existing for New Century’s benefit shall be excess of such
primary insurance. New Century’s insurance shall be not be primary and not
be contributory or counted with Supplier’s insurance.






	 	(d)	 	Minimum Amounts. These insurance provisions are not to be construed in any
way as a limitation on or expansion of Supplier’s liability under this Agreement.
Any and all deductibles in the above-referenced insurance policies shall be assumed
by, for the account of, and at the sole risk of the Supplier.






	 	(e)	 	Certificates. Supplier shall provide New Century with certificates of
insurance evidencing compliance with this Article 16 (including evidence of
renewal of insurance) signed by Supplier’s insurance broker or by authorized
representatives of the respective carriers for each year that this Agreement is in
effect:






New Century Financial Corporation


18400 Von Karman Suite 1000


Irvine, CA 92612


Attention: General Counsel




	 	(f)	 	No Implied Limitation. The obligation of Supplier and its Affiliates to
provide the insurance specified herein shall not limit or expand in any way any
obligation or liability of Supplier provided elsewhere in this Agreement.






	 	(g)	 	Waiver of Subrogation. With respect to insurance coverage to be provided
by Supplier pursuant to Section 16.1(a)(i), the insurance policies shall
provide that the insurance companies waive all rights of subrogation against
Supplier, New Century, the Eligible Recipients and their respective Affiliates,
officers, directors and employees. Supplier waives its rights to recover against New
Century, New Century Affiliates and Eligible Recipients and their respective
officers, directors, employees, subsidiaries, successors and agents in subrogation or
as subrogee for another party.






	 	16.2	 	Risk of Loss.






	 	(h)	 	General. Except as provided in Section 17.3, Supplier and New
Century each shall be responsible for any damage, destruction, loss, theft or
governmental taking of their respective tangible property or real property (whether
owned or leased) and each Party agrees to look only to its own insuring arrangements
(if any) with respect to such damage, destruction, loss, theft, or governmental
taking. Each Party shall promptly notify the other Party of any damage (except
normal wear and tear), destruction, loss, theft, or governmental taking of such other
Party’s tangible property or real property (whether owned or leased).






	 	(i)	 	Waiver of Subrogation. Supplier and New Century will cause their
respective insurers to issue appropriate waivers of subrogation rights endorsements
to all property insurance policies maintained by each Party.






	17.	 	INDEMNITIES






	 	17.1	 	Indemnity by Supplier.






Supplier agrees to indemnify, defend and hold harmless New Century and its Affiliates and
their respective officers, directors, employees, agents, representatives, successors, and
assigns from any and all Losses and threatened Losses due to non-Party claims arising from
or in connection with any of the following:




	 	(a)	 	Representations, Warranties and Covenants. Supplier’s breach of any of the
representations, warranties and covenants set forth in Section 15.6, 15.7(a) or
15.9 (limited, in the case of Section 15.9, to wrongfully invoking
disabling code without approval in breach of that provision).






	 	(b)	 	Reserved.






	 	(c)	 	Licenses, Leases and Contracts. Supplier’s failure to observe or perform
duties or obligations, if any, to be observed or performed on or after the
Commencement Date by Supplier under Third Party Software licenses, Equipment leases
or Third Party Contracts used by Supplier to provide the Services, in each case to
the extent (i) such agreement is between Supplier or a Supplier Subcontractor or
Affiliate and a third party or (ii) Supplier has assumed or retained administrative,
financial or operational responsibility (as applicable) for such agreement pursuant
to this Agreement (but only to the extent Supplier has received a copy of such
agreement or has otherwise been notified of such duties or obligations).






	 	(d)	 	New Century Owned Materials. Supplier’s failure to observe or perform any
duties or obligations to be observed or performed under the licensing terms of this
Agreement in connection with the use of New Century Owned Materials by Supplier or
its Subcontractors or Affiliates after the termination or expiration of the Agreement
and the completion of Termination Assistance Services.






	 	(e)	 	Infringement. Subject to Section 17.4, infringement or
misappropriation or alleged infringement or alleged misappropriation of a patent,
trade secret, copyright or other proprietary rights (but only with respect to patent
rights in the countries where the infringing Service is being provided or infringing
item is being used). For purposes of this provision, patents shall not include
patents that are not issued on or before the expiration or termination of this
Agreement or, if later, the completion of Termination Assistance Services unless and
to the extent Supplier continues to provide maintenance and support with respect to
the items in question.






	 	(f)	 	Compliance with Laws. Losses, including government fines, penalties,
monetary sanctions, interest or other remedies resulting from Supplier’s failure to
perform its responsibilities under Section 15.10 (excluding Supplier’s
responsibility to use commercially reasonable efforts to notify New Century of New
Century Laws or changes in New Century Laws).






	 	(g)	 	Taxes. Taxes, together with interest and penalties, that are the
responsibility of Supplier under Section 11.4.






	 	(h)	 	Claims Arising in Shared Facility Services. Any claim for damage,
interruption, delay or loss of service (not constituting Services provided pursuant
to this Agreement) by a third party receiving services from a shared Supplier
facility or using shared Supplier resources.






	 	(i)	 	Affiliate, Subcontractor or Assignee Claims. Any claim, other than an
indemnification claim by a Supplier Affiliate under this Agreement, initiated by (i)
a Supplier Affiliate or Subcontractor asserting rights under this Agreement or (ii)
any entity to which Supplier assigned, transferred, pledged, hypothecated or
otherwise encumbered its rights to receive payments from New Century under this
Agreement to the extent such Entity is asserting rights under this Agreement.






	 	(j)	 	Supplier Personnel Injury Claims. Any claim by Supplier Personnel for
death or bodily injury suffered at a New Century Facility, except to the extent
caused by New Century’s gross negligence or willful misconduct.






	 	(k)	 	Other Supplier Personnel Claims. Any claim by Supplier Personnel asserting
rights under this Agreement, except to the extent such claim results from the
wrongful or tortious acts of New Century or an Eligible Recipient or the failure of
New Century or an Eligible Recipient to comply with New Century’s obligations under
this Agreement.






	 	(l)	 	Employment Claims. Any claim resulting from any: (i) violation by
Supplier, Supplier Personnel, Supplier Affiliates or Subcontractors, or their
respective officers, directors, employees, representatives or agents, of any
applicable employment-related Laws or any common law protecting persons or members of
protected classes or categories, including Laws prohibiting discrimination or
harassment on the basis of a protected characteristic; (ii) liability resulting from
any failure by Supplier, Supplier Affiliates or Subcontractors to collect and
withhold any social security or other employment taxes, workers’ compensation claims
and premium payments, and contributions applicable to the wages and salaries of such
Supplier Personnel; (iii) payment or failure to pay by Supplier, Supplier Affiliates
or Subcontractors any salary, wages or other cash compensation legally or
contractually due and owing to any Supplier Personnel, (iv) employee pension or other
benefits of any Supplier Personnel, (v) other aspects of the employment relationship
of Supplier Personnel with Supplier, Supplier Affiliates or Subcontractors or the
termination of such relationship, including claims for wrongful discharge, claims for
breach of express or implied employment contract and claims of joint employment
(unless and to the extent such claims of joint employment are based in material part
on acts of New Century or the Eligible Recipients inconsistent with New Century’s
rights and obligations under this Agreement and Supplier’s status as an independent
contractor), except, in each case, to the extent resulting from the wrongful actions
of New Century, the Eligible Recipients, or New Century Third Party Contractors,
errors or inaccuracies in the information provided by New Century and faithfully
communicated by Supplier or the failure of New Century, the Eligible Recipients, or
New Century Third Party Contractors to comply with New Century’s responsibilities
under this Agreement.






	 	17.2	 	Indemnity by New Century.






New Century agrees to indemnify, defend and hold harmless Supplier and its Affiliates and
their respective officers, directors, employees, agents, representatives, successors, and
assigns, from any Losses and threatened Losses due to non-Party claims arising any of the
following:




	 	(a)	 	Representations, Warranties and Covenants. New Century breach of any of
the representations, warranties and covenants set forth in Section 15.6 and
15.7(a).






	 	(b)	 	Licenses, Leases and Contracts. New Century’s failure to perform duties or
obligations, if any, under any Third Party Software licenses, Equipment leases or
Third Party Contracts, in each case to the extent (i) such agreement is between New
Century or an Eligible Recipient and a third party (except to the extent the
liability arises out of a failure of Supplier to perform an obligation assumed by
Supplier under this Agreement) or (ii) New Century has assumed or retained
administrative, financial or operational responsibility (as applicable) for such
agreement pursuant to this Agreement (but only to the extent New Century has received
a copy of such agreement or has otherwise been notified of such duties or
obligations).






	 	(c)	 	Post-Termination Agreements. New Century’s failure to perform any
obligations under any third-party license, lease or other agreement assigned by
Supplier and assumed by New Century in connection with the expiration or termination
of this Agreement, provided that this Section 17.2(c) will apply only to the
period from and after the date of such assumption.






	 	(d)	 	Supplier Owned Materials. New Century’s failure to observe or perform any
duties or obligations to be observed or performed under the licensing terms of this
Agreement in connection with the use of Supplier Owned Materials by New Century or
the Eligible Recipients after the termination or expiration of the Agreement and the
completion of Termination Assistance Services except to the extent covered by
Supplier’s indemnities set out in Section 17.1(e).






