exv10w1



 





Note: A request for confidential treatment has been filed with the SEC for the portions of this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.




Exhibit 10.1




REMOTE RESOURCING AGREEMENT




       This Remote Resourcing Agreement (the “Agreement”) is entered into effective April ___,
2005 (the “Effective Date”) by and between Prescient Applied Intelligence, Inc., having its
principal offices at 1247 Ward Avenue, Suite 200, West Chester, PA 19380 (“Client”), and Healthcare
BPO Partners, L.P., a Texas limited partnership corporation having offices at 5215 N. O’Conner
Street, Suite 800, Irving, Texas 75039 (“Supplier”).



R E C I T A L S:




       WHEREAS, Client and Sharad Tak (“Principal”) and/or an entity owned 100% by Principal, a
principal shareholder of Supplier, have previously entered into a Stock and Warrant Purchase
Agreement dated April ___, 2005 (the “Purchase Agreement”) pursuant to which Principal is making a
substantial investment in Client; and



       WHEREAS, it is a condition precedent of the closing of the investment transaction contemplated
by the Purchase Agreement that Client and Supplier enter into this Agreement pursuant to which
Supplier shall provide to Client and its affiliates certain remote resources as more particularly
described herein.



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




	1.	 	BACKGROUND AND OBJECTIVES






Client desires to take advantage, when possible, of lower cost remote resources,
scalability, redundancy and capacity that Supplier can provide by virtue of Supplier’s
existing and future operations in *CONFIDENTIAL*.




First, Client desires to have Supplier, in collaboration with Client management,
undertake an analysis and establish a process to transition its data center, presently
hosted by Hewlett-Packard (“HP”), to utilize lower cost resources available in
*CONFIDENTIAL*. Client’s current HP data center contract is extendable on a
month-by-month basis and, without further extension, will expire at the end of August
2005. Client and Supplier agree to work together to transition the data center as soon
as possible and practical with the goal of transitioning the service at the conclusion of
the existing HP contract.




Second, Client, in conjunction with *CONFIDENTIAL* from Supplier, desires to undertake an
analysis and process to transition its existing *CONFIDENTIAL* service contract to
Supplier. Client is presently in a *CONFIDENTIAL* contract with *CONFIDENTIAL* for these
services and would like to achieve a lower cost solution with Supplier as soon as
possible and practical.



-1-









 




Note: A request for confidential treatment has been filed with the SEC for the portions of this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.





Third, Client desires to seek the assistance of Supplier to analyze, plan and implement a
technology re-write of its existing application(s) scheduled to commence in early January
2006 with a goal of completing the project no later than calendar year end 2006.
Management anticipates that detailed planning for such project must begin no later than
the beginning of the third quarter of 2005 and desires to *CONFIDENTIAL* to maximize the
efficiency and minimize the cost of the overall project.




Fourth, with the assistance of and in collaboration with Supplier, identify and eliminate
certain *CONFIDENTIAL*. A preliminary analysis by management identified approximately
*CONFIDENTIAL* full time equivalent positions *CONFIDENTIAL* potentially capable of
being eliminated and replaced by staff in *CONFIDENTIAL*. Client and Supplier agree to
work together to realize such opportunities as soon as practical and in the best manner
possible, including the identification of specific functions and timelines.




Fifth, pursue, in conjunction with Supplier, the identification and implementation of
additional opportunities to leverage this Agreement to further lower Client’s operating
costs.




The Parties shall work together to evolve this agreement to maintain Services competitive
with opportunities that are otherwise available to Client in the global market in terms
of cost, service level commitments, quality, and productivity.




The provisions of this Article 1 are intended to be a general introduction to
this Agreement and are not intended to expand the scope of the Parties’ obligations or
alter the plain meaning of this Agreement’s terms and conditions as set forth
hereinafter. However, to the extent the terms and conditions of this Agreement are
unclear or ambiguous, such terms and conditions are to be construed so as to be
consistent with the background and objectives set forth in this Article 1.




	2.	 	DEFINITIONS AND DOCUMENTS
	 
	2.1	 	Definitions






As used in this Agreement:




“Affiliate” means, generally, with respect to any Entity, any other Entity Controlling,
Controlled by or under common Control with such Entity.




“Agreement” shall have the meaning given to such term in the preamble to this Agreement.




“Charges” means the amounts set forth in this Agreement as charges for the Services.




“Control” and its derivatives shall mean with regard to any entity the legal,
beneficial, or equitable ownership, directly or indirectly, of fifty percent (50%) or
more of the capital stock (or other ownership interest, if not a corporation) of such
entity ordinarily having voting rights.



-2-









 




Note: A request for confidential treatment has been filed with the SEC for the portions of this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.





“Data Center” shall mean the Supplier data center in *CONFIDENTIAL*.




“Developed Materials” shall mean all Materials developed by Supplier employees in
performing its applications development and maintenance obligations under this Agreement.




“Effective Date” shall have the meaning given such term in the preamble to this
Agreement.




“Entity” means a corporation, partnership, joint venture, trust, limited liability
company, association, or other organization or legal entity.




“Equipment” means all mainframe, midrange, distributed, network, telecommunications and
related computing equipment procured, provided, operated, supported or used by Supplier
or Client and required for Supplier to perform the Services.




“Client Data” means any data or tangible information of Client or any Client
Affiliate or customer that is provided by Client or any such Affiliate to Supplier for
use in the performance of its obligations under this Agreement, including data and
information with respect to the businesses, customers, operations, facilities, products,
consumer markets, assets and finances of Client or any Affiliate. Examples of Client
Data include any of the foregoing that are service level measurements, Client asset
information, charges hereunder, and Client customer data from any source. Service level
measurements and charges hereunder are also the Confidential Information of Supplier.




“Client Equipment” means Equipment owned by or leased to Client or a Client
Affiliate that is used in connection with the Services.




“Client Licensed Materials” means Third Party Software and other Materials that
are proprietary to third parties to which Client has obtained a license pursuant to a
written agreement with such third party.




“Client Owned Materials” shall mean: (a) the Materials owned by Client as of the
Effective Date, and all enhancements and derivative works of such Materials, including
United States and foreign intellectual property rights, including copyrights, in such
Materials, and (b) the intellectual property rights, including copyrights, in the
Developed Materials.




“Client Owned Software” means Software owned by Client, and all intellectual
property rights, including copyrights, in enhancements and derivative works of such
Software, including United States and foreign intellectual property rights, including
copyrights, in such Software, and the Developed Materials that consist of Software.




“Client Project Executive” shall have the meaning given such term in Section
10.1.




“Client Software” means Software that is either: (a) Client Licensed Materials;
or (b) Client Owned Materials.



-3-









 




Note: A request for confidential treatment has been filed with the SEC for the portions of this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.





“Client Third Party Contractors” shall have the meaning given such term in
Section 9.2.




“Laws” mean all federal, state and local laws, statutes, regulations, rules, executive
orders, supervisory requirements, directives, interpretive letters and other official
releases of or by any government.




“Losses” mean all losses, liabilities, damages and claims (including taxes), and all
related costs and expenses (including reasonable legal fees and disbursements and
reasonable costs of investigation, litigation, settlement, judgment, interest and
penalties).




“Malicious Code” means (i) any code, program, or sub-program whose knowing or
intended purpose is to damage or interfere with the operation of the computer system
containing the code, program or sub-program, or to intentionally halt, disable or
interfere with the operation of the Software, code, program, or sub-program, itself, or
(ii) any device, method, or token whose knowing or intended purpose is to permit any
person to circumvent the normal security of the Software or the system containing the
code.




“Materials” means, collectively, Software, literary works, other works of authorship,
specifications, design documents and analyses, programs, program listings, programming
tools, documentation, reports, drawings and similar work product.




“New Services” means services, functions and responsibilities that are not
described on Schedule B or otherwise initially provided for in this Agreement.




“Personnel” means, with respect to an Entity, the employees, agents, contractors and
representatives of such Entity.




“Policy and Procedures Manuals” means the then current versions of any Client
documentation that sets forth the policies, procedures, processes, methods and other
requirements for performing the Services designated as such and provided in writing to
Supplier.




“Proprietary Information” shall have the meaning given such term in
Section 13.3.




“Required Consents” means: (a) the consents (if any) required to be obtained (i)
to grant Supplier the right to use and/or access the Client Owned Software and Third
Party Software in connection with providing the Services or (ii) to assign or transfer to
Client all intellectual property rights, including the copyright, in any Developed
Materials; and (b) all other consents required from third parties in connection with
Supplier’s provision of the Services.




“Service Taxes” means all sales, lease, service, value-added, use, personal
property, excise, consumption, and other taxes or duties that are assessed against either
Party on the provision of the Services as a whole, or on any particular Service received
by Client from Supplier.



-4-









 




Note: A request for confidential treatment has been filed with the SEC for the portions of this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.





“Services” means, collectively the services, functions and responsibilities set forth in
Article 4 and Schedule B as they may be supplemented, enhanced, modified
or replaced by mutual agreement during the Term in accordance with this Agreement.




“Software” means both the source code and object code of software programs
(including compilers, database management software, applications software, system
software, utilities and other software programs), and all associated documentation and
programmers’ notes, and all versions, upgrades and enhancements to the same.




“Staffing Plan” shall have the meaning given such term in Section 8.7.




“Supplier Facilities” means the facilities owned or leased by Supplier at which
the Services are performed.




“Supplier Personnel” means Personnel of Supplier who are dedicated to Client to
perform any Services under this Agreement.




“Supplier Project Executive” shall have the meaning given such term in
Section 8.2 and shall describe the Supplier representative responsible for both
the day-to-day relationship with Client, as well as the delivery of the Services to
Client.




“Key Supplier Personnel” means the Supplier Personnel filling the positions
designated in Schedule A as Key Supplier Personnel.




“Term” means the five (5) year period that commences as of 12:00:01 a.m., EDT, on the
Effective Date and continues, unless this Agreement is terminated as provided herein or
extended as provided in Sections 3.2 or 20.5, in which case the Term shall end at
12:00 midnight on the effective date of such termination or the date to which this
Agreement is extended.




“Third Party Contracts” means all written third party agreements with Supplier
that are necessary to provide the Services from time to time, including, but not limited
to, licenses to Third Party Software, facilities leases, employment agreements, data and
communications service provider agreements.




“Third Party Software” means all Software products (and all modifications,
replacements, upgrades, enhancements, documentation, materials and media related thereto)
that are owned by third parties and used by Supplier to provide the Services.




“Transfer Assistance Services” means the reasonable termination/expiration
assistance requested by Client to allow the Services to continue without material
interruption or material adverse effect, and to facilitate the orderly transfer of the
Services to Client or its designee, as such assistance is further described in
Section 4.2.




“Workstations” means the personal data processing and computer equipment used by
Supplier Personnel to perform the Services, together with the LAN in *CONFIDENTIAL* and
the WAN up to and including the router at the Data



-5-









 




Note: A request for confidential treatment has been filed with the SEC for the portions of this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.





Center and associated infrastructure necessary to support performance of the Services..




