Exhibit 10.1


 


***Text Omitted and Filed Separately


with the Securities and Exchange Commission.


Confidential Treatment Requested


Under 17 C.F.R. Sections 200.80(b)(4)


and 240.24b-2.


 


 


HSBC HOLDINGS plc


 


AND


 


KANBAY EUROPE LTD.


 


APRIL 2005


 


 


CONSULTANCY SERVICES


 


GLOBAL SUPPLY AGREEMENT


 


MASTER SERVICES AGREEMENT


STATEMENT OF WORK


 


1





















 


CONTENTS


 


	
  1

  	
  DEFINITIONS AND INTERPRETATION

  	
   

  
	
  2

  	
  ENGAGEMENT

  	
   

  
	
  3

  	
  THE CONSULTANT’S OBLIGATIONS

  	
   

  
	
  4

  	
  WARRANTIES

  	
   

  
	
  5

  	
  HSBC’S
  OBLIGATIONS

  	
   

  
	
  6

  	
  ACCEPTANCE

  	
   

  
	
  7

  	
  CHARGES

  	
   

  
	
  8

  	
  HSBC
  GROUP CHANGES

  	
   

  
	
  9

  	
  CONSULTANT’S IT OBLIGATIONS

  	
   

  
	
  10

  	
  CHANGE
  CONTROL

  	
   

  
	
  11

  	
  NON
  SOLICITATION

  	
   

  
	
  12

  	
  TRAINING

  	
   

  
	
  13

  	
  INTELLECTUAL PROPERTY RIGHTS

  	
   

  
	
  14

  	
  LIABILITY

  	
   

  
	
  15

  	
  CONFIDENTIALITY

  	
   

  
	
  16

  	
  PUBLICITY

  	
   

  
	
  17

  	
  DATA
  PROTECTION

  	
   

  
	
  18

  	
  BREACH AND TERMINATION

  	
   

  
	
  19

  	
  FORCE
  MAJEURE

  	
   

  
	
  20

  	
  ESCALATION

  	
   

  
	
  21

  	
  DISPUTES

  	
   

  
	
  22

  	
  ADMINISTRATION AND
  MANAGEMENT OF AGREEMENT

  	
   

  
	
  23

  	
  ASSIGNMENT

  	
   

  
	
  24

  	
  VARIATION

  	
   

  
	
  25

  	
  NOTICES

  	
   

  
	
  26

  	
  SET-OFF

  	
   

  
	
  27

  	
  FURTHER ASSURANCE

  	
   

  
	
  28

  	
  COUNTERPARTS

  	
   

  
	
  29

  	
  INSURANCE

  	
   

  
	
  30

  	
  INTERNAL AND EXTERNAL AUDIT

  	
   

  
	
  31

  	
  RELATIONSHIP OF
  THE PARTIES

  	
   

  
	
  32

  	
  GENERAL

  	
   

  
	
  ATTACHMENT A – Annex 1 - UK
  Declaration of Conformity

  	
   

  
	
  ATTACHMENT
  A – Annex 2 - Declaration of Confidentiality

  	
   

  
	
  ATTACHMENT B – ADDITIONAL PARTIES
  ENTITLED TO THE BENEFIT

  	
   

  
	
  ATTACHMENT C - PROFORMA STATEMENT
  OF WORK

  	
   

  
	
  ATTACHMENT D - DATA PROTECTION
  PROVISIONS

  	
   

  



 


2





















 


THIS AGREEMENT IS MADE THIS 19TH DAY OF APRIL 2005


 


Between:


 


HSBC Holdings plc whose registered office is 8 Canada Square, London,
E14 5HQ (Registered Number 617987) which shall hereinafter be referred to as “HSBC”;
and:


 


Kanbay Europe Ltd. of Compass House, Vision Park, Histon Cambridge, CB4
9AD UK (Registered Number 3282049) which shall hereinafter be referred to as “Consultant”.


 


WHEREAS


 


A.                                   Consultant has developed
skill and expertise in various types of consulting services of interest to HSBC
and to any one or more of the HSBC Group Members (as defined below).


 


B.                                     HSBC and any one
or more of the HSBC Group Members wish to engage the Consultant to provide certain
services and the parties have agreed that the Consultant will supply or procure
the supply of such services to HSBC and the relevant HSBC Group Members on the
terms of this Agreement.


 


1                                         DEFINITIONS AND INTERPRETATION


 


1.1                               Interpretation


 


The interpretation and construction of the
Agreement shall be subject to the following:


 


Headings are for convenience only, and do not
affect interpretation.  The following rules also
apply in interpreting this Agreement, except where the context makes it clear
that a rule is not intended to apply:


 


(a)                                  reference to:


 


(i)                                     subject to Clause 4.1.9, legislation (including
subordinate legislation) is to that English legislation as amended, re-enacted
or replaced, and includes any subordinate legislation issued under it;


 


(ii)                                  a document or agreement, or a provision of a
document or agreement, is to that document, agreement or provision as amended,
supplemented, replaced or novated;


 


(iii)                               a party to this Agreement or to any other
document or agreement includes a permitted substitute or a permitted assign of
that party; and


 


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(iv)                              a person includes any type of entity or body of
persons, whether or not it is incorporated or has a separate legal identity,
and any executor, administrator or successor in law of the person;


 


(b)                                 a singular word includes the plural, and vice
versa;


 


(c)                                  a word which suggests one gender includes the
other genders;


 


(d)                                 if an example is given of anything (including a
right, obligation or concept), such as by saying it includes something else,
the example does not limit the scope of that thing;


 


(e)                                  the words “subsidiary” and “holding company” have
the same meaning set out at section 736 of the Companies Act 1985, and “management
control” shall be demonstrated by the ability to exercise significant influence
over an entity or its management;


 


(f)                                    the headings to clauses are for reference
purposes only and shall not affect the interpretation or construction of the
clauses;


 


(g)                                 subject to clauses 1.1(h) and 1.1(i), in the
event of conflict, the provisions of this Agreement are to be read in the
following order of precedence in relation to that conflict:


 


(i)                                     the Terms and Conditions;


 


(ii)                                  the Attachments;


 


(iii)                               the SoWs (and their Appendices); and


 


(iv)                              any document incorporated by reference;


 


if a conflict occurs between the documents
listed above then the document higher in the order of precedence will prevail
to resolve that conflict;


 


(h)                                 subject to clause 1.1(i), in the event of
conflict between a provision in the Terms and Conditions and a provision in a
SoW, the provisions in clause 1.1(g) shall not apply and the provision in
the SoW shall take precedence over the conflicting provision in the Terms and
Conditions to the extent of the conflict, provided that the SoW expressly makes
reference to the specific conflicting provision in the Terms and Conditions and
expressly states that the provision in the SoW shall take precedence;


 


(i)                                     nothing in a SoW shall be read to take precedence
over clauses 4, 13 and 14 in the Terms and Conditions and clause 1.1(h) shall
not apply to such provisions, except where HSBC and the Consultant have
expressly agreed otherwise in a specific SoW


 


4





















 


between HSBC or a HSBC Group Member and the
Consultant or a Consultant Affiliate; and


 


(j)                                     capitalised terms in this Agreement shall have
the meanings set out in clause 1.2.


 


1.2                               Definitions


 


“Acceptance”
means the time at which the Deliverables pass the Acceptance Tests and HSBC or
the relevant HSBC Group Member signs a certificate to that effect in accordance
with clause 6 (Acceptance);


 


“Acceptance Tests”
means the tests for acceptance of the Deliverables set out in the relevant SoW
(and “Acceptance Testing” shall be construed
accordingly);


 


“Agreement”
means these Terms and Conditions together with the Attachments and all the SoWs
(whether executed between HSBC or a HSBC Group Member and Consultant or a
Consultant Affiliate), together with their Appendices, and any document incorporated
by reference, as amended from time to time in writing and agreed by HSBC and
the Consultant. For the avoidance of doubt, any such terms and conditions
submitted by the Consultant or any Consultant Affiliate in the course of
ordering and/or supplying the Services shall not replace, alter or amend these
Terms and Conditions unless HSBC shall have agreed to the contrary in writing;


 


“Best Endeavours” means to take every
step necessary to achieve the desired result including taking such action and
making available such resources to the extent necessary to achieve the desired
objective;


 


“Business Day” means
any day on which banks are ordinarily open for business in the country in which
the Services are being provided and if such matter cannot be determined for any
reason, then any day on which banks are ordinarily open for business in London;


 


“Charges” means the fees set out in the
relevant SoW;


 


“Commencement Date(s)”
means as the context permits
the date on which the provision of the Services shall commence under the
relevant SoW;


 


“Confidential Information” means (1) in
relation to HSBC or any HSBC Group Member, any information or know how of HSBC
or any HSBC Group Member (including information relating to their facilities,
premises, systems, security, procedures, products, business strategy (including
the existence of, the terms of and its position in any dispute in relation to
this Agreement), employees, officers, contractors and agents, customers and
contacts, and any other information of HSBC or any HSBC Group Member) that is
supplied during any audit or is marked confidential or that the recipient ought
reasonably to have known was confidential, imparted to Consultant or any
Consultant


 


5





















 


Affiliate or its employees, agents or contractors pursuant to this
Agreement and (2) in relation to Consultant or any Consultant Affiliate,
any information relating to its systems and security procedures, its business
strategy (including the existence of, the terms of and its position in any
dispute in relation to this Agreement), and any other information of Consultant
that is marked confidential or that the recipient ought reasonably to have
known was confidential, imparted to HSBC or any HSBC Group Member pursuant to
this Agreement.  Confidential Information
shall exclude information (1) that is or comes into the public domain or
is publicly known or available, or (2) is disclosed by a third party
(except where such third party discloses such information in breach of
obligations of confidence), or (3) that is independently developed by a
party without recourse to the Confidential Information of the other (or HSBC
Group Members or Consultant Affiliates (as applicable));


 


“Consultant Affiliate” means all world wide companies that are
controlled by or under the common control of Kanbay and including for the
avoidance of doubt, Kanbay.  A company is
controlled by Kanbay if Kanbay owns at least fifty percent (50%) or more of the
shares or over which it (or one of its holding or subsidiary companies)
exercises management control, even though it may own less than fifty percent
(50%) of the shares and is prevented by law from owning a greater shareholding;


 


“Consultant Personnel” means all
personnel, Key Personnel or other representatives of Consultant and/or relevant
Consultant Affiliates involved in the provision of the Services;


 


“Consultant
Properties” shall
have the meaning as defined in clause 13.3;


 


“Deliverable(s)” means
any information, data, document, report, software, design, plan, strategy,
graphics, artworks or other product or material developed by the Consultant or
any Consultant Affiliate and delivered to HSBC or any HSBC Group Member in the
performance of this Agreement including any deliverable set out in the SoW;


 


“Event of Force Majeure” means any of the following circumstances which occur which are
beyond the reasonable control of a party and directly prevent that party from
performing its obligation(s) under this Agreement, being war, civil commotion,
armed conflict, riot, act of terrorism, fire, flood or other act of God
(excluding for the avoidance of doubt any labour dispute, labour shortages,
strikes or lock-outs) or as otherwise referred to in this Agreement;


 


 “Fixed-price
Engagement” means any engagement where all of the Services relating
to that engagement will be provided by the Consultant or the relevant
Consultant Affiliate at a fixed and agreed price as set out in the relevant
SoW;


 


“HSBC Group Member”
means a legal entity from time to
time (1) in which HSBC (or one or more of its holding or subsidiary
companies, or subsequent holding or subsidiary companies of such entity) owns
at least fifty percent (50%) or more of the voting shares or (2) over
which HSBC (or one of its holding or subsidiary companies, or a subsequent
holding or subsidiary company of such entity) either directly or indirectly
exercises management control, even though it may own less than fifty percent
(50%) of the shares and is prevented


 


6





















 


by law from owning a greater shareholding or (3) the additional
parties listed in Attachment B or otherwise notified by HSBC from time to time;


 


“Implementation Plan” means the plan and
timetable for the provision of the Services and delivery and Acceptance of the
Deliverables, all of which are set out in the relevant SoW;


 


“Intellectual Property
Rights” means all present and future rights conferred
by statute, common law or equity in any territory in or in relation to
copyright, trade marks, designs, patents, database rights, circuit layouts,
business and domain names, inventions and Confidential Information, whether or
not registrable, registered or patentable and all applications therefor;


 


“Invoice Date”
means date(s) on which the invoice will be rendered, as specified in the
relevant SoW;


 


“Kanbay” means the
Consultant’s parent company, Kanbay International, Inc.;


 


“Key Personnel”
shall mean the Consultant’s or the relevant Consultant Affiliate’s
personnel appointed to perform the Services and/or any personnel of HSBC or the
relevant HSBC Group Member who are identified as key and named in the relevant
SoW from time to time;


 


“Lost Time” shall have the meaning as defined in clause 5.3;


 


“Not-to-exceed Engagement” means any engagement where the total price for
the provision of the Services relating to that engagement by the Consultant or
the relevant Consultant Affiliate shall not exceed an agreed capped amount;


 


“Project Manager”
means the person identified as the project manager of each relevant party in
the relevant SoW (or any other person notified by the party from time to time);


 


“Reasonable
Endeavours” means making
every effort that the party concerned reasonably can, consistent with the
objective to be achieved (and taking into account any timescale within which it
is aimed to achieve the objective concerned), including the following:


 


(a)                                  the
allocation and use of a reasonable amount of resources (including manpower,
financial and other appropriate terms) to achieve the relevant objective within
any applicable timescale; and


 


(b)                                 obtaining
any further information necessary to enable the achievement of the objective;
and


 


(c)                                  co-operating
with the other party or with others to the extent necessary to achieve the
objective;


 


“Replacement
Personnel” shall have the meaning as set out in Clause
18.6;


 


7





















 


“Residuals”
shall have the meaning as defined in clause
13.4;


 


“Services” means the services to be provided by the
Consultant or the relevant Consultant Affiliate as set out in this Agreement;


 


“Signature Date” means the date of
execution of these Terms and Conditions, as set out at the beginning of this
Agreement;


 


“Specification” of any Services or
Deliverable means the specification
agreed in writing by the Consultant or any Consultant Affiliate and HSBC or any
HSBC Group Member and set out in the SoW;


 


“Statement of Work(s)”
or “SoW(s)” means a statement of work
based on the pro forma set out in Attachment C and signed by Consultant (or any
Consultant Affiliate) and HSBC (or any HSBC Group Member) and
which incorporates these Terms and Conditions as set out in the SoW, or any
statement of work that has been agreed in writing between Consultant (or any
Consultant Affiliate) and HSBC (or any HSBC Group Member) which are to be
construed in accordance with these Terms and Conditions. Each SoW relates to a particular engagement for the provision of
Services and constitutes a separate and independent agreement regarding such
Services between Consultant (or the Consultant Affiliate that signed the SoW)
and HSBC (or the HSBC Group Member that signed the SoW);


 


“Term” means
in relation to a SoW or these Terms and Conditions, the period from the
commencement until expiry or termination of that SoW or these Terms and
Conditions (as applicable);


 


“Terms and Conditions” means the terms
and conditions set out in clauses 1 to 32 (inclusive) and Attachments A, B and
D herein.