	 	(e)	 	Infringement. Subject to Section 17.4, infringement or
misappropriation or alleged infringement or alleged misappropriation of a patent,
trade secret, copyright or other proprietary rights (but only with respect to patent
rights in the countries where the infringing item is being used). For purposes of
this provision, patents shall not include patents that are not issued on or before
the expiration or termination of this Agreement or, if later, the completion of
Termination Assistance Services






	 	(f)	 	Taxes. Taxes, together with interest and penalties, that are the
responsibility of New Century under Section 11.4.






	 	(g)	 	New Century Affiliate, Eligible Recipient or Third Party Contractor Claims.
Any claim, other than an indemnification claim or an insurance claim to the extent
permitted under this Agreement, initiated by a New Century Affiliate, an Eligible
Recipient (other than New Century) or a New Century Third Party Contractor asserting
rights under this Agreement.






	 	(h)	 	New Century/Eligible Recipient Employee or Vendor Claims. Any claim by a
New Century or Eligible Recipient employee or New Century or Eligible Recipient third
party vendor (excluding Supplier and its Affiliates and Subcontractors) asserting
rights under this Agreement, except to the extent such claim results from the
wrongful or tortious acts of Supplier or Supplier Personnel or the failure of
Supplier or its Affiliates or Subcontractors to comply with Supplier’s obligations
under this Agreement.






	 	(i)	 	Compliance with Laws. Losses, including government fines, penalties,
monetary sanctions, interest or other remedies resulting from New Century’s failure
to perform its responsibilities under Section 15.10 (excluding New Century’s
responsibility to use commercially reasonable efforts to notify Supplier of Supplier
Laws or changes in Supplier Laws).






	 	(j)	 	New Century Personnel Injury Claims. Any claim by New Century personnel
for death or bodily injury suffered at a Supplier Facility, except to the extent
caused by Supplier’s gross negligence or willful misconduct.






	 	(k)	 	Employment Claims. Any claim resulting from any violation by New Century,
the Eligible Recipients or their Affiliates, or their respective officers, directors,
employees, representatives or agents, of any applicable employment-related Laws or
any common law protecting persons or members of protected classes or categories,
including Laws prohibiting discrimination or harassment on the basis of a protected
characteristic.






	 	17.3	 	Additional Indemnities.






Supplier and New Century each agree to indemnify, defend and hold harmless the other, and
the Eligible Recipients and their respective Affiliates, officers, directors, employees,
agents, representatives, successors, and assigns, from any and all Losses and threatened
Losses to the extent they arise from any of the following: (a) except as otherwise provided
in Section 17.1(j) or 17.2(i), the death or bodily injury of any agent, employee,
customer, business invitee, business visitor or other person caused by the negligence or
other tortious conduct of the indemnitor; and (b) the damage, loss or destruction of any
real or tangible personal property caused by the negligence or other tortious conduct of the
indemnitor.




	 	17.4	 	Infringement.






	 	(a)	 	Non-Infringement Obligation. Each Party shall perform its responsibilities
under this Agreement in a manner that does not infringe, or constitute an
infringement or misappropriation of, any patent, copyright, trademark, trade secret
or other proprietary rights of any third party; provided, however, that the
performing Party shall not have any obligation or liability to the extent any
infringement or misappropriation is caused by (i) modifications made by the other
Party or its contractors or subcontractors, without the knowledge and approval of the
performing Party, (ii) the other Party’s combination of the performing Party’s work
product or Materials with items not furnished, specified or reasonably contemplated
by the performing Party given the intended use of the item, (iii) a breach of this
Agreement by the other Party, (iv) the failure of the other Party to use corrections
or modifications provided by the performing Party offering comparable features and
functionality, or (iv) compliance by the performing Party with detailed,
non-discretionary designs or specifications provided by the other Party that
necessarily caused such infringement or misappropriation claim. Each Party further
represents, warrants and covenants that it will not use or create materials in
connection with the Services which are libelous, defamatory or obscene.






	 	(b)	 	Remedial Action. In the event that (1) any Software, Equipment, Materials
or Services provided by Supplier or its Affiliates or Subcontractors pursuant to this
Agreement or used by them in the performance of the Services are found, or are
reasonably likely to be found, to infringe upon the patent, copyright, trademark,
trade secrets, intellectual property or proprietary rights of any third party in any
country in which Services are to be performed or received under this Agreement, or
(2) the continued use of such Software, Equipment, Materials or Services is enjoined,
Supplier shall, in addition to defending, indemnifying and holding harmless New
Century as provided in Section 17.1(e), promptly and at its own cost and
expense and in such a manner as to minimize the disturbance to New Century’s and the
Eligible Recipients’ business activities do one of the following:






	 	(i)	 	Obtain Rights. Obtain for New Century and the Eligible
Recipients the right to continue using such Software, Equipment or
Materials.






	 	(ii)	 	Modification. Modify the item(s) in question so that
it is no longer infringing (provided that such modification does not
degrade the performance or quality of the Services or adversely affect New
Century’s and the Eligible Recipients’ intended use as contemplated by this
Agreement).






	 	(iii)	 	Replacement. Replace such item(s) with a
non-infringing functional equivalent acceptable to New Century.






	 	(c)	 	Sole and Exclusive Remedy. Section 17.1(e) and Section
17.4(b) constitute New Century’s sole and exclusive remedies and Supplier’s
entire liability with respect to infringement claims (provided, however, that, except
as provided in Section 17.4(d), this shall not operate or be construed as
relieving Supplier of its performance obligations under this Agreement, including its
obligation to provide the Services in accordance with the applicable Service Levels).
Section 17.2(e) constitutes Supplier’s sole and exclusive remedy and New
Century’s entire liability with respect to infringement claims.






	 	(d)	 	Katz Patent Claims. Notwithstanding Section 17.1(e) or 17.2(e),
neither Party shall be obligated to indemnify the other Party with respect to claims
pertaining to patents owned or licensable now or hereafter by Ronald A. Katz or
Ronald A. Katz Technology Licensing, L.P., or by his or its successors or assigns,
and, except as provided in the succeeding sentence, neither Party shall be liable to
the other Party for Losses incurred by such other Party resulting from such claims.
Notwithstanding the foregoing, to the extent any claim by Ronald A. Katz or Ronald A.
Katz Technology Licensing, L.P., or his or its successors or assigns, is based on
Software, Equipment, Materials or Services provided by Supplier or its Affiliates or
Subcontractors or used by them in the performance of the Services, Supplier shall pay
any Losses incurred by New Century and/or the applicable Eligible Recipient(s) in
connection with such claim, including amounts awarded by a court, amounts included in
any settlement, amounts paid for a license to one or more such patents, and related
costs and expenses (including reasonable legal fees and disbursements and costs of
investigation, litigation, experts, settlement, judgment, interest and penalties);
provided that Supplier’s total liability for all such Losses shall not exceed
$250,000.






	 	(e)	 	If obtaining the right to continue using an infringing item or modifying or
replacing such item in accordance with Section 17.4(b) above will have a
material adverse impact on Supplier’s cost of delivering one or more sub-Functional
Service Areas (i.e., will increase Supplier’s total cost of delivering the Services
in a sub-Functional Service Areas by more than five percent (5%)), Supplier shall so
notify New Century and shall set forth in detail the nature and extent of such
increase. The Parties shall negotiate in good faith and diligently seek to agree
upon means of avoiding or minimizing such excess costs. If the Parties are unable to
do so, New Century shall elect to either adjust the Charges for the impacted
sub-Functional Service Area(s) to permit Supplier to recover such excess costs, or
terminate the impacted sub-Functional Service Area(s) for convenience. If Supplier
elects to terminate on this basis, Supplier shall remain obligated to provide all
Termination Assistance Services requested by New Century pursuant to Section
4.3 and shall do so without any adjustment in its Charges for up to nine (9)
months. New Century will not be obligated to pay any Termination Charge in
connection with such termination






	 	17.5	 	Indemnification Procedures.






With respect to non-Party claims which are subject to indemnification under this Agreement
(other than as provided in Section 17.6 with respect to claims covered by
Section 17.1(f)), the following procedures shall apply:




	 	(a)	 	Notice. Promptly after receipt by any entity entitled to indemnification
under this Agreement of notice of the commencement or threatened commencement of any
civil, criminal, administrative, or investigative action or proceeding involving a
claim in respect of which the indemnitee will seek indemnification hereunder, the
indemnitee shall notify the indemnitor of such claim. No delay or failure to so
notify an indemnitor shall relieve it of its obligations under this Agreement except
to the extent that such indemnitor has suffered actual prejudice by such delay or
failure. Within fifteen (15) days following receipt of notice from the indemnitee
relating to any claim, but no later than ten (10) days before the date on which any
response to a complaint or summons is due, the indemnitor shall notify the indemnitee
that the indemnitor elects to assume control of the defense and settlement of that
claim (a “Notice of Election”).