	2.2	 	Other Terms






The terms defined in this Article include the plural as well as the singular. 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 Schedule
references refer to articles, sections and subsections of, and schedules 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, and the words “writing” or “written” mean preserved or
presented in retrievable or reproducible written form. Except as provided in this
Agreement, “writing” or “written” may mean electronic (including e-mail transmissions
where receipt is acknowledged by the recipient, but excluding voice mail) or hard copy,
including by facsimile (with acknowledgment of receipt from the recipient’s facsimile
machine), unless otherwise stated. Other terms used in this Agreement are defined in the
context in which they are used and shall have the meanings there indicated.




	2.3	 	Associated Contract Documents






This Agreement includes each of the following schedules and their attached exhibits,
all of which are attached to this Agreement and incorporated into this Agreement by this
reference:




	 	 	 	A            Key Supplier Positions and Critical Support Personnel
	 
	 	 	 	B            Services
	 
	 	 	 	C            Supplier Charges






	3.	 	TERM
	 
	3.1	 	Initial Term






This Agreement shall begin on the Effective Date and continue throughout the Term,
unless terminated earlier or extended in accordance with this Agreement.




	3.2	 	Extension






By giving prior written notice to the other Party not less than 6 months prior to the
expiration date of the initial Term, either Party shall have the right, and the other
party shall have the obligation, to negotiate in good faith during a period of sixty (60)
days the terms and conditions upon which the term of the Agreement may be extended following the expiration date of the initial Term. If the
Parties are unable to reach agreement upon renewal terms and conditions during the
sixty-day negotiation period, the Agreement will expire at the end of the initial Term.




	4.	 	SERVICES




-6-









 










Note: A request for confidential treatment has been filed with the SEC for the portions of this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.





	4.1	 	Overview






	 	(a)	 	Description. Commencing on the Effective Date, Supplier and Client shall
jointly develop and implement a transition plan and schedule pursuant to which the
functions described in Schedule B as currently performed by Client Personnel
will be transitioned to the dedicated Supplier Personnel. As the designated
functions are transitioned, the Supplier Personnel shall thereafter provide the
Services to Client in accordance with this Agreement. The Services shall consist of
the services, functions and responsibilities as set forth in this Agreement, and in
all cases to be performed in accordance with the Policy and Procedures Manuals.
Changes to the Policy and Procedures Manuals following the Effective Date shall be
subject to an equitable adjustment to the Staffing Plan or the Charges.






Client shall provide the Client Equipment, Client Licensed Materials and Client
Owned Materials. Supplier shall provide the Workstations, and the facilities
in *CONFIDENTIAL*. The Parties shall mutually agree on the provision of any
other facilities, Equipment, Third Party Software and other resources necessary
for Supplier to provide the Services. Any changes to the specifications for
facilities, Equipment, Third Party Software or other resources to be used by
Supplier to perform the Service required by Client shall be subject to an
equitable adjustment to the Charges.




	 	(b)	 	Exclusivity. During the Term (i) Supplier shall be the exclusive
provider of software development Services to be performed outside the United States,
data center services and EDI/VAN services to Client, and (ii) Client will not enter
into discussions or agreements with any third parties that would be inconsistent
with its obligation to migrate the data center Services or the technical and
professional resource Services to Supplier.. Otherwise, this Agreement shall not be
construed as a requirements contract and this Agreement shall not be interpreted to
prevent Client from obtaining from third parties, or providing to itself, any or all
of the services described in this Agreement, including that Client can provide
software development services to itself in the United States.






	4.2	 	Transfer Assistance Services






	 	(a)	 	Availability. Supplier shall provide to Client or Client’s designee the
Transfer Assistance Services in this Agreement.






	 	(i)	 	Supplier shall provide such Transfer Assistance
Services to Client or its designee (i) commencing up to six (6) months
prior to the expiration of the Term (including any renewal Term) or on
such earlier date as Client may request and continuing for up to six (6)
months following the effective date of the expiration of the Term (as such
effective date may be extended pursuant to Section 3.2), (ii)
commencing upon any notice of termination of the Term with respect to all
or any portion of the Services, and continuing for up to six (6)




-7-









 










Note: A request for confidential treatment has been filed with the SEC for the portions of this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.





months following the effective date of such termination (as such
effective date may be extended pursuant to Section 20.4),
(iii) commencing upon notice of termination of any portion of the
Services no longer required by Client and continuing for up to six
(6) months following the effective date of such termination (as such
effective date may be extended pursuant to Section 20.4).




	 	(ii)	 	Supplier shall provide Transfer Assistance Services
to Client or its designee regardless of the reason for the expiration or
termination of the Term; provided that if the Agreement is terminated by
Supplier under Section 20.1(b) or (c) for Client’s default,
Supplier may require Client to (i) pay in advance for Transfer Assistance
Services provided or performed under this Section 4.2, (ii) pay
all outstanding undisputed Charges, and (iii) establish an escrow account
based on mutually agreed terms to ensure payment of future Charges.
	 
	 	(iii)	 	To the extent Client requests Transfer Assistance
Services, such Services shall be provided subject to and in accordance
with the terms and conditions of this Agreement. Supplier shall perform
the Transfer Assistance Services with at least the same degree of
accuracy, quality, completeness, timeliness, responsiveness and
cost-effectiveness 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 Services provided by Supplier following the expiration or
termination of the Term with respect to all or part of the Services or
Supplier’s receipt of a notice of termination or non-renewal shall not be
materially degraded or deficient in any respect.






	 	(b)	 	Scope of Service. As part of the Transfer Assistance Services, Supplier
will, on a timely basis, transfer the control and responsibility for all Services,
including documentation, software support and data management functions, previously
performed by or for Supplier to Client and/or Client’s designees. Additionally,
Supplier shall provide any and all reasonable assistance requested by Client to
allow:






	 	(i)	 	the systems associated with the Services to operate
efficiently;
	 
	 	(ii)	 	the Services to continue without material
interruption or material adverse effect; and
	 
	 	(iii)	 	the orderly transfer of the Services to Client
and/or its designee(s).






The Transfer Assistance Services shall consist of the Services, functions and
responsibilities set forth in this Agreement and all similar services requested
from time to time by Client.



-8-









 




Note: A request for confidential treatment has been filed with the SEC for the portions of this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.





In addition to the initial six (6) month post-termination period specified in
Section 4.2(a)(i) above, at Client’s written request (which must be
given at least 180 days prior to the expiration or termination date), and
provided that Client is pursuing a migration of some or all of the Services to
itself or a third party, Supplier shall provide to Client such Services for an
additional period not to exceed six (6) months from the end of such initial six
(6) month period. To the extent Client requests such Services, Client will
continue to pay Supplier the Charges.




Unless otherwise agreed in writing, if Client requests that Supplier provide or
perform Transfer Assistance Services in accordance with this Agreement, Client
will pay Supplier the rates and charges specified in Schedule C (or if
no charge is specified in Schedule C, then a reasonable charge) for
Supplier Personnel or resources required to perform such Transfer Assistance
Services. If Transfer Assistance Services require additional resources beyond
those being used to provide the Services, Client will pay Supplier for such
usage as a New Service.




	 	(c)	 	Survival of Terms. This Section 4.2 shall survive
termination/expiration of the Term.






	5.	 	REQUIRED CONSENTS






Client is responsible for obtaining all Required Consents. Supplier will cooperate with
and assist Client in obtaining all Required Consents that may become necessary from time
to time in connection with Supplier’s performance of the Services or upon the expiration
or termination of this Agreement in accordance with Article 4.




	6.	 	FACILITIES, SOFTWARE, EQUIPMENT, CONTRACTS AND ASSETS ASSOCIATED WITH THE PROVISION OF
SERVICES
	 
	6.1	 	Service Facilities






	 	(a)	 	Service Facilities. The Services shall be provided at or from the production
and data center locations owned or leased by Supplier.
	 
	 	(b)	 	Facilities Requirements. Each Supplier Facility shall meet the minimum
security and other standards agreed by the parties.
	 
	 	(c)	 	Furniture, Fixtures and Equipment. Except as may be expressly provided
in this Agreement, Supplier shall be responsible for providing all furniture,
fixtures, office equipment, Workstations and facilities management and support
services at the Supplier Facilities needed by Supplier or Supplier Personnel to
provide the Services. Material upgrades, improvements, replacements and additions
to such Workstations shall be subject to an equitable adjustment to the Charges.
	 
	 	(d)	 	Other Supplier Responsibilities Regarding Facilities. Supplier shall be
responsible for site management, site administration and similar services regarding
Supplier Personnel located at the Supplier Facilities,




-9-









 










Note: A request for confidential treatment has been filed with the SEC for the portions of this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.





and provide all necessary emergency power supply and uninterrupted power supply
services and all necessary Workstations at Supplier Facilities.




	 	(e)	 	Employee Services. Supplier shall be responsible for all employee
services and the physical security of the facilities used by Supplier Personnel
assigned to Client to perform the Services.
	 
	 	(f)	 	Facilities Compliance. Supplier shall provide Supplier Facilities
compliant with all applicable *CONFIDENTIAL* laws, rules, codes, regulations and
standards. Changes to any of such laws, rules, codes, regulations or standards
change during the term may result in an equitable adjustment to the Staffing Plan or
the Charges.
	 
	 	(g)	 	Client Assets at Supplier Facilities. All Client Equipment, Client Owned
Materials and Client Licensed Materials located at Supplier Facilities to enable
Supplier Personnel to perform the Services shall be secured at the Supplier
Facilities and safeguarded in accordance with the Agreement. As of the Effective
Date, Client shall provide the Equipment, Client Owned Materials and Client Licensed
Materials necessary for Supplier to create a development environment compatible with
Client’s internal development environment. Upon termination or expiration of this
Agreement, or at anytime upon request from Client, Supplier shall return such Client
Materials and Client Equipment in the same condition as the condition in which the
same were first located at Supplier Facilities, reasonable wear and tear excepted.
	 
	 	(h)	 	Client’s Nonperformance. Supplier’s nonperformance of its obligations
under this Agreement shall be excused if and to the extent such Supplier
nonperformance results from Client’s failure to perform its responsibilities.






	6.2	 	Software






	 	(a)	 	Supplier Personnel shall not use Software other than Client Software or Third
Party Software specifically designated by Client on their Workstations to perform
Supplier’s obligations under this Agreement.
	 
	 	(b)	 	Supplier shall be responsible for:






	 	(i)	 	the support, administration, operation and
maintenance of all Third Party Software to be used by Supplier on the
Workstations in performing the Services, including payment of required
license and maintenance fees (except with respect to Client Licensed
Software). Any changes to the Third Party Software required by Client for
use in performing the Services shall be subject to an equitable adjustment
in the Charges; and
	 
	 	(ii)	 	the compliance with and performance of all
operational and administrative obligations specified in such licenses and
agreements, including nondisclosure obligations. If any of these are
Client licenses or agreements, this obligation shall be




-10-









 










Note: A request for confidential treatment has been filed with the SEC for the portions of this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.





limited to performance of operational and administrative obligations
provided in writing to Supplier.




	 	(c)	 	Client shall be responsible for:






	 	(i)	 	the support, administration, operation and
maintenance of Client Licensed Software to be used in *CONFIDENTIAL* and
the Equipment and Software in *CONFIDENTIAL*, including payment of
required license and maintenance fees; and
	 
	 	(ii)	 	the compliance with and performance of all
operational and administrative obligations specified in such licenses and
agreements to the extent applicable to the Services, including
nondisclosure obligations provided in writing to Supplier.






