Ex-4.16 Master Services Agreement



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Exhibit 4.16




Confidential Treatment Requested




The portions of this document marked by “XXXXX” have been omitted

pursuant to a request for confidential treatment and have been filed separately

with the Securities and Exchange Commission



DATED 11 July 2008




AVIVA GLOBAL SERVICES (MANAGEMENT

SERVICES) PRIVATE LIMITED




and




WNS CAPITAL INVESTMENT LIMITED




 






MASTER SERVICES AGREEMENT




 






Slaughter and May

One Bunhill Row

London EC1Y 8YY

(RAXS/MAWC/LYC)



TP081750061





 









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CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	1.

	 	SERVICE PROVISION
	 	 	1	 
	 
	 	 	 	 	 	 
	2.

	 	STANDARD OF SERVICE PROVISION
	 	 	6	 
	 
	 	 	 	 	 	 
	3.

	 	SERVICE CREDITS
	 	 	10	 
	 
	 	 	 	 	 	 
	4.

	 	SERVICE SPECIFIC REMEDIES
	 	 	11	 
	 
	 	 	 	 	 	 
	5.

	 	TRANSITION AND TRANSFORMATION
	 	 	17	 
	 
	 	 	 	 	 	 
	6.

	 	CUSTOMER AUTHORITY AND SUPPLIER AUTHORITY
	 	 	17	 
	 
	 	 	 	 	 	 
	7.

	 	SERVICE IMPROVEMENTS
	 	 	18	 
	 
	 	 	 	 	 	 
	8.

	 	PREFERRED CUSTOMER STATUS
	 	 	20	 
	 
	 	 	 	 	 	 
	9.

	 	IT SERVICES
	 	 	21	 
	 
	 	 	 	 	 	 
	10.

	 	PRICING, PAYMENT AND INVOICING
	 	 	21	 
	 
	 	 	 	 	 	 
	11.

	 	GOVERNANCE AND SERVICE MANAGEMENT
	 	 	22	 
	 
	 	 	 	 	 	 
	12.

	 	CUSTOMER DEALINGS
	 	 	22	 
	 
	 	 	 	 	 	 
	13.

	 	SUPPLIER RELIEF AND CUSTOMER RELIEF
	 	 	22	 
	 
	 	 	 	 	 	 
	14.

	 	POLICIES AND PROCEDURES
	 	 	23	 
	 
	 	 	 	 	 	 
	15.

	 	ASSET MANAGEMENT
	 	 	23	 
	 
	 	 	 	 	 	 
	16.

	 	SECURITY MANAGEMENT
	 	 	26	 
	 
	 	 	 	 	 	 
	17.

	 	CHANGE MANAGEMENT
	 	 	26	 
	 
	 	 	 	 	 	 
	18.

	 	NEW SERVICES
	 	 	27	 
	 
	 	 	 	 	 	 
	19.

	 	GROWTH AND ACQUISITIONS
	 	 	27	 
	 
	 	 	 	 	 	 
	20.

	 	CHANGES IN APPLICABLE LAW
	 	 	28	 
	 
	 	 	 	 	 	 
	21.

	 	REPRESENTATIONS, WARRANTIES AND INDEMNITIES
	 	 	30	 
	 
	 	 	 	 	 	 
	22.

	 	TERM
	 	 	31	 
	 
	 	 	 	 	 	 
	23.

	 	TERMINATION
	 	 	31	 






 









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	 	 	 	 	Page
	 
	 	 	 	 	 	 
	24.

	 	EXIT AND SERVICE TRANSFER
	 	 	41	 
	 
	 	 	 	 	 	 
	25.

	 	BUSINESS CONTINUITY AND DISASTER RECOVERY
	 	 	42	 
	 
	 	 	 	 	 	 
	26.

	 	BENCHMARKING
	 	 	42	 
	 
	 	 	 	 	 	 
	27.

	 	SUB-CONTRACTORS
	 	 	43	 
	 
	 	 	 	 	 	 
	28.

	 	SUPPLIER PERSONNEL
	 	 	45	 
	 
	 	 	 	 	 	 
	29.

	 	HUMAN RESOURCES
	 	 	45	 
	 
	 	 	 	 	 	 
	30.

	 	INTELLECTUAL PROPERTY
	 	 	45	 
	 
	 	 	 	 	 	 
	31.

	 	CONFIDENTIALITY
	 	 	52	 
	 
	 	 	 	 	 	 
	32.

	 	RECORDS, AUDIT AND COMPLIANCE
	 	 	54	 
	 
	 	 	 	 	 	 
	33.

	 	DATA PROTECTION
	 	 	59	 
	 
	 	 	 	 	 	 
	34.

	 	LIMITATION OF LIABILITY
	 	 	61	 
	 
	 	 	 	 	 	 
	35.

	 	TAX
	 	 	64	 
	 
	 	 	 	 	 	 
	36.

	 	AGREEMENTS TO AGREE
	 	 	65	 
	 
	 	 	 	 	 	 
	37.

	 	NOTICES
	 	 	66	 
	 
	 	 	 	 	 	 
	38.

	 	INSURANCE
	 	 	68	 
	 
	 	 	 	 	 	 
	39.

	 	FORCE MAJEURE
	 	 	68	 
	 
	 	 	 	 	 	 
	40.

	 	ANNOUNCEMENTS AND PUBLICITY
	 	 	69	 
	 
	 	 	 	 	 	 
	41.

	 	ASSIGNMENT AND PLACE OF BUSINESS
	 	 	70	 
	 
	 	 	 	 	 	 
	42.

	 	SEVERABILITY
	 	 	71	 
	 
	 	 	 	 	 	 
	43.

	 	NO PARTNERSHIP
	 	 	71	 
	 
	 	 	 	 	 	 
	44.

	 	REMEDIES AND WAIVERS
	 	 	71	 
	 
	 	 	 	 	 	 
	45.

	 	ENTIRE AGREEMENT
	 	 	71	 
	 
	 	 	 	 	 	 
	46.

	 	VARIATION
	 	 	72	 
	 
	 	 	 	 	 	 
	47.

	 	DISPUTE RESOLUTION
	 	 	72	 






 









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	 	 	 	 	Page
	 
	 	 	 	 	 	 
	48.

	 	LIQUIDATED DAMAGES
	 	 	73	 
	 
	 	 	 	 	 	 
	49.

	 	COSTS AND EXPENSES
	 	 	73	 
	 
	 	 	 	 	 	 
	50.

	 	COUNTERPARTS
	 	 	73	 
	 
	 	 	 	 	 	 
	51.

	 	THIRD PARTY RIGHTS AND RIGHTS OF SERVICE RECIPIENTS
	 	 	74	 
	 
	 	 	 	 	 	 
	52.

	 	AGENT FOR SERVICE
	 	 	75	 
	 
	 	 	 	 	 	 
	53.

	 	INTERPRETATION
	 	 	76	 
	 
	 	 	 	 	 	 
	54.

	 	GOVERNING LAW	 	 	77	 
	 
	 	 	 	 	 	 
	Schedule 1 — Definitions
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 2 — Service Descriptions (Statements of Work)
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 2.1 — Contact Centre Operations
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 2.2 —Infrastructure Services For Contact Centres
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 2.3 — Services For General Insurance
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 2.4 A — Services For Life Insurance Customer Experience
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 2.4 B — Services For Life Insurance Customer Experience — RBS Department
	 	 	 
	 
	 	 	 	 	 	 
	
Schedule 2.5 — Services For Healthcare	 	 	 
	 
	 	 	 	 	 	 
	Schedule 2.6 — Services For Canada
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 2.7 — Services For NU UK ITS
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 2.7A — Management Information Pack
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 2.8A — Finance And Accounting (NUI)
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 2.8B — Finance And Account (NUL)
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 2.8C — Finance And Accounting (Aviva Group)
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 2.10 — Services For NUOS Financial Services
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 3 — Service Levels And Service Credits
	 	 	 












 











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	Appendix 3A — Service Levels Matrix
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 3H — Interim SLAs
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 3I — NUI Offshore Performance
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 4 — Pricing, Invoicing and Payment
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 4A — Supplier Pricing Forms
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 4B — Financial Responsibility/Asset Ownership Matrix
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 4C — Financial Base Case
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 5 — Human Resources
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 1 — Key Supplier Employees
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 2 — Pre Commencement Transferable Employee Roles
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 3 — Supplier personnel skill requirements
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 6 — Governance and Service Management
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 7 — Transition and Transformation
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 7A — Transition Plan
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 8 — Forecasting and Capacity Planning
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 9 — IT Services
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 9A — Off-shore IT Services Catalogue
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 9B — NUCS Incident and Service Request Management
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 10 — Change Management
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 11 — Benchmarking
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 12 — Exit Management
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 13 — Reports
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 13A — Description of Reports
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 14 — Security Management
	 	 	 





 










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	Schedule 15 — Business Continuity Disaster Recovery and Incident Management
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 15A — Business Continuity Planning Framework
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 15B — Crisis Response Plan
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 15C — Business Continuity Planning Recovery Requirements Questionnaire
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 15D — Business Protection Policy
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 15E — Business Continuity Questionnaires
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 16 —  Pre-Commencement Period
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 17 — Policies and Procedures
	 	 	 
	 
	 	 	 	 	 	 
	Appendix 17A — List of Customer Policies and Procedures
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 18 — Executive Assessment
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 19 — Sites
	 	 	 
	 
	 	 	 	 	 	 
	Schedule 20 — Form of Escrow Agreement
	 	 	 





 










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THIS AGREEMENT is made on the 11th day of July 2008




BETWEEN:





	(1)	 	AVIVA GLOBAL SERVICES (MANAGEMENT SERVICES) PRIVATE LIMITED, a company incorporated in
Singapore (company number 200812047E) whose registered office is situated at 3 Anson Road,
#07-01 Springleaf Tower Singapore 079909 (“Customer”); and
	 
	(2)	 	WNS CAPITAL INVESTMENT LIMITED, a company incorporated in Mauritius (company number 081866)
whose registered office is situated at 10 Frere Felix de Valois Street, Port Louis, Mauritius
(“Supplier”).





WHEREAS:





	(A)	 	Customer is a member of the Aviva plc group, which is one of the world’s largest insurers.
Its principal business activities include life insurance, pensions, retail fund management,
general insurance and other miscellaneous service activities.
	 
	(B)	 	Customer issued written requests for proposals (“RFP”) dated 2 November 2007 and 29 March
2008 in relation to its requirement to select a strategic supplier for offshore business
process services. A number of submissions were received in response to the RFP, one of which
was received from a member of the Supplier Group. Following evaluation and clarification of
the RFP submissions, Supplier was selected as the preferred contractor.
	 
	(C)	 	Following discussions and negotiation between the Parties and certain due diligence by
Supplier, Customer now wishes to enter into this Agreement.
	 
	(D)	 	Customer now wishes to appoint Supplier for the Term as service provider and prime contractor
to supply the Services to Customer and Supplier agrees to supply the Services on that basis,
in each case on the terms and conditions set out in this Agreement.





NOW THIS AGREEMENT WITNESSES as follows:









	1.	 	SERVICE PROVISION






	1.1	 	Supplier shall supply or procure the supply of the Pre-Commencement Services and the Historic
Services to Customer and all relevant Service Recipients in accordance with, and subject to
the terms of, Schedule 16 (Pre-Commencement Period) and the other relevant provisions of this
Agreement. On and from the Commencement Date until the end of the Term, Supplier shall
provide, or as prime contractor shall procure the provision of, the Principal Services (other
than the Transition Work and the Transformation Work) to Customer and all other Service
Recipients in accordance with, and subject to the terms of, this Agreement.
	 
	1.2	 	Supplier shall perform, or as prime contractor shall procure the performance of, the
Transition Work and the Transformation Work in accordance with Clause 5.1.










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	 	 	2







	1.3	 	Supplier shall provide the Services from the Sites unless the Parties agree otherwise through
the Change Control Procedure.
	 
	1.4	 	Subject at all times to Clause 1.7, Customer acknowledges that Supplier is being engaged by
Customer to provide the Inscope Services from India or Sri Lanka on an exclusive basis to the
Inscope Business Units and accordingly Customer undertakes with Supplier that during the
period commencing on the date of this Agreement and ending on the day being the earlier of:






	 	(A)	 	for Services in respect of which Customer has exercised a right of
termination pursuant to this Agreement and only in respect of the Services and the
Service Recipient in respect of which such termination right has been exercised, the
relevant date of termination of Services (but excluding any partial rights to
terminate pursuant to Clause 23.12); and
	 
	 	(B)	 	60 months from the date of this Agreement,






	 	 	Customer shall procure that:






	 	(C)	 	none of the Inscope Business Units shall themselves perform, or contract with
any third party or third parties (including, subject to Clause 1.7(A), any member of
the Customer Group) to provide, the whole or any part of any Inscope Services from
India or Sri Lanka.






	1.5	 	Subject to Clause 1.6, no provision of this Agreement (including Clause 19 (Growth and
Acquisitions) and Clause 23.24 (Departing Entities, Departing Businesses and Termination))
shall require Supplier to supply, and/or procure the supply of, the Services to an Unapproved
Entity pursuant to this Agreement or otherwise comply with this Agreement (or procure the
compliance with this Agreement) with respect to that Unapproved Entity, save that in the event
that Supplier does agree to supply the Services to an Unapproved Entity then such person shall
be treated as a Service Recipient under this Agreement without limitation or derogation and
the Supplier shall comply with this Agreement in full with respect to that Service Recipient.
	 
	1.6	 	Where a Service Recipient (including any Joining Entity or any Departing Entity) becomes a
BPO Supplier after its receipt of the Services then such Service Recipient shall continue to
be treated as a Service Recipient under this Agreement without limitation or derogation,
provided that the volumes of Services supplied to such Service Recipient cannot increase
without Supplier’s consent above the level they were at the time (i) such Service Recipient
became a BPO Supplier, and (ii) Notice has been received by Customer from Supplier that the
volume of Services shall not increase pursuant to this Clause.
	 
	1.7	 	The exclusive right in Clause 1.4:






	 	(A)	 	shall not limit the ability of any of the Inscope Business Units to procure
Inscope Services from India or Sri Lanka from another member of Customer Group
(provided that such member of Customer Group is not a BPO Supplier) to the











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	 	 	 	3

	 
	 	 	 	extent that
such procurement of Inscope Services is required for any member of Customer Group to
be compliant with the lawful direction of a Regulator or with Applicable Law;
	 
	 	(B)	 	shall be subject to the terms of Clause 1.9;
	 
	 	(C)	 	shall be subject to the rights and obligations of any member of Customer
Group under:






	 	(i)	 	any agreement which was in place prior to the date of this
Agreement;
	 
	 	(ii)	 	the Noida Agreement, provided that the term of the Noida
Agreement is not extended beyond 31 December 2012. From 1 January 2010 this
exception to the exclusivity shall only apply to the extent that the number of
full time employees under the Noida Agreement is 600 or less; or
	 
	 	(iii)	 	any agreement of or relating to a Joining Entity (excluding
any Inscope Business Unit) whether in place before or after the date of this
Agreement provided that such agreement was in place prior to the date such
Joining Entity became a Joining Entity and prior to such Joining Entity
receiving Services under this Agreement,






	 	 	 	which (in each case) would otherwise cause a member of Customer Group to breach
Clause 1.4. Customer shall not, and shall ensure that each relevant member of
Customer Group (including any such Joining Entity) shall not, renew or extend the
terms of any such agreement referred to in this Clause 1.7(C) (including extending
the scope of the services) to the extent that such terms relate to all or any
Inscope Services unless Customer (or relevant member of Customer Group as
applicable) is contractually bound to do so. In the discretion of the relevant
member of Customer Group (taking account, amongst other things, of the potential or
likelihood of: (i) harm or damage to Customer Group’s reputation and its commercial
relationships; and (ii) breach of contract being alleged or occurring), Supplier
agrees that Customer and the relevant members of Customer Group may take reasonable
steps to withdraw from the receipt of services supplied to them under the
agreements referred to in this Clause 1.7(C) in an orderly manner and where
reasonably practicable to do so;
	 
	 	(D)	 	shall not limit the ability of any of the Inscope Business Units to: (i)
tender for, or to secure, Inscope Services from any Successor Service Provider from
India or Sri Lanka during or in preparation for any Exit Period; or (ii) to receive
Inscope Services from any Successor Service Provider from India or Sri Lanka during
any Exit Period (but for the avoidance of doubt, not to receive Inscope Services from
India or Sri Lanka prior to any Exit Period);
	 
	 	(E)	 	shall be subject to the exercise of the rights granted to Customer under this
Agreement (including pursuant to Clause 4 (Specific Service Remedies)) to the











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	 	 	 	4

	 
	 	 	 	extent
that the exercise of such rights causes a member of Customer Group to breach Clause
1.4.






	1.8	 	Customer shall use all reasonable endeavours to procure that, in respect of any agreement
entered into by a member of Customer Group, after the date of this Agreement, in relation to
material outsourcing of Inscope Services by an Inscope Business Unit from a third party
outsourcing supplier, such outsourcing supplier engages the Supplier Group in respect of any
Inscope Services to be provided to any In Scope Business Unit from India or Sri Lanka with
respect to that agreement.
	 