 


1.3                               Statement of Work


 


Consultant hereby agrees that:


 


1.3.1                           in relation to any SoW executed by HSBC or a HSBC
Group Member and a Consultant Affiliate whether on or after the Signature Date,
the Consultant shall be jointly and severally liable with that Consultant
Affiliate to perform the obligations under that SoW; and


 


1.3.2                        the provisions in this Agreement shall apply to
the Services set out in each SoW:


 


(a) executed by HSBC or a HSBC Group
Member and the Consultant; and


 


(b) executed
by HSBC or a HSBC Group Member and a Consultant Affiliate, notwithstanding that
the Consultant is not a party to that SoW.


 


8





















 


1.3.3                        it shall procure the agreement
of and compliance by each Consultant Affiliate (who is a party to a SoW) to
these Terms and Conditions, as if they were a party to these Terms and
Conditions.


 


2                                         ENGAGEMENT


 


2.1                                 Consultant agrees and
shall procure that HSBC or any HSBC Group Member may order Services or
Deliverables from Consultant or Consultant Affiliates pursuant to these Terms
and Conditions by executing a Statement of Work. The pre-printed terms
appearing on any purchase order form and any documentation which:


 


2.1.1                        Consultant or Consultant
Affiliates (as applicable) generally issue to its customers for the supply of
services or deliverables; or


 


2.1.2                        HSBC or the relevant HSBC
Group Member generally issues to its suppliers for the supply of services or
deliverables,


 


shall not
apply and shall not add to or vary the terms of this Agreement or the relevant
SoW.


 


2.2                                 These Terms and
Conditions shall commence on the date of execution of such Terms and Conditions
by the parties and shall continue until terminated in accordance with clause 18
(Breach and Termination).


 


2.3                                 Each SoW shall
commence on the Commencement Date of such SoW and shall continue until
terminated in accordance with clause 18 (Breach and Termination) or until the
Services are completed, whichever is the earlier.


 


3                                         THE CONSULTANT’S OBLIGATIONS


 


3.1                                 The Consultant or the
relevant Consultant Affiliate will supply their Key Personnel (or other
Consultant Personnel who shall have appropriate qualifications in accordance
with clause 3.3) to perform and complete the Services in accordance with this
Agreement.


 


3.2                                 The Consultant or the
relevant Consultant Affiliate shall use Reasonable Endeavours to ensure the
Consultant’s or the relevant Consultant Affiliate’s Key Personnel engaged to
provide Services under a SoW continue to provide such Services for the full
Term of the SoW. If (despite the use of such Reasonable Endeavours) it becomes
necessary to remove one of the Consultant’s or the relevant Consultant
Affiliate’s Key Personnel, the Consultant or the relevant Consultant Affiliate
shall notify HSBC or the relevant HSBC Group Member as soon as reasonably
practicable and shall substitute such personnel with other personnel of at least
equal calibre, qualification and experience, and the relevant SoW should be
amended accordingly.


 


3.3                                 The engagement of all
Consultant Personnel to provide Services shall be subject to the approval of
HSBC or the relevant HSBC


 


9





















 


Group Member.  HSBC or the
relevant HSBC Group Member is entitled to withhold its approval or require the
replacement of such Consultant Personnel if in the reasonable opinion of HSBC
or the relevant HSBC Group Member such Consultant Personnel in question has
failed or is likely to fail to meet the requirements set out in this Agreement
or is otherwise inappropriate.  HSBC may
terminate this Agreement or the Terms and Conditions and HSBC or the relevant
HSBC Group Member may terminate a SoW if the Consultant or the relevant
Consultant Affiliate persistently provides Key Personnel who in the reasonable
opinion of HSBC or the relevant HSBC Group Member fail or are likely to fail to
meet the requirements set out in these Terms and Conditions or the SoW or are
otherwise inappropriate.


 


3.4                                 Unless otherwise
agreed, the replacement of any Consultant Personnel shall be at no additional
charge to HSBC (or the relevant HSBC Group Member) other than the agreed
Charges for provision of the relevant Consultant Personnel, and the Consultant
or Consultant Affiliate (as applicable) shall bear the cost of any time
required by the replacement Consultant Personnel to familiarise themselves with
the relevant Services and requirements of HSBC or the relevant HSBC Group
Member.  The Consultant or Consultant
Affiliate (as applicable) shall ensure or procure that any transition
arrangements to replace Consultant Personnel shall be without disruption to
HSBC or the relevant HSBC Group Member and shall not delay the performance of
the Services, or completion date of any SoW.


 


3.5                                 All Consultant
Personnel shall remain under the direct control of the Consultant or the
relevant Consultant Affiliate, but whilst such Consultant Personnel are on any
HSBC’s or any HSBC Group Member’s premises or the premises of any other party
as necessary for the provision of the Services, the Consultant or Consultant
Affiliate (as applicable) will use its Best Endeavours to ensure or procure
that the Consultant Personnel:


 


3.5.1                                         comply with
the security and health and safety regulations, and other policies in force at
the site from time to time; and


 


3.5.2                                         obey the
reasonable instructions and requirements of HSBC or the relevant HSBC Group
Member and other party (as applicable).


 


3.6                                 The Consultant or
Consultant Affiliate (as applicable) shall procure that none of the Consultant
Personnel makes or purports to make any representation, warranty or undertaking
or otherwise acts or purports to act in any manner that might be interpreted as
binding or committing HSBC or any HSBC Group Member to any obligation to any
third party.


 


3.7                                 Time shall be of the
essence in relation to all obligations of the Consultant (and relevant
Consultant Affiliates) to perform the Services and supply the Deliverables
pursuant to this Agreement except that this clause 3.7 shall not apply in the
case of timeframes or timescales which are expressly stated in a SoW to be
estimates only.


 


4                                         WARRANTIES


 


4.1                                 The Consultant
warrants, represents and undertakes to HSBC and the HSBC Group Members that it
will, and will ensure that the Consultant Affiliates and all Consultant
Personnel will:


 


10





















 


4.1.1                        have for the Term of this
Agreement, full authority (1) to enter this Agreement and perform all
obligations under this Agreement and (2) to procure that all Consultant
Affiliates perform the relevant obligations as set out in this Agreement;


 


4.1.2                        unless otherwise agreed between
the Consultant Affiliate and the relevant HSBC Group Member in writing, procure
on behalf of HSBC and the HSBC Group Members all rights, licences, consents and
permits necessary to provide the Services and supply the Deliverables in
accordance with this Agreement;


 


4.1.3                        ensure that the Services are
performed with due diligence, reasonable skill and care and in accordance with
best industry practice at all times;


 


4.1.4                        ensure the Services are
provided in accordance with the Specification to the reasonable satisfaction of
the relevant HSBC Group Member and in accordance with the Implementation Plan
and this Agreement;


 


4.1.5                        ensure that no software data or
other materials, other than those provided or approved by the relevant HSBC
Group Member are to be loaded or used on any HSBC Group Member’s computer system
by the Consultant Personnel;


 


4.1.6                        ensure that all Consultant
Personnel will, when present at an HSBC’s or a HSBC Group Member’s site, comply
with the applicable site security, health and safety and other procedures in
force from time to time and will at all times behave in a courteous,
professional and appropriate manner;


 


4.1.7                        ensure that no Consultant
Personnel will act or make any statement or otherwise behave in any manner that
is reasonably likely to result in any prejudice to HSBC or any HSBC Group
Member (including to its reputation);


 


4.1.8                        ensure that any Deliverable
will fulfil the requirements set out in the SoW, Specification or otherwise
specified in writing by Consultant or a Consultant Affiliate and HSBC or an
HSBC Group Member;


 


4.1.9                        for the Term of this Agreement,
comply with all applicable laws and other governmental, statutory or regulatory
requirements which may from time to time be applicable to the Consultant or
Consultant Affiliates (as applicable) in providing the Services and Deliverables
to HSBC and HSBC Group Members; and


 


4.1.10                  ensure that the Services and
Deliverables, will where required and acknowledged in the applicable SoW,
recognise and (where applicable) process any applicable currency (including any
currency of any member state of the European Union).


 


4.2                                 Consultant shall indemnify and keep
indemnified HSBC and HSBC Group Members against any loss suffered as a result
of any breach of any warranty in clause 4.1 above.


 


11





















 


4.3                                 Without prejudice to
its obligations under clause 4.1 or to any rights or remedies of HSBC or HSBC
Group Members, in the event of breach of any warranty, Consultant undertakes,
promptly to remedy the breach without charge. Any claim for breach of the
warranties hereunder must be made, by written notice to the Consultant within, one
hundred and eighty (180) days after delivery of the Deliverable to HSBC or the
relevant HSBC Group Member or ninety (90) days following the date that the
Deliverable to which the claim relates is used in a live production
environment, whichever is the earlier. 
However, if the SoW expressly states that the Deliverable will not be
used in a live production environment then any claim for breach of the
warranties hereunder for that Deliverable must be made within ninety (90) days
after delivery of such Deliverable.


 


4.4                                 Consultant shall,
where permitted by applicable law, deliver prior written notice to HSBC of any
change of control (as defined in clause 1.1(e) above) of Consultant or any
Consultant Affiliate performing Services, in favour of a third party that is
not a Consultant Affiliate.


 


4.5                                 EXCEPT AS PROVIDED IN
THIS CLAUSE 4, CONSULTANT AND CONSULTANT AFFILIATES MAKE NO OTHER
REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FROM A
COURSE OF PERFORMANCE OR DEALING, TRADE USAGE, OR OF UNINTERRUPTED OPERATION
WITHOUT ERROR, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  EXCEPT AS MAY BE EXPRESSLY STATED IN A
SoW, CONSULTANT AND CONSULTANT AFFILIATES MAKE NO WARRANTIES REGARDING THE
BUSINESS BENEFITS OR RESULTS THAT ARE TO BE OBTAINED BY HSBC OR THE HSBC GROUP
MEMBER (AS APPLICABLE) FROM USE OF THE SERVICES OR DELIVERABLES. THE LIMITED
WARRANTIES SET FORTH IN THIS AGREEMENT ARE MADE FOR THE BENEFIT OF HSBC AND/OR
THE RELEVANT HSBC GROUP MEMBER ONLY.


 


5                                         HSBC’S
OBLIGATIONS


 


5.1                                 HSBC or the relevant HSBC Group
Member shall:


 


5.1.1                        on reasonable notice provide
the Consultant or the relevant Consultant Affiliate with such information,
data, documents and co-operation as is reasonably required by the Consultant or
the relevant Consultant Affiliate to perform the Services and supply the
Deliverables;


 


5.1.2                        ensure the reasonable
availability and stability of the relevant computing environment to support the
Services and acceptance testing set forth in this Agreement, if and to the
extent required in connection with any SoW;


 


5.1.3                        provide such reasonable access
to HSBC’s or the relevant HSBC Group Member’s premises, personnel, equipment,
databases, software, and other resources at pre-agreed times as is reasonably
necessary for the Consultant or the relevant Consultant Affiliate to perform
its obligations under this Agreement.


 


12





















 


5.2                                 The Consultant and the
relevant Consultant Affiliate shall not be liable for any failure in performing
any obligations under this Agreement to the extent that such failure is due to
the failure by HSBC or the relevant HSBC Group Member to perform an obligation
under this Agreement.


 


5.3                                 With respect to
Fixed-price Engagements and Not-to-exceed Engagements only, in the event that
HSBC or the relevant HSBC Group Member fails to meet its obligations as stated
in this Agreement (and the Consultant or the relevant Consultant Affiliate has
previously notified HSBC or the relevant HSBC Group Member in writing of HSBC’s
or the relevant HSBC Group Member’s failure to perform such obligations and the
Consultant’s or the relevant Consultant Affiliate’s entitlement to claim for
Lost Time in accordance with this clause 5.3 if HSBC’s or the relevant HSBC
Group Member’s failure to perform continues), and Consultant or the relevant
Consultant Affiliate incurs additional time, effort or expense in the course of
delivering the Services due solely to such failure by HSBC or the relevant HSBC
Group Member (“Lost Time”), then Consultant
or the relevant Consultant Affiliate shall inform HSBC or the relevant HSBC
Group Member in writing of the amount of the Lost Time and provide sufficient
evidence to justify its claim under this clause 5.3 and any further evidence
requested by HSBC or the relevant HSBC Group Member, and on HSBC’s or the
relevant HSBC Group Member’s satisfaction of Consultant’s or the relevant
Consultant Affiliate’s entitlement to claim for the amount of Lost Time under
this clause 5.3, HSBC or the relevant HSBC Group Member shall reimburse
Consultant or the relevant Consultant Affiliate an equitable amount at the
standard rates which apply to the relevant SoW for such Lost Time.