	6.3	 	Equipment






	 	(a)	 	Supplier Personnel shall not use any Equipment other than Workstations specified
by Client or other Equipment provided by Client to perform the Services without the
prior written consent of Client.
	 
	 	(b)	 	With respect to the Client Equipment to be placed at the Supplier
Facilities, Supplier shall be responsible for cooperating, assisting and advising
Client in connection with the relocation, testing, installation, rollout, use,
support, management, administration, operation and maintenance of the Client
Equipment according to an agreed services implementation plan and the Policy and
Procedures Manuals.






	6.4	 	Third Party Contracts






Except Third Party Contracts entered into by Client pursuant to Section 9.2 and
Third Party Contracts relating to Client’s performance of its responsibilities
hereunder, including maintenance on Client Equipment, Client Owned Materials or Client
Licensed Materials, Supplier shall be responsible for (a) the evaluation, procurement,
use, support, management, administration, operation and maintenance of all Third Party
Contracts necessary to perform Supplier’s responsibilities under this Agreement,
including the facilities leases, maintenance on Workstations, licenses to Software
provided by Supplier and installed on the Workstations, connectivity and telecom
agreements, (b) the performance, availability, reliability, compatibility and
interoperability of such Third Party Contracts and the services and products provided
thereunder, and (c) the performance of any operational, administrative or contractual
obligations imposed on Supplier under such Third Party Contracts.,




	6.5	 	License to Client Software and Materials






As of the Effective Date, Client hereby grants to Supplier a non-exclusive, fully
paid-up, irrevocable license during the Term and any Transfer Assistance Services period
to use the Client Owned Software and Client Owned Materials and to prepare derivative
works of the same as part of the Services, in each case



-11-









 




Note: A request for confidential treatment has been filed with the SEC for the portions of this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.





solely at the Supplier Facilities, for the express and sole purpose of providing the
Services and any requested Transfer Assistance Services. Client Owned Software and
Client Owned Materials shall remain the property of Client. Supplier shall not use any
Client Owned Software or Client Owned Materials for the benefit of any person or Entity
other than Client. Except as otherwise requested or approved by Client, Supplier and its
Subcontractors shall cease all use of Client Owned Software and Client Owned Materials
(except as may be provided in Article 14 of this Agreement) upon the later of the
end of the Term or any Transfer Assistance Services period and shall deliver all source
code and documentation relating to such Software upon the later of the completion of the
Term or any Transfer Assistance Services period.




	6.6	 	Access to Third Party Software and Maintenance






During the Term, and subject to obtaining any Required Consents, Client shall grant
to Supplier, for the sole purpose of performing the Services during the Term and any
Transfer Assistance Services period, any rights that may be necessary for Supplier to
access and use Client Licensed Materials and Client Third Party Contracts that Client has
with respect to such Third Party Software and Third-Party Contracts at least sufficient
to enable Supplier to perform the Services. Supplier shall comply with the duties,
including use restrictions and those of nondisclosure, imposed on Client by such licenses
and agreements made available to Supplier in writing. Except as otherwise requested or
approved by Client (or the relevant licensor), Supplier shall cease all use of such
Third-Party Software and Third-Party Contracts on the later of the end of the Term or
Transfer Assistance Services period and shall return any and all such Software (including
the source code, programmers notes and documentation pertaining thereto) to Client and/or
any third-party licensor, if and as applicable.




	6.7	 	Notice of Defaults






Client and Supplier shall promptly inform the other Party of any breach of, or
misuse or fraud in connection with, any Third-Party Contract(s), Equipment Lease or
Third-Party Software license of which it becomes aware and shall cooperate with the other
Party to prevent or stay any such breach, misuse or fraud.




	7.	 	PROBLEM ANALYSIS






If Supplier fails to provide Services, Supplier shall:




	 	(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;
	 
	 	(iii)	 	develop and implement a plan to correct the problem
and to begin performing the Services which may include an equitable
adjustment to the Staffing Plan or Charges; and










-12-









 










Note: A request for confidential treatment has been filed with the SEC for the portions of this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.





	 	(iv)	 	advise Client, as and to the extent reasonably
requested by Client, of the status of remedial efforts being undertaken
with respect to such problem.






Supplier shall use diligent efforts to complete the Root Cause Analysis within fifteen
(15) days of the original date of discovery of such problem.




	8.	 	PROJECT PERSONNEL
	 
	8.1	 	Key Supplier Personnel






	 	(a)	 	Approval of Key Supplier Personnel.






	 	(i)	 	Before assigning an individual to replace any of the
Key Supplier Personnel, whether on an initial assignment or a subsequent
assignment, Supplier shall notify Client of the proposed assignment, shall
introduce the individual to appropriate Client representatives, shall
provide reasonable opportunity for Client representatives to interview the
individual, and shall provide Client with a resume and such other
information about the individual as may be reasonably requested by Client.
If Client in good faith objects to the proposed assignment for a
specified lawful reason, the Parties shall attempt to resolve Client’s
concerns on a mutually agreeable basis. If the Parties have not been able
to resolve Client’s concerns within ten (10) business days, Supplier shall
not assign the individual to that position and shall propose to Client the
assignment of another individual of suitable ability and qualifications.
	 
	 	(ii)	 	The Key Supplier Personnel that have been approved as
of the Effective Date are listed in Schedule A.
	 
	 	(iii)	 	The Parties may from time to time change the
positions designated as Key Supplier Personnel under this Agreement by
mutual agreement of the Parties.






	 	(b)	 	Continuity of Key Supplier Personnel. Supplier shall cause each of the
Key Supplier Personnel to devote the necessary time and effort (which will likely
fluctuate from time to time) to the provision of the Services under this Agreement.
Supplier shall not transfer, reassign or remove any of the Key Supplier Personnel
without (i) giving Client at least thirty (30) days’ prior written notice of such
action and (ii) complying with the requirement of Section 8.1(a)(i) above
and Section 8.4 below except where the Key Supplier Personnel (i)
voluntarily resigns from Supplier, (ii) is dismissed by Supplier for violations of
conditions of employment, (iii) fails to perform his or her duties and
responsibilities pursuant to this Agreement in Supplier’s reasonable judgment or
(iv) dies or is unable to work due to his or her illness or disability






	8.2	 	Supplier Project Executive




-13-









 











Note: A request for confidential treatment has been filed with the SEC for the portions of this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.




Supplier shall designate a “Supplier Project Executive” for Client. The Supplier
Project Executive shall:




	 	(i)	 	be one of the Key Supplier Personnel;
	 
	 	(ii)	 	be a full-time employee of Supplier;
	 
	 	(iii)	 	devote sufficient time and effort to managing the
Services provided to Client;
	 
	 	(iv)	 	serve as the single point of accountability for the
Services; and
	 
	 	(v)	 	have day-to-day authority for ensuring customer
satisfaction.






	8.3	 	Supplier Personnel Are Not Client Employees






The Parties intend to create an independent contractor relationship and nothing in
this Agreement shall operate or be construed as making Client or Supplier partners, joint
venturers, principals, agents or employees of the other. No officer, director, employee,
agent, Affiliate, contractor or Subcontractor retained by Supplier to perform work on
Client’s behalf hereunder shall be deemed to be an officer, director, employee, agent,
Affiliate, contractor or Subcontractor of Client. Notwithstanding Client’s rights
hereunder, Supplier, not Client, has the sole right, power, and authority over the
employment of the Supplier Personnel and the sole obligation to compensate such Supplier
Personnel for all work performed by them on Client’s behalf pursuant to this Agreement.




	8.4	 	Replacement, Qualifications and Retention of Supplier Personnel






	 	(a)	 	Supplier shall assign sufficient Supplier Personnel to provide the Services in
accordance with the Staffing Plan as it exists from time to time, and Supplier
Personnel shall meet the requirements and have the qualifications necessary to
perform the Services for which they are assigned to perform.
	 
	 	(b)	 	In the event that Client determines reasonably, lawfully and in good
faith that the continued assignment to Client of any Supplier Personnel (including
Key Supplier Personnel) is not in the best interests of Client, then Client shall
give Supplier written notice to that effect specifying the reason for its position
and requesting that such Supplier Personnel be removed from the account and whether
a replacement is being requested. Promptly after its receipt of such a request by
Client, Supplier shall have ten (10) business days to investigate the matters stated
in the request and discuss its findings with Client. If Supplier determines that
Client’s request is reasonable, lawful and in good faith, Supplier shall take
appropriate action. If requested to do so by Client, Supplier shall immediately
remove the individual in question from all Client activities pending completion of
Supplier’s investigation and discussions with Client. If, following discussions
with Supplier, Client still in good faith requests removal/replacement of such
Supplier Personnel, Supplier shall on two weeks advance notice remove the




-14-









 










Note: A request for confidential treatment has been filed with the SEC for the portions of this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.





Supplier Personnel, and, then, if requested, replace such Supplier Personnel
with an individual of suitable ability and qualifications in accordance with
the Staffing Plan.




	8.5	 	Personnel Screening






Supplier agrees to follow the pre-employment and post-employment screening
procedures applicable to specific functions used by Client for its own employees
documented in the Policy and Procedures Manuals.




	8.6	 	Hiring of Employees






During the Term and for a period of six (6) months following the expiration or
termination hereof (including any extended post-termination/expiration transition
period), Supplier will not solicit for employment directly, nor employ, any current
employee of Client involved in the performance of Client’s obligations under this
Agreement without the prior written consent of Client. During the Term and for a period
of six (6) months following the expiration or termination hereof (including any extended
post-termination/expiration transition period), Client will not solicit for employment
directly, nor employ, any current employee of Supplier or its Affiliates involved in the
performance of Supplier’s obligations under this Agreement without the prior written
consent of Supplier. For purposes of this Section 8.6, “current employee” shall
be deemed to include an employee of the applicable Entity who is then currently actively
employed by the Entity or who was so employed by the Entity within the previous six (6)
month period.




	8.7	 	Assignment of Personnel






Supplier shall assign to the performance of its obligations under this Agreement the
number of Supplier Personnel specified in a detailed staffing schedule mutually agreed by
the Parties (the “Staffing Plan”). The Staffing Plan shall be reviewed and updated
weekly and shall be maintained in a manner that will permit Supplier to assign to the
Services an adequate number of staff to perform all of Supplier’s obligations hereunder,
including, without limitation, administration, management, audit support, reporting and
meetings requirements. Many of the functions may require a number of Personnel that is
variable in nature and therefore the Parties shall develop policies and procedures to
implement and maintain the Staffing Plan on an ongoing basis. All changes to the
Staffing Plan will be made by mutual agreement of the Parties based on the expected
volumes and business requirements of Client. Additional requirements for staffing shall
be included in the Staffing Plan with as much notice as possible and at least reasonable
notice (generally at least thirty (30) days advance notice is preferred unless otherwise
agreed) and may result in an equitable adjustment to the Charges. Client will provide
Supplier with as much notice as possible and at least reasonable notice (generally at
least thirty (30) days advance notice is preferred unless otherwise agreed) of reductions
in the staffing requirements. Generally, all Supplier Personnel assigned to the Client
account will be fully dedicated to the Client account and may not be utilized by Supplier
on non-Client business; provided however, that it is understood and agreed that the
Supplier Project Executive and other Supplier employees who provide administrative,
management and other overhead functions on behalf of




-15-










 







Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*. The redacted portions have been filed
separately with the SEC.