	 	(b)	 	Procedure Following Notice of Election. If the indemnitor delivers a
Notice of Election within the required notice period, the indemnitor shall assume
sole control over the defense and settlement of the claim; provided, however, that
(i) the indemnitor shall keep the indemnitee fully apprised at all times as to the
status of the defense, and (ii) the indemnitor shall obtain the prior written
approval (which shall not be unreasonably withheld, conditioned or delayed)of the
indemnitee before entering into any settlement of such claim asserting any liability
against the indemnitee or imposing any obligations or restrictions on the indemnitee
or ceasing to defend against such claim. The indemnitor shall not be liable for any
legal fees or expenses incurred by the indemnitee following the delivery of a Notice
of Election; provided, however, that (i) the indemnitee shall be entitled to employ
counsel at its own expense to assist in the handling of the claim, and (ii) the
indemnitor shall pay the fees and expenses associated with such counsel if there is a
conflict of interest with respect to such claim which is not otherwise resolved or if
the indemnitor has requested the assistance of the indemnitee in the defense of the
claim or the indemnitor has failed to defend the claim diligently and the indemnitee
is prejudiced or likely to be prejudiced by such failure. The indemnitor shall not
be obligated to indemnify the indemnitee for any amount paid or payable by such
indemnitee in the settlement of any claim if (i) the indemnitor has delivered a
timely Notice of Election and such amount was agreed to without the written consent
of the indemnitor, (ii) the indemnitee has not provided the indemnitor with notice of
such claim and a reasonable opportunity to respond thereto, or (iii) the time period
within which to deliver a Notice of Election has not yet expired.






	 	(c)	 	Procedure Where No Notice of Election Is Delivered. If the indemnitor does
not deliver a Notice of Election relating to any claim within the required notice
period, the indemnitee shall have the right to defend the claim in such manner as it
may reasonably deem appropriate. The indemnitor will not be responsible for any
settlement or compromise made without its consent, unless the indemnitee has tendered
notice and the indemnitor has then failed to assume and defend the claim and it is
later determined that the indemnitor was liable to assume and defend the claim. The
indemnitor shall promptly reimburse the indemnitee for all such reasonable costs and
expenses incurred by the indemnitee, including reasonable attorneys’ fees.






	 	(d)	 	Reasonable Assistance. The indemnitee will provide reasonable assistance
to the indemnitor (at the indemnitor’s expense), including reasonable assistance from
the indemnitor’s employees, agents, and Affiliates, as applicable.






	 	17.6	 	Indemnification Procedures – Governmental Claims.






With respect to claims covered by Section 17.1(f), the following procedures shall
apply:




	 	(a)	 	Notice. Promptly after receipt by New Century of notice of the
commencement or threatened commencement of any action or proceeding involving a claim
in respect of which the indemnitee will seek indemnification pursuant to Section
17.1(f), New Century shall notify Supplier of such claim. No delay or failure to
so notify Supplier shall relieve Supplier of its obligations under this Agreement
except to the extent that Supplier has suffered actual prejudice by such delay or
failure.






	 	(b)	 	Procedure for Defense. New Century shall be entitled, at its option, to
have the claim handled pursuant to Section 17.5 or to retain control over the
defense and settlement of such claim; provided that, in the latter case, New Century
shall (i) consult with Supplier and reasonably consider Supplier’s views on the
selection of counsel, (ii) consult with Supplier on a regular basis regarding claim
processing (including actual and anticipated costs and expenses) and litigation
strategy, (iii) reasonably consider any Supplier settlement proposals or suggestions,
(iv) obtain the prior written approval of Supplier, which shall not be unreasonably
withheld or delayed, before making an admission of guilt on behalf of Supplier, and
(v) obtain the prior written approval of Supplier, which shall not be unreasonably
withheld or delayed, before entering into any settlement of such claim (A) involving
the payment of moneys for which Supplier will ultimately be financially responsible
under Section 17.1(f) or (B) imposing any non-financial obligations or
restrictions on Supplier.






	 	17.7	 	Subrogation.






Except as otherwise provided in Section 16.1 or 16.2, in the event that an
indemnitor shall be obligated to indemnify an indemnitee pursuant to any provision of this
Agreement, the indemnitor shall, upon payment of such indemnity in full, be subrogated to
all rights of the indemnitee with respect to the claims to which such indemnification
relates.




	18.	 	LIABILITY






	 	18.1	 	General Intent.






Subject to the specific provisions and limitations of this Article 18, it is the
intent of the Parties that each Party shall be liable to the other Party for any actual
damages incurred by the non-breaching Party as a result of the breaching Party’s failure to
perform its obligations in the manner required by this Agreement.




	 	18.2	 	Force Majeure.






	 	(a)	 	General. Subject to Section 18.2(d), no Party shall be liable for
any default or delay in the performance of its obligations under this Agreement if
and to the extent such default or delay is caused, directly or indirectly, by fire,
flood, earthquake, elements of nature or acts of God, wars, riots, civil disorders,
rebellions or revolutions, acts of terrorism, strikes, lockouts or labor disputes or
any other similar cause beyond the reasonable control of such Party except to the
extent that the non-performing Party is at fault in failing to prevent or causing
such default or delay, and provided that such default or delay can not reasonably be
circumvented by the non-performing Party through the use of commercially reasonable
alternate sources, workaround plans or other means. A strike, lockout or labor
dispute involving Supplier Personnel shall not excuse Supplier from its obligations
hereunder. In addition, the refusal of Supplier Personnel to enter a facility that
is the subject of a labor dispute shall excuse Supplier from its obligations
hereunder only if and to the extent such refusal is based upon a clear and present
danger of physical harm.






	 	(b)	 	Duration and Notification. In the event of a force majeure event the
non-performing Party shall be excused from further performance or observance of the
obligation(s) so affected for as long as such circumstances prevail and such Party
continues to use commercially reasonable efforts to recommence performance or
observance whenever and to whatever extent possible without delay. Any Party so
prevented, hindered or delayed in its performance shall, as quickly as practicable
under the circumstances, notify the Party to whom performance is due by telephone
(Supplier shall use commercially reasonable efforts to confirm such notice in writing
within one (1) day of the inception of such event and shall in all events confirm
such notice within two (2) day of the inception of such event) and describe at a
reasonable level of detail the circumstances of the force majeure event, the steps
being taken to address such force majeure event, and the expected duration of such
force majeure event.






	 	(c)	 	Substitute Services; Termination. If any event described in Section
18.2(a) has substantially prevented, hindered or delayed or is reasonably
expected to substantially prevent, hinder or delay the performance by Supplier or one
of its Subcontractors of Services of one or more of the critical functions described
in the applicable disaster recovery plan (“Critical Functions”) for longer than the
recovery period specified in such disaster recovery plan Supplier shall, unless and
until otherwise directed by New Century, use commercially reasonable efforts to
procure such Services from an alternate source at Supplier’s expense for so long as
the delay in performance shall continue, up to the Charges actually paid to Supplier
for the Services with respect to the period of non-performance. If Supplier is
unable to procure such substitute services on an expedited basis or New Century
elects to contract directly for such services, New Century may procure such Services
from an alternate source at New Century’s expense. In addition, if any event
described in Section 18.2(a) substantially prevents the performance by
Supplier or one of its Subcontractors of Services necessary for the performance of
Critical Functions (i) for more than five (5) consecutive days, New Century, at its
option, may terminate a sub-Functional Service Area (i.e., HR Admin, Payroll,
Recruiting, Procurement or Accounts Payable) impacted as described above by such
force majeure event without payment of any Termination Charges and the charges
payable hereunder shall be equitably adjusted to reflect those terminated Services;
or (ii) for more than thirty (30) days, New Century, at its option, may terminate
this Agreement in its entirety subject to payment of the applicable Termination
Charges (i.e., to the extent New Century terminates a sub-Functional Service Area
impacted as described above, New Century shall pay no Termination Charge and, to the
extent New Century terminates a sub-Functional Service Area not impacted by such
force majeure event, New Century shall pay the applicable Reduced Termination
Charge). Supplier shall not have the right to additional payments or increased usage
charges as a result of any force majeure occurrence affecting Supplier’s ability to
perform.






	 	(d)	 	Disaster Recovery. Upon the occurrence of a force majeure event that
constitutes a disaster under the disaster recovery plan, Supplier shall implement
promptly, as appropriate, its disaster recovery plan and provide disaster recovery
services as described in Exhibit 2. The occurrence of a force majeure event
shall not relieve Supplier of its obligation to implement its disaster recovery plan
and provide disaster recovery services. Supplier has no responsibility for New
Century’s business continuity planning or disaster recovery, except as may otherwise
be expressly specified in Exhibit 2.






	 	(e)	 	Payment Obligation. If Supplier fails to provide Services in accordance
with this Agreement due to the occurrence of a force majeure event, all amounts
payable to Supplier hereunder shall be equitably adjusted in a manner such that New
Century is not required to pay any amounts for Services that it is not receiving
whether from Supplier or from an alternate source at Supplier’s expense pursuant to
Section 18.2(c).






	 	(f)	 	Allocation of Resources. Without limiting Supplier’s obligations under
this Agreement, whenever a force majeure event or disaster causes Supplier to
allocate limited resources between or among Supplier’s customers and Affiliates,
Supplier shall use commercially reasonable efforts to treat New Century and the
Eligible Recipients at least as well as comparable Supplier customers, taking into
account exigent circumstances. Supplier shall not re-deploy or re-assign any Key
Supplier Personnel to another customer or account in the event of the occurrence of a
force majeure event, provided Supplier continues to be compensated by New Century as
and to the extent provided in this Section 18.2.






	 	18.3	 	Limitation of Liability.






	 	(a)	 	Exclusions from Limitations. EXCEPT AS PROVIDED IN THIS SECTION
18.3, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT,
CONSEQUENTIAL, INCIDENTAL, COLLATERAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST
PROFITS, LOST ANTICIPATED SAVINGS, LOST REVENUE AND LOST CUSTOMERS REGARDLESS OF THE
FORM OF THE ACTION OR THE THEORY OF RECOVERY (WHETHER IN CONTRACT, TORT, WARRANTY,
NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY), EVEN IF SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.