	1.9	 	In the event that the Parties fail to agree within a reasonable period of negotiation the
commercial terms for: (a) any statement of work relevant to any New Services which are Inscope
Services to be provided from India or Sri Lanka (“New Services SOW”) and at the relevant time
of Customer’s request such New Services are currently being offered by Supplier to other
customers of Supplier Group; or (b) any statement of work relevant to the provision of any
Principal Services which are Inscope Services to be provided from India or Sri Lanka at the
request of Customer to a Joining Entity under Clause 19 (Growth and Acquisitions) (“Joining
Entity SOW”) and which at the relevant time of Customer’s request are currently being offered
by Supplier to other customers of Supplier Group:






	 	(A)	 	Customer shall within a reasonable period of time following such failure to
agree notify Supplier of such fact and the basis in a reasonable level of detail why
the Parties have failed to agree the relevant commercial terms in a notice
(“Disagreement Notice”); and
	 
	 	(B)	 	following the submission of the Disagreement Notice either Party shall have
the right to escalate the issues the subject matter of the Disagreement Notice in
accordance with Schedule 6 (Governance and Service Management) and notwithstanding any
such escalation subject to sub-Clauses 1.9(C)-(H) (inclusive):






	 	(i)	 	the exclusivity provisions set out in Clause 1.4 shall not
apply to the New Services SOW, or as the case may be the Joining Entity SOW,
specified in the Disagreement Notice (“Refused Services”); and
	 
	 	(ii)	 	the Minimum Commitment Level shall be reduced proportionately
by the number of Billable FTEs that would have been required to perform the
relevant Refused Services;






	 	(C)	 	the disapplication of the exclusivity provisions and the reduction in the
Minimum Commitment Level in circumstances referred to in Clause 1.9(B), shall not
apply to the extent Customer engages any person (an “Alternative Supplier”) to
provide, and/or permits any Service Recipient to engage any Alternative Supplier to
provide, such Refused Services on terms which are more favourable to such Alternative Supplier than the terms (including in respect
of price, service levels and scope) declined by Supplier for those Refused Services
(“Better Terms”). The parties agree that any terms regarding the location of the











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	 	 	 	5

	 
	 	 	 	provision of services shall be disregarded for the purposes of assessing whether
terms of engagement are Better Terms. Customer shall notify Supplier promptly with
respect to any such engagement of an Alternative Supplier;
	 
	 	(D)	 	where there is any dispute as to whether the Customer has appointed an
Alternative Supplier on Better Terms and such dispute cannot be resolved in a
reasonable period by the Parties through internal escalation in accordance with
Schedule 6 (Governance and Service Management), either Party shall be entitled to
appoint an objective, qualified and independent third party (“Independent Assessor”)
to verify and report in writing on whether or not Customer (or any relevant Service
Recipient) has engaged an Alternative Supplier to provide the Refused Services on
Better Terms. The identity of the Independent Assessor shall be agreed between the
Parties acting reasonably and, failing agreement, shall be decided at the request of
either Party by the President of the Institute of Chartered Accountants in England and
Wales;
	 
	 	(E)	 	each Party shall provide the Independent Assessor with reasonable access to
all premises, information, personnel, materials, invoices, contracts, agreements and
other documentation that is reasonably necessary for the Independent Assessor to
access in order perform its role under this Clause 1.9 (and Customer shall procure
that any relevant Service Recipient and the relevant Alternative Supplier provides
such access, subject to the Independent Assessor executing reasonable non-disclosure
undertakings with the Alternative Supplier);
	 
	 	(F)	 	where the Independent Assessor concludes that the Alternative Supplier has
not been engaged on Better Terms, the costs of the Independent Assessor shall be borne
by Supplier in full and where the Independent Assessor concludes that the Alternative
Supplier has been engaged on Better Terms, the costs of the Independent Assessor shall
be borne by Customer in full (and otherwise each Party shall bear its own costs in
respect of the work of the Independent Assessor);
	 
	 	(G)	 	the Independent Assessor shall be requested to complete its report within ten
(10) Business Days of being appointed by a Party and obtaining the reasonable access
it requires under this Clause 1.9. The decision of the Independent Assessor shall be
final and binding on the Parties; and
	 
	 	(H)	 	the disapplication of the exclusivity provisions and the reduction in the
Minimum Commitment Level in circumstances referred to in Clause 1.9(B), shall not
apply to the extent:






	 	(i)	 	Customer is requesting, in the case of Principal Services,
different pricing principles and/or rates to those specified in this
Agreement; or in the case of New Services different pricing principles and/or
rates to those specified in this Agreement (if any) or if pricing principles
and/or rates are not specified in this Agreement for the relevant New Service,










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	 	 	 	6

	 
	 	 	 	pricing principles and/or rates which do not reflect (in all material
respects) the terms of Clause 18.2; and/or
	 
	 	(ii)	 	Customer is requesting service levels which are not
substantially similar to any equivalent Service Levels specified in this
Agreement;
	 
	 	(iii)	 	Customer is otherwise acting unreasonably in conducting the
negotiations referred to in Clause 1.9; and/or
	 
	 	(iv)	 	Supplier is entitled to refuse to provide any of the Refused
Services in accordance with Clause 1.5.










	2.	 	STANDARD OF SERVICE PROVISION






	2.1	 	Supplier shall provide each Service (or shall procure that each Service is provided) to
Customer and any Service Recipients to and in accordance with this Agreement and to (as a
minimum) the Service Level for that Service (where applicable).
	 
	2.2	 	Without prejudice to Clause 2.1, Supplier shall, subject to Clause 13 (Supplier Relief and
Customer Relief) and Clause 39 (Force Majeure):






	 	(A)	 	at its own cost and expense, take all such additional reasonable steps and
apply all such additional resources in order to remedy each Service Failure and delay,
problem or other degradation in the Services as soon as reasonably practicable, and in
any event, shall take all reasonable steps to minimise the impact of such Service
Failure and delay, problem or other degradation, in each case in accordance with Good
Professional Practice;
	 
	 	(B)	 	at its own cost and expense, Notify Customer promptly of:






	 	(i)	 	the occurrence of each Service Failure (or, to the extent
Supplier is reasonably able each anticipated Service Failure, prior to the
occurrence thereof) of which Supplier is aware;
	 
	 	(ii)	 	all delays, problems or degradations (or to the extent
Supplier is reasonably able each anticipated delay, problem or degradation,
prior to the occurrence thereof) from time to time in the supply of the
Services (or any of them) of which Supplier becomes aware; and
	 
	 	(iii)	 	all circumstances from time to time which or which are
reasonably likely to prevent or hinder Supplier from supplying the Services
(or any of them) of which Supplier is aware,






	 	 	 	together with:






	 	(iv)	 	details of the reasons for the occurrence (or reasonably
likely anticipated occurrence) of any such Service Failure, delays, problems,










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	 	 	 	degradations or circumstances of which Supplier is aware or ought reasonably
to be aware in accordance with Good Professional Practice;
	 
	 	(v)	 	details of the impact (or reasonably likely anticipated
impact) of any such Service Failure, delays, problems, degradations or
circumstances on the Services of which Supplier is aware or ought reasonably
to be aware in accordance with Good Professional Practice;
	 
	 	(vi)	 	recommendations as to how any such actual Service Failure,
delays, problems, degradations or circumstances (as the case may be) can be
remedied;
	 
	 	(vii)	 	recommendations as to how to avoid the recurrence of any
such actual Service Failure, delays, problems, degradations or circumstances;
and
	 
	 	(viii)	 	in the case of sub-Clauses 2.2(B)(ii) and 2.2(B)(iii) above, recommendations
as to how any anticipated delays, problems, degradations or circumstances (as
the case may be) can be avoided,






	 	 	 	such recommendations to be provided as soon as is reasonably
practicable. The Parties shall discuss these recommendations and, except as
provided for in Clause 13 (Supplier Relief and Customer Relief), at its own
cost and expense Supplier shall then take such action (including the use of
additional resources) as is agreed by the Parties acting reasonably as being
necessary to avoid, remedy and otherwise minimise the impact of the Service
Failures, delays, degradations, problems, occurrences or circumstances
referred to in this Clause 2.2(B) in accordance with Good Professional
Practice;
	 
	 	(C)	 	perform the Services and its obligations under this Agreement throughout the
Term in compliance with all Applicable Laws, to the extent such Applicable Laws: (i)
apply to Supplier Group; or (ii) apply to the supply of the Services in the
jurisdictions from which the Services are being provided by Supplier; or (iii) relate
to a Mandatory Change which the Parties have agreed to implement via the Change
Control Procedure in accordance with Clause 20 (Changes in Applicable Law);
	 
	 	(D)	 	obtain, maintain and comply with (or procure that each relevant
Sub-Contractor obtains, maintains and complies fully with) all necessary consents,
approvals, authorisations, licences and permissions which Supplier and each relevant
Sub-Contractor is required to obtain in order to supply the Services and perform its
obligations under this Agreement in compliance with Clause 2.2(C);
	 
	 	(E)	 	discharge its obligations under this Agreement in accordance with Good
Professional Practice;
	 
	 	(F)	 	supply the Services throughout the Term in such a way as to enable insofar as
it is reasonably practicable an orderly and efficient hand-over to a Successor Service
Provider including in a manner which will insofar as it is reasonably










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	 	 	 	8

	 
	 	 	 	practicable minimise material disruption to Customer and each Service Recipient’s continuing
business on termination or expiry of this Agreement or on the removal of any Services
from this Agreement (as applicable);
	 
	 	(G)	 	not (and shall procure that no Sub-Contractor shall), without the prior
written consent of Customer, (such consent not to be unreasonably withheld or delayed)
use anything or become reliant on anything to provide the Services which Supplier
knows, or should reasonably be expected to know, Customer would not be able to procure
in the market place and use for itself or would require material expenditure to
procure such a thing were a Successor Service Provider to supply the Services (or any
of them);
	 
	 	(H)	 	use good industry versions of anti-virus software to check for and delete any
software virus, bomb or other contaminant or similar items introduced by Supplier
which infects or causes damage to Customer Group’s information technology systems or
Supplier’s information technology systems used to provide the Services or disrupts the
provision of the Services (or any of them), and shall take all reasonable precautions
in accordance with Good Professional Practice to ensure that neither it nor any
Sub-Contractor in any other way destroys, damages or corrupts any software or data
(including Customer Data) on Customer Group’s information technology systems or
Supplier’s information technology systems used to supply the Services. For the
purpose of this Clause 2.2(H), “good industry versions of anti-virus software” shall
mean, as a minimum: (i) anti-virus software from a recognised and reputable software
vendor; (ii) the latest current supported version of such anti-virus software
compatible with Customer Group’s information technology systems; and (iii) anti-virus
software that is supported by the relevant software vendor;
	 
	 	(I)	 	provide such assistance and cooperation as shall be reasonably requested to
ensure that all services, Equipment and other resources utilised in connection with
the performance of the Services are successfully integrated and interfaced with, and
shall not have a material or continuing adverse impact on, or be materially or on a
continuing basis adversely affected by, the services, systems and other resources that
are being provided to, recommended to, or approved for use by, Customer by third
parties at the date of this Agreement subject to the actual physical and technological
limitations of Customer Group’s information technology systems, provided that Supplier
shall not be under an obligation to purchase equipment, services or software other
than as is expressly required under any other express terms of the Agreement;
	 
	 	(J)	 	without prejudice to the obligations of the Parties in Schedule 8
(Forecasting and Capacity Planning), Notify Customer in the event that the number of
Billable FTEs engaged in the supply of the Services is such that there is an
under-utilisation of such resource of more than ten per cent. (10%);
	 
	 	(K)	 	except as otherwise provided in this Agreement (including in Appendix 4B
(Financial Responsibility/Asset Ownership Matrix) to Schedule 4 (Pricing, Invoicing
and Payment)), be responsible for providing all Facilities and other










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	 	 	 	9

	 
	 	 	 	resources necessary for the supply by or on behalf of Supplier of the Services and meeting its
obligations under this Agreement; and
	 
	 	(L)	 	if requested by Customer, act as a purchasing agent for members of Customer
Group to procure hardware, software or network equipment or other equipment or
components whether or not the same are within the scope of the Services (for the
purposes of this Clause 2.2(L), “equipment”). To the extent that Supplier is able,
Supplier shall make available to each member of Customer Group the benefit of any
volume purchasing discounts for the equipment it purchases and convey to Customer all
other benefits offered to Supplier by third party suppliers. Where equipment is
procured for or on behalf of any member of Customer Group (and not used or intended to
be used by Supplier in the supply of Services) Supplier shall use all reasonable
endeavours to procure that the benefit of all manufacturer guarantees and warranties
it receives are transferred or procured for the benefit of the relevant member of
Customer Group. Where despite the use of all such reasonable endeavours by Supplier
the benefit of manufacturer guarantees and warranties cannot be transferred or
procured for the benefit of the relevant member of Customer Group, then Supplier shall
notify Customer of that fact and shall not procure such equipment without Customer’s
prior written consent.






	2.3	 	The Parties agree and acknowledge that the following principles shall form the basis of their
relationship under this Agreement:






	 	(A)	 	to strive for quality and excellence in the design and delivery of the
Services;
	 
	 	(B)	 	to be responsive, responsible, flexible and innovative in order to comply
with their respective obligations under this Agreement;
	 
	 	(C)	 	to deal and communicate with each other in an honest open manner; and
	 
	 	(D)	 	to work to build a productive and positive relationship with each other.





Customer third party service providers





	2.4	 	Subject to Clause 2.5, Supplier shall (and shall procure that all Supplier Personnel shall)
at all times during the Term:






	 	(A)	 	at Customer’s reasonable request, co-operate with and assist all third party
suppliers engaged by any member of Customer Group or any Service Recipient (each a
“Third Party Provider”) in:






	 	(i)	 	the effective and efficient co-ordination of and integration
with the supply of the Services and the services and products of such Third
Party Providers;
	 
	 	(ii)	 	the supply and receipt of the Services in the manner set out
or referred to in this Agreement; and










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	 	 	 	10

	 
	 	(iii)	 	the due and proper performance by Customer or Supplier of
its obligations under this Agreement,






	 	 	 	and Customer shall use its reasonable endeavours to procure that, following
Supplier’s reasonable request, each Third Party Provider co-operates with and
assists Supplier in connection with this Clause 2.4(A);
	 
	 	(B)	 	at Customer’s reasonable request, attend meetings with Third Party Providers;
	 
	 	(C)	 	in the event that Supplier becomes aware that the Services (or any part
thereof) are adversely affected as a result of the action or inaction of a Third Party
Provider, promptly Notify Customer of the same; and
	 
	 	(D)	 	at Customer’s reasonable request, manage the resolution of any issues
Notified to Customer pursuant to Clause 2.4(C) by using all reasonable endeavours
to:






	 	(i)	 	take corrective or preventive steps in relation to the
Services; and/or
	 
	 	(ii)	 	procure the taking of corrective or preventative steps by the
relevant Third Party Provider.






	2.5	 	Customer shall:






	 	(A)	 	use all reasonable endeavours to procure that each Third Party Provider
performs its obligations under the relevant contract to enable Supplier to perform its
obligations under Clause 2.4; and
	 
	 	(B)	 	where a Third Party Provider is a BPO Supplier, shall procure that such Third
Party Provider enters into a confidentiality agreement with Supplier on terms
equivalent to those set out in Clause 31 (Confidentiality) (each such confidentiality
agreement to provide for reciprocal obligations for preserving confidentiality), to
the extent that such Third Party Provider shall have access or potential access to
Supplier’s Confidential Information from time to time.










	3.	 	SERVICE CREDITS






	 	3.1	 	Subject to Clause 3.2, Customer shall have the right to receive, and Supplier shall pay to
Customer, Service Credits in accordance with the provisions of Schedule 3 (Service Levels and
Service Credits).
	 
	 	3.2	 	The Parties acknowledge and agree that any Service Credits received by Customer in respect of
a failure by Supplier to meet the Service Levels shall be treated as part payment of any
damages awarded to, or losses claimed by, Customer as a result of such a failure and Customer
(and members of the Customer Group) shall not be entitled to claim twice for the same loss.
For the avoidance of doubt such Service Credits will not be counted against the maximum
aggregate liability by Supplier and its Affiliates as set out in Clause 34.4.






 











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	4.	 	SERVICE SPECIFIC REMEDIES






	4.1	 	Without prejudice to the provisions of Clause 7 (Service Improvements) and Schedule 3
(Service Levels and Service Credits), upon reasonable request by, and subject to reasonable
advance Notice from, Customer to Supplier, Customer shall be entitled (subject to Clause 4.4)
to perform, at Customer’s own cost and own risk, a diagnostic review (the “Diagnostic Review”)
of the Services (or any part of them) with a view to:






	 	(A)	 	investigating, assessing and planning for Service and process improvement
(including in connection with Customer Group’s own internal processes and changes
thereto); and
	 
	 	(B)	 	identifying, investigating, assessing and managing Service Failures or other
delays, problems or degradations in the Services.






	 	 	To the extent that any Diagnostic Review undertaken by Customer causes impediment in, or
prevents, the provision of the Services by Supplier, Clause 13 (Supplier Relief and
Customer Relief) shall apply and such impediment and/or prevention shall be deemed to be a
failure of an obligation by Customer under this Agreement for the purposes of Clause 13
(Supplier Relief and Customer Relief). Supplier shall co-operate with, and provide all
assistance reasonably requested by, Customer in relation to each Diagnostic Review
including in accordance with Clause 4.11. The Parties shall discuss and agree all of
Customer’s recommendations for implementing the findings of each Diagnostic Review through
the Change Control Procedure.
	 
	4.2	 	Without prejudice to the provisions of Clause 2 (Standard of Service Provision) and Schedule
3 (Service Levels and Service Credits) and to the other rights and remedies of Customer, in
the event that Supplier has failed to remedy a Service Failure within a period that is
reasonable in the context of that Service Failure, Customer shall (subject to Clause 4.4) have
the right (at Customer’s own cost and expense and risk and upon reasonable advance notice):






	 	(A)	 	to take such action as Customer believes reasonably is necessary to remedy
the applicable Service Failure; and/or
	 
	 	(B)	 	to receive services similar to the affected Services (and Services related
thereto) from a third party.






	 	 	Customer acknowledges that it shall exercise its rights at its own risk. To the extent
that Customer exercising its rights under this Clause 4.2 causes Supplier not to be able to
perform any of its obligations under this Agreement or to be in breach of this Agreement,
Clause 13 (Supplier Relief and Customer Relief) shall apply and such exercise of Customer’s
rights shall be deemed to be a failure of an obligation of Customer under this Agreement
for the purposes of Clause 13 (Supplier Relief and Customer Relief). Supplier shall
co-operate with, and provide all assistance reasonably requested by, Customer in relation
to this Clause 4.2 including in accordance with Clause 4.11.










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	4.3	 	Without prejudice to any other rights or remedies of Customer under this Agreement (including
pursuant to Clauses 4.1 and 4.2 above), but subject to Clause 4.4, where:






	 	(A)	 	Customer is entitled to terminate this Agreement pursuant to any of Clauses
23.5 to 23.9 (inclusive) or 23.11;
	 
	 	(B)	 	a Regulator has notified Customer that the exercise of Customer’s rights
under this Clause 4.3 is necessary as a result of Supplier’s breach of this Agreement
(including a breach of Clause 2.2(E)) and Customer has provided sufficient evidence of
such a notification;
	 
	 	(C)	 	a Party is claiming an Event of Force Majeure in respect of receipt of (with
respect to Customer as Claiming Party) or supply of (with respect to Supplier as
Claiming Party) a Service (or part thereof) and such Event of Force Majeure continues
for a period of ten (10) consecutive Business Days;
	 
	 	(D)	 	Customer is entitled to terminate this Agreement pursuant to Clause 23.21(A)
or Clause 23.21(B);
	 
	 	(E)	 	Customer is entitled to terminate this Agreement pursuant to Clause 23.16
(Termination on Insolvency or Similar Event); or
	 
	 	(F)	 	Supplier is in material breach of this Agreement and the breach gives rise
to, or is reasonably likely to give rise to, the activation of the Business Continuity
Plan,






	 	 	(each a “Service Event”), Customer may (on its behalf and/or on behalf of any Service
Recipient) forthwith at its sole discretion and on written Notice containing the
information set out in Clause 4.5 (a “Step-In Notice”) to Supplier elect to:






	 	(A)	 	receive services similar to the affected Services (and Services related
thereto) from a third party or a member of Customer Group and to suspend the receipt
of the same from Supplier; and/or
	 
	 	(B)	 	appoint officers and/or employees of Customer Group and/or external
consultants and advisers who are not a BPO Supplier or employed or engaged by any BPO
Supplier (the “Management Team”) with a view to managing (subject to Clause 4.4) the
supply of the Services to the standards set out in this Agreement and remedying the
Service Event,






	 	 	(together, the “Step-In Rights”).






	4.4	 	In the event that Customer exercises its right under this Clause 4, Customer will procure
that:






	 	(A)	 	it and the Management Team shall comply with:










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	 	(i)	 	the relevant Customer obligations under this Agreement
(including Clause 31); and
	 
	 	(ii)	 	any applicable Site, or other location, specific written
security requirements as are notified to Customer






	 	(B)	 	no BPO Supplier or employee, agent, contractor or representative of any BPO
Supplier shall access any of the Sites under Customer’s direction pursuant to this
Clause 4 without the prior consent of Supplier, which may be withheld at the sole
discretion of the Supplier; and
	 
	 	(C)	 	neither it nor the Management Team (without the prior written consent of
Supplier, which may be withheld at the sole discretion of the Supplier) shall perform
any of the Excluded Activities (as defined below in this Clause 4.4). For the
purposes of this Clause 4, “Excluded Activities” means:






	 	(i)	 	the right to access or use the source code of any software
comprised in the Equipment;
	 
	 	(ii)	 	testing any software comprised in the Equipment;
	 
	 	(iii)	 	coding any software comprised in the Equipment;
	 
	 	(iv)	 	directing the development of any software and requiring
Supplier and/or any Supplier Personnel to change the functionality of the
Equipment solely for Customer;
	 
	 	(v)	 	accessing any proprietary data or confidential information of
any other customer of any member of Supplier Group or any Sub-Contractor; and
	 
	 	(vi)	 	requiring Supplier or any other member of Supplier Group to
act or omit to act in a manner which causes or would cause Supplier or any
other member of Supplier Group to contravene Applicable Law.