	 	 	Supplier in carrying out the obligations of Supplier in this Agreement as well as other
Supplier business are not dedicated or billable to Client.
	 
	8.8	 	Training. Client will provide reasonable training for Supplier Personnel at least to the
same extent Client provides training to its other employees based on the function they
perform.
	 
	9.	 	SUPPLIER RESPONSIBILITIES
	 
	9.1	 	Policy and Procedures Manuals
	 
	 	 	Supplier Personnel shall perform the Services in accordance with the Policy and
Procedures Manuals as specified by Client from time to time. In the event of a conflict
between the provisions of this Agreement and the Policy and Procedures Manuals, the
provisions of this Agreement shall control unless the Parties expressly agree otherwise
and such agreement is set forth in the relevant portion of a Policy and Procedures
Manuals approved by Client and Supplier in writing.
	 
	9.2	 	Cooperation with Client Third-Party Contractors
	 
	 	 	Subject to Section 4.1(b), Client may hire contractors, subcontractors, consultants
and/or other third parties (“Client Third Party Contractors”) to perform any
tasks related to the Services or any New Services. Supplier Personnel shall reasonably
cooperate with and work in good faith with Client Third Party Contractors as directed by
Client, subject to reasonable protection of Supplier’s Confidential Information and
intellectual property and an equitable adjustment in the Staffing Plan and Charges.
	 
	9.3	 	Reports






	 	(a)	 	Reports. In addition to reports specified elsewhere in this Agreement, the
Parties may mutually agree on additional reports to be generated by Supplier and
delivered to Client on an ad hoc or periodic basis.
	 
	 	(b)	 	Back-Up Documentation. As part of the Services, Supplier shall provide
Client with such documentation and other information available to Supplier as may be
reasonably requested by Client from time to time in order to verify the accuracy of
the reports provided by Supplier. In addition, each Party shall provide the other
Party with documentation and other information reasonably requested from time to
time related to the Service Levels.
	 
	 	(c)	 	Correction of Errors. As part of the Services, Supplier shall promptly
correct any errors or inaccuracies in or with respect to the reports, Client Data or
other deliverables provided to Client as part of the Services.






	9.4	 	Meetings
	 
	 	 	In order to assist Client in its business planning, during the
Term, representatives of the senior management of Supplier and
representatives of the senior management of Client agree to meet in
person or telephonically no less




-16-









 











Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*. The redacted portions have been filed
separately with the SEC.





	 	 	frequently than monthly (provided that such parties shall meet in person no less
frequently than quarterly) (a) to discuss, prioritize and balance Client’s needs
and Supplier’s resources on the Client account, including, without limitation, manpower
and personnel resources, and (b) to discuss any other matters arising under this
Agreement. Such meetings will include review of monthly reports, planned or anticipated
activities and changes that might materially and adversely affect performance, and such
other matters as appropriate.
	 
	9.5	 	Quality Assurance
	 
	 	 	Supplier shall perform the Services in an accurate and timely manner, in accordance
with the Policy and Procedures Manuals.
	 
	 	 	Client shall have final authority to promulgate processes, procedures, manners and
methods to be used in performance of the Services and information technology
architectures, standards and plans used to provide or support the Services, and to modify
or grant waivers from such processes, procedures, manners, methods, architectures,
standards or plans, all in accordance with the Policy and Procedures Manuals. Supplier
shall (i) comply with and enforce the processes, procedures, manners, methods,
information technology architectures, standards and plans as specified by Client from
time to time and delivered to Supplier, provided any changes are subject to an equitable
adjustment to the Staffing Plan and Charges, (ii) modify the Services as and to the
extent necessary to conform to changes to the same, subject to an equitable adjustment to
the Staffing Plan and Charges, and (iii) obtain Client’s prior approval for any
deviations therefrom.
	 
	9.6	 	Change Control
	 
	 	 	Supplier shall not make any changes to the Services except in accordance with an
agreed-upon change control procedures contained in the Policy and Procedures Manuals.
	 
	9.7	 	Audit Rights






	 	(a)	 	Supplier Records. Supplier shall maintain records, documents and other
information reasonably required to meet Client’s audit rights under this Agreement,
including, without limitation, all information reasonably necessary to verify the
accuracy of Charges to Client included on any invoice provided to Client
(“Supplier Records”). Supplier shall retain Supplier Records in accordance
with Supplier’s records retention policy as it may be reasonably adjusted from time
to time and provided to Client in writing upon request; provided,
however, that Supplier shall at all times comply fully with the Policy and
Procedures Manuals regarding records retention.
	 
	 	(b)	 	Operational Audits. Upon thirty (30) days advance notice from Client no
more than once annually, Supplier shall provide to Client (and internal and
external auditors, inspectors, regulators and other representatives that Client
may designate from time to time) access at reasonable hours to Supplier
Personnel, to the Supplier Facilities at or from which Services are then being
provided or were provided within




-17-









 











Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*. The redacted portions have been filed
separately with the SEC.





	 	 	 	the past twelve (12) months, and to Supplier Records, all only to the extent relevant to
the Services and Supplier’s obligation under this Agreement. Such access shall be
provided for the purpose of performing audits and inspections of Client and its
businesses and to examine Supplier’s performance of the Services, including: (i)
verifying the integrity of Client Data; (ii) examining the systems that process, store,
support and transmit such data; (iii) examining the controls (e.g., organizational
controls, input/output controls, system modification controls, processing controls,
system design controls and access controls) and the security, back-up practices and
procedures; (iv) examining Supplier’s measurement, monitoring and management tools; and
(v) enabling Client to meet applicable legal, regulatory and contractual requirements.
As part of the Services, Supplier shall provide any assistance reasonably requested by
Client or its designee in conducting any such audit. In addition, Supplier shall
reasonably cooperate with Client by providing similar records and information necessary
for Client and its principal officers to meet all applicable quarterly and annual public
reporting and attestation obligations.
	 
	 	(c)	 	General Procedures.






	 	(i)	 	Client shall not be given access to the proprietary
information of other Supplier customers or to Supplier locations that are
not related to Client or the Services or to information that is not
reasonably necessary to perform the audit.
	 
	 	(ii)	 	In performing audits, Client shall endeavor to avoid
unnecessary disruption of Supplier’s operations and unnecessary
interference with Supplier’s ability to perform the Services. In the
event that Client disrupts Supplier’s operations or interferes with
Supplier’s ability to perform the Services, Supplier shall be excused for
such disruption.
	 
	 	(iii)	 	Following any audit under this Section 9.7, Client
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)	 	Client shall use reasonable efforts to conduct the
audit efficiently, expeditiously and at reasonable business hours.






	 	(d)	 	Supplier Response. Supplier and Client shall meet to review each audit
report promptly after the issuance thereof. Supplier will respond to each
audit report in writing within thirty (30) days from receipt of such report.
Supplier and Client shall develop and agree upon an action plan to promptly
address and resolve any deficiencies, concerns and/or recommendations in such
audit report, and Supplier shall undertake
remedial action in accordance with such action plan and the dates specified
therein.




-18-









 











Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*. The redacted portions have been filed
separately with the SEC.





	 	(e)	 	Response to Government Audits. If an audit by a governmental body or
regulatory authority having jurisdiction over Client or Supplier results in a
finding that Supplier or Client is not in compliance with any generally accepted
accounting principle or other audit requirement or any rule, regulation or law
relating to the performance of its obligations under this Agreement, Supplier or
Client, as the case may be, shall, within the time period specified by such auditor,
address and resolve the deficiency(ies) identified by such governmental body or
regulatory authority.






	9.8	 	Subcontractors






	 	(a)	 	Use of Subcontractors. Supplier shall not subcontract any portion of its
responsibilities under this Agreement without Client’s prior written approval, which
may not be unreasonably withheld by Client. Prior to entering into a subcontract
with a third party for performance of any portion of the Services, Supplier shall
give Client reasonable prior written notice specifying the components of the
Services affected, the scope of the proposed subcontract, and the identity and
qualifications of the proposed Subcontractor and other information Client may
reasonably request in order to consider its approval.
	 
	 	(b)	 	Supplier Responsibility for Subcontractors. Supplier shall remain
responsible for obligations performed by approved Subcontractors and the conduct of
Subcontractor personnel to the same extent as if such obligations were performed by
Supplier’s employees. Supplier shall be Client’s sole point of contact regarding
the Services, including with respect to payment.






	9.9	 	Compliance with Applicable Laws
	 
	 	 	Client shall have the right to notify Supplier of changes in Laws applicable to Client
that may impact the means or manner of providing the Services. Supplier shall make all
commercially reasonable efforts required to implement any modifications to the Services
in accordance with the Policy and Procedures Manuals prior to any applicable deadline
imposed by the regulatory or other governmental body having jurisdiction for such
requirement or change. The performance of any such modifications may result in an
equitable adjustment in the Staffing Plan and Charges.
	 
	10.	 	CLIENT RESPONSIBILITIES
	 
	10.1	 	Responsibilities
	 
	 	 	In addition to Client’s responsibilities as expressly set forth elsewhere in this
Agreement and in the Policy and Procedures Manuals, Client shall be responsible for the
following:






	 	(a)	 	Client shall designate, prior to commencement of the Services by Supplier, one
individual to whom all Supplier communications concerning this Agreement may be
addressed (the “Client Project Executive”), who shall have the authority to
act on behalf of Client in




-19-









 











Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*. The redacted portions have been filed
separately with the SEC.





	 	 	 	all day-to-day matters pertaining to this Agreement. Jane Hoffer is hereby designated as
the initial Client Project Executive. Client may change the designated Client Project
Executive from time to time by providing written notice to Supplier. Additionally,
Client 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, execution of decision or change requests, etc.) if the Client
Project Executive is not available. Furthermore, and notwithstanding the forgoing,
Supplier shall be entitled to act on Services requests made on the authority of all
Client executives or their designated project managers as set forth in the Policy and
Procedures Manuals.
	 
	 	(b)	 	Client shall cooperate with Supplier by, among other things, promptly
making available, as reasonably requested by Supplier, management decisions,
information, approvals and acceptances so that Supplier may accomplish its
obligations and responsibilities hereunder.
	 
	 	(c)	 	Client shall perform all of its obligations under this Agreement within
the timeframes specified or, if no timeframe is specified, in a reasonably timely
manner.






	11.	 	CHARGES
	 
	11.1	 	General






	 	(a)	 	In consideration of Supplier’s performance of the Services, Client agrees to pay
Supplier the applicable Charges set forth in Schedule C. Client agrees that
Supplier shall be compensated on the basis provided in this Agreement for all
Services rendered. The rate includes all direct labor, general and administrative
costs, benefits, Workstations, telecom and data communications, physical space and
facility, depreciation, insurance and fees, office expenses and an overhead fee
factor. The Charges for Supplier Personnel assigned to the Client account for only
a portion of any given month will be prorated based on the number of business days
worked by that individual during the month in question.
	 
	 	(b)	 	Except as may be otherwise agreed to in writing by the Parties under
special circumstances and subject to any equitable adjustments to the Charges made
pursuant to this Agreement, Client shall not pay any amounts for the Services to
Supplier in addition to those set forth in this Article 11 or Schedule
C.






	11.2	 	Incidental Expenses
	 
	 	 	Supplier acknowledges that, except as expressly provided otherwise in this Agreement
or other instrument signed by an authorized representative of Client, incidental expenses
that Supplier incurs in performing the Services are included in Supplier’s Charges and
the rates set forth in this Agreement. Accordingly, such Supplier expenses are not
separately reimbursable by Client unless Client has agreed in advance and in writing to
reimburse Supplier for the expense.