	 	(b)	 	Liability Cap. ADDITIONALLY, EXCEPT AS PROVIDED BELOW, THE TOTAL AGGREGATE
LIABILITY OF EITHER PARTY, FOR ALL CLAIMS ASSERTED BY THE OTHER PARTY UNDER OR IN
CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF
RECOVERY (WHETHER IN CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER
LEGAL OR EQUITABLE THEORY), SHALL BE LIMITED TO (I) DURING THE FIRST TWELVE MONTHS OF
THE TERM, THE GREATER OF $16,000,000 OR THE TOTAL CHARGES PAID TO SUPPLIER DURING THE
FIRST TWELVE (12) MONTHS OF THE TERM, AND (II) THEREAFTER, THE TOTAL CHARGES PAID TO
SUPPLIER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE LAST ACT OR OMISSION
GIVING RISE TO SUCH LIABILITY.






	 	(c)	 	Exceptions to Limitations of Liability. The limitations of liability set
forth in Sections 18.3(a) and (b) shall not apply with respect to:






	 	(i)	 	Losses occasioned by the fraud or willful misconduct of
a Party.






	 	(ii)	 	Losses arising out of a claim as to which an
indemnified party is entitled to indemnification under Article 17,
but only including amounts that a court finally awards to a non-party or
which are included in any settlement paid to a non-party and agreed to by
the Party financially responsible for such settlement, and all related
costs and expenses (including reasonable legal fees and disbursements and
costs of investigation, litigation, experts, settlement, judgment, interest
and penalties); provided that a Party’s liability for indemnification for
patent infringement shall be limited to an amount equal to two times the
liability cap (i.e., may exceed the liability cap specified in Section
18.3(b) by an amount equal to such liability cap).






	 	(iii)	 	Losses occasioned by Supplier’s refusal to provide
Services or Termination Assistance Services. For purposes of this
provision, “refusal” means the wrongful and willful cessation by Supplier,
in a manner impermissible under this Agreement, of the performance of all
or a material portion of the Services or Termination Assistance Services
then required to be provided by Supplier under this Agreement.






	 	(iv)	 	Amounts paid under Section 17.3 with respect to
death or bodily injury of an agent, employee, customer, business invitee,
business visitor or other person or damage, loss or destruction of real or
tangible personal property.






	 	(v)	 	Losses occasioned by either Party’s willful breach of
its obligations under Section 15.6 or 15.7(a) or Supplier’s
wrongful invocation of disabling code in breach of Section 15.9.






	 	(vi)	 	Losses occasioned by a Party’s breach of its
obligations under Section 13.1(b)(i), (ii), (iii), (v) or (vii),
13.1(d), 13.2(a), 13.2(b)(i), (ii), (v) or (vii), 13.3(a), 13.3(b), 13.3
(c), 13.3(d), or 13.3(k), or wrongful breach of its obligations under
Section 13.1(f) or 13.4. 






	 	(vii)	 	Termination Charges






	 	(d)	 	Exceptions to Limitations of Liability. The limitation of liability set
forth in Sections 18.3(a) shall not apply with respect to:






	 	(i)	 	Losses occasioned by either Party’s breach of its
obligations under Article 13, other than those covered in
Section 18.3(c)(vi) above.






	 	(e)	 	Items Not Considered Damages. The following shall not be considered
damages subject to, and shall not be counted toward the liability exclusion or cap
specified in, Section 18.3(a) or (b):






	 	(i)	 	Fifty percent (50%) of the Service Level Credits or
Deliverable Credits assessed against Supplier pursuant to Section
7.2 and Exhibit 3.






	 	(ii)	 	Amounts withheld by New Century in accordance with this
Agreement due either to incorrect Charges, billing errors or Services not
provided by Supplier.






	 	(iii)	 	Amounts paid by New Century to Supplier but
subsequently recovered from Supplier due to incorrect Charges, billing
errors or Services not provided by Supplier.






	 	(iv)	 	Invoiced Charges and other amounts that are due and
owing to Supplier for Services under this Agreement.






	 	(f)	 	Waiver of Liability Cap. If, at any time, the total aggregate liability of
one Party for claims asserted by the other Party under or in connection with this
Agreement exceeds eighty-five percent (85%) of the liability cap specified in
Section 18.3(a) and, upon the request of the other Party, the Party incurring
such liability refuses to waive such cap and/or increase the available cap to an
amount at least equal to the original liability cap, then the other Party may
terminate this Agreement without payment of Termination Charges.






	 	(g)	 	Recourse. The Parties agree that they will look only to the corporate or
firm assets of the other Party in connection with any liabilities of the other Party
hereunder and in no event will they have any claim against any shareholder, partner
or holder of an ownership interest in the other Party in connection with claims made
against such other Party under this Agreement.






	 	(h)	 	Allocation of Risk; Acknowledgements and Applicability of Limitations.
Each Party acknowledges to the other that it understands the legal and economic
ramifications of this Article 18. Each Party acknowledges that (i) the
Parties are sophisticated commercial enterprises with relatively equal bargaining
power, (ii) the provisions of this Article 18 were the subject of active and
complete negotiation and constitute an essential element of the benefit of the
bargain reflected in this Agreement, (iii) such provisions, together with the
indemnities, representation, warranties and other provisions set forth the
bargained-for allocation of risk under this Agreement, (iv) each Party actively
considered such provisions in determining the specific risks that it assumed in
agreeing to its obligations under this Agreement and the price to be paid to Supplier
in consideration for its Services under this Agreement, and (v) the Parties had
meaningful choices with respect to such provisions, and such provisions are not
unreasonably favorable to either Party. Each Party irrevocably accepts the
limitations and exclusions contained in this Article 18.






	 	(i)	 	Acknowledged Direct Damages. The following shall be considered direct
damages and neither Party shall assert that they are indirect, incidental,
collateral, consequential or special damages or lost profits to the extent they
result from either Party’s failure to perform in accordance with this Agreement:






	 	(i)	 	Costs and expenses of implementing a work-around in
respect of a failure to provide the Services in breach of this Agreement or
any part thereof.






	 	(ii)	 	Costs and expenses of replacing lost, stolen or damaged
Equipment, Software, and Materials that were lost, stolen or damaged by a
Party.






	 	(iii)	 	Cover damages, including the costs and expenses
incurred to procure the Services or corrected Services in-house or from an
alternate source, to the extent in excess of Supplier’s Charges under this
Agreement.






	 	(iv)	 	Straight time, overtime or related expenses incurred by
either Party, including overhead allocations for employees, wages and
salaries of additional employees, travel expenses, overtime expenses,
telecommunication charges and similar charges, incurred as cover damages.






	 	(v)	 	Damages of a New Century Affiliate or an Eligible
Recipient which would be direct damages if they had instead been suffered
by New Century (including being so considered under this Section
18.3(f)).






	 	(vi)	 	Fines, penalties, sanctions, or interest incurred as a
result of a Party’s failure to comply with its obligations under
Section 15.10 (excluding a Party’s responsibility to use
commercially reasonable efforts to notify the other Party of the other
Party’s Laws or changes in the other Party’s Laws).






	 	(vii)	 	Lost funds, third party penalties and interest charges
resulting from Supplier’s failure to make payments in accordance with the
instructions of New Century, the Eligible Recipients or the applicable
Authorized Users or in compliance with applicable Laws.






	 	(viii)	 	Lost funds, third party penalties and interest charges resulting from
Supplier’s failure to provide correct instructions for funds transfers, or
failure to properly execute funds transfers.






	 	(ix)	 	Lost discounts, late fees and/or interest charges
incurred by New Century and the Eligible Recipients resulting from
Supplier’s breach of its obligations under Section 11.2.






	 	(x)	 	Third party vendor damages resulting from a breach or
termination of such third party vendor contract resulting from Supplier’s
breach of its obligations under Section 11.2.






	 	(j)	 	Mitigation. Both Supplier and New Century agree to use reasonable efforts
to mitigate their own, as well as each other’s, liability, damages, and other losses
suffered in connection with this Agreement. Where damages or losses can be mitigated
by lawfully pursuing recovery from Authorized Users or other third parties, Supplier
and New Century shall conduct or permit diligent efforts to so recover, with the
associated expense to be borne by each Party in proportion to each such Party’s
responsibility for such losses, if any. Notwithstanding the foregoing, New Century
reserves the right to determine the strategy and approach to be employed in pursuing
recovery from Authorized Users and to elect not to pursue recovery from some or all
Authorized Users in certain circumstances. In such circumstances, Supplier’s
financial responsibility will be equitably reduced, taking into account the extent to
which claims would otherwise have been brought, the likelihood of recovery, the costs
that would have been incurred in pursuing recovery, and other relevant factors.






Subject to the foregoing, Supplier shall compensate New Century for lost funds
under Section 18.3(i)(vii) or (viii) (together with the interest on such
amount at the Prime Rate plus four percent (4%) from the date of the erroneous
payment until the day of reimbursement by Supplier or collection by New Century or
the applicable Eligible Recipient) after a three (3)-month attempted recovery
period (provided that, if and to the extent the total amount outstanding at any
time exceeds $250,000, Supplier shall compensate New Century for lost funds
exceeding such amount within five (5) business days). Following the reimbursement
by Supplier, New Century shall continue its mitigation efforts required by this
Section, and any amounts which Supplier recovers from third party payees relating
to the erroneous payment for which Supplier has reimbursed New Century shall be the
property of Supplier.