	4.5	 	To the extent that Customer is reasonably able to provide the same at the time of the Step-In
Notice, the Step-In Notice shall include the following:






	 	(A)	 	an indication of the action Customer wishes to take and the tasks comprised
within the Services the subject of the Step-In Rights;
	 
	 	(B)	 	the reason for and the objective of exercising Step-In Rights;
	 
	 	(C)	 	the date it wishes to commence the Step-In Rights (which shall be no less
than five (5) Business Days after the date of the Step-In Notice);
	 
	 	(D)	 	the anticipated duration of the exercise of the Step-In Rights;
	 
	 	(E)	 	whether Customer will require access to any Site and/or any other location;
and










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	 	(F)	 	to the extent known, or ought reasonably to be known, the effect on Supplier
and its obligations to perform the Services during the period the action is being
taken.






	4.6	 	To the extent that Customer’s exercise of its rights under this Clause 4 causes Supplier not
to be able to perform any of its obligations under this Agreement and/or to be in breach of
this Agreement, Clause 13 (Supplier Relief and Customer Relief) shall apply and such exercise
of Customer’s rights shall be deemed to be a failure of an obligation of Customer under this
Agreement for the purposes of Clause 13 (Supplier Relief and Customer Relief).
	 
	4.7	 	Following service of a Step-In Notice, Customer shall:






	 	(A)	 	exercise its Step-In Rights (including by reference to the actions provided
for in the Step-In Notice) (the “Required Action”);
	 
	 	(B)	 	keep records of the Required Action taken and provide information about the
Required Action to Supplier;
	 
	 	(C)	 	co-operate with Supplier in order to enable Supplier to continue to provide
any part of the Services in relation to which Customer is not assuming management; and
	 
	 	(D)	 	act reasonably to mitigate the costs that Supplier will incur as a result of
the exercise of the Step-In Rights.






	4.8	 	In the event that no relevant Step-Out Notice (as defined below) has been delivered by
Customer to Supplier pursuant to Clause 4.9, on the day being ninety (90) days after the day
the Step-In Rights were actually exercised by Customer (or if such day is not a Business Day
then the next subsequent Business Day), or such other day as the Parties may agree, the
Parties shall review the exercise of the Step-In Rights. Where:






	 	(A)	 	neither Party has been able to restore the supply of the Services the subject
of the Step-In Rights to the standards set out in this Agreement;
	 
	 	(B)	 	in Customer’s reasonable opinion, Supplier is not able to recommence supply
of the Services the subject of the Step-In Rights to the standards set out in this
Agreement; or
	 
	 	(C)	 	the Service Event is ongoing,






	 	 	the Parties (each acting reasonably and in good faith) shall discuss whether or not to
extend the duration of the exercise of the Step-In Rights for a further period determined
by them or, in the absence of agreement by the Parties to extend the duration of the
exercise of the Step-In Rights, Customer shall have the right to exercise the rights of
termination as were available to Customer under this Agreement with respect to that Service
Event at the commencement of that ninety (90) day period. If the Service Event is an Event
of Force Majeure affecting Customer’s receipt of the Services (as opposed










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15


	 	 	to Supplier’s ability to provide the Services) then Customer’s right to rely on Clause 39 (Force Majeure)
with respect to that Service Event shall end at the end of that ninety (90) day period.
Where an Event of Force Majeure is preventing the proper performance of the Services in
accordance with this Agreement by or on behalf of the Supplier, the Customer shall, subject
to Clause 39, have the right in its sole discretion to extend the period of its Step-In
Rights beyond the ninety (90) day period referred to in this Clause 4.8 up to a maximum
period of two (2) years. This Clause 4.8 shall apply to the end of that extended period as
if it was the end of the 90 day period.






	4.9	 	Before ceasing to exercise its Step-In Rights Customer shall deliver a written notice to
Supplier (a “Step-Out Notice”) specifying:






	 	(A)	 	the Required Action it has actually taken; and
	 
	 	(B)	 	the date on which Customer plans to end the Required Action.






	4.10	 	Supplier shall, following receipt of the notice under Clause 4.9 develop a plan and devote
sufficient resources to ensure that delivery of the affected tasks of the Services are
restored to the Service Levels from the date as agreed in writing by the Parties.
	 
	4.11	 	In the event that Customer issues a Customer Step-In Notice pursuant to this Clause 4
Supplier shall:






	 	(A)	 	reasonably co-operate with Customer to facilitate the steps taken and the
Required Action;
	 
	 	(B)	 	provide copies of all recent available and relevant root cause analyses or,
if there are none, carry out a root cause analysis in relation to the matters or
circumstances leading to the Service Event and report the results of the same as soon
as is practicable;
	 
	 	(C)	 	perform the Excluded Activities set out in Clauses 4.4(C)(ii), (iii) and (iv)
upon Customer’s reasonable request, to the extent reasonably requested by Customer in
connection with the exercise of the Step-In Rights;
	 
	 	(D)	 	other than in the event of an ongoing Service Event of the type described in
Clause 4.3(C), take all steps within its reasonable control in order to recommence,
as soon as reasonably practicable, full and proper performance of all Services
affected by the Service Event;
	 
	 	(E)	 	in the event of an ongoing Service Event of the type described in Clause
4.3(C), comply with its obligations in Clause 39 (Force Majeure);
	 
	 	(F)	 	grant, and use all reasonable efforts to procure that every third party
grants, Customer such rights and licences as are reasonably required for Customer
and/or any of the Management Team for the purposes of exercising Customer’s rights
under this Clause 4;










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	 	(G)	 	procure the reasonable co-operation of and access to Supplier Personnel
(including procuring insofar as it is within its reasonable control that Supplier
Personnel follow the reasonable instructions of Customer and the Management Team); and
	 
	 	(H)	 	procure that Customer and the Management Team have access to:






	 	(i)	 	the books, records, information and data under the control or
possession of Supplier and all Sub-Contractors which and to the extent they
relate to the Services and which are relevant to the activities covered by
the Customer Step-In Notice; and
	 
	 	(ii)	 	such of the Sites and other locations as are reasonably
necessary in the circumstances.






	4.12	 	In the event that Customer elects to exercise its Step-In Rights:






	 	(A)	 	Customer shall not be liable to pay the Charges for those elements of the
Services to the extent such Services are the subject of the exercise of the Step-In
Rights and are not being actually performed in accordance with the terms of this
Agreement by Supplier. Subject to its other rights in this Agreement (including
Schedule 4 (Pricing, Invoicing and Payment) and Clause 39.4), Customer shall continue
to pay the Charges in respect of those Services supplied by Supplier in accordance
with the terms of this Agreement notwithstanding the exercise of the Step-In Rights;
and
	 
	 	(B)	 	if the costs directly and reasonably incurred by Customer as a result of the
exercise of the Step-In Rights in accordance with this Agreement (the “Step-In Costs”)
are greater than the Charges that Customer would have been liable to pay Supplier in
respect of the relevant Services if it had not exercised the Step-In Rights (the
“Original Charges”), Supplier shall be liable to pay Customer the difference between
the Original Charges and the Step-In Costs provided that (i) Supplier shall not be
required to pay such costs to the extent that they exceed fifty per cent. (50%) of the
Original Charges relating to the relevant Services in respect of which Customer has
exercised the Step-In Rights; and (ii) the maximum aggregate liability of Supplier
under this Clause 4.12(B) for any and all Required Action actually taken shall not
exceed the aggregate Charges that Customer would have been liable to pay Supplier in
any three (3) month period for the relevant Services in respect of which customer has
exercised the Step-In Rights.






	4.13	 	At Customer’s sole discretion, Supplier shall either:






	 	(A)	 	reimburse the Step-In Costs to Customer by way of a credit against Charges in
subsequent invoices issued by Supplier under this Agreement (provided that if Customer
is not, within two (2) months of such costs having been notified to Supplier by
Customer, reimbursed in full by way of a credit against Charges in










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	 	 	 	subsequent invoices, Supplier shall be liable to pay the balance owed to Customer promptly upon
demand); or
	 
	 	(B)	 	pay Customer the Step-In Costs within thirty (30) days of receipt of a valid
invoice from Customer for such amounts.






	 	 	Notwithstanding the expiry or early termination of this Agreement, the provisions of this
Clause 4.13 shall continue to apply to each Party without limit in time.










	5.	 	TRANSITION AND TRANSFORMATION






	5.1	 	Each Party shall have its respective rights and obligations set out in Schedule 7 (Transition
and Transformation).
	 
	5.2	 	Supplier shall ensure that all Transition Work and Transformation Work is carried out without
causing to the extent reasonably practicable:






	 	(A)	 	any material or continuing deterioration or degradation in the availability,
quality, scope or standard of any services being supplied to any Service Recipient
(including the other Services, any internal supply by any member of Customer Group and
any Third Party Provider) other than unavoidable and/or transitory disruption (which,
in any event, shall to the extent reasonably practicable always be kept to a minimum
level and, if possible, outside Working Hours);
	 
	 	(B)	 	any material or continuing disruption to the business of any Service
Recipient or any Third Party Provider other than unavoidable and/or transitory
disruption (which, in any event, shall always be kept to a minimum level and, if
possible, outside of Working Hours); and
	 
	 	(C)	 	material or continuing degradation or impact upon the security and/or
fidelity of any system (including information technology and telecommunications
systems) of any Service Recipient or Third Party Provider.






	5.3	 	The Parties acknowledge and agree that the Transition Plan and Transformation Plan are
project management tools to be used by the Parties to co-ordinate and achieve Transition and
Transformation. Each Party recognises that the requirements of Customer and any other Service
Recipients and/or the obligations of Supplier may evolve over time and accordingly the Parties
agree that the Transition Plan and Transformation Plan will be further developed and agreed
jointly between the Parties from time to time in accordance with Schedule 7 (Transition and
Transformation).










	6.	 	CUSTOMER AUTHORITY AND SUPPLIER AUTHORITY






	6.1	 	Without prejudice to Supplier’s rights and remedies and without relieving Customer of its
obligations under any other term of this Agreement, Supplier acknowledges that Customer
retains the sole right, authority and discretion to determine its business and operational
strategies, brand and marketing strategies, product development and customer interaction
strategies, business and operational processes and requirements










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	 	 	and its technology
specifications and requirements (including Architecture), provided that the exercise of any
such right, authority and/or discretion shall not create any additional obligations on
Supplier, or increase any existing obligations of Supplier, under this Agreement, save as: (i)
expressly provided in any other Clause of this Agreement, or (ii) expressly agreed by the
Parties through the Change Control Procedure.
	 
	6.2	 	Notwithstanding any other provisions of this Agreement, Customer acknowledges and agrees that
Supplier and/or any other member of Supplier Group reserves the right, authority and
discretion not to deliver any Services to and/or not to perform any of its obligations
(including any obligations under Clauses 31.4(E), 31.4(G) and 31.4(H) and Clause 24.4) for the
benefit of and/or not to disclose, nor authorise, any member of Customer Group to disclose any
Confidential Information relating to Supplier and/or any member of Supplier Group or Supplier
IPR to and/or not to allow or authorise the use of any Confidential Information or Supplier
IPR by;






	 	(A)	 	subject to Clause 1.6, a BPO Supplier; and/or
	 
	 	(B)	 	subject to Clause 6.2(A), any third party who has not entered into a
confidentiality agreement, on terms equivalent to those set out in Clause 31, with
Supplier and/or any other member of Supplier Group in respect of the Confidential
Information of Supplier and/or any other member of Supplier Group and/or the Supplier
IPR.











	7.	 	SERVICE IMPROVEMENTS





General





	7.1	 	Supplier acknowledges and agrees that it is committed to the process of continuous
improvement of the standard of Services and shall comply with its obligations in relation to
Service Level improvement as set out in Schedule 3 (Service Levels and Service Credits).
	 
	7.2	 	Supplier shall:






	 	(A)	 	proactively identify and Notify Customer of all opportunities for improving
Service quality that come to its attention (including opportunities to implement and
any likely costs of implementing Innovations that will be advantageous to Customer
Group) to the extent permitted by Applicable Law and subject to any obligation of
confidentiality owed by Supplier or any other member of Supplier Group;
	 
	 	(B)	 	provide a reasonably detailed analysis to Customer setting out:






	 	(i)	 	how the opportunities identified pursuant to Clause 7.2(A)
are proposed to be implemented by Supplier and the costs associated with
developing and/or implementing the same; and










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	 	(ii)	 	the potential or actual impact of such development and/or
implementation on the Services, the Charges and on Customer’s ability to
transfer the Services to a Successor Service Provider;






	 	(C)	 	supply the Services and operate, manage and maintain the Facilities in so far
as it is reasonably practicable to facilitate, maintain and improve the availability
and quality of the Services taking into account advancements in technology, the
business operations of Customer Group and other Service Recipients and the additional
costs incurred, or to be incurred, by the Parties as a result of facilitating,
maintaining and/or improving the availability and quality of the Services;
	 
	 	(D)	 	maintain a level of knowledge that provides Customer and the Service
Recipients with an opportunity to take advantage of technological advances and assist
Customer in assessing the implementation of leading-edge technology in connection with
the Services;
	 
	 	(E)	 	meet with Customer from time to time (at Customer’s reasonable request) to
inform Customer of new technological processes, methodologies or trends that could be
used in the provision of the Services of which Supplier is aware in order to impact
beneficially the business of Customer and the Service Recipients, to the extent
permitted by Applicable Law and subject to any obligation of confidentiality owed by
Supplier or any other member of Supplier Group; and
	 
	 	(F)	 	comply, and procure that its Sub-Contractors comply, and provide (or procure
the provision of) the Services in a manner which is consistent, with Customer’s:






	 	(i)	 	Architecture and technology plan;
	 
	 	(ii)	 	requirements for long-range business, operational and
technology planning;
	 
	 	(iii)	 	brand and marketing standards and requirements;
	 
	 	(iv)	 	product standards; and
	 
	 	(v)	 	standard operating procedures,






	 	 	 	in each case as notified or made available by Customer to Supplier on or prior to
the date of this Agreement. Where there are changes to the plans, standards,
requirements and procedures referred to in this Clause 7.2(F) after the date of
this Agreement, then Supplier shall comply and ensure that the Services are
compliant with all such notified changes within a reasonable period of time after
notification of such changes. Where compliance with such changes will reasonably
result in increased costs for Supplier, then the Parties shall discuss and agree
through the Change Control Procedure the reasonable incremental direct costs of the
Supplier in complying with such changes. Such










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	 	 	 	costs shall be borne by the
Customer, save in respect of: Supplier compliance with changes to brand and
marketing standards and requirements: (1) in circumstances where the relevant brand
and marketing use is requested by Supplier (as opposed to being required by the
Customer); and (2) in connection with the change to the “Aviva” brand from the
“Norwich Union” “RAC” and other current insurance brands of Customer Group, where
(in the case of (1) and (2) only) such costs shall be borne by Supplier.






	7.3	 	Supplier shall not implement any new technologies or other service improvements in connection
with the Services identified pursuant to Clause 7.2 without Customer’s prior written consent.
Any such proposals shall be addressed, and Supplier shall only be obliged to implement such
technologies and/or improvements to the extent agreed by the Parties through, the Change
Control Procedure.
	 
	7.4	 	Customer acknowledges that the process of continuous improvement of the standard of Services
including implementing the opportunities and new technologies referred to in this Clause 7 and
the performance of any of its obligations under this Clause 7 may require the cooperation of
Customer Group and other necessary Service Recipients and Third Party Providers in order that
such improvements result in the intended effect. Without prejudice to paragraph 22.1
(Continuous Improvement) of Schedule 3 (Service Levels and Service Credits), Customer
acknowledges that to the extent that such co-operation is reasonably required by Supplier,
Supplier had notified Customer of the requirement of that co-operation (with, where
practicable, reasonable notice prior to that requirement arising), and such co-operation is
not provided to Supplier, Supplier shall not be liable for failing to achieve continuous
improvement of the relevant Services (if and to the extent that such cooperation is not
forthcoming) and/or for failing to comply with this Clause 7, provided that it has given prior
written notice to Customer.










	8.	 	PREFERRED CUSTOMER STATUS






	8.1	 	Except as provided by Clauses 8.2 and 8.3 Customer acknowledges that Customer Group shall not
have any preferred status over and above Supplier’s other customers and/or customers of other
members of the Supplier Group.
	 
	8.2	 	Supplier shall take all steps to offer, through the Change Control Procedure, to provide the
Services from any Special Economic Zone or other tax preferential location or scheme which is
reasonably available to Supplier provided that the use of such area or location or scheme will
not result in or will reasonably not result in the tax benefits for either Customer or
Supplier being reduced or extinguished.
	 
	8.3	 	Supplier agrees as follows:






	 	(A)	 	Supplier shall procure that all Supplier Personnel shall be within
performance levels 2-4 as defined by Supplier’s Performance Management Framework;
	 
	 	(B)	 	subject to clause 8.3(C), Supplier shall give Customer the right of first
look in respect of any Generic Innovation and to the extent permitted by Applicable
Law will not market or commercially exploit the Generic Innovation until Customer










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	 	 	 	has had a reasonable time to determine if it wishes to use such Generic Innovation.
Customer acknowledges that any right to use such Generic Innovation will be subject to
such terms being agreed by the Parties through the Change Control Procedure and that
any such right of use shall be on a non-exclusive basis unless otherwise agreed. To
the extent that any Supplier Background IPR or Third Party IPR is embedded in or is an
integral part of or otherwise needed to use the Generic Innovation, such Supplier
Background IPR or Third Party IPR will be licensed on the terms of Clauses 30.14,
30.15, 30.16 and 30.18;
	 
	 	(C)	 	other than in respect of any Supplier Background IPR and/or Third Party IPR,
Supplier hereby agrees to assign and (in respect of copyright and database rights
owned by Supplier arising in the future) hereby assigns, and (in relation to any IPR
owned by a member of Supplier Group or Sub-Contractor) to procure the assignment of,
the whole legal and beneficial interest in all the IPRs in any Bespoke Innovation to
Customer, at no additional charge; and
	 
	 	(D)	 	to the extent that any Supplier Background IPR and/or Third Party IPR is
embedded in or is an integral part of and needed to use any Bespoke Innovation, such
Supplier Background IPR and/or Third Party IPR as relevant shall be licensed to
Customer and any Service Recipient in accordance with and/or on the terms of Clauses
30.13 and 30.19.










	9.	 	IT SERVICES






	 	 	Customer shall provide the IT Services to Supplier from the Commencement Date in accordance
with Schedule 9 (IT Services).










	10.	 	PRICING, PAYMENT AND INVOICING






	10.1	 	XXXXX
	 
	10.2	 	Supplier shall charge and Customer shall pay for the provision of the Services in accordance
with the applicable provisions of Schedule 4 (Pricing, Invoicing and Payment). In addition,
each Party shall comply with its obligations, and subject to Clause 10.4 shall have the rights
provided to it, as set out in Schedule 4 (Pricing, Invoicing and Payment).
	 