-20-









 











Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*. The redacted portions have been filed
separately with the SEC.





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






	 	(a)	 	Each Party shall be responsible for any franchise or privilege taxes on
its business and for any taxes based on its net income or gross receipts.
	 
	 	(b)	 	Each Party shall be responsible for any sales, lease, use, personal
property or other such taxes on Equipment, Software or property it owns or leases
from a third party.
	 
	 	(c)	 	Supplier shall be responsible for all sales, service, value-added, lease,
use, personal property, excise, consumption and other taxes and duties payable by
Supplier on any goods or services acquired and used or consumed by Supplier in
providing the Services where the tax is imposed on Supplier’s acquisition or use of
such goods or services.
	 
	 	(d)	 	Client shall be responsible for all sales, use, excise, value added,
consumption, service or other taxes assessed on the receipt of the Services as a
whole, or on any particular Service received by Client from Supplier.
	 
	 	(e)	 	The Parties agree to cooperate reasonably with each other to enable each
to determine more accurately 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.
	 
	 	(f)	 	Each Party will promptly notify the other of, and reasonably coordinate
with the other, the response to and settlement of, any claim for taxes asserted by
applicable taxing authorities for which the other Party is 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 all rights to participate in
the responses and settlements that are appropriate to its potential responsibilities
or liabilities. If either Party requests the other to challenge the imposition of
any tax, the requesting Party will reimburse the other for the reasonable legal fees
and expenses it incurs. A Party will be entitled to a proportional share of any tax
refunds or rebates granted to the extent such refunds or rebates are of taxes that
were paid by it.
	 
	 	(g)	 	Each Party agrees that it will file appropriate tax returns, and pay
applicable taxes owed arising from or related to the Services in applicable
jurisdictions.






	11.4	 	New Services and Projects




-21-









 











Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*. The redacted portions have been filed
separately with the SEC.





	 	(a)	 	The Parties may discuss and mutually agree the addition of New Services under
this Agreement.
	 
	 	(b)	 	Subject to Section 4.1(b), Client may elect to, and reserves the right
to, solicit and receive bids from third parties to perform New Services. If Client
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
reasonably cooperate with such third parties in accordance with Section 9.2 to the
extent such cooperation does not impact Supplier’s ability to provide the Services.






	11.5	 	Proration
	 
	 	 	Any periodic charges that may become due 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.
	 
	11.6	 	New Services
	 
	 	 	If Client asks Supplier to perform services that are related to, but materially different
from and in addition to, the Services (“New Services”), Supplier shall propose a fair and
reasonable price for the performance of such New Services. If Client elects to have
Supplier perform the New Services, the New Services shall be deemed to be Services for
all respects hereunder.
	 
	12.	 	INVOICING AND PAYMENT
	 
	12.1	 	Invoicing
	 
	 	 	Supplier will invoice Client after the first day of each month during the Term for
amounts attributable to Services performed during the preceding month. The invoice will
state separately applicable taxes owed by Client, if any, by tax jurisdiction. Client
will pay all undisputed invoiced Charges (subject to Section 12.3) in United
States Dollars, by electronic funds transfer to an account designated by Supplier or by
check sent to Supplier in accordance with Supplier’s directions within thirty (30) days
after the date of Client’s receipt of the invoice. Each invoice shall be accompanied by
such details of Charges as are reasonably necessary to meet Client’s requirements under
government accounting rules and regulations, to validate volumes and fees, and to satisfy
Client’s internal accounting requirements. Supplier shall include the pricing
methodologies, calculations and related data utilized to establish the Charges.
	 
	 	 	To the extent a credit (including credits for past overcharges, etc.) may be due to
Client pursuant to this Agreement, Supplier shall provide Client with an appropriate
credit against amounts then due and owing.
	 
	12.2	 	Set Off
	 
	 	 	With respect to any amount to be paid or reimbursed by Client hereunder, Client may
set off against such amount any amount that Supplier is obligated to pay Client
hereunder.




-22-









 











Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*. The redacted portions have been filed
separately with the SEC.





	12.3	 	Disputed Charges






	 	(a)	 	Client shall pay undisputed Charges when such payments are due under this
Article 12 and Schedule C. If Client in good faith disputes whether
Supplier supplied staff to perform Services that are invoiced, whether the correct
rate is being applied, or has other disputes as to the amounts invoiced, Client
shall promptly notify Supplier in writing of any associated disputed amount and the
basis for Client’s dispute together with any appropriate information supporting
Client’s position. Client and Supplier shall address disputes in accordance with
the procedures set forth below and in Article 19.
	 
	 	(b)	 	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 Client may otherwise have to dispute any Charge or amount or
recover any amount previously paid.
	 
	 	(c)	 	The parties will work together in good faith to resolve any disputed
amount. If such dispute is not resolved within thirty (30) days after the original
payment due date, the parties will resolve such dispute as provided in Section
19. Once resolved, Client will pay any disputed amounts with interest at the
rate set forth in Section 12.4(a) within five (5) days.






	12.4	 	Late Payment






	 	(a)	 	Invoices not paid when due shall bear interest on the outstanding balance at the
rate of prime plus two percent (2.0%) per annum (unless restricted by law, in which
case interest shall accrue at the highest legal rate).
	 
	 	(b)	 	Supplier shall not suspend or otherwise interrupt the provision of
Services to Client on the basis of Client’s withholding of amounts disputed in good
faith pursuant to Section 12.3(a) (which payment dispute shall be resolved
pursuant to the dispute resolution procedures in Section 12.3 and
Section 19), unless authority to do so is granted by Client in writing.
Supplier may suspend performance under this Agreement if Client is past due on
payment of amounts other than those disputed under Section 12.3 in good
faith. If Supplier intends to suspend performance, Supplier will provide Client
with at least fifteen (15) days prior written notice before actually suspending
Service and shall accept Client’s payment in full during such 15 day period as cure.
In the event of a suspension of Service, Supplier shall resume performance as soon
as possible after the past due payment is made.






	13.	 	CLIENT DATA AND OTHER PROPRIETARY INFORMATION
	 
	13.1	 	Client Ownership of Client Data
	 
	 	 	Client Data is and shall remain the property of Client and its customers, as
applicable. Supplier shall, at the times specified below, promptly deliver to




-23-









 











Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*. The redacted portions have been filed
separately with the SEC.





	 	 	Client in
the available format and on the media then used by Supplier to provide the Services:
(a) a copy of all Client Owned Materials and Client Data (or such portions as shall be
specified by Client) and (b) a copy of all Developed Materials (or such portions as shall
be specified by Client). Such deliveries shall occur: (i) within a reasonable amount of
time after Client requests such data, or (ii) at the end of the Term and upon the
completion of all requested Transfer Assistance Services. If requested by Client,
Supplier shall destroy or securely erase all copies of the Client Data and Client Owned
Materials in Supplier’s possession or under Supplier’s control. Supplier shall not
withhold any Client Data or any of the items specified in this Section as a means of
resolving any dispute. Supplier may retain one (1) copy of the Client Data and Client
Owned Developed Materials to determine Supplier’s or its agents’ rights under this
Agreement. Supplier shall be relieved of its obligations to provide the Services to the
extent that its performance is prevented or hindered by the return, erasure or
destruction of Client Data or Client Owned Materials or reports prepared
pursuant to this Section 13.1. Except to the extent expressly permitted under
this Agreement, Client Data and Client Owned Materials shall not be utilized by Supplier
for any purpose other than the performance of Services under this Agreement and shall not
be disclosed (except as provided in Article 14), sold, assigned, leased, licensed
or otherwise provided to third parties by Supplier or commercially exploited by or on
behalf of Supplier or any Supplier Personnel. Supplier shall not possess or assert any
lien or other right against or to Client Data.
	 
	13.2	 	Safeguarding Client Data






	 	(a)	 	Supplier shall establish and maintain environmental, safety and facility
procedures, data security procedures and other safeguards against the destruction,
loss or alteration of Client Data in the possession of Supplier which are (i) no
less rigorous than those that are commercially reasonable, documented and enforced
by Client as of the Effective Date, which Client will provide to Supplier, and (ii)
no less rigorous than those maintained by Supplier for its own information of a
similar nature. At Client’s expense, Client shall have the right to establish
backup security for Client Data and to keep backup copies of the Client Data in
Client’s possession. No media on which Client Data is stored may be used
simultaneously to store data of any other customer of Supplier.
	 
	 	(b)	 	As part of the Services, Supplier shall be responsible for developing and
maintaining procedures for recovering back-up copies of Client Data.






	13.3	 	Confidentiality






	 	(a)	 	Proprietary Information. Supplier and Client each acknowledges 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 customer’s business and is not in
the public domain. Except as otherwise specifically agreed in writing by the
Parties, “Proprietary Information” of Client or Supplier, or their
respective Affiliates shall mean all information and documentation that belongs to
Client and




-24-









 











Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*. The redacted portions have been filed
separately with the SEC.





	 	 	 	Supplier and such Affiliates, or agents, respectively, whether disclosed
to or accessed by such entity or Party in connection with this Agreement and that:
(1) has been marked “confidential” or “proprietary” or with words of similar meaning
at the time of disclosure by such entity or Party, or (2) if disclosed orally or not
marked “confidential” or “proprietary” or with words of similar meaning at the time
of disclosure, was subsequently summarized in writing within sixty (60) days after
disclosure by the disclosing entity or Party and marked “confidential” or
“proprietary” or with words of similar meaning, or (3) consists of information and
documentation included within any of the following categories: (a) customer,
supplier or contractor lists, (b) customer, supplier or contractor information, (c)
information regarding business plans (strategic and tactical), markets and
operations (including performance), (d) information regarding administrative,
financial or marketing activities or results, (e) pricing
information, (f) personnel information, (g) products and product and service
offerings (including specifications and designs), (h) processes, (i) budgets
and financial results, (j) Client’s third party contracts to which Supplier has
had access, (k) Client Software and all Developed Materials, and (l) any
information derived from such information.
	 
	 	(b)	 	Obligations






	 	(1)	 	Supplier and Client shall not disclose, and shall
maintain the confidentiality of, all Proprietary Information of the other
Party. Client and Supplier shall each use at least the same degree of
care to safeguard and to prevent disclosing to third parties the
Proprietary Information of the other as it 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. The Parties may disclose Proprietary
Information to their Affiliates, auditors, attorneys, financial advisors
and accountants. Either Party may disclose Proprietary Information of the
other Party to third parties where: (i) use by such person or entity is
authorized under this Agreement; (ii) such disclosure is necessary for the
performance of such person’s or entity’s obligations under or with respect
to this Agreement or otherwise naturally occurs in such person’s or
entity’s scope of responsibility; (iii) the person or entity (and its
applicable officers and employees) agrees in writing to assume the
obligations substantially similar to those described in this Section
13.3; and (iv) the disclosing Party assumes full responsibility for
the acts or omissions of such person or entity and takes all reasonable
measures to ensure that the Proprietary Information is not disclosed or
used in contravention of this Agreement. Each Party’s Proprietary
Information shall remain the property of such Party.
	 