	19.	 	DISPUTE RESOLUTION






	 	19.1	 	Informal Dispute Resolution.






Prior to the initiation of formal dispute resolution procedures with respect to any dispute,
other than as provided in Section 19.1(f), the Parties shall first attempt to
resolve such dispute informally, as follows:




	 	(a)	 	Initial Effort. The Parties agree that the New Century Project Executive
and the Supplier Account Executive shall attempt in good faith to resolve all
disputes (other than those described in Section 19.1(e)). In the event the
New Century Project Executive and the Supplier Account Executive are unable to
resolve a dispute in an amount of time that either Party deems reasonable under the
circumstances, such Party may refer the dispute for resolution to the Service
Management Steering Committee as specified in Section 19.1(b) below upon
written notice to the other Party.






	 	(b)	 	Escalation to Steering Committee. The Service Management Steering
Committee will use reasonable efforts to resolve such dispute or, if appropriate, to
negotiate a modification or amendment to this Agreement. The Service Management
Steering Committee will meet as often, for as long a duration and as promptly as the
Parties reasonably deem necessary to discuss the dispute and negotiate in good faith
in an effort to resolve the dispute. In the event the Service Management Steering
Committee is unable to resolve a dispute in an amount of time that either Party deems
reasonable under the circumstances, such Party may refer the dispute for resolution
to the designated senior corporate executives as specified in Section
19.1(c) below upon written notice to the other Party.






	 	(c)	 	Escalation to Senior Executives. Within five (5) business days of a notice
under Section 19.1(b) above referring a dispute for resolution by senior
corporate executives, the New Century Project Executive and the Supplier Account
Executive will each prepare and provide to Supplier’s Client Group Managing Director
of the Financial Services West Client Group and New Century’s Senior Vice President
of Corporate Services, respectively, summaries of the non-privileged relevant
information and background of the dispute, along with any appropriate non-privileged
supporting documentation, for their review. The designated senior corporate
executives will confer as often as they deem reasonably necessary in order to gather
and furnish to the other all non-privileged information with respect to the matter in
issue which the Parties believe to be appropriate and germane in connection with its
resolution. The designated senior corporate executives shall discuss the problem and
negotiate in good faith in an effort to resolve the dispute without the necessity of
any formal proceeding. The specific format for the discussions will be left to the
discretion of the designated senior corporate executives, but may include the
preparation of agreed-upon statements of fact or written statements of position.






	 	(d)	 	Provision of Information. During the course of negotiations under
Section 19.1(a), (b) or (c) above, all reasonable requests made by
one Party to another for non-privileged information reasonably related to the dispute
will be honored in order that each of the Parties may be fully advised of the other’s
position. All negotiation shall be strictly confidential and used solely for the
purposes of settlement. Any materials prepared by one Party for these proceedings
shall not be used as evidence by the other Party in any subsequent arbitration or
litigation; provided, however, the underlying facts supporting such materials may be
subject to discovery.






	 	(e)	 	Prerequisite to Formal Proceedings. Formal proceedings for the resolution
of a dispute may not be commenced until the earlier of:






	 	(i)	 	the designated senior corporate executives under
Section 19.1(c) above concluding in good faith that amicable
resolution through continued negotiation of the matter does not appear
likely; or






	 	(ii)	 	thirty (30) days after the notice under Section
19.1(b) above referring the dispute to senior corporate executives.






	 	(f)	 	Equitable Remedies. The provisions and time periods specified in this
Section 19.1 shall not be construed to prevent a Party from instituting, and
a Party is authorized to institute, formal proceedings earlier to (A) avoid the
expiration of any applicable limitations period, (B) preserve a superior position
with respect to other creditors, (C) address a claim arising out of the breach of a
Party’s obligations under Article 13, (D) pursue claims for injunctive relief
with respect to a Party’s obligations to the extent resulting in irreparable injury,
(E) address a claim arising out of the breach or attempted or threatened breach of
the obligations described in the next paragraph or (F) pursue any claim arising from
any patent, copyright or registered trademark (such claims will not be subject to
arbitration and instead will be subject to judicial resolution).






Supplier acknowledges that, in the event it breaches (or attempts or threatens to
breach) its obligation to provide Services or Termination Assistance Services in
accordance with this Agreement, its obligation respecting continued performance in
accordance with Section 19.4, or its obligation to provide access to
computers or files containing New Century Data in accordance with Section
13.4, New Century and/or the Eligible Recipients may proceed directly to court.




	 	19.2	 	Arbitration.






	 	(a)	 	Arbitration. Except for claims arising out of the breach of a Party’s
obligations under Article 13 or disputes subject to Sections 19.1(e),
any controversy or claim arising out of or relating to this Agreement, or any breach
thereof, which cannot be resolved using the procedures set forth above in Section
19.1 shall be finally resolved under the JAMS Comprehensive Arbitration Rules and
Procedures then in effect; provided, however, that without limiting any rights at law
or in equity a Party may have because of an improper termination of this Agreement by
the other Party, nothing contained in this Agreement shall limit either Party’s right
to terminate this Agreement pursuant to Article 20. Any arbitration will be
conducted on an individual, rather than a class-wide, basis.






	 	(b)	 	Location and Decision. The arbitration shall take place in Irvine,
California, and shall apply the governing law of this Agreement. The decision of the
arbitrators shall be final and binding and judgment on the award may be entered in
any court of competent jurisdiction. The arbitrators shall be instructed to state
the reasons for their decisions, including findings of fact and law. The arbitrators
shall be bound by the warranties, limitations of liability and other provisions of
this Agreement. Except with respect to the provisions of this Agreement which
provide for injunctive relief rights, such arbitration shall be a precondition to any
application by either Party to any court of competent jurisdiction.






	 	(c)	 	Selection of Arbitrators. Within ten (10) days after delivery of written
notice (“Notice of Dispute”) by one Party to the other in accordance with this
Section, the Parties each shall use good faith efforts to mutually agree upon one (1)
arbitrator. If the Parties are not able to agree upon one (1) arbitrator within such
period of time, the Parties each shall within ten (10) days: (i) appoint one (1)
arbitrator who has at no time ever represented or acted on behalf of either of the
Parties, and is not otherwise affiliated with or interested in either of the Parties
and (ii) deliver written notice of the identity of such arbitrator and a copy of his
or her written acceptance of such appointment to the other Party. If either Party
fails or refuses to appoint an arbitrator within such ten (10) day period, the single
arbitrator appointed by the other Party shall decide alone the issues set out in the
Notice of Dispute. Within ten (10) days after such appointment and notice, such
arbitrators shall appoint a third neutral and independent arbitrator who at no time
ever represented or acted on behalf of either of the Parties, and is not otherwise
affiliated with or interested in either of the Parties. In the event that the two (2)
arbitrators fail to appoint a third arbitrator within ten (10) days of the
appointment of the second arbitrator, either arbitrator or either Party may apply for
the appointment of a third arbitrator to JAMS.






	 	(d)	 	General, Qualification of Arbitrators. All arbitrators selected pursuant
to this Section shall be practicing attorneys with at least five (5) years experience
with the technology and/or law applicable to the Services or similar services or
transactions. Any such appointment shall be binding upon the Parties. The Parties
shall use best efforts to set the arbitration within sixty (60) days after selection
of the arbitrator or arbitrators, as applicable, but in no event shall the
arbitration be set more than ninety (90) days after selection of the arbitrator or
arbitrators, as applicable. The Parties shall in good faith endeavor to agree upon
an expedited discovery schedule in connection with any arbitration. If the Parties
fail to so agree within a reasonable time, discovery as permitted by the Federal
Rules of Civil Procedure then in effect will be allowed in connection with the
arbitration to the extent consistent with the purpose of the arbitration and as
allowed by the arbitrator or arbitrators, as applicable. The decision or award of
the arbitrator or the majority of the three arbitrators, as applicable, shall be
rendered within fifteen (15) days after the conclusion of the hearing, shall be in
writing, shall set forth the basis therefor, and shall be final, binding and
non-appealable upon the Parties and may be enforced and executed upon in any court
having jurisdiction over the Party against whom the enforcement of such decision or
award is sought. Each Party shall bear its own arbitration costs and expenses and
all other costs and expenses of the arbitration shall be divided equally between the
Parties; provided, however, the arbitrator or arbitrators, as applicable, may modify
the allocation of fees, costs and expenses in the award in those cases where fairness
dictates other than such allocation between the Parties.






	 	19.3	 	Jurisdiction.






Each Party irrevocably agrees that any legal action, suit or proceeding brought by it in any
way arising out of this Agreement must be brought solely and exclusively in the state or
federal courts located in Orange County, California, and each Party irrevocably submits to
the sole and exclusive jurisdiction of the these courts in personam, generally and
unconditionally with respect to any action, suit or proceeding brought by it or against it
by the other Party. Each Party in any judicial action or proceeding shall be responsible
for its own costs, including without limitation, filing fees, attorney’s fees, witness fees,
expert fees, and travel expenses.




	 	19.4	 	Continued Performance.






	 	(a)	 	General. Each Party agrees that it shall, unless otherwise directed by the
other Party, continue performing its obligations under this Agreement while any
dispute is being resolved; provided, that this provision shall not operate or be
construed as extending the Term of this Agreement or prohibiting or delaying a
Party’s exercise of any right it may have to terminate the Term as to all or any part
of the Services. For purposes of clarification, New Century Data may not be withheld
by Supplier pending the resolution of any dispute.