	10.3	 	Supplier shall not increase any of the Charges in respect of any part of any Service during
the Term, save as expressly provided for in this Agreement or as otherwise agreed through the
Change Control Procedure.










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	10.4	 	If a Party defaults in the payment when due of any sum payable under this Agreement
(including Service Credits), the liability of such person shall be increased to include
interest on the outstanding balance of such sum from the date when such payment is due until
the date of actual payment at a rate per annum (both before and after judgment) of three per
cent. (3%) above the Bank of England’s base rate from time to time. Such interest will accrue
on a daily basis. The Parties agree that interest payable at that rate is a substantial
remedy for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998.










	11.	 	GOVERNANCE AND SERVICE MANAGEMENT






	 	 	Each Party shall comply with its obligations, and shall have the rights provided to it, as
set out in Schedule 6 (Governance and Service Management).










	12.	 	CUSTOMER DEALINGS






	 	 	Supplier shall not, and shall procure that no other member of Supplier Group nor any
Sub-Contractor shall directly or indirectly market, offer or provide any general or life
insurance products or services to customers of any member of Customer Group.










	13.	 	SUPPLIER RELIEF AND CUSTOMER RELIEF






	13.1	 	Supplier undertakes to Notify Customer as soon as reasonably practicable of every breach by a
Service Recipient of its obligations under this Agreement of which Supplier or any of the
Major Sub-Contractors becomes aware which has or is reasonably likely to have an adverse
effect on the provision of the Services and/or on the ability of Supplier to perform its
obligations under this Agreement.
	 
	13.2	 	Supplier shall not be in breach of this Agreement and shall not be liable for any failure to
deliver the, or as the case may be the part of the, Services to which the breach relates or
any failure to perform its obligations under this Agreement to the extent that such breach
and/or failure is caused by Customer’s and/or any Service Recipient’s breach of any of
Customer’s obligations under this Agreement, provided always that Supplier has Notified
Customer in accordance with Clause 13.1 above of such breach.
	 
	13.3	 	Customer undertakes to Notify Supplier as soon as reasonably practicable of every breach by
Supplier or its Sub-Contractors of its obligations under this Agreement of which any Service
Recipient becomes aware which has or is reasonably likely to have an adverse effect on the
provision of the IT Services and/or on the ability of Customer to perform its obligations
under this Agreement.
	 
	13.4	 	Customer shall not be in breach of this Agreement and shall not be liable for any failure to
deliver the, or as the case may be part of the, IT Services to which the breach relates or any
failure to perform its obligations under this Agreement to the extent that such breach and/or
failure is caused by Supplier’s, any member of Supplier Group’s or any Sub-Contractor’s breach
of any of Supplier’s obligations under this Agreement, provided always that Customer has
Notified Supplier in accordance with Clause 13.3 above of such breach.










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	13.5	 	Where Supplier has relief from its obligations to provide Services or perform its obligations
under this Agreement pursuant to Clause 13.2 or where Customer has relief from its obligations
to provide the IT Services or perform its obligations under this Agreement pursuant to Clause
13.4 (in each case, the “Relief Obligations”):






	 	(A)	 	the relieved Party (the “Relieved Party”) shall in any event use reasonable
endeavours to continue to perform the Relief Obligations notwithstanding the relevant
failure. Provided that the Relieved Party has Notified the other Party (the “Other
Party”) in accordance with Clause 13.1 or Clause 13.3 (as applicable), the Other Party
shall reimburse the Relieved Party for its reasonable costs incurred in performing the
Relief Obligations to the extent such costs are incurred as a direct result of the
relevant breach and/or failure, until such time as the Other Party requests the
Relieved Party to cease using such reasonable endeavours (including as part of the
Parties agreeing alternative actions and/or activities pursuant to sub-Clause
13.5(B)); and
	 
	 	(B)	 	the Parties shall, at the Other Party’s request, meet to discuss and agree
(through the Change Control Procedure) any actions or activities which either Party
should undertake on a permanent or temporary basis to mitigate the effect of the
relevant breach and/or failure including (where relevant) to enable the Relieved Party
to perform the relevant Relief Obligations. All reasonable and direct costs incurred
by Relieved Party in connection with any such agreed actions or activities shall be
borne by the Other Party unless agreed otherwise in writing by the Parties.










	14.	 	POLICIES AND PROCEDURES






	 	 	Supplier shall comply in the performance of its obligations under this Agreement (and
procure that its Sub-Contractors and the Supplier Personnel comply) with Customer Group’s
policies, standards and procedures set out or referred to in Schedule 17 (Policies and
Procedures). Without prejudice to the foregoing, the Parties shall also comply in the
performance of their respective obligations under this Agreement with the policies,
standards and procedures developed pursuant to this Agreement (including the Operations
Manual).










	15.	 	ASSET MANAGEMENT





Contracts





	15.1	 	Supplier shall use all reasonable endeavours to ensure that (i) each contract entered into by
Supplier with a Sub-Contractor; and (ii) each contract entered into by Supplier with a third
party (excluding any licence of Third Party IPR), in each case after the Commencement Date,
and which relates to the provision or receipt of any of the Services includes:






	 	(A)	 	the right for Customer or a nominee of Customer within Customer Group to
receive novation of that contract to the extent that it relates to the provision or
receipt of the Services (without any transfer charge or other payment) in the










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	 	 	 	event that Customer removes any Services in accordance with this Agreement, this Agreement
terminates (or the relevant part of this Agreement terminates) or this Agreement
expires; and
	 
	 	(B)	 	the right following any such novation for Customer or a nominee of Customer
within Customer Group to terminate such contract to the extent it relates to the
provision or receipt of the Services at will on six months’ Notice (or less) without
the payment of termination fees or other charges for or relating to such termination.






	15.2	 	Where Supplier is unsuccessful in ensuring that those things referred to in Clause 15.2 are
contained in the contracts the subject of Clause 15.2, Supplier shall:






	 	(A)	 	Notify Customer of that fact and the Parties shall discuss the same; and
	 
	 	(B)	 	not enter into any such contract without the prior written consent of
Customer (such consent not to be unreasonably withheld or delayed), where such
contract is with a Major Sub-Contractor and/or relates to a Key Process under the
Services.





Equipment and refresh





	15.3	 	Supplier shall ensure that all Equipment shall be used and maintained throughout the Term in
accordance with either the manufacturers’ technical specifications or operational practices
and procedures that are in accordance with Good Professional Practice.
	 
	15.4	 	Supplier shall undertake a refresh of hardware, peripherals and other information technology
used to provide the Services in accordance with Schedule 4 (Pricing, Invoicing and Payment).





Transferable Assets





	15.5	 	During the Transition Period:






	 	(A)	 	Supplier shall provide Customer with such assistance as is reasonably
required by Customer to enable Customer to compile an inventory identifying the
Transferable Assets; and
	 
	 	(B)	 	Customer shall compile and provide a copy to Supplier of such inventory.






	15.6	 	Supplier shall sell or procure the sale of, and Customer shall purchase, the Transferable
Assets.
	 
	15.7	 	The consideration for the sale of each Transferable Asset
shall be XXXXX. Such
consideration shall be paid by Customer to Supplier within thirty (30) Business Days of
Customer’s receipt of a valid invoice from Supplier.










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	15.8	 	The Parties shall discuss and agree and implement (once agreed) the most effective method of
mitigating any costs in respect of Taxes which may be incurred as a result of Customer’s
purchase of the Transferable Assets.
	 
	15.9	 	Ownership for each Transferable Asset shall pass from Supplier to Customer on the date of
full payment to Supplier of any amounts payable in accordance with Clause 15.7 in respect of
such Transferable Asset.
	 
	15.10	 	Risk and responsibility for each Transferable Asset shall pass from Supplier to Customer on
the date of physical transfer in respect of such Transferable Asset.
	 
	15.11	 	If any Transferable Asset is lost, damaged or stolen whilst in the ownership of Customer
pursuant to Clause 15.9 but for which Supplier has risk or responsibility pursuant to Clause
15.10 then Supplier shall bear the cost (or reimburse such cost to Customer) of the repair or
replacement of such Transferable Asset.





Use of office space





	15.12	 	Supplier shall provide Customer with reasonable office space at a Site to be specified by
Customer within thirty (30) days from the Effective Date sufficient to accommodate a maximum
of thirty (30) Customer Personnel on a full-time basis at no cost to Customer (the “Customer
Office Space”).
	 
	15.13	 	The Customer Office Space shall:






	 	(A)	 	include such individual offices and Customer dedicated meeting rooms as may
be reasonably required by Customer;
	 
	 	(B)	 	be of at least the same standard (in terms of office environment, area and
facilities) as the office space owned by Noida Customer Operations Private Limited and
used by Customer Personnel in Pune prior to the Effective Date; and
	 
	 	(C)	 	include at least one “telepresence room” for the dedicated use of Customer
Personnel.






	15.14	 	The Customer Personnel using the Customer Office Space shall have access to all common areas
of the Site as are reasonably required in order for such Customer Personnel to perform their
job functions, including reasonable use of normal incidental office facilities such as
parking, dining and bathroom facilities.
	 
	15.15	 	Management, maintenance, repair and upkeep of the Customer Office Space shall be the
responsibility of Supplier. Without limitation to the foregoing, Supplier shall be
responsible for the following in the Customer Office Space:






	 	(A)	 	provision and maintenance of all necessary furniture, fixtures and fittings;
	 
	 	(B)	 	provision and maintenance of all wiring and cabling; and










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	 	(C)	 	installation and maintenance of all necessary utilities and services.





XXXXX





	15.16	 	Supplier shall provide Customer with XXXXX. Supplier shall be entitled to XXXXX, provided that Customer’s
requirements XXXXX shall take reasonable precedence over such other uses.





XXXXX





	15.17	 	Supplier shall continue to provide Customer with XXXXX. Such use shall be provided
until the earlier of:






	 	(A)	 	the date XXXXX from the date of this Agreement; and
	 
	 	(B)	 	XXXXX






	 	 	For the avoidance of doubt, Supplier shall be under no
obligation to provide XXXXX.










	16.	 	SECURITY MANAGEMENT






	 	 	Each Party shall comply with its obligations, and shall have the rights provided to it, as
set out in Schedule 14 (Security Management).










	17.	 	CHANGE MANAGEMENT






	17.1	 	Each Party shall comply with its obligations, and shall have the rights provided to it, as
set out in Schedule 10 (Change Management).
	 
	17.2	 	Changes shall be progressed by the Parties through the Change Control Procedure, and in
connection with each Change, each Party shall comply with its obligations contained in
Schedule 10 (Change Management).
	 
	17.3	 	The costs of implementing Changes (other than a Mandatory Change) will be borne by the
Parties in accordance with Schedule 10 (Change Management). The costs of implementing
Mandatory Changes will, as between Customer and Supplier, be borne in accordance with Clause
20.5.






 











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	18.	 	NEW SERVICES






	18.1	 	The Parties may from time to time agree New Services, which shall be subject to the terms and
conditions of this Agreement and shall be agreed and documented in accordance with the Change
Control Procedure.






	18.2	 	Save where the Parties (each acting reasonably) agree otherwise, in creating the charges for
New Services, Supplier shall:






	 	(A)	 	where the New Services are of the same nature and complexity as any of the
Principal Services, adopt the same pricing principles and/or model (including the same
Unit FTE Rates and/or transaction based unit rates) as for such Principal Services;
	 
	 	(B)	 	where the Parties agree that the New Services are of a different and more
complex nature to the Principal Services, adopt the same pricing principles and/or
model as for the Principal Services, but the Parties acknowledge that the Unit FTE
Rates and/or the transaction based unit rates may be higher; or
	 
	 	(C)	 	where the Parties agree that the New Services are of a different and less
complex nature to the Principal Services, adopt the same pricing principles and/or
model as for the Principal Services, but the Parties acknowledge that the Unit FTE
Rates and/or the transaction based unit rates may be lower.






	18.3	 	Subject to Clause 18.2, in creating the charges for New Services, the Parties shall take
account of:






	 	(A)	 	the existing resources and expenses that would no longer be required if a New
Service were to be performed by Supplier;
	 
	 	(B)	 	any additional resources and expenses required by either Party if a New
Service were to be performed by Supplier; and
	 
	 	(C)	 	the extent to which existing resources can reasonably be re-utilised or
deployed in order to supply a New Service in accordance with Clause 18.1 above.






	18.4	 	The supply of each New Service by Supplier must be agreed in advance by the Parties and no
Service Recipient shall be obliged to pay any charges or fees in respect of any New Service in
the event that its supply has not been authorised and accepted (in accordance with any
applicable acceptance testing procedures agreed between the Parties from time to time) by
Customer in writing.










			
	19.	 	GROWTH AND ACQUISITIONS






	19.1	 	Supplier acknowledges that Customer Group may acquire new entities or businesses throughout
the Term. Accordingly, at Customer’s written request from time to time, Supplier shall
provide each member of Customer Group and each Joining Entity with reasonable acquisition
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	 	 	 equivalent to the Services (including reasonable assessment and due diligence support
and transition and migration planning, support and assistance). In the event that such
support and assistance results in additional costs and expenses for Supplier (in excess of
the Billable FTEs utilised by Supplier for the provision of the Services), then Customer
shall bear such costs and expenses incurred by Supplier, provided that such costs and
expenses are direct and reasonable and Supplier previously Notified Customer of the same.






	19.2	 	Subject to Clause 1.5 and at Customer’s written request from time to time, Supplier shall
supply the Services (in whole or in part) to, or in respect of, a Joining Entity specified in
that written notice in accordance with the terms of this Clause 19. Subject to Clause 1.9,
the impact (if any) on the terms of this Agreement as they relate to that Joining Entity
and/or any other member of Customer Group resulting from the supply of Services to or, in
respect of, that Joining Entity shall be agreed between the Parties pursuant to the Change
Control Procedure.






	19.3	 	If Customer requests and Supplier agrees to supply Services to, or in respect of, a Joining
Entity and such Joining Entity has, or benefits from, rights under an existing contract with
any member of Supplier Group to receive services substantially similar to the Services (or the
relevant portion thereof), then the Parties shall agree through the Change Control Procedure
under which terms and conditions the Services shall be supplied to that Joining Entity and
whether or not the existing contract will be terminated and upon what terms.






	19.4	 	For the avoidance of doubt, the rights granted to Customer pursuant to this Clause 19 shall
be without prejudice to Customer’s right to vary the volumes of Services to be provided under
this Agreement in accordance with Schedule 8 (Forecasting and Capacity Planning) provided that
such variation does not reduce the amount of or relieve Customer in any way of its obligations
to meet the Minimum Commitment Level.










			
	20.	 	CHANGES IN APPLICABLE LAW






	20.1	 	Each Party shall Notify the other of any change in Applicable Law of which it becomes aware
after the date of this Agreement to the extent that such change will affect the provision of
the Services (or any part thereof) by Supplier or receipt of the Services by Customer (or any
Service Recipients).






	20.2	 	The scope of any changes to the Services (or any part thereof) as may be necessary from time
to time to ensure that the supply of the Services and their receipt and use by Customer and
the Service Recipients continues to comply, with Applicable Law (each a “Mandatory Change”),
how such change shall be implemented shall be agreed though the Change Control Procedure, the
impact of developing and implementing Mandatory Changes upon the Services and/or the Charges
(if any) and the method and timeframe by which such Mandatory Changes shall be implemented,
shall all be:






	 	(A)	 	investigated, assessed and Notified to Customer by Supplier; and
	 
	 	(B)	 	considered and agreed by the Parties through the Change Control Procedure.




 









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	20.3	 	Notwithstanding Clause 20.2 above, where the Mandatory Change arises as a result of Customer
or Supplier having previously misinterpreted Applicable Law in relation to the Services and
where Customer Notifies Supplier of such an event, then Supplier shall, following such
notification by Customer, either develop and implement such Mandatory Change as soon as
reasonably practicable and in any event by the date upon which such Mandatory Change is
required for compliance with Applicable Law, or Notify Customer immediately that it will not
be able to implement such Mandatory Change by such date.






	20.4	 	In the event that:






	 	(A)	 	the Parties fail to reach an agreement for the implementation of a Mandatory
Change through the Change Control Procedure; and/or
	 
	 	(B)	 	Supplier refuses to implement a Mandatory Change; and/or
	 
	 	(C)	 	Supplier is not able to implement the Mandatory Change,






	 	 	then Customer shall have the right to terminate the Service(s) to which such Mandatory Change relates by Notice to
Supplier with immediate effect.






	20.5	 	The cost of developing and implementing a Mandatory Change shall be borne as follows:






	 	(A)	 	by Customer, to the extent the relevant change in Applicable Law relates
uniquely and specifically to Customer and/or any Service Recipients or the Mandatory
Change has been developed for the benefit of Customer and/or any Service Recipient and
in accordance with Customer’s and/or any Service Recipient’s express written
specifications;
	 
	 	(B)	 	by Customer and other customers of Supplier Group to the extent that the
relevant change in Applicable Law does not fall within Clause 20.5(A), affects the
Services and applies to the receipt of services the same or similar to the Services
provided that Customer shall only be liable for such proportion of such costs as is
fair and reasonable in all the circumstances (including the number of other customers
of members of Supplier Group, the services offered to such other customers and the
further use of any investment by the members of Supplier Group in retaining or
attracting customers) and Supplier shall provide Customer with reasonable evidence of
such circumstances to enable Customer to verify the allocation of such costs in
accordance with this Clause 20.5(B). As between Customer and Supplier, Supplier shall
be liable for the portion of such costs attributable to those other customers
(excluding to the extent they receive Services under this Agreement, Service
Recipients) and Supplier (and whether or not Supplier or Supplier Group is able to, or
does in fact, recover such costs from other customers); and
	 
	 	(C)	 	by Supplier, where the relevant change in Applicable Law does not fall within
Clauses 20.5(A) or 20.5(B) above.




 









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	21.	 	REPRESENTATIONS, WARRANTIES AND INDEMNITIES




Representations and warranties





	21.1	 	Each Party warrants and represents to the other that:






	 	(A)	 	it has full capacity and authority and all necessary licences, permits and
consents to enter into and to perform its obligations under this Agreement;
	 
	 	(B)	 	this Agreement has been duly authorised by it and is executed by its duly
authorised representative;
	 
	 	(C)	 	there are no matters of which it is aware as at the date hereof which might
adversely affect its ability to perform its contractual obligations under this
Agreement;
	 
	 	(D)	 	it is not unable to pay its debts (within the meaning of section 123(1) and 2
of the Insolvency Act 1986) as they fall due and no order has been made or resolution
passed for its winding up or for an administration order and no receiver,
administrative receiver or manager has been appointed by any person of its business or
all or a substantial part of its assets or any material part thereof nor has any
equivalent event taken place in relation to it in any jurisdiction; and
	 
	 	(E)	 	as at the date of this Agreement, it is not aware of anything likely to lead
to any of the events referred to in Clause 21.1(D) above.






	21.2	 	Supplier represents and warrants to Customer that:






	 	(A)	 	Supplier has the full capacity and authority to grant the licences referred
to in Clause 30 (Intellectual Property); and
	 
	 	(B)	 	the supply of the Services by or on behalf of Supplier, and neither
Customer’s nor any Service Recipient’s receipt and use of the Services in accordance
with and for the purposes contemplated in this Agreement, will not infringe any IPR of
any third party.