	 	(2)	 	Neither Party shall: (i) make any use or copies of,
or use, the Proprietary Information of the other Party except as




-25-









 











Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*. The redacted portions have been filed
separately with the SEC.





	 	 	 	contemplated by this Agreement; (ii) acquire any right in or assert any
lien against the Proprietary Information of the other Party; (iii) sell,
assign, transfer, lease or otherwise dispose of Proprietary Information to
third parties or commercially exploit such information, including through
derivative works; or (iv) refuse for any reason (including a default or
material breach of this Agreement by the other Party) to promptly provide
the other Party’s Proprietary Information (including copies thereof) to
the other Party if requested to do so (in the case of Client Data, in the
form reasonably requested). Upon expiration or any termination of this
Agreement and completion of each Party’s obligations under this Agreement,
each Party shall return or destroy, as the other Party may direct, all
documentation in any medium that contains, refers to, or relates to the
other Party’s Proprietary Information, and
retain no copies. In addition, the Parties shall take reasonable
steps to ensure that their employees comply with these
confidentiality provisions.






	 	(c)	 	Exclusions. Section 13.3(b) shall not apply to any particular
information that (i) is, at the time of disclosure to it, in the public domain; (ii)
after disclosure to it, is published or otherwise becomes part of the public domain
through no fault of the receiving Party; (iii) is in the possession of the receiving
Party at 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 Proprietary Information of the furnishing
Party. In addition, the receiving Party shall not be considered to have breached
its obligations under this Section 13.3 for disclosing Proprietary
Information of the other Party as required to satisfy any legal requirement of a
competent government body, provided that, promptly upon receiving any such request
and to the extent that it may legally do so, such Party advises the other Party of
the Proprietary Information to be disclosed and the identity of the third party
requiring such disclosure prior to making such disclosure in order that the other
Party may interpose an objection to such disclosure, take action to assure
confidential handling of the Proprietary Information, or take such other action as
it deems appropriate to protect the Proprietary Information.
	 
	 	(d)	 	Loss of Proprietary Information. Each Party shall: (i) promptly notify
the other Party in writing of any possession, use, knowledge, disclosure or loss of
such other Party’s Proprietary Information in contravention of this Agreement; (ii)
promptly furnish to the other Party all known details and reasonably assist such
other Party in investigating and/or preventing the recurrence of such possession,
use, knowledge, disclosure or loss; (iii) reasonably cooperate with the other Party
in any investigation or litigation deemed necessary by such other Party to protect
its rights; and (iv) promptly use all commercially reasonable efforts to prevent
further possession, use, knowledge, disclosure or loss of Proprietary Information in
contravention of this Agreement. Each Party shall bear any costs it incurs in
complying with this Section 13.3(d).




-26-









 











Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*. The redacted portions have been filed
separately with the SEC.





	 	(e)	 	No Implied Rights. Nothing contained in this Section 13.3 shall
be construed as obligating a Party to disclose its Proprietary Information to the
other Party, or as granting to or conferring on a Party, expressly or impliedly, any
rights or license to any Proprietary Information of the other Party.
	 
	 	(f)	 	Survival. The Parties’ obligations of non-disclosure and confidentiality
shall survive the expiration or termination of this Agreement for a period of five
(5) years.






	13.4	 	File Access
	 
	 	 	Client will have unrestricted access to, and the right to review and retain the
relevant portion of all computer or other files containing Client Data. At no time will
any of such files or other materials or information be stored or held in a form or manner
not readily accessible to Client. Supplier will provide to the Client Project Executive
and his designees all passwords, codes, comments, keys, documentation and the locations
of any such files and other materials promptly upon the request of Client, including
Equipment and Software keys and such information as to format, encryption (if any) and
any other specification or information necessary for Client to retrieve, read, revise
and/or maintain such files and information. Upon the request of the Client Project
Executive, Supplier will confirm that, to the best of its knowledge, all files and other
information provided to Client are complete and that no material element, amount or other
fraction of such files or other information to which Client may request access or review
has been deleted, withheld, disguised or encoded in a manner inconsistent with the
purpose and intent of providing full and complete access to Client as contemplated by
this Agreement.
	 
	14.	 	OWNERSHIP OF MATERIALS
	 
	14.1	 	Client Owned Materials
	 
	 	 	Client shall be the sole and exclusive owner of the Client Owned Materials and all
intellectual property rights, including copyright, in all Developed Materials.
	 
	14.2	 	Developed Materials






	 	(a)	 	All Developed Materials shall be considered works made for hire that are owned
by Client. If any such Developed Materials may not be considered a work made for
hire under applicable law, Supplier hereby irrevocably assigns to Client, without
further consideration, all right, title and interest, including any copyright
interest, Supplier may have to such Developed Materials, including United States and
foreign intellectual property rights, including copyrights. Supplier acknowledges
that Client and its successors and assigns shall have the right to obtain and hold
in their own name any intellectual property rights, including copyright, in and to
such Developed Materials. Supplier agrees to execute any documents and take any
other actions reasonably requested by Client to effectuate the purposes of this
Section 14.2 at Client’s expense. Client grants to Supplier a




-27-









 











Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*. The redacted portions have been filed
separately with the SEC.





	 	 	 	non-exclusive, non-transferable, worldwide, limited right and license to use,
execute, reproduce, display, perform, modify and distribute the Developed Materials
for the sole purpose of providing the Services during the Term and the Transfer
Assistance Period pursuant to this Agreement; provided that this license does not
give Supplier the right, and Supplier is not authorized, to sublicense such
Developed Materials, except with respect to subcontractors approved under
Section 9.8, or use them for the benefit of other customers or for any other
purpose without Client’s prior written consent.
	 
	 	(b)	 	Supplier shall provide Client with the source code and documentation for
all Developed Materials that are created in accordance with this Agreement.
Supplier shall provide documentation for all Software that is part of the Developed
Materials sufficient to allow a reasonably knowledgeable and experienced systems
programmer to maintain and support such Materials; (ii) the user documentation for
such Materials will accurately describe in terms understandable by a typical end
user the functions and features of such Materials and the procedures for exercising
such functions and features; and (iii) all Developed Materials shall have the
appropriate source code which matches with the executable object code version.






	14.3	 	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).
	 
	14.4	 	General Rights






	 	(a)	 	Copyright Legends. Supplier shall place the Client copyright legends and
notices on all Developed Materials.
	 
	 	(b)	 	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.






	14.5	 	Client Rights Upon Expiration or Termination of Agreement
	 
	 	 	As part of the Transfer Assistance Services, Supplier shall deliver to Client all
Developed Materials in the format and medium in use by Supplier in connection with the
Services as of the date of such expiration or termination, and shall ensure that all
delivered source code matches with the then current production version of the object code
as delivered. Following confirmation by Client that the copies of the Client Owned
Materials delivered by Supplier are acceptable and the completion by Supplier of any
Transfer Assistance Services for which such Materials are required, Supplier shall
destroy or securely erase all other copies of such Materials then in Supplier’s
possession and cease using such Materials for any purpose.
	 
	14.6	 	Residuals Clause




-28-









 











Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*. The redacted portions have been filed
separately with the SEC.





	 	 	Nothing contained in this Agreement shall restrict either Party from the use of any
generic data analysis and evaluation, ideas, concepts, know-how, or techniques developed
or learned by such Party in connection with this Agreement, provided that in doing so
such Party does not disclose Proprietary Information to third parties or infringe the
intellectual property rights of the
other Party or third parties who have licensed or provided materials to the other Party.
	 
	15.	 	REPRESENTATIONS AND WARRANTIES
	 
	15.1	 	Maintenance






(a) Except as provided in Section 15.1(b), Supplier warrants that it shall, as part
of the Services, maintain all Workstations that are necessary to perform the Services:
(i) in good operating condition, subject to normal wear and tear; (ii) undertaking
repairs and preventive maintenance on Workstations for which Supplier is designated to
be responsible hereunder in accordance with the applicable Workstation manufacturer’s
recommendations and requirements; and (iii) performing maintenance of Third Party
Software on Workstation in accordance with the applicable Software vendor’s written
documentation.




(b) Client warrants that it shall, as part of the Services, maintain all Equipment that
Client provides that is necessary to perform the Services, including Client Equipment:
(i) in good operating condition, subject to normal wear and tear; (ii) undertaking
repairs and preventive maintenance on such Equipment for which Client is designated to be
responsible hereunder in accordance with the applicable Equipment manufacturer’s
recommendations and requirements; and (iii) performing maintenance of Third Party
Software on the Equipment in the data center in accordance with the applicable Software
vendor’s written documentation.




	15.2	 	Non-Infringement






	 	(a)	 	Client warrants that any Materials and other items provided by or specified by
Client for Supplier under this Agreement and Developed Materials shall not infringe,
or constitute an infringement or misappropriation of, any U.S. or foreign patent,
copyright, trademark or similar proprietary rights conferred by contract or by
common law or by other applicable law of any third party.
	 
	 	(b)	 	Except for Materials or other items covered under (a) above, Supplier
warrants that any item provided by and used by Supplier to provide the Services
shall not infringe, or constitute an infringement or misappropriation of, any U.S.
or foreign patent, copyright, trademark or similar proprietary rights conferred by
contract or by common law or by other applicable law of any third party.






	15.3	 	Authorization
	 
	 	 	Each Party represents and warrants to the other that:




-29-









 











Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*. The redacted portions have been filed
separately with the SEC.





	 	(a)	 	It is a corporation or partnership duly incorporated or organized,
validly existing and in good standing under the laws of its state of incorporation
or organization;
	 
	 	(b)	 	It has the requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement;
	 
	 	(c)	 	It has obtained all licenses, authorizations, approvals, consents or
permits required to perform its obligations under this Agreement under all
applicable federal, state, foreign or local laws and under all applicable rules and
regulations of all authorities having jurisdiction over matters related to
performance under this Agreement;
	 
	 	(d)	 	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 action on the part of such Party; and
	 
	 	(e)	 	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.






	15.4	 	Malicious Code
	 
	 	 	Each Party warrants that it shall take commercially reasonable actions and
precautions to prevent the introduction and proliferation, and reduce the effects, of any
Malicious Code into the other Party’s information technology environment or any system
used by Supplier to provide the Services.
	 
	15.5	 	Disabling Code
	 
	 	 	Supplier shall not insert into the Software or Developed Materials any code that
could be invoked to disable or otherwise shut down all or any portion of the Software or
Client systems. With respect to any disabling code that may be part of any Third Party
Software, neither Party shall invoke nor cause to be invoked such disabling code at any
time, including upon expiration or termination of this Agreement for any reason, without
the other Party’s prior written consent.
	 
	15.6	 	Disclaimer of Warranties
	 
	 	 	EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES,
WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY SERVICES, INCLUDING ANY IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.






-30-










 






Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.




	16.	 	INSURANCE AND RISK OF LOSS
	 
	16.1	 	Insurance 




Supplier agrees to keep in full force and effect and maintain at
its sole cost and expense the following policies of insurance during
the term of this Agreement:






	 	(1)	 	Any legally required workers’ compensation or
equivalent insurance as required in the jurisdiction in which the Supplier
Facility and Supplier Personnel are located.
	 
	 	(2)	 	Reasonable Commercial General Liability Insurance and
Umbrella Liability Insurance in accordance with *CONFIDENTIAL* law.
	 
	 	(3)	 	Reasonable Employee Dishonesty and Fraud Insurance in
accordance with *CONFIDENTIAL* law.