	 	(b)	 	Non-Interruption of Service. Supplier acknowledges and agrees that any
interruption to the Service in breach of this Agreement will cause irreparable harm
to New Century and/or the Eligible Recipients, in which case an adequate remedy at
law would not be available. Supplier expressly acknowledges and agrees that, pending
resolution of any dispute or controversy, it shall not deny, withdraw, or restrict
Supplier’s provision of the Services to New Century and/or the Eligible Recipients
under this Agreement, except as specifically and expressly agreed in writing by New
Century and Supplier. Notwithstanding anything to the contrary herein, this
provision shall not operate or be construed as extending the Term of this Agreement
or prohibiting or delaying a Party’s exercise of any right it may have to terminate
the Term as to all or any part of the Services.






	 	19.5	 	Governing Law.






This Agreement and performance under it shall be governed by and construed in accordance
with the applicable laws of the State of New York, without giving effect to the principles
thereof relating to conflicts of laws. The application of the United Nations Convention on
Contracts for the International Sale of Goods is expressly excluded.




	20.	 	TERMINATION






	 	20.1	 	Termination for Cause.






	 	(a)	 	By New Century. If Supplier:






	 	(i)	 	commits a material breach of its obligations with
respect to Transition Services as provided in Section 4.2(f);






	 	(ii)	 	commits a material breach of its obligations under this
Agreement, which breach is not cured within thirty (30) days after notice
from New Century specifying the basis of such breach and its intent to
terminate (provided that, if Supplier begins promptly and works diligently
and in good faith to cure such breach in accordance with this provision and
such breach is not capable of being cured within thirty (30) days, Supplier
may have up to thirty (30) additional days to cure such breach if it
demonstrates that it is capable of curing such breach within the additional
period and the breach does not adversely impact in any non-trivial respect
the business of New Century or the applicable Eligible Recipient(s) or the
rights, including intellectual property rights, of New Century under this
Agreement);






	 	(iii)	 	commits a material breach of this Agreement which is
not capable of being cured within the period specified in Section
20.1(a)(ii);






	 	(iv)	 	commits numerous breaches of its duties or obligations
which collectively constitute a material breach of this Agreement and fails
within thirty (30) days after receiving notice of such breaches (a) to cure
such breaches, and (b) to correct the underlying systemic cause(s), if any,
of such breaches;






	 	(v)	 	becomes liable for or incurs Service Level Credits
under this Agreement that, in the aggregate, exceed sixty percent (60%) of
the cumulative At Risk Amount during any rolling six (6) month period;






	 	(vi)	 	fails to perform in accordance with the Minimum Service
Level for a Critical Service Level for three (3) consecutive months or
during four (4) months of any six (6) consecutive month period;






	 	(vii)	 	commits a material breach of Section 15.7 of
this Agreement; or






then New Century may, by giving notice to Supplier, terminate the Term with respect
to all of the Services or, at its option, with respect to the impacted Functional
Service Area or impacted sub-Functional Service Area (i.e., HR Admin, Payroll,
Recruiting, Procurement or Accounts Payable), as of a date specified in the notice
of termination. Supplier shall not be entitled to any Termination Charges in
connection with such a termination for cause. If New Century chooses to terminate
in part, the Charges will be adjusted in accordance with the pricing methodology
set forth in Exhibit 4, to reflect such partial termination.




In addition, if Supplier commits a material breach of Section 13.3 with
respect to PHI, New Century shall: (i) terminate the Agreement, in whole or
pertinent part, if Supplier fails to stop immediately the conduct or practice that
constitutes the material breach and to cure such breach as soon as reasonably
practicable and in any event within fifteen (15) days of its receipt of notice of
such breach; (ii) terminate the Agreement, in whole or pertinent part, effective
immediately if the material breach is not capable of being cured within the cure
period specified in Subsection (i) above; or (iii) report the violation to the
Secretary of the U.S. Department of Health and Human Services if neither
termination nor cure is feasible.




The express acknowledgment that a certain amount of Service Level Credits or number
of Service Level Defaults constitutes grounds for termination under Section
20.1(a)(v) and (vi) does not imply that a failure to perform by
Supplier cannot otherwise constitute a material breach of this Agreement and
therefore grounds for termination under other subsections.




	 	(b)	 	By Supplier. In the event that New Century fails to pay Supplier amounts
properly due and owing to Supplier under this Agreement exceeding in the aggregate
one (1) month of Monthly Base Charges by the specified due date or fails to deposit
disputed amounts in escrow as and to the extent required under Section 12.4,
and in either event, fails to cure such default within thirty (30) days of notice
from Supplier of its intention to terminate, Supplier may, by notice to New Century,
terminate the Term. Supplier acknowledges and agrees that Sections 20.1(b)
and 20.5 describe Supplier’s sole right to terminate this Agreement and
Supplier hereby waives any other rights it may have to terminate this Agreement.






	 	20.2	 	Termination for Convenience.






New Century may terminate the Term with respect to all or any portion of the Services for
convenience and without cause with effect at any time after the first Contract Year by
giving Supplier at least four (4) months prior notice designating the termination date. If
New Century elects to terminate on this basis, New Century shall pay to Supplier a
Termination Charge calculated in accordance with Attachment 4-E. In the event that
a purported termination for cause by New Century under Section 20.1(a) is determined
by a competent authority not to be properly a termination for cause, then such termination
by New Century shall be deemed to be a termination for convenience under this Section
20.2.




	 	20.3	 	Termination Upon Supplier Change of Control.






In the event of a change in Control of Supplier (or that portion of Supplier providing all
or any material portion of the Services under this Agreement) or the Entity that Controls
Supplier (if any), where such control is acquired, directly or indirectly, in a single
transaction or series of related transactions, or all or substantially all of the assets of
Supplier (or that portion of Supplier providing all or any material portion of the Services
under this Agreement) are acquired by any Entity, or Supplier (or that portion of Supplier
providing all or any material portion of the Services under this Agreement) is merged with
or into another Entity to form a new Entity, then at any time within twelve (12) months
after the last to occur of such events, New Century may at its option terminate the Term by
giving Supplier at least ninety (90) days prior notice and designating a date upon which
such termination shall be effective; provided, however, if such change in Control of
Supplier involves a Direct New Century Competitor, New Century may terminate the Term by
giving Supplier at least ten (10) days prior notice, and such Direct New Century Competitor
shall be prohibited from any contact with New Century Data, New Century Confidential
Information and any and all other information about the New Century account, including
discussions with Supplier Personnel regarding specifics relating to the Services. If New
Century terminates on this basis, New Century shall pay to Supplier a Reduced Termination
Charge calculated in accordance with Attachment 4-E.




	 	20.4	 	Termination Upon New Century Change of Control.






In the event that, in a single transaction or series of transactions, New Century acquires
or is acquired by any other Entity (by stock sale, asset sale or otherwise) or merges with
any other Entity, then, at any time within twelve (12) months after the last to occur of
such events, New Century may terminate the Term by giving Supplier at least ninety (90) days
prior notice and designating a date upon which such termination shall be effective. If New
Century terminates on this basis, New Century shall pay to Supplier a Reduced Termination
Charge calculated in accordance with Attachment 4-E.




	 	20.5	 	Termination for Insolvency.






In the event that any Party (i) files for bankruptcy, (ii) becomes or is declared insolvent,
or is the subject of any bona fide proceedings related to its liquidation, administration,
provisional liquidation, insolvency or the appointment of a receiver or similar officer for
it, (iii) passes a resolution for its voluntary liquidation, (iv) has a receiver or manager
appointed over all or substantially all of its assets, (v) makes an assignment for the
benefit of all or substantially all of its creditors, (vi) enters into an agreement or
arrangement for the composition, extension, or readjustment of substantially all of its
obligations or any class of such obligations, or (vii) experiences an event analogous to any
of the foregoing in any jurisdiction in which any of its assets are situated, then the other
Party may terminate this Agreement as of a date specified in a termination notice; provided,
however, that Supplier will not have the right to exercise such termination under this
Section so long as New Century pays for the Services to be received hereunder in advance on
a month-to-month basis. If any Party elects to terminate this Agreement due to the
insolvency of the other Party, such termination will be deemed to be a termination for cause
hereunder.




	 	20.6	 	New Century Rights Upon Supplier’s Bankruptcy.






	 	(a)	 	General Rights. In the event of Supplier’s bankruptcy or other formal
procedure referenced in Section 20.5 or of the filing of any petition under
bankruptcy laws affecting the rights of Supplier which is not stayed or dismissed
within thirty (30) days of filing, in addition to the other rights and remedies set
forth herein, to the maximum extent permitted by Law, New Century will have the
immediate right to retain and take possession for safekeeping all New Century Data,
New Century Confidential Information, New Century licensed Third Party Software, New
Century owned Equipment, New Century owned Materials, New Century owned Developed
Materials, and all other Software, Equipment, Systems or Materials to which New
Century and/or the Eligible Recipients are or would be entitled under this Agreement.
Supplier shall cooperate fully with New Century and the Eligible Recipients and
assist New Century and the Eligible Recipients in identifying and taking possession
of the items listed in the preceding sentence. New Century will have the right to
hold such New Century Data, Confidential Information, Software, Equipment, Systems
and Materials until such time as the trustee or receiver in bankruptcy or other
appropriate insolvency office holder can provide adequate assurances and evidence to
New Century that they will be protected from sale, release, inspection, publication,
or inclusion in any publicly accessible record, document, material or filing.
Supplier and New Century agree that without this material provision, New Century
would not have entered into this Agreement or provided any right to the possession or
use of New Century Data, New Century Confidential Information, or New Century
Software covered by this Agreement.