	21.3	 	Customer represents and warrants to Supplier that:






	 	(A)	 	each Service Recipient including Customer Group has obtained all necessary
consents, approvals, authorisations, licences and permissions which Customer and/or
each Service Recipient is required to obtain in order to receive the Services and
perform its obligations under this Agreement in compliance with all Applicable Laws;
	 
	 	(B)	 	each Service Recipient shall perform its obligations under this Agreement in
compliance with Applicable Laws, to the extent such Applicable Laws: (i) apply to such
Service Recipient; or (ii) apply to the receipt of the Services in the




 









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	 	 	 	jurisdictions in which the Services are being received by Customer and/or such
Service Recipient; or (iii) relate to a Mandatory Change which the Parties have
agreed to implement through the Change Control Procedure in accordance with Clause
20 (Changes in Applicable Law);






	 	(C)	 	Customer has the full capacity and authority to grant the licences referred
to in Clause 30 (Intellectual Property); and
	 
	 	(D)	 	the use of the Customer IPR, including any material made available to any
member of Supplier Group and each Sub-Contractor by any member of the Customer Group
and/or any other Service Recipient, in accordance with and for the purposes
contemplated in this Agreement will not infringe any IPR of any third party.






	21.4	 	Save as expressly set out in this Agreement, neither Party gives any representation or
warranty (express or implied) in respect of the subject matter of this Agreement, and all
warranties and representations which may be implied (by statute or otherwise) are hereby
excluded to the maximum extent permitted by law.










			
	22.	 	TERM






	22.1	 	The term of this Agreement shall commence on the Effective Date and, except to the extent
that this Agreement is terminated in accordance with its terms, shall continue until the date
being eight (8) years and four (4) months from the date of this Agreement together with any
period in which Exit Services are provided (the “Term”).






	22.2	 	Notwithstanding any other provision of this Agreement, and except as the Parties agree
otherwise in writing, this Agreement is in all respects conditional upon the occurrence of
Completion (as that term is defined in the SSPA). Upon Completion, this Agreement shall
commence in full force and effect.










			
	23.	 	TERMINATION




Termination of the Agreement in whole or in part (“Any or All” terminations)





	23.1	 	Customer may exercise its rights of termination under any of Clauses 23.6 (Termination for
Material Service Failure), 23.8(B), 23.9 (Termination for Persistent Service Failure), 23.11
(Termination for Service Credit Threshold Breach), 23.12 (Termination for Convenience), 23.16,
(Termination on an Insolvency or a Similar Event), 23.19 (Termination arising from Tax), 23.20
(pursuant to paragraph 5.4(D) of Schedule 11 (Benchmarking), 23.21(A), 23.21(B), 23.21(C)
23.21(D), 23.21(E), 23.21(G), 23.21(H) and 23.21(J):






	 	(A)	 	in respect of the Agreement as a whole;
	 
	 	(B)	 	in respect of one or more Service Recipients or in respect of the business
(in whole or in part) of one or more Service Recipients; and/or




 









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	 	(C)	 	in respect of one or more of the Services.




Termination of the Agreement in part (“Truck and Trailer”)





	23.2	 	Subject to Clause 23.3, Customer may exercise it rights of termination under any of Clauses
23.5 (Termination for Material Service Failure), 23.7 (Termination for Persistent Service
Failure), 23.8(A), 23.17 (Termination for Event of Force Majeure), 23.18 (Termination arising
from Mandatory Change), 23.20 (pursuant to paragraph 5.4(C) of Schedule 11 (Benchmarking),
23.21(F) and 23.21(I) in relation to the provision of the Services that are directly affected
by the relevant termination event, to the Service Recipient directly affected by the relevant
termination event (the “Terminated Services”).






	23.3	 	The Parties agree that where Customer exercises its right to terminate any Terminated
Services, Customer shall also have the right to terminate any other Service(s) to the relevant
Service Recipient within the same Performance Category for that Service Recipient (the
“Affected Services”), where there are commercial, practical or technical reasons that would
restrict or prevent the ongoing effective operation of either the Terminated Service or the
Affected Service in the event of the Terminated Service and the Affected Service being
provided by different persons.






	23.4	 	The Parties agree that Customer shall not have the right to terminate this Agreement (in
whole or in part) pursuant to Clauses 23.5 to 23.9 (inclusive), in respect of:






	 	(A)	 	any Critical Service Failure occurring within the period from the date of
this Agreement until and including the date being ninety (90) days after the
Commencement Date; or
	 
	 	(B)	 	any Critical Service Failure occurring during the Term with respect to the
Transaction Processing, Expenses and Reporting Critical Service Levels, which form
part of the Aviva Group Centre Performance Category within the F&A Business Unit.




Termination for Material Service Failure





	23.5	 	Subject to Clause 23.10, in the event that the same Critical Service Level falls twenty per
cent. (20%) below the Minimum Service Level twice or more in any nine (9) month rolling
period, Customer will have the right to partially terminate this Agreement pursuant to Clauses
23.2 and 23.3 forthwith on written notice to the Supplier.






	23.6	 	Subject to Clause 23.10, in the event that in any six (6) month period there are two (2) or
more months with twenty per cent. (20%) or more (by number) of all Critical Service Levels
that fail to meet the relevant Minimum Service Levels, Customer shall have the right to
terminate this Agreement forthwith on written notice to the Supplier.




 









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Termination for Persistent Service Failure





	23.7	 	Subject to Clause 23.10, in respect of each Critical Service Level labelled with a monthly
measurement period (and marked as “PSF” in Appendix 3A (Service Levels Matrix) of Schedule 3
(Service Levels and Service Credits)) if there are four (4) Minimum Service Level Defaults, or
three (3) sequential Minimum Service Level Defaults, (in each case) in respect of the same
Critical Service Level within a twelve (12) month rolling period, the Customer shall have the
right to partially terminate this Agreement pursuant to Clauses 23.2 and 23.3 forthwith on
written notice to the Supplier.






	23.8	 	Subject to Clause 23.10, in respect of each Critical Service Levels labelled with a quarterly
measurement period (and marked as “PSF” in Appendix 3A (Service Levels Matrix) of Schedule 3
(Service Levels and Service Credits)):






	 	(A)	 	if there are Minimum Service Level Defaults in respect of the same Critical
Service Level in each of two consecutive measurement periods, the Customer shall have
the right to partially terminate this Agreement pursuant to Clauses 23.2 and 23.3
forthwith on written notice to the Supplier; and
	 
	 	(B)	 	if there are Minimum Service Level Defaults in respect of the same Critical
Service Level in each of three consecutive measurement periods Customer shall have the
right to terminate this Agreement forthwith on written notice to Supplier.






	23.9	 	If in any twelve (12) month rolling period Customer has two or more opportunities to exercise
a right of partial termination pursuant to Clauses 23.7 or 23.8 then Customer shall have the
right to terminate this Agreement forthwith on written notice to Supplier.






	23.10	 	The Parties agree that where the spread between Expected Service Level and the Minimum
Service Level is two per cent. (2%) or less, the relevant Minimum Service Level shall be
deemed to be reduced by three (3) basis points for the purposes of Clauses 23.5 to 23.9
(inclusive).




Termination for Service Credit Threshold breach





	23.11	 	Customer shall have the right to terminate this Agreement forthwith on written notice to the
Supplier if twice or more in any twelve (12) month rolling period the amount of Service
Credits (prior to any Earnback) to which the Customer is due under this Agreement is equal to
twelve per cent. (12%) (or more) of the Monthly Charges.




Termination for Convenience





	23.12	 	Customer may, at any time after the date being twenty four (24) months from the Commencement
Date, give six (6) months’ Notice to Supplier to terminate this Agreement in whole or (in its
sole discretion) in part subject to Clauses 23.13, 23.14 and 23.15.




 









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	23.13	 	Where Customer exercises its right to terminate this Agreement in whole pursuant to Clause
23.12, then Customer shall pay to Supplier the Termination Fee by way of compensation in
accordance with the applicable provisions of Schedule 4 (Pricing, Invoicing and Payment).






	23.14	 	Where Customer exercises its right to terminate this Agreement in part pursuant to Clause
23.12 and as a result of such partial termination of the Agreement the Billable FTE does not
fall below the Minimum Commitment Level, no Termination Fee will be due or payable by any
member of Customer Group to Supplier.






	23.15	 	Where Customer exercises its right to terminate this Agreement in part pursuant to Clause
23.12 and the Billable FTE falls below the Minimum Commitment Level, then Customer shall have
the option to:






	 	(A)	 	pay to Supplier the Termination Fee by way of compensation in accordance with
the applicable provisions of Schedule 4 (Pricing, Invoicing and Payment) and the
Minimum Commitment Level shall be reduced by a proportionate amount to the Terminated
Services in accordance with the applicable provisions of Schedule 4 (Pricing,
Invoicing and Payment); or
	 
	 	(B)	 	elect not to pay to Supplier the Termination Fee in relation to such partial
termination of the Agreement, but in such an event the Parties agree that the Minimum
Commitment Level shall remain the same as prior to the partial termination of the
Agreement in accordance with the applicable provisions of Schedule 4 (Pricing,
Invoicing and Payment).




Termination on an Insolvency or Similar Event





	23.16	 	Without prejudice to its other rights and remedies, either Supplier or Customer (the
“Terminating Party”) may terminate this Agreement (subject to Clauses 23.25, 23.26, 23.27 and 24) immediately by Notice to the other Party if:






	 	(A)	 	other than in respect of a Contested Claim, any procedure is commenced with a
view to the winding-up or re-organisation (other than for the purpose of a solvent
amalgamation or reconstruction to which the Terminating Party has consented) of the
other Party or, in the case of termination by Customer only, the Guarantor;
	 
	 	(B)	 	other than in respect of a Contested Claim, any procedure is commenced with a
view to the appointment of an administrator, receiver, administrative receiver or
trustee in bankruptcy in relation to the other Party or, in the case of termination by
Customer only, the Guarantor or all or a substantial part of the assets of such other
Party or the Guarantor (as applicable);
	 
	 	(C)	 	an administrator, liquidator, receiver, administrative receiver or trustee in
bankruptcy is appointed in relation to the other Party or, in the case of termination
by Customer only, the Guarantor or all or a substantial part of the assets of such
other Party or the Guarantor (as applicable);




 









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	 	(D)	 	in respect of a security interest over all or substantially all of the assets
of the other Party or, in the case of termination by Customer only, the Guarantor, any
procedure (other than in respect of a Contested Claim), is commenced to enforce that
security by the holder;
	 
	 	(E)	 	all or substantially all of the assets of the other Party or, in the case of
termination by Customer only, the Guarantor are subject to attachment, sequestration,
execution or any similar process;
	 
	 	(F)	 	the other Party or, in the case of termination by Customer only, the
Guarantor is or is deemed to be unable to pay its debts (within the meaning of section
123(1) and (2) of the Insolvency Act 1986) as they fall due or enters into a
composition or arrangement with its creditors generally or any class of them;
	 
	 	(G)	 	the other Party’s or the Guarantor’s directors take any steps to obtain a
moratorium; or






	 	 	anything analogous to any of the events described in Clauses 23.16(A) to (G) (inclusive)
occurs in any jurisdiction.




Termination arising from an Event of Force Majeure





	23.17	 	Customer shall have the right to terminate the provision of the Services that are directly
affected by the Event of Force Majeure to the Service Recipient(s) directly affected by the
Event of Force Majeure in accordance with Clause 39.5 or 39.6 (as applicable) (and any
Affected Services in accordance with the principles described in Clause 23.3)




Termination arising from Mandatory Change





	23.18	 	Customer shall have the right to terminate Services that are directly affected by the
Mandatory Change to the Service Recipient(s) directly affected by the Mandatory Change in
accordance with Clause 20.4 (and any Affected Services in accordance with the principles
described in Clause 23.3).




Termination arising from Tax





	23.19	 	Customer shall have the right to terminate this Agreement in accordance with Clause 35.3.




Termination following Benchmarking





	23.20	 	Customer shall have the rights of termination with respect to certain Services and/or the
Agreement (as applicable) identified in Schedule 11 (Benchmarking).




 









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Further Customer Termination Rights





	23.21	 	Customer shall have the right to terminate this Agreement or partially terminate this
Agreement in accordance with Clause 23.2 and 23.3 (subject to Clauses 23.25, 23.26, 23.27 and
24) by Notice to Supplier with immediate effect if:






	 	(A)	 	Supplier is in material breach (excluding any breach giving rise to
Customer’s termination rights pursuant to Clauses 23.5 to 23.9 (inclusive)) in respect
of this Agreement, which causes Customer or any member of the Customer Group to suffer
material adverse consequences, and such material breach is not capable of remedy or
(if it is) has not been remedied within thirty (30) days of receipt by Supplier of
Notice from Customer requiring such remedy;
	 
	 	(B)	 	Supplier is in persistent breach (excluding any breach giving rise to
Customer’s termination rights pursuant to Clauses 23.5 to 23.11 (inclusive)) of this
Agreement, which has a material adverse effect on Customer or any Service Recipient,
and such persistent breach is not capable of remedy or (if it is) has not been
remedied within thirty (30) days of receipt by Supplier of Notice from Customer
requiring such remedy;
	 
	 	(C)	 	without prejudice to Clause 23.21(A), Customer’s reputation has been
materially damaged following a material breach of Supplier, any Sub-Contractor or any
Supplier Personnel in respect of this Agreement, and such material breach is not
capable of remedy or (if it is) has not been remedied within thirty (30) days of
receipt by Supplier of Notice from Customer requiring such remedy;
	 
	 	(D)	 	there is a change of Control of Guarantor, or Supplier or any other member of
the Supplier Group providing the Services (each a “Supplier Group Member”), or the
Guarantor sells all or a substantial part of its business or assets (whether or not
including the Supplier or any other member of the Supplier Group providing the
Services) providing the Services, or the Supplier or any other member of the Supplier
Group sells all or a substantial part of the assets used to provide the Services (such
assets being referred to in this Clause as the “Supplier Assets”) (each a “Trigger
Event”), provided that Customer shall only be entitled to exercise its rights under
this Clause 23.21(D) if it serves Supplier with a written notice (the “Customer
Notice”) (to be provided no later than ninety (90) days from the date of receipt of a
notice from the Guarantor or the Supplier which sets out (in reasonable detail)
details of the relevant Trigger Event, and provided further that the Guarantor and/or
the Supplier has not provided to the Customer, or procured for the Customer,
assurances, evidence, guarantees or undertakings (to the Customer’s reasonable
satisfaction) within a further period of sixty (60) days after the date of the
Customer Notice that:






	 	(i)	 	a competitor of any then current Service Recipient that is
also a member of the Customer Group has not assumed Control of the Guarantor,
the Supplier, relevant Supplier Group Member(s) or Supplier Assets (as the
case may be);




 









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	 	(ii)	 	the senior management team responsible for the supply of the
Services following the Trigger Event are appropriately skilled and qualified;
	 
	 	(iii)	 	there will be, for the reasonably foreseeable future,
material continuity of the material infrastructure which was used in the
supply of the Services in the twelve (12) months prior to the Trigger Event;
	 
	 	(iv)	 	Supplier and each person who has assumed control of the
Guarantor, Supplier, relevant Supplier Group Member(s) and/or Supplier’s
Assets (as the case may be) is and (will remain for the Term) committed to
comply with all obligations of Supplier under this Agreement for the remainder
of the Term;
	 
	 	(v)	 	the Trigger Event will not result in a material deterioration
or material degradation in the standard of supply of Services, or the
performance of the Supplier’s obligations under this Agreement;
	 
	 	(vi)	 	the Trigger Event will not result in any material damage to
the reputation or goodwill of any member of the Customer Group, or any then
current Service Recipient;
	 
	 	(vii)	 	the Trigger Event will not result in any adverse action
being taken by any Regulator (including any investigation), or any adverse
ruling being given by any Regulator with respect to damage to any member of
the Customer Group or any then current Service Recipient;
	 
	 	(viii)	 	the Trigger Event will not result in the Customer Group or any then current
Service Recipient being non-compliant with any Applicable Law or any part of
such member of the Customer Group or Service Recipient;
	 
	 	(x)	 	each person who has assumed Control of the Guarantor,
Supplier, Supplier Group Member(s) and/or Supplier Assets (as the case may be)
is not a person who is making any material legal claim or has commenced any
material legal proceedings against a member of the Customer Group or is a
person against whom a member of the Customer Group is making a material legal
claim or has commenced any material proceedings;
	 
	 	(ix)	 	the Trigger Event will not have any material adverse effect
on the financial position or credit standing of the Guarantor or the Supplier
Group; and
	 
	 	(xii)	 	the Supplier Guarantee remains in full force and effect;






	 	 	 	provided that this right of termination shall not apply to a transfer of any
Supplier Group Member and/or any Supplier Assets as part of a solvent group
re-organisation from the Guarantor or a wholly owned subsidiary of Guarantor to




 









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	 	 	 	the Guarantor or another such wholly owned subsidiary of the Guarantor (as
applicable) in circumstances in which the Supplier Guarantee will continue in full
force and effect.






	 	(E)	 	Supplier ceases wholly or substantially to carry on its business;
	 
	 	(F)	 	the following occurs:






	 	(i)	 	the Travel Unit of the UK Foreign and Commonwealth Office (or
its successors) advises against all travel to the territory in which any site
from where any of the Services or any project work (including projects
relating to Transition and Transformation) are located and such advice remains
in place for a consecutive period of ninety (90) days or more;
	 
	 	(ii)	 	this results in Customer staff being prevented or restricted
(including, due to Customer Group travel policies) from travelling to that
territory;
	 
	 	(iii)	 	this is having a material detrimental impact on the ability
of Customer or any member of the Customer Group to operate its business or to
receive the Services; and
	 
	 	(iv)	 	the Supplier has had the opportunity to make a proposal to
Customer for addressing the implications of such advice and Customer has given
any such proposal its reasonable consideration. Customer shall only be
required to accept such a proposal (and in such circumstance will not exercise
its rights of termination) where in Customer’s reasonable opinion the adoption
of such proposals will not materially prejudice Customer or any Service
Recipient.






	 	(G)	 	following material breach in respect of this Agreement by the Supplier,
Customer or any other Service Recipient is non-compliant or in breach of Applicable
Law such non-compliance or breach having (in Customer’s reasonable opinion) material
adverse effect on any member of the Customer Group (or any part of it) and such breach
is not capable of remedy or (if it is) has not been remedied within thirty (30) days
of receipt by Supplier of Notice from Customer requiring such remedy;
	 
	 	(H)	 	subject to Clause 23.28, Customer (or a member of Customer Group or any other
Service Recipient) is required to do so by the lawful direction of a Regulator or a
competent court or by Applicable Law;
	 
	 	(I)	 	Supplier is not permitted under Applicable Law (other than where such
non-permission has been or is caused by an Event of Force Majeure or a breach by any
member of Customer Group or any Service Recipient) to deliver the Services (or any
part thereof) and it has not within thirty (30) days of such Applicable Law taking
effect, made its provision of the relevant services compliant with Applicable Law; and




 









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	 	(J)	 	following a breach by Supplier, any Sub-Contractor or any Supplier Personnel
in respect of this Agreement, an investigation is carried out, proceedings are brought
or a sanction is imposed by a Regulator against any member of Supplier Group or any
member of Customer Group, which has or is reasonably likely (in Customer’s reasonable
opinion) to have a material adverse consequence on the relevant member of Supplier
Group, or, as the case may be, Customer Group.