 


5.4                                 HSBC hereby represents
and warrants that it or the relevant HSBC Group Member has (i) all rights,
titles, or interests in the software, hardware, systems, facilities, and other
resources supplied to Consultant or the relevant Consultant Affiliate or
required for the performance of HSBC’s or the relevant HSBC Group Member’s
obligations hereunder, and (ii) the authority and the legal right to
permit Consultant or the relevant Consultant Affiliate to perform the Services.


 


6                                         ACCEPTANCE


 


6.1                                 HSBC or the relevant
HSBC Group Member shall be entitled to subject any Deliverable to Acceptance
Testing.  HSBC or the relevant HSBC Group
Member shall conduct the Acceptance Tests, where applicable, in accordance with
the Implementation Plan, with the support of the relevant resources of the
Consultant and/or Consultant Affiliate as reasonably required by HSBC or the
relevant HSBC Group Member.


 


6.2                                 As soon as reasonably
possible after the satisfactory completion of the Acceptance Tests, HSBC or the
relevant HSBC Group Member shall issue a written certificate (where applicable
in the form specified in the Implementation Plan) certifying that the
Deliverable has passed the Acceptance Tests. 
Satisfactory completion of the Acceptance Tests shall occur when the
Deliverable achieves the results specified in the Acceptance Tests.  If HSBC or the relevant HSBC Group Member
does not issue the written acceptance certificate (or a notice of rejection
pursuant to clause 6.3 below) to Consultant or the relevant Consultant


 


13





















 


Affiliate within fifteen (15) Business Days following completion of the
period specified for Acceptance Testing, then the Deliverable shall be deemed
to have passed the Acceptance Tests.


 


6.3                                 If any Deliverable
fails to satisfy the Acceptance Tests, HSBC or the relevant HSBC Group Member
shall give the Consultant or the relevant Consultant Affiliate prompt written
details of the failure, and if it does:


 


6.3.1                        the Consultant or the relevant
Consultant Affiliate must, at its own cost, and within two (2) days,
commence use of Best Endeavours to correct the Deliverable so that the
Acceptance Tests can be repeated and shall complete such correction within
seven (7) days or otherwise within such reasonable period agreed between
the parties;


 


6.3.2                        the Consultant or the relevant
Consultant Affiliate must promptly give HSBC or the relevant HSBC Group Member
written notice when it has corrected the Deliverable and the Acceptance Tests
can be repeated; and


 


6.3.3                        the parties must conduct the
repeated Acceptance Tests as soon as reasonably practicable, or, if applicable,
in accordance with the Implementation Plan for repeated Acceptance Tests.


 


6.4                                 If the repeated
Acceptance Tests are not successfully completed within a reasonable time, or,
if applicable, the period specified in the Implementation Plan (other than
directly and solely because of any act or omission of HSBC or the relevant HSBC
Group Member) HSBC or the relevant HSBC Group Member may elect:


 


6.4.1                        to reject the Deliverable and
terminate the relevant SoW (in full or in part) on notice with immediate
effect, in which case the Consultant or the relevant Consultant Affiliate shall
refund to HSBC or the relevant HSBC Group Member all Charges paid by HSBC or
the relevant HSBC Group Member in relation to such Deliverable and HSBC or the
relevant HSBC Group Member shall return to Consultant or the relevant
Consultant Affiliate the applicable Deliverable and all related materials supplied
by Consultant or the relevant Consultant Affiliate; or


 


6.4.2                        to accept the Deliverable
subject to a reasonable deduction of Charges (which amount of deduction has
been agreed between the parties) to reflect the delays caused by its failure to
meet the Acceptance Tests, and/or the reduced level of functionality and
performance (or other aspects) of the Deliverable; or


 


6.4.3                        to require the Consultant or
the relevant Consultant Affiliate to continue to use Best Endeavours to remedy
the defect and re-present the Deliverable for further Acceptance Testing.


 


6.5                                 If any Acceptance Test
is repeated because a Deliverable failed to pass the Acceptance Test when
previously tested and to the extent that such failure arose due to the
Consultant’s or the


 


14





















 


relevant Consultant Affiliate’s default in not developing the
Deliverable to fulfil the requirements set out in the relevant SoW and/or
Specification, the Consultant or the relevant Consultant Affiliate shall promptly
pay on demand HSBC’s or the relevant HSBC Group Member’s additional expenses
(including any internal expenses relating to wasted time, as well as third
party expenses) in repeating the Acceptance Tests.


 


6.6                                 Nothing in this clause
6 shall affect any rights or remedies of HSBC or any HSBC Group Member under
clause 4.


 


7                                         CHARGES


 


7.1                                 Charges for the
provision of Services are either set out in the relevant SoW or will be
calculated on a time and materials basis at the rates specified in the
applicable SoW.  If HSBC or the relevant
HSBC Group Member agrees in a SoW to reimburse the Consultant or the relevant
Consultant Affiliate for any expenses reasonably incurred in the provision of
the Services, reimbursement will be made on the basis set out in the relevant
SoW.  Subject to clause 7.2, no other or additional sums shall
be payable by HSBC or any HSBC Group Member to the Consultant or any Consultant
Affiliate in relation to the relevant Services or any Deliverables.


 


7.2                                 If the Consultant or
the relevant Consultant Affiliate is asked by the Project Manager of HSBC or
the relevant HSBC Group Member to perform any services which it reasonably
considers are outside the scope of the Services, then the Consultant or the
relevant Consultant Affiliate shall notify HSBC or the relevant HSBC Group
Member and provide a quote for any additional Charges for the performance of
the additional services.  If HSBC or the
relevant HSBC Group Member wishes the Consultant or the relevant Consultant
Affiliate to proceed to provide the additional Services, it shall notify the
Consultant or the relevant Consultant Affiliate in writing and the relevant SoW
shall be amended accordingly.  For the
avoidance of doubt, HSBC or the relevant HSBC Group Member shall not be liable
to make any payment to the Consultant or the relevant Consultant Affiliate in
relation to such additional services unless the Project Manager of HSBC or the
relevant HSBC Group Member has agreed to receive such additional services
detailed in a signed SoW.  Unless the
parties agree otherwise, the provisions of these Terms and Conditions shall
apply to those additional services (which shall become Services for the
purposes of this Agreement) and if neither a Fixed-price Engagement nor a
Not-to-exceed Engagement has been agreed in writing for such Services, then the
Consultant or the relevant Consultant Affiliate shall be paid on a time and
materials basis at the rates specified in the applicable SoW.


 


7.3                                 Invoices which contain
sufficient detail concerning the Services to which it relates, shall be
rendered to HSBC or at its option to any one or more HSBC Group Members on the
Invoice Date(s) specified in the relevant SoW and subject to clause 7.4, if
correct and undisputed shall fall due and payable to Consultant (or where
agreed Consultant Affiliate(s)) no later than forty-two (42) days thereafter or such other period as
specified in the SoW.   All Charges payable under this Agreement
shall be expressed, invoiced and payable in the currency(ies) and on the
date(s) specified in the relevant SoW. Invoices shall be in a form specified by
HSBC.


 


15





















 


7.4                                 In the event of
disputed items in the invoice rendered by the Consultant or the relevant
Consultant Affiliate, HSBC or the relevant HSBC Group Member shall be entitled
to withhold payment on any such disputed items. 
Complete details concerning any disputed items will be provided by HSBC
or the relevant HSBC Group Member to the Consultant or the relevant Consultant
Affiliate.  Notwithstanding the
foregoing, the Consultant agrees that HSBC or the relevant HSBC Group Member
shall have no liability in respect of any Charges due hereunder which are not
invoiced to HSBC or the relevant HSBC Group Member within twelve (12) months of
the date when such invoice had properly become presentable in accordance with
clause 7.3.


 


7.5                                 In the event of late
payment by HSBC or an HSBC Group Member (as applicable) of any undisputed sums
due and payable under this Agreement (and provided HSBC or the relevant HSBC
Group Member has been given at least fifteen (15) days written notice to cure
such late payment), the Consultant reserves the right to charge HSBC or the
relevant HSBC Group Members interest in respect of the undisputed late payment
at the rate of one percent (1%) per annum above the base rate from time to time
of the relevant HSBC Group Member making payment (or if that entity does not
have a base rate then the base rate of the central bank in the territory in
which that HSBC Group Member is located) from the due date thereof until
judgement (or if no judgement the date on which payment is received by
Consultant).  In relation to HSBC, the
base rate of the central bank in the territory in which HSBC is located, shall
prevail.


 


7.6                                 In addition, HSBC or
the relevant HSBC Group Member shall be responsible for paying any applicable
sales, use, excise, value added, or similar taxes, duties, or assessments
imposed upon the Services rendered or Deliverables provided hereunder by any
federal, state, local, or foreign government authority, exclusive of any taxes
based upon Consultant’s income or payroll.


 


7.7                                 The Consultant shall
and shall procure the Consultant Affiliates who provide any Services, upon
request and reasonable prior notice, provide to HSBC or the relevant HSBC Group
Member, or internal or external auditors or examiners of HSBC or the relevant
HSBC Group Member, copies of their respective books and records including but
not limited to their annual audited, unconsolidated financial statements,
timesheets, project plans, expense reports, and related billing justifications
pertaining to the Services provided and Charges invoiced under any SoW.


 


8                                         HSBC
GROUP CHANGES


 


8.1                                In the event of any new
entity becoming an HSBC Group Member after the Signature Date, the new entity
shall be entitled (at HSBC’s option) to all rights conferred on HSBC Group
Members under this Agreement.  In no
event shall such new entity be obliged by reason of its becoming an HSBC Group
Member to purchase any Services from the Consultant or any Consultant
Affiliate.


 


8.2                                If the Consultant
acquires a company, business or division or any entity otherwise becomes a (or
part of a) Consultant Affiliate, then HSBC and the HSBC Group Members shall be


 


16





















 


entitled to
order Services or Deliverables from that entity, business or division pursuant
to this Agreement.


 


8.3                                In the event that any part of the Services is planned by Consultant to be
withdrawn from general availability for any reason whatsoever, Consultant must
use Reasonable Endeavours to give at least twelve (12) months’ written notice
to HSBC and must use Best Endeavours to procure the supply of appropriate
alternative services at no additional cost to HSBC or any HSBC Group Members.


 


8.4                                 A “Divestment Unit” shall mean any subsidiary, division or department of
HSBC or an HSBC Group Member, which was immediately prior to a particular date
(the “Divestment Date”), properly entitled to
receive Services or Deliverable(s), and would not, on or after the Divestment
Date, be a (or part of a) HSBC Group Member and therefore not entitled (other
than by virtue of this provision) to receive Services or Deliverable(s).


 


8.5                                 Any SoW
relating to a Divestment Unit shall terminate on the Divestment Date unless the
Consultant shall be required by HSBC to continue to supply or procure that a
Consultant Affiliate provides any Services which it would otherwise be required
to provide or procure that a Consultant Affiliate provides to the Divestment
Unit under that SoW. For the avoidance of doubt neither HSBC nor any HSBC Group
Member shall be responsible for the acts or omissions of the Divestment Unit
nor its compliance with requirements under this Agreement.


 


8.6                                 For the avoidance of doubt, nothing in this clause 8 (HSBC Group Changes) shall prejudice HSBC’s or
any HSBC Group Member’s right of termination or any right to claim damages in
relation to the failure of the Consultant to provide or procure that a
Consultant Affiliate provides Services or Deliverables under this Agreement.


 


8.7                                 For the avoidance of
doubt, in the event of any dispute and during any termination notice period
hereunder Consultant will continue to provide or procure the Services fully in
accordance with its obligations hereunder.


 


9                                         CONSULTANT’S IT OBLIGATIONS


 


9.1                                 The Consultant or the
relevant Consultant Affiliate shall, where applicable, test any Deliverable
prior to delivery to prevent the introduction of a computer virus onto HSBC’s
and/or HSBC Group Members’ computer equipment or systems.  Consultant and the relevant Consultant
Affiliate shall use Best Endeavours to ensure that no computer virus is
introduced on to HSBC’s or HSBC Group Members’ computer equipment or systems by
any act, omission or negligence of Consultant, any Consultant Affiliates or
either of their employees agents or contractors.


 


9.2                                 Without prejudice to
HSBC’s or HSBC Group Members’ other rights, in the event that a computer virus
is introduced on to HSBC’s or HSBC Group Members’ computer systems caused by
any act, omission or negligence of Consultant, any Consultant Affiliates or
either of their employees, agents or contractors, Consultant and the relevant
Consultant Affiliate


 


17





















 


shall use all Reasonable Endeavours at HSBC’s or the relevant HSBC
Group Member’s request promptly to restore HSBC’s or the relevant HSBC Group
Members’ system to normal operational readiness.


 


9.3                                 HSBC shall use all
Reasonable Endeavours to ensure that appropriate anti virus measures relating
to the computer environment are implemented within HSBC and HSBC Group Members.


 


9.4                                 Consultant and the
relevant Consultant Affiliate warrants, represents and undertakes to HSBC and
HSBC Group Members that any Deliverables constituting software or data will
upon delivery, be free from any code or function designed to or having the
effect of inhibiting the operation of the relevant Deliverable.


 


10                                  CHANGE
CONTROL


 


10.1                           If HSBC or the relevant HSBC
Group Member wishes to change any Service or Deliverable provided hereunder it
shall notify the Consultant or the relevant Consultant Affiliate in
writing.  If the parties agree that the
proposed change is minor, they shall agree an appropriate amendment to the
relevant SoW.  If the change is not agreed
to be minor, the remainder of this clause 10 (Change Control) shall apply.


 


10.2                           HSBC’s or the relevant HSBC
Group Member’s Project Manager (the “Initiator”) shall submit to the Consultant’s
or the relevant Consultant Affiliate’s Project Manager a written request for
such change, together with particulars thereof and such further information as
the Consultant or the relevant Consultant Affiliate may reasonably require (“Change Request”).


 


10.3                           Until such time as (if at
all) the Change Request is finalised pursuant to clause 10.5, the Consultant or
the relevant Consultant Affiliate shall, unless otherwise agreed in writing,
continue to perform the Services notwithstanding the Change Request.