	 	 	In the event Client requests that Supplier increase its coverage levels or provide for
more specific coverages that may be necessary to meet a specific obligation to a Client
customer regarding coverage to be maintained by Client and its affiliates providing
services on behalf of such customer, then Supplier will obtain such more specific
coverages, and the Parties will make an equitable adjustment to the Charges if necessary
to cover the increased cost to Supplier.
	 
	 	 	Supplier shall upon Client’s request provide Client with certificates of insurance
evidencing compliance with this Article 16 (including evidence of renewal of
insurance) signed by authorized representatives of the respective carriers for each year
that this Agreement is in effect. Each certificate of insurance shall include a
statement that the issuing company shall not cancel, nonrenew, reduce or otherwise change
the insurance afforded under the above policies unless thirty (30) days’ notice of such
cancellation, nonrenewal, reduction or change has been provided to Client
	 
	 	 	The obligation of Supplier to provide the insurance specified herein shall not limit in
any way any obligation or liability of Supplier provided elsewhere in this Agreement.
	 
	16.2	 	Risk of Loss
	 
	 	 	Except as provided below, each Party shall be responsible for risk of loss of, and damage
to, any Equipment, Software or other Materials owned by it. Each Party shall promptly
notify the other of any damage (except normal wear and tear), destruction, loss, theft or
governmental taking of any item of Equipment, Software or other Materials in the
possession of such Party or on its premises of such Party, whether or not insured against
by such Party, whether partial or complete (“Event of Loss”). For any Client
Event of Loss, Supplier shall cooperate and assist Client with respect to the repair or
replacement as part of the Services. Supplier shall be responsible for any such Client
Event of Loss that result from Supplier’s negligence or willful misconduct.
	 
	17.	 	INDEMNITIES




-31-









 





Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.



	17.1	 	Indemnity by Supplier
	 
	 	 	In addition to all other rights and remedies Client may have under this Agreement or
at law or in equity, Supplier agrees to indemnify, defend and hold harmless Client and
its officers, directors, employees, agents, Affiliates, successors and assigns from any
and all Losses and threatened Losses arising from or in connection with any third party
claims of the following:






	 	(a)	 	Supplier’s breach of its obligations with respect to Client Proprietary
Information;
	 
	 	(b)	 	Infringement or alleged infringement of a patent, trade secret, copyright
or other proprietary rights conferred by contract, common law or by the law of the
U.S. or any state therein or any foreign jurisdiction in contravention of Supplier’s
warranties in this Agreement; and
	 
	 	(c)	 	Claims by government regulators or agencies for fines, penalties,
sanctions or other remedies arising from or in connection with Supplier’s failure to
perform its responsibilities under this Agreement.






	17.2	 	Indemnity by Client
	 
	 	 	In addition to all other rights and remedies Supplier may have under this Agreement
or at law or in equity, Client agrees to indemnify, defend and hold harmless Supplier and
its officers, directors, employees, agents, Affiliates, successors and assigns from any
Losses and threatened Losses arising from or in connection with any third party claims of
the following:






	 	(a)	 	Client’s breach of its obligations with respect to Supplier’s Proprietary
Information and Client’s failure to adequately protect its own Proprietary
Information;
	 
	 	(b)	 	Infringement or alleged infringement of a patent, trade secret, copyright
or other proprietary rights conferred by contract, common law or by the law of the
U.S. or any state therein or any foreign jurisdiction in contravention of Client’s
warranties in this Agreement; and
	 
	 	(c)	 	Claims by government regulators or agencies for fines, penalties,
sanctions or other remedies arising from or in connection with Client’s failure to
perform its responsibilities under this Agreement and with Supplier’s performance of
its responsibilities under this Agreement in accordance with the Policy and
Procedures Manuals or other direction by Client.






	17.3	 	Additional Indemnities
	 
	 	 	In addition to all other rights and remedies the Parties may have under this
Agreement or at law or in equity, Supplier and Client each agree to indemnify, defend and
hold harmless the other, and their respective Affiliates, officers, directors, employees,
agents, successors and assigns, from any and all Losses and threatened Losses to the
extent they arise from or in connection with any of




-32-









 





Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.



	 	 	the following: (a) 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
	 
	 	 	In addition to all other rights and remedies the Parties may have under this
Agreement or at law or in equity, the Parties agree as follows:






	 	(a)	 	If any Materials or other item provided or specified by Client to
Supplier in its provision of the Services or the Developed Materials (except to the
extent of Supplier’s knowing infringement of third party rights in the development
of the Developed Materials) becomes, or in Client’s reasonable opinion is likely to
become, the subject of an infringement or misappropriation claim or proceeding,
Client shall promptly take one of the following actions at no charge to Supplier:
(i) secure the right to continue using the Materials, item or Developed Materials;
or (ii) replace or modify the Materials, item or Developed Materials to make it
non-infringing, provided that any such replacement or modification will not
materially degrade the performance or quality of the affected component of the
Services. Supplier will cooperate with and assist Client in taking such action.
	 
	 	(b)	 	Except for items covered under Section 17.4 (a) above, if any item
provided by and used by Supplier to provide the Services or any item in the
Developed Materials (to the extent that Supplier knowingly infringed a third party’s
rights in developing such Developed Materials) becomes the subject of an
infringement or misappropriation claim or proceeding, Supplier shall promptly take
one of the following actions at no additional charge to Client: (i) secure the
right to continue using the item; or (ii) replace or modify the item to make it
non-infringing, provided that any such replacement or modification will not
materially degrade the performance or quality of the affected component of the
Services. Client will cooperate with and assist Supplier in taking such action.






	17.5	 	Indemnification Procedures
	 
	 	 	With respect to third party claims, the following procedures shall apply:






	 	(a)	 	Notice. Promptly after receipt by any entity entitled to indemnification
of notice of the commencement of any civil, criminal, administrative or
investigative action or proceeding involving a claim in respect of which the
indemnitee may seek indemnification pursuant to this Agreement, the indemnitee shall
notify the indemnitor of such claim in writing. No delay or failure to so notify an
indemnitor shall relieve it of its obligations under this Agreement. Within fifteen
(15) days following receipt of written notice from the indemnitee relating to any
claim, but no later than five (5) days before the date on which any response to a
complaint or summons is due, the indemnitor shall notify the




-33-









 





Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.


	 	 	 	indemnitee in writing 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 of the indemnitee before entering into any settlement of such
claim 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 the indemnitee shall be entitled to employ
counsel at its own expense to participate in the handling of the claim. 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 (x) the indemnitor has
delivered a timely Notice of Election and such amount was agreed to without the
written consent of the indemnitor, (y) the indemnitee has not provided the
indemnitor with notice of such claim and a reasonable opportunity to respond
thereto, or (z) 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 deem appropriate, at the reasonable cost and expense of the
indemnitor. The indemnitor shall promptly reimburse the indemnitee for all such
reasonable costs and expenses as they are incurred.






	17.6	 	Subrogation
	 
	 	 	In the event that an indemnitor shall be obligated to indemnify an indemnitee
pursuant to Sections 17.1 through 17.3 or any other 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 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.




-34-









 





Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.



	18.2	 	Force Majeure






	 	(a)	 	Subject to Section 18.2(c), 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, failure of telecommunications carriers, strikes or
lockouts or labor disputes by third parties, or any other similar cause beyond the
reasonable control of such Party (each a “Force Majeure”); provided that the
non-performing Party cannot reasonably circumvent the delay through the use of
commercially reasonable alternate sources, workaround plans or other means. A labor
dispute involving a Party and its own personnel shall not excuse such Party from its
obligations hereunder.
	 
	 	(b)	 	In such 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 immediately notify the Party to whom performance is due by
telephone (to be confirmed in writing within five (5) days of the inception of such
delay) and describe at a reasonable level of detail the circumstances of such Force
Majeure event.
	 
	 	(c)	 	The Parties shall mutually agree on any disaster recovery and business
continuity Services to be provided for Client by Supplier. Upon the occurrence of a
Force Majeure event, Supplier shall, to the extent possible, provide Client with
reasonable cooperation in Client’s implementation of its disaster recovery plan, in
each case as described in the Policy and Procedures Manuals. Supplier shall provide
such assistance unless prohibited by the Force Majeure.
	 
	 	(d)	 	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 Client is not required
to pay any amounts for Services that it is not receiving.






	18.3	 	Limitation of Liability






	 	(a)	 	NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL,
COLLATERAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOST
PROFITS, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This Section
18.3(a) shall not apply in cases of (i) cases of fraud, theft or criminal acts
by a Party, or (ii) any breach, violation or failure to comply with the provisions
of Article 13 of this Agreement.




-35-









 





Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.



	 	(b)	 	Except as provided below, the total aggregate liability of either Party
for 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, shall be limited, in
aggregate to an amount equal to the total payments received by Supplier pursuant to
this Agreement and/or the Existing Agreements for one year prior to the month in
which the first event giving rise to the liability occurred.
	 
	 	(c)	 	The limitations of liability set forth in Section 18.3(b) shall
not apply with respect to (i) any obligation or failure by Client to pay any amounts
due or past due and owing to Supplier pursuant to the terms of the Agreement; (ii)
Losses by either Party for bodily injury or damage to real property or tangible
personal property; and (iii) either Party’s obligation to indemnify the other Party
as provided in Article 17.
	 
	 	(d)	 	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 directly from either Party’s
failure to perform in accordance with this Agreement:






	 	(1)	 	Costs and expenses of implementing a workaround in
respect of a failure to provide the Services or any part thereof;
	 
	 	(2)	 	Costs and expenses of replacing lost, stolen or
damaged Equipment, Software and Materials;
	 
	 	(3)	 	Costs and expenses incurred to procure the Services
from an alternate source, to the extent in excess of Supplier’s charges
under this Agreement; and
	 
	 	(4)	 	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, due to failure of Supplier
to provide all or a portion of the Services incurred in connection with
(1) through (4) above.






	19.	 	CONTRACT GOVERNANCE AND DISPUTE RESOLUTION
	 
	19.1	 	Informal Dispute Resolution
	 
	 	 	Prior to the initiation of formal dispute resolution procedures under Section
19.2, the Parties agree that the Client Contract Executive and the Supplier Project
Executive will attempt in good faith to resolve all disputes. In the event the Client
Contract Executive and the Supplier Project 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 pursuant to Section 19.2 below upon written
notice to the other Party.




-36-









 





Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.




	19.2	 	Binding Arbitration 



Any unresolved controversy or interpretation involving this
Agreement or claim arising from the Services shall be determined by binding arbitration
pursuant to the commercial arbitration rules of the American Arbitration Association (the
“AAA”). The arbitration shall be held in the Philadelphia, PA area. If the Parties cannot
agree on a single arbitrator within seven (7) working days of the delivery of the request for
arbitration, then three (3) disinterested arbitrators shall be used, one to be chosen by each
of the Parties, and the third arbitrator chosen by the first two arbitrators before they enter
upon arbitration, to act as umpire. If either Party fails to appoint an arbitrator, or if the
first two arbitrators fail to appoint a third arbitrator, within seven (7) working days from
the date such obligation arises, either Party may request that AAA appoint the necessary
arbitrator(s). Judgment upon any award rendered by the arbitrators may be entered in any
court having jurisdiction thereof. The costs arising from such arbitration shall be borne and
paid as the arbitrator(s) shall direct. The Parties shall abide by, observe, and perform all
directions, decisions and awards made by the arbitrator(s) and submit in writing information
as the arbitrator(s) shall request. During or prior to the arbitration, the Parties shall not
prosecute or commence any suit or action against the other touching on any of the matters
referred to the arbitrator(s).
	 