Supplier’s Termination Rights





	23.22	 	Supplier may terminate this Agreement (subject to Clauses 23.25, 23.26, 23.27 and 24) by
Notice to Customer with immediate effect if:






	 	(A)	 	Customer has failed to pay any invoiced amounts where such invoiced amounts
are:






	 	(i)	 	due and payable in accordance with the provisions of Schedule
4 (Pricing, Invoicing and Payment) (including where such sums have become due
and payable because they are no longer the subject of any dispute by Customer
in good faith but excluding any sums which are properly disputed in accordance
with the provisions of Schedule 4 (Pricing, Invoicing and Payment)); and
	 
	 	(ii)	 	overdue for a period of at least thirty (30) Business Days,






	 	 	 	provided that no such notice of termination shall take effect where Customer has
remedied such non-payment within thirty (30) Business Days of such Notice being
received by it; or






	 	(B)	 	Customer is in material breach in respect of this Agreement, which causes
Supplier or any member of Supplier Group to suffer material adverse consequences, and
such material breach is not capable of remedy, or (if it is) has not been remedied
within thirty (30) days of receipt by Customer of Notice from Supplier requiring such
remedy.






	23.23	 	In the event of termination of the Agreement pursuant to Clause 23.22, Customer shall pay to
Supplier the Termination Fee by way of compensation in accordance with the applicable
provisions of Schedule 4 (Pricing, Invoicing and Payment).




Departing Entities, Departing Businesses and Termination





	23.24	 	Without prejudice to the rights and obligations of the Parties pursuant to Clause 24 (Exit
and Service Transfer), Schedule 8 (Forecasting and Capacity Planning) and Schedule 11 (Exit
Management), in the event that:






	 	(A)	 	any Service Recipient is identified by Customer as no longer being a
recipient of the Services (a “Departing Entity”); or




 









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	 	(B)	 	any Service Recipient disposes of a business by way of (i) a transfer of
assets of that business or (ii) the disposal of shares of a company carrying on that
business (in each case, other than to another Service Recipient) (a “Departing
Business”),






	 	 	then Customer shall have the option to:






	 	(C)	 	subject to Clause 23.15, terminate the Services supplied under this Agreement
solely to the extent they are supplied to or are in respect of such Departing Entity
or Departing Business; or
	 
	 	(D)	 	without prejudice to Customer’s obligation to meet the Minimum Commitment
Level and without prejudice to Supplier’s rights under Clause 1.5, require that
Supplier enters into a direct agreement with that Departing Entity, Departing
Business, or in the case of a transfer of assets of the relevant business, the
transferee of the Departing Business on terms that are substantially the same as the
terms of this Agreement to the extent it relates to that Departing Entity or that
Departing Business (as the case may be). Supplier shall execute at Customer’s expense
all such documents and take all such other actions as Customer may reasonably request
to procure such direct agreement. The effect of such agreement shall be that the
Services the subject of the direct agreement shall continue to be supplied by Supplier
to each Departing Entity or transferee of a Departing Business (as the case may be)
for a period that is the lesser of twelve (12) months from the date of such direct
agreement and the unexpired portion of the Term (unless otherwise agreed by the
relevant parties) but the contract in respect of such Services shall be between
Supplier and that Departing Entity, Departing Business, or in the case of a transfer
of assets of the relevant business, the transferee of the Departing Business Departing
Entity (as the case may be). Customer shall be responsible for procuring that all
charges and expenses in respect of all Services that are the subject of the direct
agreement are paid to Supplier. In the event that the provision of the Services to
any Departing Entity and/or transferee of a Departing Business results in, will result
in or is reasonably likely to result in additional costs to Supplier, such costs shall
be borne by Customer, provided that such costs are agreed by the Parties through the
Change Control Procedure in advance.




General





	23.25	 	Termination or expiry of this Agreement or the removal of a Service shall be without
prejudice to the rights of the Parties accrued prior to such termination, expiry or removal.






	23.26	 	Termination or expiry of this Agreement shall be without prejudice to any provision which
expressly or by implication is intended to survive termination or expiry, including the
provisions of:






	 	(A)	 	Clauses: 4.13 (Step-in Costs); 6.2 (Customer Authority and Supplier
Authority) 23.25 to 23.27 (inclusive) (Termination — General); 24 (Exit and Service




 









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	 	 	 	Transfer); 27.4 and 27.5 (Sub-Contractors); 29.2 and 29.3 (Human Resources) 30.10,
30.15 and 30.22 to 30.27 (inclusive) (Intellectual Property); 31 (Confidentiality);
32 (Records, Audit and Compliance); 33 (Data Protection); 34 (Limitation of
Liability); 35 (Tax); 37 (Notices); 40 (Announcements and Publicity); 44 (Remedies
and Waivers); 45 (Entire Agreement); 47 (Dispute Resolution); 48 (Liquidated
Damages); 49 (Costs and Expenses); 51 (Third Party Rights and Rights of Service
Recipients); 52 (Agent for Service); 53 (Interpretation); and 54 (Governing Law);
and






	 	(B)	 	Schedule 1 (Definitions); paragraph 18.2 of Schedule 3 (Service Levels and
Service Credits); paragraphs 4.3, 4.6, 4.7, 7.11, 7.15, 10.4, 10.5 and 11 of Schedule
4 (Pricing, Invoicing and Payment); and paragraph 10.6 of Schedule 12 (Exit
Management).






	23.27	 	Termination Fees shall be payable by Customer by way of compensation in connection with the
termination of this Agreement (in whole or in part) pursuant to Clauses 23.12 (Termination for
Convenience), 23.19 (Termination arising from Tax), 23.21(H) (Further Customer Termination
Rights — Regulator, competent court or Applicable Law), 23.22 (Supplier’s Termination Rights)
and 39.5 (Force Majeure) in accordance with the applicable provisions of Schedule 4 (Pricing,
Invoicing and Payment). Except as provided in Schedule 4 (Pricing, Invoicing and Payment), no
Termination Fee will be due or payable by any member of Customer Group to Supplier.






	23.28	 	If Customer is required to exercise its rights of termination under Clause 23.21(H), to the
extent permitted by Applicable Law the Parties will discuss in good faith the impact of the
requirement or direction of the Regulator or competent court to see if the effect can be
mitigated and the Services can be performed in any manner including from another jurisdiction
which will be reasonably acceptable to the Regulator or the competent court which required
Customer and/or the member of Customer Group to terminate this Agreement.










	24.	 	EXIT AND SERVICE TRANSFER






	24.1	 	The term “Exit Services” means the services, matters and obligations to be provided, carried
out or performed by Supplier described in Schedule 12 (Exit Management).






	24.2	 	On:






	 	(A)	 	termination of this Agreement;
	 
	 	(B)	 	the partial termination of this Agreement (including in respect of each
Departing Entity pursuant to Clause 23.24(C));
	 
	 	(C)	 	the removal of a Service or Services from the scope of this Agreement in
accordance with the terms of this Agreement (including pursuant to Clause 23.24(D));
and
	 
	 	(D)	 	expiry of this Agreement,




 









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	 	 	(in each case, as applicable), Supplier shall continue to supply the Exit Services at
Customer’s request for a maximum of twenty-four (24) months (the exact period being
determined by Customer in its absolute discretion following consultation with Supplier)
(the “Exit Period”), provided that the Exit Period in respect of expiry of this Agreement
shall commence twelve (12) months prior to the expiry of the Agreement and shall last for a
period of at least twelve (12) months and at Customer’s discretion may last for twelve (12)
months after the expiry of the Agreement. Subject to Clause 24.3 each of such terminated
or removed Services shall be supplied on the same terms as the equivalent Services
(including as to Service Levels, Service Credits and Charges) and this Agreement shall
continue in full force and effect for any Exit Period, and each of the Exit Services shall
be deemed to be Services for that purpose. Without prejudice to any claim Supplier may
have for damages or any other remedy under any Applicable Law or this Agreement and subject
to Clause 24.3, each of the Exit Services shall be provided at no additional cost to
Customer and the only payments required for such services shall be the Charges payable
pursuant to this Agreement.






	24.3	 	Each Party shall comply with its obligations, and shall have the rights provided to it, as
set out in Schedule 12 (Exit Management).






	24.4	 	Supplier shall, at Customer’s request, provide all reasonable assistance to Customer during
the Exit Period, including in relation to any tenders released by Customer connected with or
in relation to the Services and (subject to and conditional upon any such engaged third party
at the request of Supplier first entering into a confidentiality agreement directly with
Supplier (and any members of the Supplier Group identified by the Supplier) on terms
equivalent to those set out in Clause 31) shall co-operate with all reasonable requests for
information which are received from Customer or any third parties engaged by Customer in
relation thereto, to the extent such requested information relates to the Services. Customer
shall bear any reasonable and additional costs and expenses directly incurred by Supplier in
relation to the provision of such assistance, provided that such costs and expenses arise as a
result of additional resources engaged by Supplier in relation to such assistance. Customer
acknowledges that Supplier shall not be obliged under this Clause 24.4 to provide any
Confidential Information relating to the Charges and/or any financial information relating to
the costings, margins or other internal financial data of any member of Supplier Group and/or
any Sub-Contractors.










			
	25.	 	BUSINESS CONTINUITY AND DISASTER RECOVERY






	 	 	Each Party shall comply with its obligations, and shall have the rights provided to it, as
set out in Schedule 15 (Business Continuity, Disaster Recovery and Incident Management).










			
	26.	 	BENCHMARKING






	 	 	Each Party shall comply with its obligations, and shall have the rights provided to it, as set
out in Schedule 11 (Benchmarking).






 











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	27.	 	SUB-CONTRACTORS





General provisions and appointment of Sub-Contractors





	27.1	 	In performing its obligations under this Agreement, Supplier shall act as prime contractor at
all times.
	 
	27.2	 	Supplier may sub-contract the performance of its obligations in respect of any part (but not
the whole) of the Services provided that:






	 	(A)	 	all Sub-Contractors (or proposed Sub-Contractors) and their employees shall
be capable of performing and (where applicable) suitably qualified to perform the
Services which Supplier proposes to sub-contract; and
	 
	 	(B)	 	Customer has given its prior written consent to such sub-contracting and to
the identity of the person to which Supplier wishes to sub-contract (such consent not
to be unreasonably withheld or delayed), except where the Sub-Contractor is a member
of Supplier Group or an Incumbent Service Provider, in which case Supplier shall not
be required or obliged under this Agreement to have obtained Customer’s prior written
consent.






	27.3	 	In Notifying Customer of its desire to sub-contract any of the Services, Supplier shall
provide all information reasonably requested by Customer (including details of the activities
to be performed by the proposed Sub-Contractor and their identity (together with references)).






	27.4	 	Supplier shall not be relieved of any of its obligations under this Agreement by entering
into any sub-contract with any Sub-Contractor for the performance of any part of the Services
and without prejudice to Customer’s obligation to pay the Charges or any other sum under the
express terms of this Agreement all costs and expenses involved in the appointment,
supervision and management of any Sub-Contractor shall be borne by Supplier. Supplier shall
be liable to Customer and every other Service Recipient in respect of all acts or omissions of
any Sub-Contractors for which, if such acts or omissions were of Supplier, Supplier would be
liable to Customer and/or any other Service Recipient(s) whether for breach of this Agreement,
in tort (including negligence), in breach of a statutory duty or otherwise. Without prejudice
to the Customer’s obligation to pay the Charges or any other sums under the express terms of
this Agreement, Supplier will be solely responsible for coordinating with any Sub-Contractors,
at no additional cost to Customer or any other Service Recipient, and neither Customer nor any
other Service Recipient shall have any obligation under the terms of any sub-contract or
otherwise to any person in relation to any sub-contract to the extent such sub-contract is
between the Sub-Contractor and any member of Supplier Group.






	27.5	 	Supplier acknowledges and agrees that any default of any Sub-Contractor shall not constitute
an Event of Force Majeure nor shall it excuse in any way Supplier from the performance of its
obligations under this Agreement unless the Sub-Contractor’s default
is itself caused by or arises from an Event of Force Majeure in which case the Supplier, 










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	 	 	in
accordance with Clause 39, may be excused from the performance of the relevant obligations
under this Agreement.





Removal of Sub-Contractors





	27.6	 	Without prejudice to any other term of this Agreement, in the event that any Sub-Contractor
(or any Affiliate of that Sub-Contractor), during the term of its sub-contract with Supplier:






	 	(A)	 	makes any material legal claim or commences any material legal proceedings
against a member of Customer Group;
	 
	 	(B)	 	becomes a person against whom a member of Customer Group makes any material
legal claim or commences any material legal proceedings;
	 
	 	(C)	 	causes or materially contributes to a material breach of Supplier’s
obligations under this Agreement;






	 	 	Customer shall, acting reasonably, have the right to Notify Supplier of the same and
request that such Sub-Contractor ceases to be a Sub-Contractor. As soon as reasonably
practicable after the receipt of any such notice, Supplier shall procure that such
Sub-Contractor ceases to exercise any rights, or undertake any obligations, of Supplier
under this Agreement (and shall Notify Customer of the same) provided that Customer, upon
Supplier’s request and to the extent permitted by Applicable Law and subject to any
obligations of confidentiality owed by Customer or any Service Recipient, provides in
writing details of the material legal claim or material breach giving rise to such
reasonable action.





Sub-contracting arrangements





	27.7	 	Subject to Clause 27.8, Supplier in its capacity as prime contractor shall sign an agreement
with each Sub-Contractor for the provision and/or supply of services required for Supplier’s
provision of the Services hereunder to Customer, the terms of such agreement to include: (i)
an undertaking by the Sub-Contractor to comply with confidentiality provisions substantially
similar to the confidentiality provisions of this Agreement and (ii) provisions that procure
the assignment of all IPR in Bespoke Innovations and Developed Materials (to the extent that
such IPR is assigned to Customer under this Agreement) to Customer or a member of Supplier
Group (at the discretion of Supplier).






	27.8	 	No Major Sub-Contractor shall be permitted to sub-contract further the performance of the
whole or any part of the Service sub-contracted to it without Supplier having obtained the
prior written consent of Customer, such consent not to be unreasonably withheld, and then
shall only sub-contract in compliance with the terms of such consent (if any). In the event
that a sub-contractor engaged by a Sub-Contractor is either a member of Supplier
Group or an Incumbent Service Provider, then Supplier shall not be required or obliged
under this Agreement to have obtained Customer’s prior written consent.










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Customer Group suppliers





	27.9	 	Supplier shall, at Customer’s reasonable request, use all reasonable endeavours to try to use
every appropriately experienced qualified and appropriately trained third party supplier
identified by Customer and familiar with the requirements of Customer Group in connection with
this Agreement and the provision of services similar to the Services for the purposes of
enabling or assisting Supplier to perform its obligations under this Agreement as a
Sub-Contractor, provided that Supplier shall be relieved from this obligation to the extent
that (i) Supplier can demonstrate to Customer’s reasonable satisfaction grounds for refusing
to use any such third party supplier and/or (ii) such third party supplier fails to comply
with the terms of the sub-contract to which it is a party and/or causes or contributes to a
material or persistent breach of Supplier’s obligations under this Agreement.









28. SUPPLIER PERSONNEL





	28.1	 	Supplier shall ensure that all Supplier Personnel shall at all times uphold the good name and
reputation of each Service Recipient and that of its products and services, and act in a
manner commensurate with that good name and reputation.









29. HUMAN RESOURCES





	29.1	 	Each Party shall comply with its obligations, and shall have the rights provided to it, as
set out in Schedule 5 (Human Resources).






	29.2	 	Supplier agrees that during the Term and for the period of twelve (12) months thereafter, it
shall not and shall procure that other members of Supplier Group shall not, directly or
indirectly, solicit for employment or engagement any Customer Personnel.






	29.3	 	Subject to Schedule 12 (Exit Management), Customer agrees that during the Term and for the
period of twelve (12) months thereafter, it shall not and shall procure that other members of
Customer Group shall not directly or indirectly solicit for employment or engagement any
Supplier Personnel.









30. INTELLECTUAL PROPERTY




Ownership of IPR





	30.1	 	Save as otherwise expressly set out in this Agreement or as otherwise agreed in writing by
the Parties, neither Party nor any Sub-Contractor shall receive any right, title or interest
in respect of the IPR owned or controlled by the other Party or their respective Groups.
Notwithstanding the foregoing but subject to any agreement between the Parties
to the contrary all IPR belonging to Supplier, any other member of Supplier Group and/or
any Sub-Contractor prior to the date of this Agreement will remain vested in such Party.











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Developed Materials





	30.2	 	Other than in respect of any Supplier Background IPR and/or Third Party IPR, Supplier hereby
agrees to assign and (in respect of copyright and database rights owned by Supplier arising in
the future) hereby assigns, and (in relation to any IPR owned by a member of Supplier Group or
Sub-Contractor) to procure the assignment of, the whole legal and beneficial interest in all
the IPRs in any Developed Materials to Customer, at no additional charge.






	30.3	 	Supplier shall, upon request by Customer from time to time, procure the delivery to Customer
or its nominee of copies of all Developed Materials (including any enhancements or
modifications thereto).





Customer Data





	30.4	 	Supplier shall not be entitled to use and undertakes that it will not use Customer Data for
any purpose other than to the extent necessary to provide the Services and/or to perform its
other obligations under this Agreement. Supplier acknowledges that Customer Data (and any IPR
subsisting therein) is proprietary to Customer Group (or the relevant Service Recipient, as
the case may be) and constitutes Confidential Information of Customer Group (or the relevant
Service Recipient, as the case may be).






	30.5	 	Without prejudice to Clause 30.4 and save where expressly permitted otherwise by Customer
and/or any Service Recipient in writing, Supplier undertakes to process and store, and procure
the process and storage of, all Customer Data on the Equipment:






	 	(A)	 	in a manner which enables it to be readily identifiable as proprietary to
Customer or any other relevant Service Recipient; and






	 	(B)	 	separately from data which is proprietary to Supplier and/or any other third
party.






	30.6	 	Supplier shall provide Customer with access to any Customer Data in the possession or control
of Supplier (or any of its Sub-Contractors) as soon as reasonably practicable following
Customer’s written request.






	30.7	 	In the event that any Customer Data is either lost or sufficiently corrupted or degraded so
as to be unusable as a result of any breach by Supplier of this Agreement, Supplier shall,
without prejudice to the other rights and remedies of Customer Group, at its own expense,
provide all services and assistance as Customer shall reasonably require to effect a
reconstruction of the relevant data. In the event that any Customer Data is either lost or
sufficiently corrupted or degraded so as to be unusable as a result of any other cause,
Supplier shall provide the aforementioned assistance at Customer’s request, provided
that Customer reimburses Supplier its reasonable and direct costs in providing such
assistance.











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Licence of Customer IPR





	30.8	 	Customer hereby grants (and shall procure the grant of) to Supplier, or any member of
Supplier Group, or any Sub-Contractor providing Services under this Agreement a royalty-free,
non-exclusive and non-transferable licence for the Term to use the Customer Trade Marks solely
for the Permitted Use (and for no other purpose) and in accordance with the Use Guidelines.






	30.9	 	Supplier undertakes that neither it nor any member of Supplier Group shall commit or omit to
do any act or pursue any course of conduct or cause, authorise or assist any other person to
do anything in breach of this Agreement which, without prejudice to its rights under Clause
30.23 or Clause 21.3(D):






	 	(A)	 	brings any Customer Trade Mark into disrepute;






	 	(B)	 	prejudices the validity or enforceability of, or Customer’s ownership of any
rights in and to, the Customer Trade Marks;






	 	(C)	 	distorts or damages the goodwill, reputation or image attaching to or
associated with the Customer Trade Marks; or






	 	(D)	 	causes any Customer Trade Mark to lose its distinctiveness or mislead the
public.