 


10.4                           The Consultant’s or the
relevant Consultant Affiliate’s Project Manager shall respond in writing to the
Change Request within a reasonable period (and in any event within ten (10) Business
Days) specifying the likely resource, time and cost required to implement the
change.  The Consultant’s or the relevant
Consultant Affiliate’s Project Manager shall provide the Initiator with such
other reasonable information as is reasonably requested relating to the
Consultant’s or the relevant Consultant Affiliate’s response.


 


10.5                           The Initiator shall advise
Consultant’s or the relevant Consultant Affiliate’s Project Manager in writing
of their decision either to progress or not with the Change Request.  No change shall be made to the Services or
Deliverables unless HSBC or the relevant HSBC Group Member and Consultant or
the relevant Consultant Affiliate have agreed to the change in writing signed
by the Initiator or other authorized representative.


 


18





















 


11                                  NON SOLICITATION


 


While a SoW is in force, and for a period of twelve (12) months from
its termination for any reason, neither party will (and the Consultant will
ensure no Consultant Affiliates will) whether alone or jointly, directly or
indirectly employ or offer employment the same or similar to or substantially
relating to the Services to any employee of the other if that employee was
directly and actively involved with the performance or receipt of Services
under that SoW, other than as may be agreed by the parties in writing.  This clause 11 (Non Solicitation) shall not
prevent HSBC or any HSBC Group Member soliciting or offering employment to any
employee of the Consultant or any Consultant Affiliate if this Agreement has
terminated (or notice to terminate is served) pursuant to clause 18.2(b) or
18.1 (a).  For the avoidance of doubt,
the restrictions set out in this clause 11 (Non Solicitation) shall not prevent
either party from considering or employing the other’s personnel pursuant to a
response to a publicly advertised vacancy. 
For purposes of this clause 11, the terms “employment” and “employee”
shall include any form of employment, consulting, contract relationship, or
other arrangement pursuant to which such individual will, directly or
indirectly, perform services for the new employer.


 


12                                  TRAINING


 


12.1                           Unless the applicable SoW
specifically requires the Consultant or Consultant Affiliate to provide
training as a Service under that SoW in consideration of the Charges listed in
that SoW, the Consultant shall or shall procure that Consultant Affiliates
shall provide at no extra charge to HSBC and/or the HSBC Group Members, such
initial training and a reasonable number (as requested by HSBC and/or the HSBC
Group Member) of copies of a set of operating manuals containing sufficient
information to allow the correct installation and use of any Deliverable and as
is specified in the relevant SoW.  Such
manuals shall be supplied in the language requested by HSBC or the relevant
HSBC Group Member.  If the personnel of
the Consultant or the Consultant Affiliates who have provided the Services are
unable due to their lack of skills in the requested language, to perform the
translation, then the Consultant shall obtain or shall procure the Consultant
Affiliate to obtain, and provide to HSBC a quote for the cost of the translation.
HSBC may elect for the Consultant or Consultant Affiliate (as applicable) to
perform the translation and shall provide notice of its acceptance of the
quoted cost for such translation.  Upon
HSBC’s receipt of such translation, HSBC shall pay the quoted cost for such
translation.


 


12.2                           If specified in the
applicable SoW, the Consultant shall or shall procure that Consultant
Affiliates shall provide HSBC and/or the HSBC Group Members with such
supplementary training as is required by HSBC and/or HSBC Group Members on
reasonable prior written notice from time to time at the daily rate or other
Charge specified in such SoW.


 


13                                  INTELLECTUAL PROPERTY RIGHTS


 


13.1                           Unless the parties otherwise
specify in a SoW, the Intellectual Property Rights in any Deliverables shall
belong to HSBC or an HSBC Group Member nominated by HSBC.


 


13.2                           Subject to any other
agreement between the parties set out in any SoW and relating to that SoW, the
Consultant or the relevant Consultant Affiliate hereby assigns (or will procure
relevant Consultant Affiliates assigns) on creation all Intellectual Property
Rights created in the performance of the Services and all Deliverables to HSBC
or the nominated HSBC Group Member and will procure the waiver of all moral
rights (or similar rights) therein and will take all steps necessary to ensure
HSBC and all HSBC Group Members and their licensees


 


19





















 


and transferees may use the Deliverables and receive the Services
without restriction of any kind.  The
Consultant (or Consultant Affiliates, as appropriate) may only use the
Deliverables as strictly necessary to provide the Services to HSBC or any
relevant HSBC Group Members in accordance with this Agreement and the relevant
SoW. Should HSBC not pay an undisputed invoice, then the Intellectual Property
Rights vesting in the associated Deliverable shall pass to Consultant (or
relevant Consultant Affiliate) until such payment is made.  Furthermore, nothing herein shall cause or
imply any sale, licence, or other transfer of proprietary rights of or in any
third party software or products from one party to this Agreement to the other
party.


 


13.3                           Proprietary computer
software, methodologies, techniques, software libraries, tools, algorithms,
materials, products, ideas, designs, and know-how used by Consultant or the
relevant Consultant Affiliate in providing Services (including all copies,
enhancements, modifications, revisions, and derivative works of any of the
foregoing) that:  (a) existed prior
to the commencement of such Services, or (b) are developed independently
of providing the Services hereunder shall be the property of Consultant or the
relevant Consultant Affiliate (“Consultant Properties”).  As between Consultant or the relevant
Consultant Affiliate and HSBC or the relevant HSBC Group Member, Consultant or
the relevant Consultant Affiliate shall at all times be and remain the sole and
exclusive owner of the Consultant Properties. 
Subject to payment for the relevant Deliverable, Consultant or the relevant
Consultant Affiliate hereby grants to HSBC or the relevant HSBC Group Member a
perpetual, world-wide, royalty-free, non-exclusive licence to use, execute,
reproduce, transmit, display, perform, enhance, modify and create derivative
works from any Consultant Properties incorporated into or made a part of the
Deliverables only in connection with the use, sale, licensing, modification,
enhancement, or further development of such Deliverables.


 


13.4                           Notwithstanding anything to the contrary herein, Consultant, Consultant
Affiliates, and their respective personnel shall be free to use and employ
their skills, knowledge, ideas, methodologies, materials or techniques gained
or learned during the provision of any Services, provided that such items (“Residuals”) (i) are acquired
and applied without disclosure of any Confidential Information of HSBC or the
relevant HSBC Group Member, and (ii) are acquired and applied without
unauthorised use or disclosure of any Deliverables delivered under the
applicable SOW.


 


13.5                           Consultant or the relevant
Consultant Affiliate defends and indemnifies, and shall continue to defend and
indemnify, HSBC and all HSBC Group Members from and against, and agrees to pay,
any losses, liabilities, damages and expenses (including legal fees on a full
indemnity basis) incurred by or awarded against HSBC and/or any HSBC Group
Members as a result of, or in connection with, any claim by a third party for
an infringement of any Intellectual Property Rights and/or Consultant
Properties and/or Residuals relating to any Deliverable or any supply of
Services provided by or on behalf of the Consultant or any Consultant Affiliate
under this Agreement. For the avoidance of doubt, in the event of any likely
damage to HSBC’s and/or any HSBC Group Member’s goodwill or reputation, or in
the event of an injunction or any other interim relief (or threat of such
relief) HSBC shall be entitled to instruct senior legal counsel or take such
other steps as it deems appropriate, the reasonable


 


20





















 


costs of which shall be included in this indemnity. Without prejudice
to the other obligations in this clause 13.5 the Consultant or the relevant
Consultant Affiliate agrees promptly to assume sole and exclusive control of the
defense of any such claim and all negotiations for settlement.  Without prejudice to the other obligations in
this clause 13.5, the Consultant or the relevant Consultant Affiliate agrees
promptly to pay to HSBC and/or the relevant HSBC Group Member, any expenses or
other amounts howsoever incurred or suffered by HSBC and/or the relevant HSBC
Group Member for the initial handling of any claim upon the presentation by
HSBC and/or the relevant HSBC Group Member of invoices or receipts which
evidence that such expenses or other amounts have been incurred.


 


13.6                          HSBC shall and if HSBC has not done so
HSBC shall use reasonable endeavours to procure that the relevant HSBC Group Member shall:


 


13.6.1                  not unreasonably delay in giving notice in
writing to Consultant or the relevant Consultant Affiliate of any claim referred to in clause 13.5, where
such delay will result in Consultant or the relevant Consultant
Affiliate failing to meet any statutory
deadline relating to the defence of such claim;


 


13.6.2                  not make any admission of liability or agree to
any settlement or compromise of any such claim without the prior written
consent of Consultant or the relevant Consultant Affiliate which shall not be unreasonably withheld or
delayed; and


 


13.6.3                  not unreasonably decline to provide
Consultant or the relevant Consultant Affiliate at Consultant’s or the
relevant Consultant Affiliate’s request and
expense, reasonable assistance in connection with those negotiations and
litigation.


 


Consultant or
the relevant Consultant Affiliate shall not be responsible to indemnify HSBC or
the relevant HSBC Group Member for any losses, liabilities,
damages or expenses to the extent that they
are caused by the failure of HSBC or the relevant HSBC Group Member to meet the
obligations stated above.


 


13.7                           Without prejudice to the
above, Consultant or the relevant Consultant Affiliate will pay promptly, any
legal damages, costs and expenses suffered by HSBC and/or any HSBC Group
Members including any financial awards against HSBC and/or such HSBC Group
Members in such action which are attributable to such claim, provided that HSBC
or the relevant HSBC Group Member gives Consultant or the relevant Consultant
Affiliate reasonable notice in writing of the claim.


 


13.8                           Should a Deliverable or the
supply of Services become, or in HSBC’s opinion be reasonably likely to become
the subject of a claim of infringement of an Intellectual Property Right,
Consultant shall, after consultation with HSBC, promptly either:


 


13.8.1                  procure for HSBC and all HSBC Group Members the right to
continue using the Deliverable or receiving the Services; or


 


13.8.2                  replace or modify the Deliverable or
Services to make it non-infringing without affecting the performance,
functionality or specification.


 


21





















 


13.9                           If Consultant is unable to
achieve the purpose in clauses 13.8.1 or 13.8.2 within three (3) months
from the first date of prevention or disturbance of the Deliverable’s use
occurs then, without prejudice to HSBC’s or the relevant HSBC Group Member’s
other rights and remedies, Consultant will return or procure the return to HSBC
and the HSBC Group Members all Charges paid in respect of the Deliverable whose
use is prevented or disturbed, and HSBC or the relevant HSBC Group Member will
(to the extent that such Deliverable is still within its control and shall not
cause loss or damage of any sort to HSBC or relevant HSBC Group Member to
return such affected Deliverable) return the affected Deliverable to Consultant
or the relevant Consultant Affiliate.


 


14                                  LIABILITY


 


14.1                           Neither HSBC nor any HSBC
Group Member shall be liable to Consultant or any Consultant Affiliate, nor
shall Consultant or any Consultant Affiliate be liable to HSBC or any HSBC
Group Member, in negligence, breach of contract, breach of statutory duty or
otherwise due to, under and/or arising out of or in connection with this
Agreement to the extent such loss or damage is consequential, indirect, special
or punitive, whether or not that party had been advised of the likelihood of
any such loss or damage.  In no event
shall either party be liable for lost profits or lost business of the other
party whether or not that party had been advised of the likelihood of any such
loss or damage.


 


14.2                           The liability of HSBC and
any HSBC Group Members (together in aggregate) to Consultant and any Consultant
Affiliate in negligence, breach of contract, breach of statutory duty or
otherwise due to, under and/or arising out of or in connection with this
Agreement, in respect of any claim, or series of connected claims arising out
of the same cause in any calendar year, shall not exceed [***].  Consultant or any Consultant Affiliate is
responsible for obtaining if it considers appropriate insurance in respect of
any loss excluded by this Agreement or exceeding the above limit.  The limitation stated in this clause 14.2
shall not apply to any claim against HSBC or any HSBC Group Member for
non-payment of Charges.  Notwithstanding
the foregoing, in no event shall the liability of HSBC and all HSBC Group
Members in aggregate for all claims that have arisen in each calendar year
under this Agreement, exceed [***].


 


14.3                           The liability of Consultant
and any Consultant Affiliate (together in aggregate) to HSBC or any HSBC Group
Member, in negligence, breach of contract, breach of statutory duty, breach of
warranty or otherwise due to, under and/or arising out of or in connection with
this Agreement, in respect of any claim, or series of connected claims arising
out of the same cause, shall not exceed the [***].  Notwithstanding the foregoing, in no event
shall the liability of Consultant and all Consultant Affiliates in aggregate
for all claims that have arisen in each calendar year under this Agreement,
exceed [***].


 


14.4                           Neither HSBC nor any HSBC
Group Member shall be liable to Consultant or any Consultant Affiliate, in
negligence, breach of contract, breach of statutory duty or otherwise due to,
under and/or arising out of or in connection with this Agreement to the extent
that such loss or damage is:


 


22





















 


14.4.1                  a
loss of profits; or


 


14.4.2                  a
loss of business; or


 


14.4.3                  a
loss of data


 


whether or not HSBC or the relevant HSBC Group Members, had been
advised of the possibility of such loss or damage.


 


14.5                           In the event that the
Consultant or a Consultant Affiliate has a claim against HSBC or an HSBC Group
Member arising out of or relating to a SoW, the Consultant or the Consultant
Affiliate shall bring such claim against HSBC or the relevant HSBC Group Member
with whom that Consultant or Consultant Affiliate has entered into the SoW and
performed the Services for. The Consultant or the Consultant Affiliate (as
applicable) shall not institute legal proceedings or make any claim against
both HSBC and the relevant HSBC Group Member in relation to the same loss or
damage that the Consultant or the Consultant Affiliate (as applicable) has
incurred.  Except in the case of any
breach of a provision relating to Confidential Information, the parties agree
that they will use their Reasonable Endeavours to resolve all disputes and
issues in good faith at the local level before commencing any litigation or
formal claims.