	 	(b)	 	New Century Rights in Event of Bankruptcy Rejection. Notwithstanding any
other provision of this Agreement to the contrary, in the event that Supplier becomes
a debtor under the United States Bankruptcy Code (11 U.S.C. §101 et. seq. or any
similar Law in any other country (the “Bankruptcy Code”)) and rejects this Agreement
pursuant to Section 365 of the Bankruptcy Code (a “Bankruptcy Rejection”), (i) any
and all of the licensee and sublicensee rights of New Century and the Eligible
Recipients arising under or otherwise set forth in this Agreement, including without
limitation the rights of New Century and/or the Eligible Recipients referred to in
Section 14.6, shall be deemed fully retained by and vested in New Century
and/or the Eligible Recipients as protected intellectual property rights under
Section 365(n)(1)(B) of the Bankruptcy Code and further shall be deemed to exist
immediately before the commencement of the bankruptcy case in which Supplier is the
debtor; (ii) New Century shall have all of the rights afforded to non-debtor
licensees and sublicensees under Section 365(n) of the Bankruptcy Code; and (iii) to
the extent any rights of New Century and/or the Eligible Recipients under this
Agreement which arise after the termination or expiration of this Agreement are
determined by a bankruptcy court not to be “intellectual property rights” for
purposes of Section 365(n), all of such rights shall remain vested in and fully
retained by New Century and/or the Eligible Recipients after any Bankruptcy Rejection
as though this Agreement were terminated or expired. New Century shall under no
circumstances be required to terminate this Agreement after a Bankruptcy Rejection in
order to enjoy or acquire any of its rights under this Agreement, including without
limitation any of the rights of New Century referenced in Section 14.6.






	21.	 	GENERAL






	 	21.1	 	Binding Nature and Assignment.






	 	(a)	 	Binding Nature. This Agreement will be binding on the Parties and their
respective successors and permitted assigns.






	 	(b)	 	Assignment. Neither Party may, or will have the power to, assign this
Agreement without the prior written consent of the other, except in the following
circumstances:






	 	(i)	 	New Century may assign its rights or obligations under
this Agreement, without approval of Supplier, to an Affiliate which agrees
in writing to assume New Century’s obligations and responsibilities
hereunder, and provided New Century remains fully liable for and is not
relieved from the full performance of its obligations under this Agreement;






	 	(ii)	 	Supplier may assign its rights or obligations under
this Agreement, without approval of New Century, to an Affiliate which
agrees in writing to assume Supplier’s obligations and responsibilities
hereunder in writing, and provided Supplier remains fully liable for and is
not relieved from the full performance of its obligations under this
Agreement;






	 	(iii)	 	New Century may assign its rights and obligations
under this Agreement without the approval of Supplier to an Entity
acquiring, directly or indirectly, Control of New Century, an Entity into
which New Century is merged, or an Entity acquiring all or substantially
all of New Century’s assets, provided the acquirer or surviving Entity
agrees in writing to be bound by the terms and conditions of this
Agreement; and.






	 	(iv)	 	Supplier may assign its rights and obligations under
this Agreement without the approval of New Century to an Entity acquiring,
directly or indirectly, Control of Supplier, an Entity into which Supplier
is merged, or an Entity acquiring all or substantially all of Supplier’s
assets used in delivering the Services, provided the acquirer or surviving
Entity agrees in writing to be bound by the terms and conditions of this
Agreement and provided Supplier remains fully liable for and is not
relieved from the full performance of its obligations under this Agreement.






	 	(c)	 	Impermissible Assignment. Any attempted assignment that does not comply
with the terms of this Section shall be null and void.






	 	(d)	 	Subcontracting. This Section 21.1 will not apply to the
subcontracting by Supplier of any portion of the Services as permitted pursuant to
this Agreement






	 	21.2	 	Entire Agreement; Amendment.






This Agreement, including any Exhibits and attachments referred to herein and attached
hereto, each of which is incorporated herein for all purposes, constitutes the entire
agreement between the Parties with respect to the subject matter hereof. There are no
agreements, representations, warranties, promises, covenants, commitments or undertakings
other than those expressly set forth herein. This Agreement supersedes all prior
agreements, representations, warranties, promises, covenants, commitments or undertaking,
whether written or oral, with respect to the subject matter contained in this Agreement. No
amendment, modification, change, waiver, or discharge hereof shall be valid unless in
writing and signed by an authorized representative of the Party against which such
amendment, modification, change, waiver, or discharge is sought to be enforced.




	 	21.3	 	Notices.






	 	(a)	 	Primary Notices. Any notice, notification, request, demand or
determination provided by a Party pursuant to the following:






	 	(i)	 	Section 4.3 (Termination Assistance Services);





	 	 	 
	(ii)

(iii)

(iv)

	 	Section 6.5 (Notice of Defaults);

Section 7.7 (Notice of Adverse Impact);

Section 11.6 (Extraordinary Events);







	 	(v)	 	Section 13.1(d) (Loss of Confidential Information);





	 	 	 
	(vi)

(vii)

(viii)

(ix)

	 	Sections 17.5 (Indemnification Procedures);

Section 17.6 (Indemnification Procedures – Government Claims);

Section 18.2 (Force Majeure);

Section 18.3(f) (Waiver of Liability Cap);







	 	(x)	 	Section 19.1 (Informal Dispute Resolution);






	 	(xi)	 	Article 20 (Termination); and






	 	(xii)	 	Section 21.1 (Binding Nature and Assignment);






shall be in writing and shall be delivered in hard copy using one of the following
methods and shall be deemed delivered upon receipt: (i) by hand, (ii) by an express
courier with a reliable system for tracking delivery, or (iii) by registered or
certified mail, return receipt requested, postage prepaid. Unless otherwise
notified, the foregoing notices shall be delivered as follows:




In the case of New Century:




New Century




18400 Von Karman




Suite 1000




Irvine, CA 92612


Attention: David Wilson, Senior Vice President




With a copy (which will not by itself constitute effective notice) to:




New Century




18400 Von Karman




Suite 1000




Irvine, CA 92612


Attention: General Counsel




and




In the case of Supplier:




Accenture


2141 Rosecrans Avenue


Suite 3100


El Segundo, CA 90245


Attention: Stephen M. Alessi, Senior Executive




With a copy (which will not by itself constitute effective notice) to:




Accenture


1661 Page Mill Rd.


Palo Alto, CA 94303


Attention: General Counsel




	 	(b)	 	Other Notices. All notices, notifications, requests, demands or
determinations required or provided pursuant to this Agreement, other than those
specified in Section 21.3(a), may be sent in hard copy in the manner
specified in Section 21.3(a), or by e-mail transmission (where receipt is
acknowledged by the recipient) or facsimile transmission (with acknowledgment of
receipt from the recipient’s facsimile machine) to the addresses set forth below:






	 	 	 	In the case of New Century:






New Century




18400 Von Karman




Suite 1000




Irvine, CA 92612


Attention: David Wilson, Senior Vice President


E-mail Address: dawilson@ncen.com


Facsimile Number: (949) 863-7255




and




	 	 	 	In the case of Supplier:






Accenture


2141 Rosecrans Avenue


Suite 3100


El Segundo, CA 90245


Attention: Stephen M. Alessi, Senior Executive


E-mail Address: Stephen.m.alessi@accenture.com


Facsimile Number: (310) 726-2950




	 	(c)	 	Notice of Change. A Party may from time to time change its address or
designee for notification purposes by giving the other prior notice of the new
address or designee and the date upon which it shall become effective.






	 	21.4	 	Counterparts.






This Agreement may be executed in several counterparts, each of which shall be deemed to be
an original and all of which taken together shall constitute one single agreement between
the Parties hereto.




	 	21.5	 	Headings.






The article and section headings and the table of contents used herein are for reference and
convenience only and shall not be considered in the interpretation of this Agreement.




	 	21.6	 	Relationship of Parties.






Supplier, in furnishing services to New Century and the Eligible Recipients hereunder, is
acting as an independent contractor, and Supplier has the sole obligation to supervise,
manage, contract, direct, procure, perform or cause to be performed, all work to be
performed by Supplier under this Agreement. The relationship of the Parties under this
Agreement shall not constitute a partnership or joint venture for any purpose. Except as
expressly provided in this Agreement, Supplier is not an agent of New Century or the
Eligible Recipients and has no right, power or authority, expressly or impliedly, to
represent or bind New Century or the Eligible Recipients as to any matters, except as
expressly authorized in this Agreement. In no event shall Supplier be deemed to be acting
in a fiduciary capacity for New Century.




	 	21.7	 	Severability.






In the event that any provision of this Agreement conflicts with the law under which this
Agreement is to be construed or if any such provision is held invalid or unenforceable by a
court with jurisdiction over the Parties, such provision shall be deemed to be restated to
reflect as nearly as possible the original intentions of the Parties in accordance with
applicable law. The remaining provisions of this Agreement and the application of the
challenged provision to persons or circumstances other than those as to which it is invalid
or unenforceable shall not be affected thereby, and each such provision shall be valid and
enforceable to the full extent permitted by law.