	30.10	 	Supplier undertakes that neither it nor any member of Supplier Group shall anywhere in the
world during the Term and for a period of five (5) years thereafter file or authorise others
to file any trade mark applications in relation to, or otherwise make any claim to or seek to
(or authorise others to) acquire any rights in any of the Customer Trade Marks or any name or
mark which includes any of the Customer Trade Marks or any name or mark which is similar or
substantially similar to or so nearly resembling any of the Customer Trade Marks as might
reasonably cause deception or confusion. The provisions of this Clause 30.10 shall survive
any expiry or termination of this Agreement.






	30.11	 	If any goodwill or proprietary right in relation to the Customer Trade Marks vests in any
member of Supplier Group or its Sub-Contractors, immediately upon becoming aware of the
vesting of such goodwill or right, Supplier shall assign, or shall procure the assignment of,
such goodwill or right to the relevant member of Customer Group.






	30.12	 	Customer hereby grants (and shall procure the grant of) a royalty-free, non-transferable and
non-exclusive licence for the Term of all Customer Materials owned by Customer or any member
of Customer Group or any Service Recipient to Supplier, any member of Supplier Group and any
Sub-Contractor to the extent necessary for the provision of the Services and the performance
of Supplier’s obligations under this Agreement.





Licences of Supplier Background IPR





	30.13	 	In respect of any of the Developed Materials and/or Bespoke Innovations that incorporate,
integrate or use Supplier Background IPR or where Supplier Background










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	 	 	IPR is needed to use the
Developed Materials or Bespoke Innovations, Supplier hereby grants (and shall procure the
grant of) a royalty-free, perpetual, irrevocable (save as set out in Clause 30.16)
transferable and non-exclusive licence (with the right to sub-license) to use, modify and copy
such Supplier Background IPR (to include in respect of Developed Materials and Bespoke
Innovations, the Source Code and in respect of Developed Materials, Bespoke Innovations and
Supplier Software, the object code to such software and any improvements and modifications
thereto) to Customer for itself and for the benefit of any Service Recipient and any Successor
Service Provider.






	30.14	 	Supplier hereby grants (and shall procure the grant of) a royalty-free, irrevocable (save as
set out in Clause 23.22), non transferable and non-exclusive licence (with the right to
sub-license) for the Term of all Supplier Background IPR:






	 	(A)	 	to Customer and all other Service Recipients, solely for the purpose of and
to the extent necessary for the relevant person to receive and use the Services in
accordance with the terms of this Agreement; and
	 
	 	(B)	 	to Customer and all other Service Recipients and any Successor Service
Provider, solely for the purpose of and to the extent necessary for the transition to,
and the provision, receipt and use of, services similar to and replacing the Services
and services that are integrated, or are in the process of being integrated, with the
Services and on the terms specified in Clause 30.15.






	30.15	 	Where, in each case, Customer, any other Service Recipient or any Successor Service Provider
requires a further licence of Supplier Background IPR after the Term, Supplier shall grant (or
shall procure the grant of) a licence to Customer, each such Service Recipient and any
Successor Service Provider on reasonable commercial terms to be agreed by the Parties.






	30.16	 	Subject to Clause 30.15, the Parties agree as follows:






	 	(A)	 	each licence granted by Supplier pursuant to Clause 30 shall authorise
Customer to sub-license the rights granted to it to any Service Recipient and any
other third party (including for the avoidance of doubt any Successor Service
Provider) provided that the sub-licence only authorises the Service Recipient and
third party to use the Supplier Background IPR for the benefit and internal purposes
of Customer and/or any other Service Recipient;
	 
	 	(B)	 	the Customer may copy the Supplier Background IPR in order to create an
archival copy and a back-up copy of it. When copying any software, Customer shall
include the original machine readable copyright notice, and a label affixed to
the media identifying the software and stating: “This medium contains an authorised
copy of copyrighted software which is the property of [name of owner]”;
	 
	 	(C)	 	at any time following termination or expiry of this Agreement, Supplier or
the relevant third party licensor may terminate a licence granted under this Clause 30
within thirty (30) days notice in writing if the Supplier Background IPR is used 










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	 	 	 	for any purpose not expressly permitted by this Clause 30, provided that Customer has not
ceased such use within that 30 day notice period;





	 	(D)	 	when a licence granted under this Clause 30 ends for whatever reason,
Customer shall:






	 	(i)	 	immediately cease all use of the Supplier Background IPR;
	 
	 	(ii)	 	return or destroy the Supplier Background IPR;
	 
	 	(iii)	 	provide Supplier or the third party licensor with a written
notice signed and otherwise completed by an authorised signatory, to certify
compliance with the provisions of this Clause 30.16(D).






	30.17	 	On a six (6) monthly basis during the Term and at such other times as is reasonably
requested by Customer, Supplier shall review with Customer the Supplier Software used by or on
behalf of Supplier in providing the Services.





Licence of Third Party IPR





	30.18	 	To the extent that Third Party IPR is used in the provision of the Services (excluding any
IPR in Customer Materials licensed to Supplier pursuant to Clause 30.12), Supplier shall
procure the grant of a licence on terms agreed by Customer pursuant to Clause 30.20(B) or
where such terms are not agreed on a royalty- free, non-transferable, non-exclusive basis for
the Term and to the extent necessary of all such Third Party IPR solely for the purpose of and
to the extent necessary for:






	 	(A)	 	in respect of Customer and Service Recipients, the receipt and use of the
Services; and
	 
	 	(B)	 	in respect of Customer, any Service Recipients and any Successor Service
Provider, the transition to, and the provision of, receipt and use of, services
replacing the Services and services that are integrated, or are in the process of
being integrated, with the Services.






	30.19	 	Subject to Clause 30.20, where Third Party IPR is integrated or used in the Developed
Materials and/or Bespoke Innovations or where Third Party IPR is needed to use the Developed
Materials and/or Bespoke Innovations, Supplier shall procure a perpetual, non-exclusive and on
such other terms as agreed by Customer, acting reasonably, licence of all Third Party IPR to
the extent necessary for Customer, any Service Recipient
and any Successor Service Provider to be able to use the Developed Materials and/or Bespoke
Innovations.





Approval of the use of proprietary IPR by Customer





	30.20	 	If the Supplier proposes at any time after the date of this Agreement that Supplier
Background IPR and Third Party IPR is to be incorporated, integrated or used within or 










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	 	 	in connection with any of the Developed Materials or Bespoke Innovations, Supplier shall prior to
it first using, integrating or implementing such IPR:






	 	(A)	 	notify Customer of that fact and provide all details reasonably necessary for
Customer to ascertain the importance and/or relevance of such IPR, together with
details of any alternatives available to it (if any); and
	 
	 	(B)	 	obtain Customer’s consent, such consent not to be unreasonably withheld or
delayed, prior to implementing, integrating or utilising any Supplier Background IPR
or Third Party IPR in the Developed Materials or Bespoke Innovations.





Software Escrow





	30.21	 	Upon request by Customer, at Customer’s cost:






	 	(A)	 	the Parties shall enter into an Escrow Agreement with the National Computer
Centre Limited (the “Escrow Agent”) in respect of the Source Code relating to any item
of Supplier Software owned by Supplier or any member of Supplier Group and used in
relation to the Services; and
	 
	 	(B)	 	Supplier shall procure that a copy of the Source Code relating to that
Supplier Software (together with all upgrades, enhancements and modifications thereto)
requested from time to time by Customer is deposited with the Escrow Agent in
accordance with such Escrow Agreement.





Intellectual Property Indemnities





	30.22	 	Subject to Clauses 30.24, 30.25 and 30.26, Supplier shall indemnify and keep Customer and
all other Service Recipients fully and effectively indemnified in connection with any claim of
alleged or actual infringement of any Third Party IPR arising out of or in connection with
Customer’s and/or every other Service Recipient’s receipt and/or use of the Services in
accordance with this Agreement.
	 
	30.23	 	Subject to Clauses 30.24 and 30.27, Customer shall indemnify and keep Supplier and all
other members of Supplier Group fully and effectively indemnified in connection with any claim
of alleged or actual infringement of any Third Party IPR arising out of or in connection with
Supplier’s use, and/or use by every other member of the Supplier Group, of any Customer IPR in
accordance with this Agreement.
	 
	30.24	 	The indemnified Party shall give to the indemnifying Party prompt Notice of any claim the
subject of an indemnity set out Clause 30.22 or 30.23 of which it becomes aware and the
indemnifying Party shall at its own cost take all reasonable steps to defend such claim, and
have conduct of any litigation which may ensue and all negotiations for a settlement of such
claim (provided that the indemnifying Party will consult in good faith with the indemnified
Party on an ongoing basis in respect of such claim, and shall take into account the reasonable
commercial interests of the indemnified Party in connection therewith). The indemnified Party
shall give the indemnifying Party all reasonable assistance, at the indemnifying Party’s
request and expense, in connection with any










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	 	 	such claim. The indemnified Party agrees not to
make any admission or take any other action, which might be prejudicial thereto without the
prior consent of indemnifying Party (such consent not to be unreasonably withheld or delayed).






	30.25	 	If any claim the subject of the indemnity at Clause 30.22 prevents or may prevent Customer
or any Service Recipient or any Successor Service Provider from receiving the benefit of any
of the Services or making use of any IPR as envisaged in this Clause 30, or if the receipt or
use (or reasonably envisaged receipt or use) of the Services or any part thereof is likely to
constitute an infringement, Supplier shall, without prejudice to Customer’s other rights and
remedies, promptly at its own cost and expense either:






	 	(A)	 	use all reasonable efforts to procure for Customer, and any other Service
Recipient the right to continue to use the relevant part or parts of the Services; or






	 	(B)	 	to the extent reasonably practicable replace or modify the relevant part or
parts of the Services so that it becomes non-infringing, provided that any replacement
or modification will be carried out promptly with minimal disruption to the provision
and receipt of the Services and to Customer’s reasonable satisfaction, and provided
further Supplier shall remain bound by its obligations under this Agreement in respect
of that Service, including in respect of the description and specification of that
Service and the relevant Service Levels.






	30.26	 	The indemnity in Clause 30.22 shall not apply to the extent that the claim or infringement
has arisen from and Supplier will have no liability for any breach of Clause 21.2(B) to the
extent that the breach of such Clause has arisen from:






	 	(A)	 	any modification or enhancement to the Services and/or the Supplier
Background IPR and/or any Third Party IPR made by any member of Customer Group and/or
any other Service Recipient and/or any other third party other than any Sub-Contractor
engaged by Supplier; or
	 
	 	(B)	 	the use of the Services and/or any Supplier Background IPR and/or any Third
Party IPR with any other materials, services, IPR, equipment, data, or systems not
supplied by any member of Supplier Group or any Sub-Contractor, or in any manner
inconsistent with the Operations Manual; or
	 
	 	(C)	 	any breach of this Agreement by Customer and/or any Service Recipient.






	30.27	 	The indemnity in Clause 30.23 shall not apply to the extent that the claim or infringement
has arisen from and Customer will have no liability for any breach of Clause 21.3(D) to the
extent that the breach of such Clause has arisen from or in respect of:






	 	(A)	 	any modification or enhancement to Customer IPR made by any member of
Supplier Group and/or any Sub-Contractor; or











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	 	(B)	 	the use of any Customer IPR with any other materials, services, IPR,
equipment, data or systems not supplied by any member of Customer Group or Service
Provider;
	 
	 	(C)	 	Developed IPR or Bespoke Innovations; or
	 
	 	(D)	 	any breach of this Agreement by Supplier and/or any member of Supplier Group
and/or any Sub-Contractor.










	31.	 	CONFIDENTIALITY








	31.1	 	Each Party shall treat as confidential all Confidential Information and shall not disclose
such Confidential Information to any person other than in accordance with this Agreement.






	31.2	 	Neither Party shall use any Confidential Information other than in connection with, and only
to the extent necessary for, the performance of its obligations under this Agreement.






	31.3	 	Each Party shall procure that any person to whom Confidential Information is disclosed by it
(including pursuant to Clause 31.4 other than 31.4(A) and 31.4(B) where that is not reasonably
practicable) is on terms that they keep it confidential in compliance with the restrictions
set out in this Clause 31 and as if such person were a party to this Agreement.






	31.4	 	Either Party may subject to the provisions of this Clause 31.4 disclose another’s
Confidential Information:






	 	(A)	 	if and to the extent required by Applicable Law or for the purpose of any
judicial proceedings;






	 	(B)	 	if and to the extent required by any securities exchange or regulatory or
governmental body to which that Party is subject (including a Regulator or tax
authority) wherever situated, whether or not the requirement for information has the
force of law;
	 
	 	(C)	 	if and to the extent required in referring a dispute for resolution pursuant
to Clause 47 (Dispute Resolution);
	 
	 	(D)	 	to its Affiliates and to its and their professional advisers, auditors and
bankers;
	 
	 	(E)	 	to potential acquirers (and their advisers) of that Party or any Affiliates
of that Party, or of the businesses of that Party or its Affiliates (to the extent, in
each case, such businesses supply or benefit from a Service), provided that before any
such disclosure is made each such potential acquirer has entered into a
confidentiality undertaking with respect thereto with the Party whose Confidential
Information is to be disclosed. Customer acknowledges that Supplier shall not be
obliged under this Clause to provide any Confidential 










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	 	 	 	Information relating to Supplier
and/or any other member of Supplier Group including in respect of the Charges and any
information relating to the costings, margins or other internal financial data of any
member of Supplier Group or any Sub-Contractor;






	 	(F)	 	if and to the extent the information has come into the public domain through
no fault of that Party;
	 
	 	(G)	 	(in the case of Customer only) to any Service Recipient, to any Customer
Personnel or to any third party supplier (including any Successor Service Provider)
engaged by Customer or any other Service Recipient in connection with the performance
of Customer’s obligations or exercise of Customer’s rights under this Agreement and/or
in connection with the receipt of the Services (excluding, in the case of third party
suppliers, Confidential Information relating to Supplier and/or any other member of
Supplier Group including in respect of the Charges and any information relating to the
costings margins or other internal financial data of any members of Supplier Group or
any Sub-Contractor) provided that in the case of any person referred to in this Clause
other than Customer Group’s officers and employees before any such disclosure is made
Customer shall identify the person to whom it wishes to disclose the Confidential
Information, and if requested by Supplier shall ensure such third party has entered
into a confidentiality agreement with the Supplier on terms equivalent to those set
out in this Clause 31, each such confidentiality agreement to provide for reciprocal
obligations for preserving confidentiality;
	 
	 	(H)	 	(in the case of Customer only) to a Successor Service Provider or potential
Successor Service Provider as is reasonably necessary to procure replacement services
the same as or similar to the services or to provide or receive Exit Services
(excluding Confidential Information relating to Supplier and/or any other member of
Supplier Group including in respect of the Charges and any information relating to the
costings, margins or other internal financial data of any member of Supplier Group or
Sub-Contractor) provided that such Successor Service Provider or potential Successor
Service Provider has first entered into a confidentiality agreement with respect
thereto with Supplier on terms equivalent to those set out in this Clause 31, each
such confidentiality agreement to provide for reciprocal obligations for presenting
confidentiality before any such disclosure is made; and
	 
	 	(I)	 	(in the case of Supplier only) to any Sub-Contractor or any Supplier
Personnel as is reasonably necessary in connection with the performance of Supplier’s
obligations under this Agreement including in connection with the supply of the
Services,






	 	 	provided that, in the case of Clauses 31.4(A), (B) and (C) above, the disclosing Party
shall promptly Notify the other Party of such requirement (to the extent it is permitted to
do so).












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	31.5	 	The provisions of this Clause 31 shall take priority over the provisions of any agreements
entered into by the Parties prior to the date of this Agreement solely to the extent that any
such agreements relate to the non-disclosure by either Party of Confidential Information.






	31.6	 	Notwithstanding the expiry or early termination of this Agreement, the provisions of this
Clause 31 shall continue to apply to each Party without limit in time.










	32.	 	RECORDS, AUDIT AND COMPLIANCE







	32.1	 	Supplier acknowledges that Customer shall have such audit rights as required for Customer to
be compliant with the Customer Group Audit Policy. Where there are changes to the Customer
Group Audit Policy after the date of this Agreement, then Supplier shall comply with all such
notified changes within a reasonable period of time after notification of such changes. Where
compliance with such changes will reasonably result in increased costs for Supplier, then the
parties shall discuss and agree through the Change Control Procedure the reasonable
incremental costs of the Supplier in complying with such changes. Such agreed costs shall be
borne by the Customer.





Record Keeping





	32.2	 	Supplier shall:






	 	(A)	 	keep or cause to be kept, and shall procure that each Material Sub-Contractor
shall keep or cause to be kept, accurate records relating to the supply of the
Services (including records relating to: (i) performance against the Service Levels,
the Critical Deliverables and other Deliverables; (ii) information technology and
network system validation; (iii) Supplier Personnel; (iv) the Charges; (v) security
incidents; (vi) Incident Management; and (vii) any reports in relation to the
implementation and performance of the Services required to be produced under this
Agreement, including reports prepared pursuant to Schedule 13 (Reports) (“Records”);
and
	 
	 	(B)	 	retain and procure the retention of all Records (in whatever form held,
including paper and electronic form) for the longer of: (i) the period of time
required by Applicable Law; (ii) the period of time required by any data retention
notice issued by any member of Customer Group from time to time subject to the Parties
reaching agreement on charges for retention when this exceeds the later of the periods
referred to in (i) and (iii); and (iii) seven years following the termination or
expiry of this Agreement.





Supplier Internal and External Reviews





	32.3	 	Supplier shall, to the extent such compliance does not or would not breach any duty of
confidentiality owed by Supplier to any customer of any member of the Supplier Group or any
Sub-Contractor:











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	 	(A)	 	within the first twenty (20) Business Days of the beginning of each calendar
year during the Term, inform Customer of all of their proposed internal and external
review, audit and testing programmes that in whole or to the extent that they apply to
the Services including all audits and reviews:






	 	(i)	 	relating to International Organisation for Standardisation
(“ISO”) compliance;
	 
	 	(ii)	 	by a regulatory, administrative, supervisory or governmental
agency, body or authority; and
	 
	 	(iii)	 	all reviews and audits that relate to the design and
operational effectiveness of controls applicable to the Services,







	 	 	 	(a “Regular Review”) and provide details of the proposed scope of the same.
Customer shall be permitted to make observations about the proposed Regular Reviews
(including as to timing and scope) and Supplier shall take all of Customer’s
reasonable observations into account when finalising and carrying out such Regular
Reviews;






	 	(B)	 	inform Customer of all proposed material amendments to a Regular Review
(including as to timing and scope) required to be notified to Customer pursuant to
Clause 32.3(A). Supplier shall permit Customer the opportunity to make observations
about the proposed amendments in advance of them being implemented (and Supplier shall
take all of Customer’s reasonable observations into account when implementing any such
amendments);






	 	(C)	 	at Supplier’s own cost and expense, provide to Customer the scope and results
(including all reports and conclusions whether or not in writing) of all Regular
Reviews; and
	 
	 	(D)	 	carry out such reviews, audits and tests at Customer’s cost as Customer may
reasonably request (including as a follow-up to, or an extension of, a Regular Review)
(each a “Customer-instigated Review”). Customer shall bear Supplier’s reasonable
costs and expenses directly related and properly incurred in carrying out a
Customer-instigated Review.