 


14.6                           HSBC shall be entitled to
recover from Consultant damages in respect of any liability of Consultant or a
Consultant Affiliate to any HSBC Group Member arising out of or relating to
this Agreement as though the relevant loss or damage had been suffered by
HSBC.  HSBC and/or HSBC Group Members
shall not be entitled to recover from Consultant and/or Consultant Affiliate
twice in respect of the same loss or damage.


 


14.7                           No limit on liability shall
apply to claims for death and personal injury, fraudulent statements, wilful
misconduct, breach of confidentiality under clause 15 (Confidentiality), or any
third party claim for infringement of Intellectual Property Rights and/or
Consultant Properties and/or Residuals under clause 13 (Intellectual Property
Rights) or any claims relating to a breach of clause 17 (Data Protection).


 


15                                  CONFIDENTIALITY


 


15.1                           Consultant shall and shall
procure that all Consultant Affiliates require their respective employees,
agents and contractors engaged in relation to the Services to enter into and
observe the terms of a Non Disclosure Agreement substantially in the form set
out at Attachment A and (if applicable) a Declaration of Conformity Agreement
substantially in the form set out at Attachment A with HSBC or the relevant
HSBC Group Member prior to commencing the performance of any Service.


 


23





















 


15.2                               HSBC and
the relevant HSBC Group Member and Consultant and the relevant Consultant
Affiliate shall:


 


15.2.1                                                      keep
confidential: (a) in the case of HSBC and the relevant HSBC Group Member,
the Confidential Information of Consultant and the relevant Consultant
Affiliate respectively; and (b) in the case of the Consultant and the
relevant Consultant Affiliate, the Confidential Information of HSBC and the
relevant HSBC Group Member respectively;


 


15.2.2                                                      do not
disclose or transfer to any third party (other than as permitted hereunder) any
such Confidential Information; and


 


15.2.3                                                      do not use
(including by making unnecessary copies) other than as strictly necessary for
the performance of this Agreement any such Confidential Information.


 


15.3                               HSBC, the
relevant HSBC Group Member, Consultant or the relevant Consultant Affiliate
shall be permitted to disclose another entity’s Confidential Information where
such disclosure is required by applicable law or regulation (including by the
Financial Services Authority), subject to that entity required to make the
disclosure giving the entity whose Confidential Information is to be disclosed
notice of the disclosure (where it is not prevented from doing so by law or
applicable regulation), and reasonable assistance if that entity wishes to
challenge the requirement to make the disclosure.


 


15.4                               HSBC and
the relevant HSBC Group Members and Consultant and the relevant Consultant
Affiliates shall be permitted to provide another entity’s Confidential
Information to any other entity, provided such disclosure is strictly necessary
for the purposes of or in connection with this Agreement and provided that HSBC
and Consultant shall each ensure that HSBC Group Members and Consultant
Affiliates respectively comply with the confidentiality requirements of this
Agreement as if they were parties.


 


15.5                               Each party
acknowledges that damages will not be an adequate remedy for any breach of this
Clause 15 and shall not seek to resist an application for an injunction in
respect of any breach or threatened breach of Clause 15 on the grounds that
there is an alternative adequate remedy in damages.


 


16                                  PUBLICITY


 


16.1                           Consultant
shall not and shall procure that all Consultant Affiliates do not disclose the
making of this Agreement or any SoW in any journal magazine or publication or
any other medium or otherwise use HSBC’s or any HSBC Group Member’s names or
logos (including any trade marks) in any of its advertising or publicity
material without HSBC’s prior written consent which may be withheld or given in
HSBC’s absolute discretion.


 


16.2                           Notwithstanding
clause 16.1, Consultant and Consultant Affiliates may include a reference to
the name of HSBC Holdings plc and/or the specific legal entity name of any HSBC
Group Member which uses their Services (and not, for the avoidance of doubt,
any of HSBC’s logos or trade marks or any reference to other HSBC Group
Members) on their lists of clients.


 


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17                                  DATA PROTECTION


 


17.1                           The parties agree to comply
with the provisions relating to data protection as contained in Attachment D.


 


18                                  BREACH AND TERMINATION


 


18.1                           HSBC
may terminate this Agreement, these Terms and Conditions (in which case for the
avoidance of doubt, the SoWs issued hereunder shall continue until expired or
terminated) or any one or more of the SoWs (in which case for the avoidance of
doubt, the remaining SoWs issued hereunder shall continue until expired or
terminated):


 


(a)                                  immediately on
written notice if it becomes apparent that the Consultant or Kanbay has become
insolvent or has had a receiver appointed or has called a meeting of creditors
or resolved to go into liquidation (except for bona fide amalgamation or
reconstruction while solvent) or has had a petition lodged against it in
relation to any potential insolvency, and whichever of the foregoing that
occurs is not successfully opposed within thirty (30) days of being lodged;


 


(b)                                 immediately if there
is a change of control (as defined in clause 1.1(e) above) of the
Consultant or Kanbay; or


 


(c)                                  immediately on
written notice if the Consultant fails to cure any material or persistent
default of these Terms and Conditions within thirty (30) days of written notice
requiring the default to be remedied.


 


For the purposes of this clause 18.1, the Consultant and HSBC each
acknowledge and agree and shall procure the acknowledgement and agreement of
the relevant Consultant Affiliates and HSBC Group Members that HSBC shall be
entitled to terminate SoWs pursuant to this clause 18.1 notwithstanding that it
is not a party to that SoW.


 


18.2                           HSBC or the relevant HSBC
Group Member may terminate in whole or in part any supply of Services or
Deliverables under any relevant SoW or any relevant SoW:


 


(a)                                  at any time for any reason
whatsoever without the imposition of any penalty in relation to all or any part
of any Services or Deliverables on written notice of three (3) months or
any shorter period set out in the relevant SoW;


 


(b)                                 immediately on written
notice if it becomes apparent that the Consultant or any Consultant Affiliate
has become insolvent or has had a receiver appointed or has called a meeting of
creditors or resolved to go into liquidation (except for bona fide amalgamation
or reconstruction while solvent) or has had a petition lodged against it in
relation to any potential insolvency, and whichever of the foregoing that
occurs is not successfully opposed within thirty (30) days of being lodged;


 


25





















 


(c)                                  immediately if there
is a change of control (as defined in clause 1.1(e) above) of the
Consultant, or any Consultant Affiliate performing Services hereunder, in
favour of a third party that is not a Consultant Affiliate; or


 


(d)                                 immediately on written
notice if the Consultant or any Consultant Affiliate fails to cure any material
or persistent default within thirty (30) days of written notice requiring the
default to be remedied.


 


18.3                           Consultant may terminate
these Terms and Conditions or the relevant SoW in the event that HSBC fails to
cure any material or persistent default that is capable of being remedied,
within thirty (30) days of receipt of written notice requiring the default to
be remedied, save that if the default is caused by any act or omission of an
HSBC Group Member or otherwise relates to the activities of an HSBC Group
Member, Consultant shall only be entitled to terminate this Agreement in
accordance with the procedure set out at clause 20 (Escalation).


 


18.4                           In the event of any
termination of this Agreement, these Terms and Conditions or any SoW (in full
or in part) for whatever reason, the Consultant shall remove and return to HSBC
or the relevant HSBC Group Member or, at HSBC’s or the relevant HSBC Group
Member’s option certify destruction of all copies of all Deliverables (or in
the case of partial termination, Deliverables relevant to the Services that
have been terminated), along with any documentation, information or materials
produced during the performance of the Agreement and all materials, documents,
equipment, software, data or other materials provided by HSBC (or an HSBC Group
Member) in relation to the Services in its control or possession.  Without prejudice to the above, in the event
of termination of this Agreement for any reason whatsoever, (i) HSBC and
HSBC Group Members may keep copies of any Consultant Confidential Information
or other materials or documentation for archival and/or regulatory purposes as
stipulated by any governing regulatory body of HSBC or any HSBC Group Member
(eg FSA), and Consultant shall procure such party is entitled to retain any
such materials of any Consultant Affiliate for such purposes.


 


18.5                           Except for termination by
HSBC under clause 18.2(a) or clause 19 (Force Majeure), HSBC shall be
entitled to a pro rata refund of pre-paid Charges in respect of any terminated
Service or Deliverable that relate to any period after the relevant termination
date unless otherwise specified in the applicable SoW.


 


18.6                           Unless otherwise stated by
HSBC in its notice to terminate, termination of these Terms and Conditions
shall be without prejudice to any on-going Services being performed under any
SoW issued hereunder, the performance of which shall continue subject to these
Terms and Conditions until completion or earlier termination.  For the avoidance of doubt, notice to
terminate a SoW issued by either party shall terminate all Services being
provided under that SoW upon expiry of the notice.


 


18.7                           Except for all SoWs which
are Fixed-price Engagements, HSBC or the relevant HSBC Group Member shall have
the right at any time to postpone, suspend or cancel a SoW immediately (but
subject always to clause 18.10)
upon giving written notice.  HSBC or the
relevant HSBC Group Member acknowledges that Consultant or the applicable
Consultant Affiliate may reassign


 


26





















 


its affected personnel to other projects and clients during any such
postponement or suspension, and that such personnel may no longer be available
to perform Services if/when HSBC or the relevant HSBC Group Member desires to
re-commence the Services.  Consultant and
Consultant Affiliates shall have no liability for the unavailability of
personnel as a result of any SoW postponement or suspension hereunder except
that when the Services are re-commenced on prior reasonable notice from HSBC,
Consultant and Consultant Affiliates shall provide personnel (“Replacement Personnel”) to replace
the affected personnel and such Replacement Personnel shall have at least the
same level of skills and qualifications as the personnel that they have
replaced.


 


18.8                           Unless otherwise agreed in
writing, any such suspension of a SoW shall be for a maximum period of six (6) months
whereupon the Services shall be re-commenced or the SoW shall be terminated
immediately on notice by HSBC or the relevant HSBC Group Member.


 


18.9                           HSBC acknowledges that where
the Consultant has undergone its annual fee review during the period of
suspension, then any re-instatement of that SoW shall, subject to negotiation,
be subject to a revision of the previously agreed Charges to take into account
the increase in fees.


 


18.10                     On receipt of the HSBC’s or the
relevant HSBC Group Member’s instructions under clause 18.7, the Consultant or
the relevant Consultant Affiliate shall be entitled to payment for Services
completed to the reasonable satisfaction of HSBC or the relevant HSBC Group
Member’s up to the time that the notice takes effect and in respect of any
costs and expenses reasonably and properly incurred by the Consultant or the
relevant Consultant Affiliate relating to the equipment, materials, personnel
or services obtained or ordered wholly or substantially in connection with
performing the Services which cannot reasonably be defrayed elsewhere.


 


18.11                     Termination of any part of this
Agreement shall not affect rights accrued prior to termination.


 


19                                  FORCE MAJEURE


 


Neither party and no HSBC Group Member or Consultant Affiliate shall be
liable to the other for any delays or failures attributable to any Event of
Force Majeure (other than delays or failures caused by a party’s contractors or
agents, for which the delaying party shall be responsible), save that the
delaying party shall use its Best Endeavours to resume performance as quickly
as possible and shall promptly give the other party full particulars of the
failure or delay and consult with the other party concerning the failure or
delay from time to time as appropriate. 
If any such failure or delay continues for a period of three (3) months
or any sixty (60) days in a one hundred and twenty (120) day period the
non-delaying party shall be entitled to terminate this Agreement immediately on
giving to the other written notice.


 


27





















20                                  ESCALATION


 


20.1                           If any relevant HSBC Group Member commits any act
that would constitute a material breach by HSBC of the terms of the Agreement,
then Consultant (or at Consultant’s discretion Kanbay) will notify HSBC and the relevant HSBC Group
Member in writing of such breach.


 


20.2                           If the breach is not remedied within fifteen (15)
Business Days following receipt of such notification by HSBC and the relevant
HSBC Group Member (whichever is later), then Consultant (or at
Consultant’s discretion Kanbay) shall be
entitled to demand a meeting with a senior representative of HSBC (and, at HSBC’s
option, the relevant HSBC Group Member) at which the parties will in good faith
attempt to resolve any outstanding breach.


 


20.3                           If the breach has not been remedied following a
further period of thirty (30) days after the conclusion of the meeting,
Consultant shall be entitled to serve written notice, together with the reasons
for the termination, on HSBC (with a copy to the relevant HSBC Group Member) to
terminate the SoW in relation to the HSBC Group Member in breach in forty-five
(45) days (such termination only to take effect if the breach has not been
remedied within that forty-five (45) day period).


 


21                                  DISPUTES


 


21.1                           If at any time a dispute
arises out of or in connection with this Agreement HSBC and the Consultant (or
at Consultant’s discretion Kanbay) (together the “Parties”) shall in the first
instance meet in good faith with a view to resolving the dispute within a
period of ten (10) Business Days from the day the dispute first arises.


 


21.2                           Should the Parties not be
able to resolve the dispute within the ten (10) Business Days, then both
Parties shall refer the matter to their own appropriate level of senior
management respectively for resolution.


 


21.3                           If the relevant senior
managers are unable to resolve the dispute within a further ten (10) Business
Days, then the Parties will attempt to settle the dispute by mediation in
accordance with the Centre for Dispute Resolution (CEDR) Model Mediation
Procedure. To initiate a mediation the initiating party must give notice in
writing to the other party and send a copy of the notice to CEDR.  The mediation will start not later than ten (10) Business
Days after the notice.  Subject to clause
21.5, the Parties agree not to
commence any court proceedings in relation to the dispute until they have
attempted to settle the dispute by mediation and that mediation has either
terminated or failed.


 


21.4                           Unless otherwise agreed in
writing, the costs of any mediation carried out pursuant to this clause shall
be shared equally between the parties.


 


21.5                           Nothing in this Agreement
shall prevent either Party from taking such action as it deems appropriate
(including any application to a relevant court) for injunctive or other emergency


 


28





















 


or interim relief in relation to its Intellectual Property Rights or
Confidential Information (or the Intellectual Property Rights or Confidential
Information of, in the case of HSBC any HSBC Group Member or the Intellectual
Property Rights or Confidential Information of, in the case of Consultant, any
Consultant Affiliate).