	 	 	The Parties agree that the only circumstance in which disputes between them shall not be
subject to the provisions of this Section 19.2 is where a Party makes a good
faith determination that a breach of the terms of this Agreement by the other Party is
such that the damages to such Party resulting from the breach will be so immediate, so
large or severe, and so incapable of adequate redress after the fact that a temporary
restraining order or other immediate injunctive relief is the only adequate remedy. If a
Party files a pleading with a court seeking immediate injunctive relief which is
challenged by the other Party and the injunctive relief sought is not rewarded in
substantial part, the Party filing the pleading seeking immediate injunctive relief shall
pay all of the costs and attorney’s fees of the Party successfully challenging the
pleading.
	 
	19.3	 	Continued Performance
	 
	 	 	Each Party agrees that it shall, unless otherwise directed by the other Party,
continue performing its obligations under this Agreement (including providing all
Services and Transfer Assistance Services) while any dispute is being resolved unless and
until the Term ends.
	 
	19.4	 	Governing Law
	 
	 	 	This Agreement and performance under it shall be governed by and construed in
accordance with the applicable laws of the State of Pennsylvania without giving effect to
the principles thereof relating to conflicts of laws.
	 
	20.	 	TERMINATION
	 
	20.1	 	Termination for Cause




-37-









 





Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.









	 	(a)	 	If Supplier commits a material breach of this Agreement, which breach is not
cured within thirty (30) days after written notice of the breach from Client, unless
such breach cannot be reasonably cured in such 30 day period, in which case Client
shall not have the right to terminate if Supplier promptly proceeds within such 30
day period to commence curing the breach and thereafter provides a reasonable
workaround, or functionally cures the breach, within 60 days from receipt of the
cure notice (or such longer period as may be reasonably necessary when the breach is
of a type or nature that cannot be cured within the 60 day period), then Client may,
by giving at least sixty (60) days’ prior written notice to Supplier, terminate the
Term with respect to all of the Services, as of a date specified in the notice of
termination.
	 
	 	(b)	 	If Client commits a material breach of this Agreement (except for
material breaches caused by Client’s failure to make undisputed payments as set
forth in Section 20.1(c) below), which breach is not cured within thirty
(30) days after written notice of the breach from Supplier, unless such breach
cannot be reasonably cured in such 30 day period, in which case Supplier shall not
have the right to terminate if Client promptly proceeds within such 30 day period to
commence curing the breach and thereafter provides a reasonable workaround, or
functionally cures the breach, within 60 days from receipt of the cure notice (or
such longer period as may be reasonably necessary when the breach is of a type or
nature that cannot be cured within the 60 day period), then Supplier may, by giving
written notice to Client, terminate the Term with respect to all of the Services, as
of a date specified in the notice of termination.
	 
	 	(c)	 	If Client commits a material breach of this Agreement by failing to make
an undisputed payment to Supplier which is due and payable hereunder, which breach
is not cured within thirty (30) days after such payment becomes due and payable,
then Supplier may, by giving at least ten (10) days prior written notice of its
intent to terminate for non-payment, terminate the Term with respect to all of the
Services, as of a date specified in the notice of termination if payment of the
undisputed amount is not made by the specified termination date.






	20.2	 	Client’s Right to Extend the Termination Date
	 
	 	 	Except in the case of a valid termination for cause by Supplier
(unless Client agrees to pay for Services provided by or for Supplier
in advance and cures any payment default that causes such
termination), Client may elect, upon sixty (60) days’ prior written
notice, to extend the effective date of any expiration/termination or
Transfer Assistance one time, at its sole discretion, provided that
the total of such extension will not exceed one hundred and eighty
(180) days following the originally specified effective termination
date without Supplier’s prior written consent.
	 
	21.	 	GENERAL
	 
	21.1	 	Binding Nature and Assignment




-38-









 





Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.









	 	(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 that Client may
assign its rights and obligations under this Agreement to an Entity acquiring,
directly or indirectly, control of Client, or to an Entity into which Client is
merged or to an Entity acquiring all or substantially all of Client’s assets where
the Entity agrees to assume all of the rights and obligations of Client hereunder,
without the approval of Supplier, and that Supplier may assign its rights and
obligations under this Agreement to an Entity acquiring, directly or indirectly,
control of Supplier, or to an Entity into which Supplier is merged or to an Entity
acquiring all or substantially all of Supplier’s assets where the Entity (i)
acquires 25% or more of the outstanding common stock of Supplier on a fully diluted
basis and (ii) agrees to assume all of the rights and obligations of Supplier
hereunder, without the approval of Client.
	 
	 	(c)	 	Impermissible Assignment. Any attempted assignment that does not comply
with the terms of this Section shall be null and void.






	21.2	 	Entire Agreement; Amendment
	 
	 	 	This Agreement, including any Schedules and Exhibits 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 supercedes all prior
agreements, representations, warranties, promises, covenants, commitments or
undertakings, 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	 	Compliance with Laws and Regulations






	 	(a)	 	Supplier shall perform its obligations in a manner that complies with
Laws applicable to its business, including without limitation identifying and
procuring required permits, certificates, approvals and inspections. If a charge of
non-compliance by Supplier with any such Laws occurs, Supplier shall promptly notify
Client of such charges in writing.
	 
	 	(b)	 	Client shall perform its obligations under this Agreement in a manner
that complies with Laws applicable to its business and to the receipt of the
Services, including without limitation identifying and procuring required permits,
certificates, approvals and inspections. If a charge of non-compliance by Client
with any such Laws occurs, Client shall promptly notify Supplier of such charges in
writing.






	21.4	 	Notices




-39-









 





Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.



	 	 	All notices, requests, demands and determinations under this Agreement (other than
routine operational communications) shall be in writing and shall be deemed duly given
(i) when delivered by hand, (ii) one (1) day after being given to an express courier with
a reliable system for tracking delivery, (iii) when sent by confirmed facsimile with a
copy sent by another means specified in this Section 21.4, or (iv) six (6) days
after the day of mailing, when mailed by registered or certified mail, return receipt
requested, postage prepaid and addressed as follows:





In the case of Client:



Prescient Applied Intelligence, Inc.

1247 Ward Avenue, Suite 200

West Chester, PA 19380

Attn: Jane Hoffer



With a copy to:



Montgomery, McCracken, Walker & Rhodes LLP

123 South Broad Street

Avenue of the Arts

Philadelphia, PA 19109

Attn: Kathleen O’Brien



In the case of Supplier:



Healthcare BPO Partners, L.P.

5215 N. O’Conner Street, Suite 800

Irving, Texas 75039




	 	 	A Party may from time to time change its address or designee for notification purposes by
giving the other Party prior written notice of the new address or designee and the date
upon which the change will become effective.
	 
	21.5	 	Counterparts
	 
	 	 	This Agreement may be executed in several counterparts, all of which taken together
shall constitute one single agreement between the Parties hereto.
	 
	21.6	 	Headings
	 
	 	 	The article and section headings used herein are for reference and convenience only
and shall not be considered in the interpretation of this Agreement.
	 
	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




-40-









 





Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.



	 	 	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)	 	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)	 	Except as otherwise expressly provided 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.






	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
	 
	 	 	Neither Party shall use the other Party’s name or mark or refer to the other Party
directly or indirectly in any media release, public announcement or public disclosure
relating to this Agreement, without the prior written consent of the other Party.
Notwithstanding the foregoing, either Party may reference and disclose this Agreement and
its relationship with the other Party in any public filings when required by law or in
accordance with customary or recommended practice.




-41-









 





Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.



	21.12	 	Service Marks
	 
	 	 	Each Party agrees that it shall not, without the other Party’s prior written
consent, use any of the names, service marks or trademarks of each other or Affiliates 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 and other countries. No Party shall export or
re-export any such items or any direct product thereof or undertake any transaction in
violation of any such laws or regulations.
	 
	21.14	 	Third Party Beneficiaries
	 
	 	 	This Agreement is entered into solely between, and may be enforced only by, Client
and Supplier. 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 employees,
vendors and customers of a Party, or to create any obligations of a Party to any such
third parties.
	 
	21.15	 	Order of Precedence
	 
	 	 	In the event of a conflict, this Agreement shall take precedence over the Schedules
and Exhibits attached hereto.
	 
	21.16	 	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.




-42-









 





Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.



	21.17	 	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.





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



	 	 	 	 	 	 	 
	PRESCIENT APPLIED INTELLIGENCE, INC.	 	HEALTHCARE BPO PARTNERS, L.P.
	 
	 	 	 	 	 	 
	By:

	 	 
	 	By:
	 	 
	 

	 	 	 	 
	Name: 


	Jane Hoffer
	 	Name: 
	Sharad Tak
	Title:

	 	Chief Executive Officer
	 	Title:	 	 
	Date:

	 	 	 	Date:	 	 






-43-









 





Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.



SCHEDULE A




KEY SUPPLIER POSITIONS AND CRITICAL SUPPORT PERSONNEL




*CONFIDENTIAL*




SCHEDULE B




SERVICES




Client and Supplier will undertake a collaborative effort including analysis, planning and
implementation for the successful execution of the Services, with such analysis and planning to be
completed by July 1, 2005. The parties further acknowledge that much of the data, information, and
critical decision factors necessary to the successful implementation of the activities outlined
below are presently unknown to both Supplier and Client or otherwise undetermined including such
matters as the exact layout and specifications of the data center, as well as the exact timing of
the elimination of certain full time equivalents of Client. The parties expect that the process by
which such matters are determined with involve the input, recommendations and discretion of Client
management based on their operating knowledge of the business, as well as the advice, expertise and
experience of Mr. Tak and other knowledgeable and qualified persons within his organization.



Item # 1 Production data center resource services– Supplier will provide data center space and
environmental control services for Prescient’s equipment and software consisting of the following
tasks:



*CONFIDENTIAL*




Client will provide the servers to be placed on site at the production center as specified in the
Production Center Requirements Document.



Item #2 EDI/VAN – Supplier will provide EDI/VAN services to replace Client’s IBM and Easylink EDI
VAN services.



Item # 3: Professional consulting services for code migration of existing applications - Supplier
will assist Client in analyzing, planning and implementing a technology re-write of its existing
application(s) on a time and materials basis commencing in January 2006 with a goal of completing
the project no later than calendar year end 2006. Client and Supplier shall begin detailed
planning for such project no later than the beginning of the third quarter of 2005 and Client will
utilize Supplier as much as possible as a means to maximize the efficiency and minimize the cost of
the overall project.



Item # 4: Technical and professional resource services - – Supplier will provide development
services for Prescient on a time and materials basis in the following areas:



*CONFIDENTIAL*




-1-









 





Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.



Prescient will use its best efforts to expand the Services provided under this Agreement to include
additional resources and thereby reduce Prescient’s costs.



-2-









 





Note: A request for confidential treatment has been filed with the SEC for the portions of
this document that have been marked with *CONFIDENTIAL*.
The redacted portions have been filed separately with the SEC.



SCHEDULE C




SUPPLIER CHARGES




*CONFIDENTIAL*




-3-