	 	21.8	 	Consents and Approval.






Except where expressly provided as being in the sole discretion of a Party, where agreement,
approval, acceptance, consent, confirmation, notice or similar action by either Party is
required under this Agreement, such action shall not be unreasonably delayed or withheld.
An approval or consent given by a Party under this Agreement shall not relieve the other
Party from responsibility for complying with the requirements of this Agreement, nor shall
it be construed as a waiver of any rights under this Agreement, except as and to the extent
otherwise expressly provided in such approval or consent.




	 	21.9	 	Waiver of Default; Cumulative Remedies.






	 	(a)	 	Waiver of Default. A delay or omission by either Party hereto to exercise
any right or power under this Agreement shall not be construed to be a waiver
thereof. A waiver by either of the Parties hereto of any of the covenants to be
performed by the other or any breach thereof shall not be construed to be a waiver of
any succeeding breach thereof or of any other covenant herein contained. All waivers
must be in writing and signed by the Party waiving its rights.






	 	(b)	 	Cumulative Remedies. Except as expressly set forth herein, all remedies
provided for in this Agreement shall be cumulative and in addition to and not in lieu
of any other remedies available to either Party at law, in equity or otherwise. The
election by a Party of any remedy provided for in this Agreement or otherwise
available to such Party shall not preclude such Party from pursuing any other
remedies available to such Party at law, in equity, by contract or otherwise.






	 	21.10	 	Survival.






Any provision of this Agreement which contemplates performance or observance subsequent to
any termination or expiration of this Agreement shall survive any termination or expiration
of this Agreement and continue in full force and effect.




	 	21.11	 	Publicity.






Except as required by Law or regulation, Supplier shall not use New Century’s or an Eligible
Recipient’s name. trade mark or service mark or refer to New Century or an Eligible
Recipient directly or indirectly in any media release, public announcement, or public
disclosure relating to this Agreement, including in any promotional or marketing materials,
customer lists or business presentations, without the prior written consent of the New
Century Investor Relations and Legal Departments prior to each such use or release. Supplier
shall not make any public statements about this Agreement, the Services or its relationship
with New Century and/or the Eligible Recipients without New Century’s prior approval.
Except as required by Law or regulation, New Century shall not use Supplier’s name,
trademark or service mark or refer to Supplier directly or indirectly in any media release,
public announcement, or public disclosure relating to this Agreement, including in any
promotional or marketing materials, customer lists or business presentations, without the
prior written consent of Supplier prior to each such use or release. Notwithstanding
anything to the contrary in the foregoing, Supplier may use New Century as a reference as
and to the extent provided in Section 21.22. The Parties will use commercially
reasonable efforts to mutually agree on the wording of a press release within a reasonable
period of time after the Effective Date.




	 	21.12	 	Service Marks.






Supplier agrees that it shall not, without New Century’s prior consent, use any of the
names, service marks or trademarks of New Century or the Eligible Recipients in any of its
advertising or marketing materials. New Century agrees that it shall not, without
Supplier’s prior consent, use any of the names, services marks or trademarks of Supplier in
any of its advertising or marketing materials.




	 	21.13	 	Export.






The Parties acknowledge that certain Software and technical data to be provided hereunder
and certain transactions hereunder may be subject to export controls under the laws and
regulations of the United States, the European Union, the United Nations and other
jurisdictions. No Party shall export or re-export any such items or any direct product
thereof or undertake any transaction or service in violation of any such laws or
regulations. To the extent within Supplier’s control, Supplier shall be responsible for
compliance with such export laws in respect of such items exported or imported to or from a
Supplier Facility as part of the Services, either (i) by Supplier or (ii) by New Century or
an Eligible Recipient in accordance with the processes described in this Agreement or the
Policy and Procedures Manual or otherwise specified by Supplier.




	 	21.14	 	Third Party Beneficiaries.






This Agreement is entered into solely between, and may be enforced only by, New Century and
Supplier. Except as expressly provided in Section 16.1 and Article 17, this
Agreement shall not be deemed to create any rights or causes of action in or on behalf of
any third parties, including without limitation Eligible Recipients or, Subcontractors, or
employees, suppliers or customers of a Party, or to create any obligations of a Party to any
such third parties.




	 	21.15	 	Covenant Against Pledging.






To the extent Supplier assigns, transfers, pledges, hypothecates or otherwise encumbers its
rights to receive payments from New Century under this Agreement, Supplier shall continue to
be New Century’s sole point of contact with respect to this Agreement, including with
respect to payment. The person or Entity to which such rights are assigned, transferred,
pledged, hypothecated or otherwise encumbered shall not be considered a third party
beneficiary under this Agreement and shall not have any rights or causes of action against
New Century.




	 	21.16	 	Order of Precedence.






In the event of a conflict, this Agreement shall take precedence over the Exhibits attached
hereto, and the Exhibits shall take precedence over any attachments.




	 	21.17	 	Hiring of Employees.






	 	(a)	 	Solicitation and Hiring. Except as expressly set forth herein, during the
Term and for a period of twelve (12) months thereafter, Supplier shall not solicit
for employment, directly or indirectly, any employees of New Century or an Eligible
Recipient or individual New Century Third Party Contractors without the prior
approval of New Century. Except as expressly set forth herein in connection with the
expiration or termination of this Agreement, during the Term and for a period of
twelve (12) months thereafter, New Century will not solicit for employment, directly
or indirectly, any employee of Supplier involved in the performance of Supplier’s
obligations under this Agreement without the prior consent of Supplier. In each
case, the prohibition on solicitation and hiring shall extend ninety (90) days after
the termination of the employee’s employment or, in the case of Supplier employees,
the cessation of his or her involvement in the performance of Services under this
Agreement. This provision shall not operate or be construed to prevent or limit any
employee’s right to practice his or her profession or to utilize his or her skills
for another employer or to restrict any employee’s freedom of movement or
association.






	 	(b)	 	Publications. Neither the publication of classified advertisements in
newspapers, periodicals, Internet bulletin boards, or other publications of general
availability or circulation nor the consideration and hiring of persons responding to
such advertisements shall be deemed a breach of this Section 21.17, unless
the advertisement and solicitation is undertaken as a means to circumvent or conceal
a violation of this provision and/or the hiring party acts with knowledge of this
hiring prohibition.






	 	21.18	 	Further Assurances.






Each Party covenants and agrees that, subsequent to the execution and delivery of this
Agreement and without any additional consideration, each Party shall execute and deliver any
further legal instruments and perform any acts that are or may become necessary to
effectuate the purposes of this Agreement.




	 	21.19	 	Liens.






Supplier shall not file, or by its action or inaction permit, any liens to be filed on or
against property or realty of New Century or any Eligible Recipient by a Subcontractor or
Supplier third party provider. In the event that any such liens arise as a result of
Supplier’s action or inaction, Supplier shall obtain a bond to fully satisfy such liens or
otherwise remove such liens at its sole cost and expense within fifteen (15) business days.
If Supplier fails to do so, New Century may, in its sole discretion, pay the amount of such
lien, and/or deduct such amounts from payments due to the Supplier.




	 	21.20	 	Covenant of Good Faith.






Each Party agrees that, in its respective dealings with the other Party under or in
connection with this Agreement, it shall act in good faith.




	 	21.21	 	Acknowledgment.






The Parties each acknowledge that the terms and conditions of this Agreement have been the
subject of active and complete negotiations, and that such terms and conditions should not
be construed in favor of or against any Party by reason of the extent to which any Party or
its professional advisors participated in the preparation of this Agreement.




	 	21.22	 	References.






Unless otherwise directed by New Century, Supplier shall use New Century as a reference at
least once each calendar quarter in connection with a business opportunity contemplating (i)
services that are the same as or substantially similar to at least one of the
sub-Functional Service Areas, (ii) the use of a service delivery platform that is the same
as or substantially similar to one of the platforms used to provide the Services, and (iii)
an anticipated total contract value of at least $100 million (provided that, Supplier shall
not be considered in breach of this provision if Supplier does not identify and pursue a
business opportunity having these attributes during the applicable calendar quarter). In
conjunction with the foregoing, New Century’s Project Executive (or equivalent level of New
Century management) shall serve as the contact point for such prospective Supplier customers
and shall respond to all inquiries in a timely manner. Notwithstanding Section
13.1, Supplier acknowledges and agrees that New Century’s Project Executive (or
equivalent level of New Century management) may freely discuss all aspects of Supplier’s
performance and New Century’s satisfaction with such performance with prospective Supplier
customers. Supplier shall provide such prospective Supplier customers with appropriate New
Century contact information. The identity of such prospective Supplier customers and all
information related thereto shall be considered Supplier Confidential Information.




	 	21.23	 	Limitation on Definition of Accenture and New Century.






The use of the term “Accenture” herein shall not be construed as a requirement for, or
evidence of, the presence of Accenture LLP in a non-United States location; and all such
non-United States Services shall be provided by Affiliate(s) of Accenture LLP authorized to
do business in such non-United States location. The use of the term “New Century” herein
shall not be construed as a requirement for, or evidence of, the presence of New Century
Financial Corporation or any Affiliate of New Century Financial Corporation in a non-United
States location, including the location from which the Services are provided by Accenture
Affiliate(s).



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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective duly
authorized representatives as of the Effective Date.



	 	 	 	 	 	 	 
	New Century Financial Corporation	 	 	 	Accenture LLP
	By:

Name:

Title:

Date:

	 	/s/ Brad A Morrice

Brad A. Morrice

Vice Chairman, President and COO

January 25, 2006
	 	By:

Name:

Date:
	 	/s/ John Del Santo

John Del Santo

Title: Managing Director

January 25, 2006
	 
	 	 	 	 	 	 







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