 


22                                  ADMINISTRATION AND MANAGEMENT
OF AGREEMENT


 


22.1                           Consultant recognises the
importance of both parties effectively utilising this Agreement and will
procure the dedication of a central team of Kanbay’s representatives to manage
the account commercially and technically and to report centrally on global
activities and who are appropriately authorised to make decisions concerning
this Agreement. In addition, unless otherwise agreed appropriate Consultant
shall procure senior personnel from Kanbay to meet quarterly with senior
personnel from HSBC on a central basis, to review the execution and management
of this Agreement.


 


22.2                           Except where HSBC expressly
instructs otherwise, each party shall be entitled to assume that instructions
(whether or not in writing and howsoever communicated) have been properly
authorised by the other if they are given by the Project Manager (in the case
of HSBC) or the Senior Client Engagement Manager or Senior Delivery Manager (in
the case of Consultant).


 


22.3                           Consultant (or at Consultant’s
discretion Kanbay) shall monitor the performance of the Services and any
Deliverables and shall inform HSBC and HSBC Group Members in writing of any
material problems, errors or defects as soon as known.


 


23                                  ASSIGNMENT


 


23.1                           The Consultant shall not
without the prior written consent of HSBC assign, sub-contract, transfer or
part with any right or obligation under this Agreement nor any part thereof nor
delegate any of its responsibilities or obligations hereunder.  However, Consultant or any Consultant
Affiliate shall have the right to subcontract, in its own discretion and
without HSBC’s prior written consent, all or any portion of the Services to be
provided hereunder to any Consultant Affiliate and Consultant acknowledges and
agrees that it shall be liable for all acts and/or omissions of the Consultant
Affiliate.


 


23.2                           Where HSBC permits the
Consultant to sub-contract any of its obligations under this Agreement, the
Consultant shall be liable for the acts and omissions of the
sub-contractor.    The Consultant hereby
indemnifies HSBC and the HSBC Group Members against any damage, liability or
other loss that HSBC and the HSBC Group Members sustain as a result of the acts
and omissions of such sub-contractors.


 


23.3                           HSBC may assign, transfer,
part with or sub-contract any of its rights, responsibilities or obligations
under this Agreement without the prior consent of the Consultant. In the case
of any assignment or sub-contracting by HSBC of any of its obligations under
this Agreement, HSBC agrees that it shall be liable for all acts and/or
omissions of its assignee or sub-contractor.


 


29





















 


24                                  VARIATION


 


24.1                              No variation to these
Terms and Conditions shall be effective unless in writing signed by a duly
authorised officer of each of HSBC and Consultant.  For the avoidance of doubt, no document,
letter or any other correspondence issued or executed by any of HSBC’s or
Consultant’s personnel respectively shall be effective unless such individuals
are duly authorised officers of the entity they are executing on behalf of.


 


24.2                           Unless otherwise permitted in a SoW, no
variation to a SoW shall be effective unless in writing signed by a duly
authorised officer of each of the entities that enter into that SoW. For the
avoidance of doubt, no document, letter or any other correspondence issued or
executed by an entity’s personnel shall be effective unless such individuals
are duly authorised officers of the entity they are executing on behalf of.


 


25                                  NOTICES


 


25.1                           All notices shall be given
in writing (including where agreed by email) and shall be sent to the
following:-


 


HSBC:


for the attention of:


 


Head of IT Planning & Finance


Group IT


HSBC Holdings plc


8 Canada Square


London E14 5HQ


 


Fax: 44(0)207 991 4704


 


With a copy to:


 


Head of Group Purchasing


HSBC Holdings plc


8 Canada Square


London E14 5HQ


 


Fax: 44(0)207 992 4818


Consultant:


for the attention of:


President


Kanbay Europe Ltd.


Compass House, Vision Park


Histon


Cambridge, CB4 9AD UK


 


30





















 


Fax: 44 1223 257 786


 


With a copy to:


 


Kanbay International, Inc.


6400 Shafer Court


Rosemont, Illinois 60018


Attention: Vice President and General Counsel


 


Fax: (847) 384-0500


 


25.2                           Notices relating to the
activities of any relevant HSBC Group Member shall be copied to the
relationship manager or other senior representatives of that HSBC Group Member.


 


25.3                           A notice sent by post or
courier shall be deemed (in the absence of evidence of earlier receipt) to have
been delivered forty-eight (48) hours after despatch. A notice sent by
electronic means shall be deemed to have been received on the first working day
following its despatch provided (in the case of fax) notification of a
successful and complete transmission is obtained.


 


26                                  SET-OFF


 


Where the Consultant or Consultant Affiliates have incurred any
undisputed liability to HSBC or any HSBC Group Member under this Agreement HSBC
or any HSBC Group Member may set-off the undisputed amount of such liability
against any sum that would otherwise be due to Consultant or Consultant
Affiliate under this Agreement or otherwise.


 


27                                  FURTHER ASSURANCE


 


The Consultant shall and shall procure that any relevant Consultant
Affiliate shall at their sole cost and expense use all Reasonable Endeavours to
do or procure to be done all such further acts and things and execute or
procure the execution of all such other documents as HSBC and the relevant HSBC
Group Member may from time to time reasonably require for the purpose of giving
HSBC and the HSBC Group Members the full benefit of the provisions of this
Agreement and for the fulfilment of their respective obligations under this
Agreement.


 


28                                  COUNTERPARTS


 


These Terms and Conditions (or any SoW) may be executed in any number
of counterparts, each of which, when executed and delivered, shall be an
original, and all the counterparts together shall constitute one and the same
instrument.


 


31





















 


29                                  INSURANCE


 


Consultant shall maintain throughout the Term of this Agreement and any
SoW and for six years thereafter adequate reasonable insurance cover with a
reputable insurer acceptable to HSBC in relation to Consultant’s and Consultant
Affiliates’ risks under this Agreement. 
Consultant shall at HSBC’s request from time to time furnish such
evidence as HSBC may reasonably request to demonstrate that such insurance
cover has been maintained in force with such insurer, and copies of any policy
documentation requested by HSBC.


 


30                                  INTERNAL AND EXTERNAL AUDIT


 


30.1                           Consultant shall and shall
procure that Consultant Affiliates shall provide access to the Deliverables and
all other materials relating to the provision of the Services to any internal
or external auditors or examiners of HSBC or the HSBC Group Members.


 


30.2                           HSBC and the HSBC Group
Members are subject to certain regulatory requirements (including from the
Financial Services Authority, the Bank of England and other competent
regulatory bodies in other jurisdictions) and as a result, in addition to the
Consultant’s obligations under Clause 30.1 Consultant shall, upon request and
reasonable prior notice, provide to or procure for HSBC, HSBC Group Members or
internal or external auditors or examiners of HSBC or HSBC Group Members,
copies of Consultant’s or any relevant Consultant Affiliate’s records
pertaining to Consultant’s and Consultant Affiliates’ compliance with their
obligations regarding the transactions contemplated hereunder and/or a
statement attesting to Consultant’s or the relevant Consultant Affiliate’s
ongoing financial viability in the opinion of, and issued by, Consultant’s or
the relevant Consultant Affiliate’s independent third party accounting firm.


 


30.3                           HSBC or a relevant HSBC
Group Member may by itself or by engaging a reputable third party auditor(s),
audit the Consultant’s performance of this Agreement, or Consultant shall
procure such right in relation to any Consultant Affiliate requested by HSBC or
any HSBC Group Member.  HSBC or the
relevant HSBC Group Member shall give the Consultant (or the Consultant
Affiliate) reasonable prior notice of any intended audit.  The Consultant shall use its Reasonable
Endeavours to provide or procure for the HSBC Group Member or relevant auditor
access to all information, facilities, materials, installations, premises,
procedures or other resources (including staff) as it shall reasonably require
to undertake the audit, subject to HSBC or the relevant HSBC Group Member
requiring the auditor to enter into a reasonable confidentiality agreement with
the Consultant (or Consultant Affiliate) restricting disclosure of the
Consultant’s (or Consultant Affiliate’s) Confidential Information to a
reasonable extent.  Notwithstanding the
foregoing, Consultant shall and shall procure that Consultant Affiliates shall
provide all information, access and assistance as is required to enable HSBC or
a HSBC Group Member to comply with any applicable laws, regulations or
regulatory requests.


 


30.4                           Consultant shall (and shall procure that
Consultant Affiliates shall) comply with any request of HSBC or any HSBC Group
Member for information relating to the Services or any SoW that may be required
by HSBC or any HSBC Group Member to enable them to comply with


 


32





















 


the US Sarbanes-Oxley Act of 2002 (and any
resultant, similar or replacement legislation, rules or guidance).


 


31                                  RELATIONSHIP OF THE PARTIES


 


31.1                           The relationship of HSBC and
the HSBC Group Members, and Consultant, Consultant Affiliates and Consultant
Personnel shall be that of an independent contractor and not employer-employee.
No Consultant Personnel or other employee, agent, contractor or representative
of Consultant or Consultant Affiliates shall make any representations on behalf
of HSBC or the HSBC Group Members nor may bind the same to any obligation,
purchase or liability. Consultant will be responsible for the acts and
omissions of its (or any Consultant Affiliates’) Consultant Personnel or other
employees, agents, contractors or representatives in respect to HSBC’s and HSBC
Group Member’s security requirements and business policies in performing
obligations under this Agreement (including while on the premises of HSBC and
HSBC Group Members).


 


31.2                           Consultant (or Consultant
Affiliates, as applicable) will have sole authority and independent control
over the means by which the Services are performed.  Consultant shall retain the right to perform
services for others during the term of this Agreement.  Consultant is not an agent of HSBC or any
HSBC Group Member and has no authority whatsoever to bind HSBC or any HSBC
Group Member by representations, contract or agreement of any kind.


 


32                                  GENERAL


 


32.1                           Entire
Agreement


 


The provisions of this Agreement, as amended, and the applicable SoW
shall constitute the entire Agreement between the parties with respect to the
Services and Deliverables, and, unless otherwise expressly provided, supersede
all prior agreements, representations, statements, negotiations and
undertakings (other than representations made fraudulently).


 


32.2                           Severability


 


If any provision of this Agreement is held by a court to be invalid or
unenforceable and can be deleted without altering the essence of the Agreement,
the unlawful provision will be severed and the remaining provisions will remain
in full force or effect.


 


32.3                           Survival


 


Clauses 1 (Definitions and Interpretation), 13 (Intellectual Property
Rights), 14 (Liability), 15 (Confidentiality), 16 (Publicity), 17 (Data
Protection), 18 (Breach and Termination), 26 (Set-Off), 29 (Insurance) and 30
(Internal and External Audit), this clause 32 (General) and all other
provisions of these Terms and Conditions or as they are incorporated and apply
to a SoW intended to survive termination shall survive termination as the
context requires.


 


33





















 


32.4                           Waiver


 


No relaxation forbearance delay or negligence by either party in
enforcing any of the terms and conditions of this Agreement or the granting of
time by either party to the other shall prejudice affect or restrict the rights
and powers of that party.  No waiver of
any terms or conditions of this Agreement shall be effective unless made in
writing and signed by the party against which enforcement of the waiver is
sought.  The waiver of any breach of any
term or condition of this Agreement shall not be construed as a waiver of any
subsequent breach or condition whether of the same or different nature.  Except where otherwise explicitly agreed all
remedies in this Agreement are cumulative and not exclusive of any other remedy
or right in this Agreement or at law.


 


32.5                           Foreign Laws


 


The supply of Services or Deliverables in certain territories may be
subject to certain amended or additional terms set out in a SoW, which shall
apply in relation to any such supply in any relevant territory.


 


32.6                           Third
Parties


 


Except as set forth in these Terms and Conditions or a SoW and
throughout these Terms and Conditions or a SoW in relation to HSBC Group
Members and Consultant Affiliates, nothing in these Terms and Conditions or a
SoW is intended to, nor shall create any right enforceable by any third party
or person not a party to these Terms and Conditions or a SoW and the Contracts
(Rights of Third Parties) Act 1999 shall not otherwise apply to these Terms and
Conditions or a SoW.  The consent of a
third party (including a HSBC Group Member or a Consultant Affiliate) shall not
be required for the amendment, variation or termination of these Terms and
Conditions or a SoW (subject to Clause 1.1(i) as such provision is
incorporated in the SoW).


 


32.7                           No
Partnership


 


No part of this Agreement is intended to create or record any
employment, partnership, joint venture, agency or other such relationship
between HSBC, HSBC Group Members and the Consultant or Consultant Affiliates
(or their personnel).  For the avoidance
of doubt all personnel of the Consultant or the Consultant Affiliates shall
remain employees or suppliers to the Consultant or Consultant Affiliates, and
shall not be regarded as employees, agents, contractors or representatives of
HSBC or any HSBC Group Member.


 


32.8                           Governing
Law


 


This Agreement shall be governed in all respects by the Laws of England
and Wales and the parties submit to the exclusive jurisdiction of the English
Courts 


 


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Agreed for and on behalf of :


 


	
  KANBAY EUROPE LIMITED

  	
  HSBC HOLDINGS plc

  
	
   

  	
   

  	
   

  
	
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  Title 

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
   

  	
   

  	
  Date 

  	
   

  	
   

  
											



 


35





















 


ATTACHMENT A – Annex 1 - UK Declaration of Conformity


 


DECLARATION OF CONFORMITY


 


1.               I hereby confirm that I have read and
will conform during the period of my temporary assignment to the HSBC rules as
may be amended from time to time in respect of the following :


 


a)                                     Specific policies
and standards concerning Information Technology and Information Technology
Security Guidelines. I understand that the loading or use of deliverables not
provided and authorised by the HSBC on HSBC computer systems and/or the loading
or use of deliverables authorised by HSBC on any personal or non HSBC equipment
is strictly forbidden;


 


b)                                    UK Staff Dealing Rules in
relation to securities dated April 1994;


 


c)                                     The Data
Protection Act 1998;


 


d)                                    HSBC’s Equal
Opportunities policy;


 


e)                                     Emergency and
Evacuation Procedures and the Guide to Health and Safety and Fire;


 


f)                                       Security rules specific
to the building where I am to carry out my temporary assignment;


 


g)                                    Standards of dress;


 


h)                                    Specific rules relating
to the HSBC’s “No Smoking” policy;


 


i)                                        Any specific rules and
standards to be adhered to in the course of my temporary assignment advised to
me by HSBC Holdings plc.


 


2.                                      And confirm that:


 


a)                                     I have never been
convicted of a criminal offence involving fraud or dishonesty;


 


b)                                    I have never been
summarily dismissed in connection with or convicted of any offence under the
legislation relating to banking, building societies, companies, consumer
credit, credit unions, friendly societies, industrial or provident societies,
insolvency, insurance or other financial services;


 


c)                                     I have never been
involved in any complaint concerning an alleged breach of the rules of a
regulatory authority in respect of unsolicited calls.


 


36





















 


	
  Signed

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Witnessed

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Department

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
   

  	
   

  
							



 


37





















 


ATTACHMENT A – Annex 2 - Declaration of
Confidentiality


 


HSBC Holdings plc


(and other HSBC Group Companies)


Declaration of Confidentiality


 


I, the undersigned, hereby and solemnly undertake that I will at all
times maintain strict confidentiality with regard to, and will not for my own
or anyone else’s use (whether for profit or not) make copies of or notes about,
any and all matters of a confidential nature concerning HSBC Holdings plc and
any company in the HSBC Group (Group having the definition given in Section 53
of the Companies Act, 1989) their customers, the state of their accounts and
any other matter relating to the HSBC Holdings plc and other HSBC Group
companies business except where required by law to disclose such information or
with the prior consent of HSBC Holdings plc, the HSBC Group Company or the
person to whom any duty of confidence is owed. 
Should I be by law, required to make such a disclosure I shall so far as
lawful promptly inform the relevant HSBC Group Company of such a requirement.


 


I undertake to deliver up to HSBC Holdings plc or to such other HSBC
Group Company as is appropriate all and any records in any medium which I may
hold at the end of my assignment with any such company.


 


I acknowledge that damages will not be an adequate remedy for any
breach of this obligation and I shall not seek to resist an application for an
injunction in respect of any breach or threatened breach of this obligation on
the grounds that there is an alternative adequate remedy in damages.


 


	
  Signed

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Witnessed

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Department

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
   

  	
   

  
							



 


38





















 


ATTACHMENT B – ADDITIONAL PARTIES ENTITLED TO THE BENEFIT OF THIS
AGREEMENT


 


None as at the date of execution of these Terms and Conditions.


 


39





















 


ATTACHMENT
C –  PRO FORMA STATEMENT OF
WORK


 


SoW Number:


 


	
  Project Name:

  	
   

  
	
  Consultant - Project Manager Signature:

  	
  Date:

  
	
  Customer - Project Manager Signature:

  	
  Date:

  



 


 


THIS STATEMENT OF WORK IS MADE THIS                   
DAY OF                   
[200   ]


 


Between:


 


[       ] whose registered office is
[     ] (Registered Number [      ])
which shall hereinafter be referred to as “Customer”; and:


 


[       ] whose registered office is
[     ] (Registered Number [      ])
which shall hereinafter be referred to as “Consultant”.


 


Whereas:


 


A.           HSBC Holdings plc and Kanbay Europe Ltd have
entered into a Global Supply Agreement dated 19th April 2005 (“Global Supply Agreement”) which
sets out the terms and conditions under which Kanbay Europe Ltd and/or its
affiliates may provide consulting services to HSBC Holdings plc and/or its
affiliates.  Such services shall be
detailed in an agreed Statement of Work.


 


B.             The parties agree that the Consultant
shall provide the services set out in this Statement of Work to the Customer in
accordance with the terms and conditions set out herein.


 


Now it is agreed as follows:


 


The parties agree that the terms and conditions of the Global Supply
Agreement shall apply to and be incorporated into this Statement of Work. For
the avoidance of doubt, the parties agree that in the event of any conflict
between a provision of the Global Supply Agreement and a provision of this
Statement of Work, clauses 1.1(g),(h) and (i)  of the Global Supply
Agreement shall apply to resolve any such conflict.


 


Customer and Consultant each acknowledge and agree that it will comply
with the provisions of the Global Supply Agreement as if it were a party to
that agreement.


 


1.              Commencement Date


This Statement of Work shall commence on [        ]
(“Effective Date”).


 


2.              Services/Tasks


For the purposes of this Statement of Work, the “Services” shall
consist of the following:


 


40





















 


The Deliverables [will/will not] be used in a live production
environment (see clause 4.3 of the Global Supply Agreement).


 


3.              Specification /
Requirements


 


 


4.              Implementation
Plan/Timetable for completion of Services


 


 


5.              Acceptance Tests


 


 


6.              Charges


[First
Year]


 


 


[Subsequent Years]


 


 


7.              Invoice date(s)


 


 


8.              Consultant Key
Personnel


 


	
  Name

  	
   

  	
  Title

  	
   

  	
  Start — Expiration

  	
   

  	
  Local or Offshore

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


9.              Other Consultant
Personnel


 


	
  Name

  	
   

  	
  Title

  	
   

  	
  Start — Expiration

  	
   

  	
  Local or Offshore

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


10.       Consultant Project Manager


 


11.       Customer Project Manager


 


41





















 


12.       Reporting and Meetings


 


13.       Scope of any training to be
provided


 


[Detail scope of the training]


 


The training will be provided [at no charge]/[at a charge of [insert]].


 


14.       Acceptance Certificate


Is an Acceptance Certificate required to be
issued for each Deliverable? Yes/No (See clause 6.2)


 


42





















 


This form statement of work was used for
engagements entered into under the Consulting Agreement, dated November 14,
1994, between Kanbay Incorporated and HSBC Technology & Services (USA)
Inc. (the “Old Agreement”).  The
Old Agreement was terminated as of April 19, 2005 and this statement of
work is now governed by the terms of the Consultancy Services Global Supply
Agreement, dated April 27, 2005, between Kanbay Europe Ltd. and HSBC
Holdings plc (the “New Agreement”). 
Pursuant to the terms of the New Agreement, this form statement of work
may also be used for engagements entered into under the New Agreement.


 


 


	
  For Internal Kanbay Purposes Only: 

  	
   

  	
  CA No. 

  
	
   

  	
   

  
	
  S.O. No.

  	
   

  	
   

  	
  Statement of Work
  No.     

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  New Client

  	
   

  	
  Household P.O. No. 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Extension

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Correction

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Add-On Sale

  	
   

  	
   

  
							



 


STATEMENT OF WORK


(PURCHASE ORDER)


TO


MASTER SERVICES AGREEMENT


 


	
  (“Kanbay”)

  	
  (“Household”)

  
	
  Name:

  	
  Name:

  
	
  6400 Shafer Court, Suite 100

  	
  Address:

  
	
  Rosemont, IL 60018

  	
   

  
	
  (847) 384-6100

  	
  Telephone Number:

  	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
  Print Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
											



 


 


By signing above, the parties agree to the terms and conditions of this
Statement of Work (a.k.a. Purchase Order) and to the terms and conditions of
the Consulting Agreement between [                              ]
(“Household” or “HI”) and [                              ]
(“Kanbay”), effective                    ,
which by this reference is incorporated herein.


 


1.                                       Services


 


[List Services.]


 


The Services will be provided by the Kanbay resources identified below
on a                                 
basis, at the following rates:


 


43





















 


[List Rates.]


 


All changes to the scope of the Services provided under this Statement
of Work must be in writing and signed by authorized representatives of the
parties.  Upon Household’s request,
Kanbay shall provide a good faith estimate of any additional time or charges
associated with any requested change.


 


2.                                       Household’s
Responsibilities – Prior to and during the term of this Statement of Work,
Household shall perform the following tasks:


 


[List Household Responsibilities.]


 


3.                                       Estimated
Timetable for Commencement and Completion of Services (including Phases, if
applicable) – Provided there are no changes to the project assumptions or
the current plans as provided in Section 1, and the parties perform their
respective responsibilities as provided herein, Kanbay currently estimates that
the Services shall be completed approximately           
after commencement of the Services, which is currently scheduled for                               .


 


4.                                       Conditions of
Acceptance (if any) by Household – All Services provided hereunder will be
deemed accepted by Household                               
after performance thereof unless Household notifies Kanbay, in writing and with
a written list of discrepancies, that the Services are non-compliant with the
terms of the Statement of Work. 
Household will promptly provide to Kanbay defect reports with
documentation to support and assist in the correction process if any
non-compliance is claimed by Household. 
Household will also provide reasonable assistance in remedying the
defect, including, without limit, providing additional computer runs to
duplicate the conditions at the time of error and allowing access to code and
data files (if applicable).  Kanbay will
investigate and/or address any alleged non-compliance, and Household shall
diligently review any fixes provided by Kanbay in response to Household’s
written list of non-compliant items. 
Unless Household notifies Kanbay in writing that said items are still
non-compliant, said fixes shall be deemed accepted by Household                 
after the delivery of a fix for any non-compliant item or               
following Household’s receipt of written notification from Kanbay stating that
the non-compliant item(s) are compliant.


 


5.                                       Location of
Performance of Work – [List Location of Performance of Work.]


 


6.                                       Fees –
Household shall pay Kanbay on a                                     
basis at the rates set forth in Section 1. 
The Services fees, as well as all expenses, shall be invoiced by Kanbay
on a               
basis for the immediately preceding invoice period.  Each invoice shall be due and payable in                   
within            calendar
days after receipt of such invoice.


 


7.                                       Assumptions
– Kanbay and Household have worked cooperatively to define the scope of this
project.  In defining the foregoing, the
parties assumed that certain elements or assumptions would be in effect
throughout the term of the Statement of Work. 
The parties agree that, to the best of their knowledge, all relevant
assumptions have been set forth below:


 


[List Assumptions.]


 


Any changed, incorrect or additional elements or assumptions may result
in an increased cost to both of the parties.


 


44





















 


This form statement of work was used for
engagements entered into under the Consulting Agreement, dated November 14,
1994, between Kanbay Incorporated and HSBC Technology & Services (USA)
Inc. (the “Old Agreement”).  The
Old Agreement was terminated as of April 19, 2005 and this statement of
work is now governed by the terms of the Consultancy Services Global Supply
Agreement, dated April 27, 2005, between Kanbay Europe Ltd. and HSBC
Holdings plc (the “New Agreement”). 
Pursuant to the terms of the New Agreement, this form statement of work
may also be used for engagements entered into under the New Agreement.


 


STATEMENT OF WORK


 


SOW NO.                       


 


ISSUED TO KANBAY INCORPORATED


 


Pursuant to the Consulting Agreement (the “Agreement”)
between [                       ] (“Kanbay”)
and             [                       ] (“Household”),
containing an Effective Date of                               ,
as extended by subsequent agreements, (which Agreement is incorporated herein
by this reference), Household hereby orders from Kanbay the following:


 


1.                                       Term.  The initial term of this Statement of Work
shall be                           
commencing on                 
(the “Effective Date”) and shall expire on the                         ,
unless earlier terminated or extended in accordance with the Agreement, as
modified herein.


 


2.                                       Services.  [List Services]


 


 


3.                                       Definitions.  [List Definitions]


 


 


4.                                       Services/Fees
– First Year.  [List Services/Fees]


 


 


5.                                       Services/Fees
– Subsequent Years.  [List
Services/Fees]


 


 


6.                                       Special
Projects.  Kanbay and Household agree
that the fees set forth herein shall not apply to Kanbay’s performance of
special projects requested by Household that: (i) are outside the scope of
the Services; (ii) require Kanbay to provide personnel possessing special
skills distinct from those skills generally possessed by Kanbay personnel
providing the Services under this Agreement; or (iii) require an increase
in the number of either Onsite or Offshore Kanbay personnel (collectively, “Special
Projects”).  Special Projects performed
on a                                     
basis will be paid on                 
rates which shall be agreed upon                               .  Household and Kanbay may also agree to
perform Special Projects on a


 


45





















 


                                          
basis.  Unless otherwise agreed by the
parties, Household shall pay Kanbay for the performance of Special Projects on
a                                             
basis.


 


7.                                       Invoicing.  Kanbay shall invoice Household on                                                   
for the fees set forth above for: Services to be performed during that period;                                                 .


 


8.                                       Project
Managers.


(a) Kanbay shall assign a senior project manager
(the “Kanbay Senior Client Engagement Manager”) who shall, among other things,
[list responsibilities].  The Kanbay
Senior Client Engagement Manager shall work with the Household Project Manager
on a frequent and informal basis.


 


(b) Household shall assign a project manager (“Household
Project Manager”) to assist the Kanbay Client Engagement Manager in connection
with the delivery of the Services.  The
Household Project Manager shall [list responsibilities].


 


9.                                       Status
Reports and Meetings.                              
following the Effective Date, and every                 
thereafter, Kanbay shall provide Household with a written report setting forth
the number of hours utilized by Household for the preceding                 
(the “Utilization Report”).  In addition
to the Utilization Report, Kanbay shall deliver to Household on a                 
basis a written report (“Status Report”) summarizing Household’s utilization of
Kanbay resources, personnel assignments, and the status of various
projects.  Kanbay senior management and
Household representatives shall hold meetings on a                 
basis to review the Status Report and Utilization Report, if applicable, and
discuss ongoing performance and utilization issues, and planned or anticipated
projects or changes.  If any Utilization
Report or Status Report reveals excessive under- or over-utilization of Kanbay
personnel, the parties will negotiate in good faith an appropriate adjustment
to the schedule of Services to be performed, number of FTE’s to be
utilized, and/or fees to be paid Kanbay for the Services.


 


10.                                 Notwithstanding
any terms in the Agreement to the contrary, this Statement of Work may be
terminated by Household for its convenience                                                                                                         .


 


11.                                 Kanbay
shall not make any unauthorized disclosure of or use any personal information
of individual consumers which it receives from the other party or on the other
party’s behalf other than to carry out the purposes for which such information
is received, Kanbay shall comply, to the extent applicable, with the
requirements of the implementing regulations of Title V of the Gramm-Leach
Bliley Act of 1999.


 


12.                                 The
parties hereto reaffirm the terms of Section 11 of the Agreement.


 


This Statement of Work shall not be effective or
binding on either party until accepted and executed by both parties.


 


	
  [                                                       ]

  	
  [                                                       ]

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  Dated:

  	
   

  	
   

  
									



 


46





















 


ADDENDUM
TO STATEMENT OF WORK


 


ISSUED
TO KANBAY INCORPORATED


 


This Addendum amends and modifies a certain Statement of Work, with an
Effective Date of                               
and having a                           ,
by and between [                   ] (“Kanbay”)
and [                                   ]
(“Household”).


 


Unless otherwise defined herein, all capitalized terms shall have the
meanings ascribed to them in the Statement of Work.


 


 


 


Except as amended above, all terms and conditions of the Statement of
Work shall remain in full force and effect. 



 


	
  [                                                       ]

  	
  [                                                       ]

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  Dated:

  	
   

  	
   

  
									



 


47





















 


This form statement of work was used for
engagements entered into under the Consulting Agreement, dated November 14,
1994, between Kanbay Incorporated and HSBC Technology & Services (USA)
Inc. (the “Old Agreement”).  The
Old Agreement was terminated as of April 19, 2005 and this statement of
work is now governed by the terms of the Consultancy Services Global Supply
Agreement, dated April 27, 2005, between Kanbay Europe Ltd. and HSBC
Holdings plc (the “New Agreement”). 
Pursuant to the terms of the New Agreement, this form statement of work
may also be used for engagements entered into under the New Agreement.


 


 


	
  For Internal Kanbay Purposes Only: 

  	
  MSA No. 

  
	
   

  	
   

  
	
  S.O. No. 

  	
   

  	
   

  	
  SOW No. 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   ̈  New
  Client

  	
   

  	
  P.O. No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   ̈  Extension

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   ̈  Correction

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   ̈  Add-On
  Sale

  	
   

  	
   

  	
   

  
						



 


STATEMENT OF WORK


TO


THE CONSULTING AGREEMENT


 


	
  (                                           )

  	
  (                                           )

  
	
  Name:

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  	
  Address:

  	
   

  	
   

  
	
  City, State Zip:

  	
   

  	
   

  	
   

  	
  City, State Zip:

  	
   

  	
   

  
	
  Telephone Number:

  	
   

  	
   

  	
   

  	
  Telephone Number:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
  Print Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
																					



 


By signing above, the parties agree to the terms and conditions of this
Statement of Work (a.k.a. Purchase Order) and to the terms and conditions of
the Consulting Agreement between [                                   ].
(as well as its subsidiaries) and [                                   ],
dated November 14, 1994 (the “Agreement), which by this reference is
incorporated herein.  For the convenience
of contracting, the parties to this Statement of Work hereby acknowledge and
agree to the terms and conditions of the Agreement, as subject to the express
terms and conditions of this Statement of Work, as if each party to this
Statement of Work executed the Agreement in the place of, and without reference
to, their respective affiliated companies.


 


1.                                       Services
–


 


[List Services.]


 


All changes to the scope of the Services provided under this Statement
of Work must be in writing and approved by both parties.


 


48





















 


2.                                       Location of
Performance of Work –


 


[List Location of Performance of Work.]


 


3.                                       Fees –


 


[List Fees.]


 


4.                                       Conditions of
Acceptance (if any) by                                     
– All Services performed hereunder will be deemed accepted by                                         
after performance thereof unless                                     
notifies Kanbay in writing, and with a written list of discrepancies, that the
Services are non-compliant with the terms of this Purchase Order.


 


49





















 


This form statement of work was used for
engagements entered into under the Consulting Agreement, dated November 14,
1994, between Kanbay Incorporated and HSBC Technology & Services (USA)
Inc. (the “Old Agreement”).  The
Old Agreement was terminated as of April 19, 2005 and this statement of
work is now governed by the terms of the Consultancy Services Global Supply
Agreement, dated April 27, 2005, between Kanbay Europe Ltd. and HSBC
Holdings plc (the “New Agreement”). 
Pursuant to the terms of the New Agreement, this form statement of work
may also be used for engagements entered into under the New Agreement.


 


	
  Statement of Work

  



 


This statement of Work references Consulting Agreement between [                     ] and [                             ] on behalf of its
subsidiaries and affiliates.


 


	
  Last Name

  	
   

  	
  First Name

  	
   

  	
  Middle Name

  	
   

  	
  VEN ID

  	
   

  	
  Start Date

  	
   

  	
  End Date

  	
   

  	
  VP

  	
   

  	
  Location

  	
   

  	
  Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [List names]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Consultants will
only be paid for the time period listed on this form


 


Compensation will be based on the number of hours worked and renumerated
on the basis of an hourly rate or negotiated amount to be determined for each
individual assigned.  No compensation is
available for vacation, sick time, personal business, holidays, or any other
non-project related time.


 


50





















 


SERVICES TO BE PERFORMED


 


Consultant agrees to exercise reasonable diligence to perform the
following services as required to complete the assigned task(s) in the agreed
upon schedule.  Consultant will be
working under the direction of Household management.


 


	
   

  	
  [                                                         ]

  	
   

  	
   

  	
   

  	
  [                                                         ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signature:

  	
   

  	
   

  	
   

  	
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ATTACHMENT D – DATA PROTECTION
PROVISIONS


 


1.                                                                    DEFINITIONS


 


1.1                                                             For
the purposes of this Attachment D, the following terms shall have the following
meaning:


 


(a)                                                         “Company
Representative” means in the case of each of HSBC or the relevant HSBC Group
Member and the Consultant or the relevant Consultant Affiliate, the officer or
person nominated (or such other officer or person as each party may designate
in writing from time to time) to be responsible for day-to-day liaison between
the parties and for monitoring the performance of the Services by the
Consultant or the relevant Consultant Affiliate;


 


(b)                                                        “Data
Protection Legislation” means the UK Data Protection Act 1998;


 


(c)                                                         “Personal
Data” means any data from which a living individual can be identified that may
be transferred by HSBC or other HSBC Group Members, or their respective agents
and/or customers to the Consultant and processed by the Consultant in
accordance with the terms of this Agreement;


 


(d)                                                        “Premises”
means any premises from which the Consultant or the Consultant Affiliate (as
applicable) provides the Services;


 


(e)                                                         “Processing”
means in relation to Personal Data, obtaining, recording or holding the
Personal Data or carrying out any operation or set of operations on Personal
Data, including:


 


•                                organisation,
adaptation or alteration of the Personal Data; or


 


•                                retrieval,
compilation or use of the Personal Data; or


 


•                                disclosure
of the Personal Data by transmission, dissemination or otherwise making
available; or


 


•                                alignment,
combination, blocking, erasure or destruction of the Personal Data;


 


(f)                                                           “Security
Measures” means the standard security procedures and requirements set out, or
referred to, in Schedule 1 (or in any substitute schedule agreed by
the parties from time to time);


 


(g)                                                        “System”
means the computer hardware and software programmes (if any) utilised from time
to time to provide the Services to HSBC or the HSBC Group Member;


 


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2.                                                                   PROVISION
OF SERVICES


 


2.1                                                             Each
of the parties acknowledge that, to the extent that the provision of Services
involve the Consultant or Consultant Affiliate (as applicable) in the
processing of Personal Data, the respective rights of data subjects and/or any
data protection commissioner or national information commissioner (or any
functionary with similar responsibilities) under any relevant Data Protection
Legislation shall not be prejudiced in any way by the terms of this Agreement.


 


2.2                                                             The
Consultant or Consultant Affiliate (as applicable) undertakes that at all times
during the term of this Agreement:


 


(i)                                               it
will provide the Services in accordance with the provisions of this Agreement
and the Security Measures;


 


(ii)                                                      it
will respect the principles set out in the relevant Data Protection Legislation
in performing the Services;


 


(iii)                                         it
shall promptly notify the Company Representative of HSBC in writing on becoming
aware of the occurrence of any material development or occurrence which may
inhibit the Consultant or Consultant Affiliate (as applicable) in its ability
to perform its obligations hereunder;


 


2.3                                                               The
Consultant or Consultant Affiliate (as applicable) shall promptly take all
necessary steps within its power to comply with any instructions received from
HSBC the relevant HSBC Group Member in respect of the Processing of Personal
Data. In particular, if at any time HSBC or the relevant HSBC Group Member
requests the Consultant or Consultant Affiliate (as applicable) to refrain or
desist from Processing any specific Personal Data the Consultant or Consultant
Affiliate (as applicable) shall immediately take all necessary steps within its
power to comply with HSBC’s or the relevant HSBC Group Member’s request.


 


2.4                                                               The
Consultant or Consultant Affiliate (as applicable) shall maintain a written
contingency plan, containing procedures for the continued performance of the
Services in the event of a disaster or other failure that results in a
significant interruption of the Services at the Premises and shall provide a
copy to HSBC or the relevant HSBC Group Member at their request.


 


3.                                                                     HUMAN
RESOURCES


 


3.1                                                              The
Company Representatives shall have responsibility for liaison with each other
to ensure:


 


(i)                                  general
compliance by the Consultant or Consultant Affiliate (as applicable) with the
terms of this Attachment D; and


 


(ii)                               any
Processing of Personal Data by the Consultant or Consultant Affiliate (as
applicable) in relation to the provision of the Services is being undertaken in
compliance with the relevant Data Protection Legislation.


 


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4.                                                                   SECURITY


 


4.1                                                             The
Consultant or Consultant Affiliate (as applicable) shall provide and maintain
the following facilities and services to the Premises under control of the
Consultant or Consultant Affiliate (as applicable) (or any Premises controlled
by a third party providing the Services and from which the Services are
performed) at all times during the term of this Agreement:


 


(i)                                  an
electronic access control system, to ensure that access to the Premises is
restricted as provided by paragraph 3 of Schedule 1;


 


(ii)                               24-hour
manned security of the Premises;


 


(iii)                            a
modern functioning intruder, smoke and fire detection systems; and


 


(iv)                           standby
electricity generating capacity, sufficient to support all the electrical
equipment (including computer hardware and lighting) utilised within the
Premises.


 


5.                                                                   INTEGRITY
OF DATA


 


5.1                                                       All Personal Data shall be and
remain the sole and exclusive property of HSBC or the relevant HSBC Group
Member.  On the termination of this
Agreement or at any time at the request of HSBC or the relevant HSBC Group Member,
any Personal Data then in the possession of the Consultant or Consultant
Affiliate (as applicable) shall be immediately returned to HSBC or the relevant
HSBC Group Member (as HSBC or the relevant HSBC Group Member directs).  Personal Data shall not be used by the Consultant
or Consultant Affiliate (as applicable) for any purpose other than to provide
the Services, and shall not be disclosed to any third party, except as provided
by Attachment A.


 


5.2                                                       The Consultant or Consultant
Affiliate (as applicable) shall implement strict security procedures in respect
of the integrity and confidentiality of the Personal Data whilst in its
possession to ensure that the Personal Data will not be recorded, disclosed,
processed, deleted, altered, used or otherwise tampered with in an unauthorised
or accidental manner.


 


5.3                                                       Without prejudice to paragraph
5.2 above, the Consultant or Consultant Affiliate (as applicable) shall ensure
that adequate security measures and precautions will at all times be in place
during its possession or use of the Personal Data to protect the Personal Data
in accordance with the relevant Data Protection Legislation.


 


5.4                                                       Except to the extent necessary
for the provision of the Services, none of the Personal Data shall be
mechanically or electronically copied or otherwise reproduced by the Consultant
or Consultant Affiliate (as applicable), and shall not be altered or
supplemented with other data, without the express written permission or at the
specific written direction of HSBC or the relevant HSBC Group Member.


 


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5.5                                                       Any such Personal Data in any
medium external to the System (including without limitation paper copies,
discs, CD Roms, magnetic tapes) shall be stored in secure locked cabinets in a
secure locked area.


 


5.6                                                       Any breach or potential breach
of the provisions of this Clause 5 shall be immediately notified in writing by
the Consultant or Consultant Affiliate (as applicable) to HSBC or the relevant
HSBC Group Member.


 


SCHEDULE 1


STANDARD
SECURITY MEASURES


 


1.                                      BASIC
PROCEDURES


 


(a)                                  The Consultant or
Consultant Affiliate (as applicable) shall, and shall procure that the
Consultant Personnel shall, at all times during the term of this Agreement
comply with the procedures and requirements as to data security and data
protection set out in proprietary materials provided by HSBC or the relevant
HSBC Group Member (as up-dated) from time to time.


 


(b)                                 In addition, the
Consultant or Consultant Affiliate (as applicable) shall also implement the
under-mentioned further security and data protection measures at the Premises
under control of the Consultant or Consultant Affiliate (as applicable) (or any
Premises controlled by a third party providing the Services and from which the
Services are performed):


 


•                                          an
emergency procedure for the termination of data transfer;


 


•                                          increased
checks of the data accesses made by staff;


 


•                                          all
printouts containing customer data will be tightly controlled; and


 


•                                          installation
of an access control system.


 


2.                                      CONTROL OF PRINTED MATERIAL


 


Prior to the end of each day, the Consultant or Consultant Affiliate
(as applicable) will ensure that all printed material containing customer data,
which is not to be held securely overnight is shredded.


 


The Consultant or Consultant Affiliate (as applicable) will also ensure
that no material in any medium external to the System containing customer data,
or HSBC’s or the relevant HSBC Group Member’s proprietary materials (e.g.
procedures manuals or videos) is removed from the secure processing areas in the
Premises.


 


3.                                      ACCESS CONTROL SYSTEM


 


An access control system shall be implemented where appropriate for the
purpose of restricting operators’ access to data so that an operator may only
access data appropriate to the tasks he is performing.


 


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