Audit Rights and SAS-70 Obligations




	32.4	 	Subject to the other terms of this Clause 32, at Customer’s request, Supplier shall grant (or
shall procure the grant of) access during Working Hours or at such other times as the Parties
shall agree for Customer (or, at Customer’s request, any statutory, regulatory or internal
auditors of or engaged by Customer Group or any Regulator (the “Auditors”)) to the Records,
the Facilities and Supplier Personnel as Customer may reasonably require solely for the
purpose of:






	 	(A)	 	verifying the accuracy of all invoices supplied to Customer under this
Agreement, including the accuracy of the Charges;











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	 	(B)	 	verifying Supplier’s compliance with its obligations under this Agreement
(including the accuracy of its reporting, the supply of the Services and the
achievement of Critical Deliverables);
	 
	 	(C)	 	enabling any member of Customer Group to confirm its compliance with
Applicable Law (including compliance with its accounting, tax and filing obligations);
	 
	 	(D)	 	dealing fully with enquiries raised by any Regulator or in relation to any
investigation by, or order or direction of a Regulator;
	 
	 	(E)	 	verifying the design and operational effectiveness of controls applicable to
the Services;
	 
	 	(F)	 	verifying the integrity, confidentiality and security of Customer Data and
Confidential Information; and
	 
	 	(G)	 	verifying the effective management of risks relating to the supply of the
Services.






	32.5	 	Pursuant to Clause 32.4, Customer shall have the right to carry out:






	 	(A)	 	scheduled audits in accordance with the audit plan in accordance with the
Customer Group Audit Policy; and
	 
	 	(B)	 	additional ad hoc audits in relation to the processes relating to the
Services,






	 	 	provided that if Supplier reasonably anticipates that it will incur additional costs and
expenses due to an increased number of ad hoc audits by Customer (including a need for
Supplier to increase the members of its audit team), then Supplier shall Notify Customer of
the same and Customer shall bear Supplier’s reasonable additional costs and expenses
directly related to and properly incurred in relation to the carrying out of such ad hoc
audits.






	32.6	 	Notwithstanding Clause 32.5, each Party will bear its own internal costs and the costs of any
third party advisors or auditors utilised by that Party in relation to any audit
undertaken in accordance with this Clause 32, but Supplier shall be responsible for the
costs of any remedial actions agreed by the Parties to be performed by Supplier.
	 
	32.7	 	Subject to any requirements specified by the Regulator, any audit, investigation or
monitoring undertaken in accordance with this Clause 32 will be subject to Customer providing
at least twenty (20) Business Days’ notice of any audit it intends to carry out pursuant to
these provisions unless such audit is required by Customer for reasons of:






	 	(A)	 	suspected fraud or other illegal activity by Supplier or its Sub-Contractors
or Supplier Personnel;











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	 	(B)	 	non-compliance with the Customer Group’s policies, standards and procedures
set out or referred to in Schedule 17 (Policies and Procedures);
	 
	 	(C)	 	Customer or any Regulator having reasonable grounds to suspect that Supplier
is in material breach of its obligations under this Agreement;






	 	 	in which case Customer shall not be obliged to give any such advance notice.






	32.8	 	Supplier shall not unreasonably withhold its consent to Customer’s conduct of an audit on the
date(s) proposed by Customer but reserves the right to withhold its consent as to the date(s)
on which:






	 	(A)	 	the relevant Supplier Personnel are not reasonably available due to their
other work-related duties; or
	 
	 	(B)	 	other audits or regulatory examinations are being conducted.






	32.9	 	Audits shall be conducted in such a manner as to minimise (so far as is practicable) any
interference with business activities of any member of Supplier Group or any Sub-Contractor
including the performance by Supplier of its obligations under this Agreement.






	32.10	 	Customer shall procure that any Auditor or other authorised representative of Customer or
any Service Recipient shall keep confidential the information relating to the Supplier Group
and/or any Sub-Contractor (provided that such information may be disclosed in circumstances
referred to in Clause 31.4) which comes to its knowledge as a consequence of the audit and, if
requested by Supplier, shall ensure that such Auditor or authorised representative enters into
a confidentiality undertaking including terms which are substantially similar to Clause 31
prior to undertaking the audit.
	 
	32.11	 	Customer acknowledges that any audits performed pursuant to and/or the exercise of
Customer’s rights under this Clause 32 shall not entitle Customer or the Auditors to inspect
any data, information or records to the extent that such materials relate to any other
customer of any member of Supplier Group or any Sub-Contractor nor to inspect the employment
contracts, costings, margins or other internal financial data of any member of Supplier Group
or any Sub-Contractor. In addition, Customer shall procure
that the Auditors comply with Supplier’s security, safety and other site specific
regulations and procedures whilst on the Sites notified to the Auditors. The Auditors
shall be escorted at all times by a member of the Supplier Personnel while on the Sites.
	 
	32.12	 	At Customer’s request Supplier shall obtain and deliver to Customer a Type II report and
examination prepared in accordance with Statement on Auditing Standards 70 (as amended from
time to time) as promulgated by the American Institute of Public Certified Accountants (the
“SAS-70 Report”) from a reputable and independent global accounting firm. Subject to the
foregoing, the SAS-70 Report shall:











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	 	(A)	 	cover, as a minimum, six months of each year with the start date of each such
audit period being (subject to the Parties’ agreeing otherwise) no sooner than 1 April
in each year; and
	 
	 	(B)	 	be based on an examination of all (i) operating environments, (ii)
technology, telecommunications and infrastructure networks and systems (and, in each
case, related processes), (iii) applications and (iv) data centres of Supplier and
each Sub-Contractor that relate to the supply of the Services or the performance of
Supplier’s obligations under or in connection with this Agreement.






	 	 	Customer shall bear the costs of the independent accountant in relation to the SAS-70
Report, provided that such costs are pre-notified by Supplier and agreed by Customers.
Supplier will not be obliged to commission such work until Customer’s agreement on costs
has been obtained.






	32.13	 	Supplier shall, at its own cost and expense:






	 	(A)	 	as soon as reasonably practicable following Supplier being aware of the same
remedy any control weakness or deficiency in the design or operational effectiveness
of controls that resulted in or is likely to result in a qualification of the
independent auditors’ opinion of the SAS-70 Report; and
	 
	 	(B)	 	as soon as reasonably practicable provide Customer with evidence that the
control weaknesses and deficiencies referred to in Clause 32.12(A) have been remedied
and have been the subject of a successful re-test by Supplier to ensure proper design
and operational effectiveness.





Assistance and Provision of Information





	32.14	 	Supplier shall and shall procure that all Major Sub-Contractors shall, co-operate and
provide all reasonable assistance to Customer and the Auditors in the exercise of their rights
pursuant to this Clause 32 and will provide Customer and the Auditors with such copies of
relevant documents and information as they may reasonably request.






	32.15	 	Without prejudice to any other provision of this Clause 32, promptly upon Customer’s
request Supplier shall, and shall procure that all Major Sub-Contractors shall, provide to
Customer all information in their possession or under their control necessary to assist
Customer Group to satisfy Customer Group’s internal and external risk management,
compliance, corporate governance and regulatory reporting requirements in accordance with
the Customer Group Audit Policy.
	 
	32.16	 	Supplier shall promptly provide Customer with details of all material breaches of, or
material non-compliance, with Applicable Law by it or its Sub-Contractors of which it becomes
aware and relate to the provision of the Services.











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Consequences of Audit





	32.17	 	Where an audit (including any Regular Review or Customer-instigated Review) carried out
pursuant to this clause 32 reveals any fraud or breach of this Agreement by Supplier, any
fraud by a Sub-Contractor in connection with this Agreement and/or identifies an audit issue
according to the Customer Group Audit Policy (each an “Audit Issue”), then, without prejudice
to the other rights and remedies of Customer under this Agreement, the Parties shall discuss
the Audit Issue(s) and, if appropriate, and to the extent agreed, the Parties shall agree and
prepare a plan to address the Audit Issue (the “Audit Remediation Plan”).
	 
	32.18	 	The Audit Remediation Plan shall outline the actions agreed by the Parties that Supplier
shall take in order to comply with its obligations under this Agreement and/or required for
resolution of the Audit Issue, including an agreed timetable for implementing such actions.
Supplier shall be responsible for the costs and expenses of implementing any remedial actions
agreed by the Parties in accordance with the Audit Remediation Plan to be performed by the
Supplier.
	 
	32.19	 	In the event that the Parties fail to reach an agreement on an Audit Remediation Plan within
fifteen (15) Business Days following the relevant audit, either Party shall have the right to
escalate the matter in accordance with the procedures specified in Schedule 6 (Governance and
Service Management) of this Agreement.










	33.	 	DATA PROTECTION








	33.1	 	Each Party undertakes that in performing its obligations hereunder it shall (and in respect
of Supplier, shall procure that the Sub-Contractors shall) comply with the provisions of the
Data Protection Act 1998 and all other Applicable Law relating to the processing of personal
data only to the extent that the provisions of the Data Protection Act 1998 and all other
Applicable Law are applicable to the role of each Party when processing personal data in
performance of their respective obligations under this Agreement. Capitalised terms continued
in this Clause 33 and not defined in this Agreement shall have the meaning given to them in
the Data Protection Act 1998.






	33.2	 	Notwithstanding any other provisions of this Agreement, with respect to the processing of
personal data of any Service Recipient (including personal data of any of their respective
customers) or any Customer Personnel, the Supplier:






	 	(A)	 	understands and acknowledges that, to the extent that performance of its
obligations hereunder involves or necessitates the processing of such personal data,
it shall act only on instructions and directions from the Customer and/or any Service
Recipient as set out in this Agreement;






	 	(B)	 	shall take and implement appropriate technical and organisational security
procedures and measures to protect any such personal data processed by it against
unauthorised or unlawful processing, accidental loss, destruction or damage; and











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	 	(C)	 	has and will continue to take all reasonable steps to ensure the reliability
of any of Supplier Personnel which will have access to personal data processed as part
of any provisions of this Agreement.






	33.3	 	Supplier shall, and procure that the Sub-Contractors shall, process any personal data of any
Service Recipient (including personal data of any of their respective customers) or any
Customer Personnel in accordance with Clause 33.2.






	33.4	 	Any request for Supplier to adhere to any obligations of each Service Recipient under the
Data Protection Act 1998 associated with any duties they may have as a Data Controller of
personal data shall be as expressly set out in the Agreement. Supplier shall comply with any
further reasonable requests by Customer, provided that where such requests are not set out in
the Agreement, Customer shall bear Supplier’s reasonable and direct costs incurred as a result
of complying with such request of Customer and such costs shall be agreed by the Parties in
accordance with the Change Control Procedure, and Supplier shall have a reasonable period
within which to comply with such requests.
	 
	33.5	 	If:






	 	(A)	 	any member of Customer Group located in the European Economic Area (“EEA”)
will in the course of receiving the Services have cause to transfer personal data
referred to in Clause 33.3 to Supplier or a Sub-Contractor located outside the EEA; or






	 	(B)	 	Supplier or any Sub-Contractor located in the EEA will, in relation to the
supply of the Services by Supplier, have cause to transfer any personal data referred
to in Clause 33.3 to any Sub-Contractor located outside of the EEA,






	 	 	then:






	 	(C)	 	prior to any transfer referred to in Clause 33.5(B), Supplier shall give
Customer reasonable prior written notice of such proposed transfer; and
	 
	 	(D)	 	subject to Clause 33.6 below, upon Customer’s request, Supplier agrees to
enter into, and procure that each relevant Sub-Contractor enters into, an agreement
with the relevant member of Customer Group on the then current standard
contractual clauses for the transfer of personal data from a Data Controller in the
EEA to a data processor outside the EEA as approved by the European Commission (or
such other relevant authority of the European Union or its constituent member
states).






	33.6	 	The Parties agree that where an alternative solution may be available to provide adequacy
under Article 25 of Directive 95/46/EC in relation to the country (or a sector thereof) to
which the personal data is transferred including Directive 95/46/EC becomes directly
applicable in such country then the Supplier may choose to adopt such an alternative solution
instead of entering into an agreement as set out in Clause 33.5(D) above.














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	34.	 	LIMITATION OF LIABILITY






	34.1	 	Nothing in this Agreement shall exclude or limit the liability of any Party for:






	 	(A)	 	death and/or personal injury resulting from the negligence of that Party or
its directors, officers, employees, contractors or agents; or
	 
	 	(B)	 	fraud and/or fraudulent misrepresentation.






	34.2	 	Subject to Clause 34.1, Clause 34.3, Clause 34.6 and Clause 34.7, neither Party shall be
liable to the other Party in contract (including under any indemnity), tort (including
negligence), misrepresentation or for breach of any duty (including strict liability) for (A)
any indirect or consequential loss or damage; and/or (B) any loss of profits, business,
revenue, goodwill or anticipated savings, provided that this Clause 34.2 shall be without
prejudice to Customer’s obligation to pay and Supplier’s rights to be paid the Charges, the
Customer’s obligation to meet the Minimum Commitment Level and to pay the Termination Fee and
Customer’s obligation to pay any sum pursuant to Schedule 4 (Pricing, Invoicing and Payment)
and any other sum in the nature of charges, costs or expenses (where applicable) and the
obligation of Supplier to pay Service Credits and to pay any sum pursuant to Schedule 4
(Pricing, Invoicing and Payment) and any other sum in the nature of charges, costs or expenses
(where applicable).
	 
	34.3	 	Subject to Clause 34.5 and Clause 34.8, the provisions of Clause 34.2 shall not prevent
Customer from recovering any of the following, to the extent such losses arise directly from
any breach of the obligations of Supplier under this Agreement, or any tort (including
negligence), misrepresentation or breach of duty (including strict liability) of Supplier in
relation to the subject matter of this Agreement (together a “Default”) and in respect of
which Supplier is liable to Customer:






	 	(A)	 	loss of profit directly incurred as a result of any customer of any Service
Recipient ceasing (partially or wholly) to do business with such Service Recipient
where such cessation resulted directly from that Default, but excluding ex gratia
payments or other benefits paid to such customers;
	 
	 	(B)	 	the additional costs and expenses directly and reasonably incurred by
Customer and/or any Service Recipient in procuring and implementing alternative or
replacement services;
	 
	 	(C)	 	the costs, to the extent reasonably and directly incurred by Customer and/or
any other Service Recipient, of reconstituting or reloading lost or corrupted data
(including Customer Data);
	 
	 	(D)	 	the cost, to the extent reasonably and directly incurred, of implementing and
performing reasonable workarounds following a Service Failure;
	 
	 	(E)	 	losses (including fines paid to a Regulator) reasonably and directly incurred
by Customer and/or any other Service Recipient where the relevant Default has










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	 	 	 	directly
resulted in Customer and/or the other Service Recipient being in breach of any
Applicable Law;







	 	(F)	 	additional costs reasonably and directly incurred by Customer and/or any
other Service Recipient to correct and re-perform Services; and
	 
	 	(G)	 	losses reasonably and directly incurred by Customer and/or any other Service
Recipient resulting from a contractual claim (excluding any vexatious, frivolous or
invalid claim) made against Customer and/or any other Service Recipient by one or more
of its customers under the express terms of a contract entered into in the ordinary
course of business by the relevant Service Recipient and that customer where such
claim resulted directly from that Default, but excluding ex gratia payments or other
benefits.






	34.4	 	Except in relation to the liabilities described in Clause 34.1 and/or Clause 34.6 and
subject always to Clause 34.8, the maximum aggregate liability of Supplier and its Affiliates
under this Agreement in contract (including under any indemnity), tort (including negligence),
misrepresentation, for breach of duty (including strict liability) or otherwise, in respect of
each Contract Year, shall be limited to:






	 	(A)	 	for the first Contract Year, seventy-five per cent. (75%) of the projected
aggregate Charges payable by Customer for the first Contract Year; and
	 
	 	(B)	 	for each Contract Year other than the first Contract Year, seventy-five per cent. (75%) of the aggregate Charges under this Agreement paid or invoiced by Customer
in the immediately preceding Contract Year,






	 	 	and for the avoidance of doubt, Service Credits will not be counted against the maximum
aggregate liability of Supplier and its Affiliates as set out in this Clause 34.4.






	34.5	 	Except in relation to the liabilities described in Clause 34.1 and Clause 34.6, the maximum
aggregate liability of Customer and its Affiliates under this Agreement in contract (including
under any indemnity), tort (including negligence), misrepresentation, for breach of duty
(including strict liability) or otherwise in respect of each Contract Year, shall be limited
to:






	 	(A)	 	for the first Contract Year, seventy-five per cent. (75%) of the projected
aggregate Charges payable by Customer for the first Contract Year; and
	 
	 	(B)	 	for each Contract Year other than the first Contract Year, seventy-five per cent. (75%) of the aggregate Charges under this Agreement paid or invoiced by Customer
in the immediately preceding Contract Year.






	34.6	 	The exclusions and limitations of liability set out in this Clause 34 (including those set
out in Clauses 34.2, 34.4 and 34.5 shall not apply:






	 	(A)	 	in respect of Supplier to:










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	 	(i)	 	the indemnities given by Supplier pursuant to Clause
30.22(Intellectual Property Indemnities);
	 
	 	(ii)	 	Supplier’s obligations to pay the Incentive Payment, to pay
Service Credits and to pay any sum pursuant to Schedule 4 (Pricing, Invoicing
and Payment) and any other sum in the nature of charges, costs or expenses in
accordance with this Agreement; and
	 
	 	(iii)	 	any damages or loss incurred by Customer or any other
Service Recipient due to the wilful or deliberate act or omission or
dishonesty of Supplier, any of its Sub-contractors or any Supplier Personnel;






	 	(B)	 	in respect of Customer to:






	 	(i)	 	the indemnity given by Customer pursuant to Clause 30.23
(Intellectual Property Indemnities); and
	 
	 	(ii)	 	Customer’s obligations to pay the Charges including the
Termination Fee and meet the Minimum Commitment Level to pay any sum pursuant
to Schedule 4 (Pricing, Invoicing and Payment) and any other sum in the nature
of charges, costs or expenses in accordance with this Agreement; and
	 
	 	(iii)	 	any damages or losses incurred by any member of Supplier
Group due to the wilful or deliberate act or omission or dishonesty of
Customer or any Customer Personnel.






	 	(C)	 	in respect of Supplier and Customer, any breach by the other Party of Clause 31 (Confidentiality), including a failure by such other Party to ensure that a
recipient of Confidential Information from such other Party complies with the
provisions of Clause 31 (Confidentiality).






	34.7	 	Without prejudice to the remainder of this Clause 34, the exclusion of Customer’s liability
for loss of profit set out in Clause 34.2(B) shall not apply in respect of loss of profit
directly incurred by Supplier as a result of a breach by Customer of Clause 1.4, provided
that, notwithstanding Clause 34.4, the maximum aggregate liability of Customer and its
Affiliates under this Agreement in contract (including under any indemnity), tort (including
negligence), misrepresentation, for breach of duty (including strict liability) or otherwise,
in respect of each Contract Year, in the case of liability of the type specified in this
Clause 34.7 shall be limited to:






	 	(A)	 	for the first Contract Year, thirty per cent. (30%) of the projected
aggregate Charges payable by Customer for the first Contract Year; and
	 
	 	(B)	 	for each Contract Year other than the first Contract Year, thirty per cent. (30%) of the aggregate Charges under this Agreement paid or invoiced by Customer in
the immediately preceding Contract Year.










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	34.8	 	Notwithstanding Clause 34.4, the maximum aggregate liability of Supplier and its Affiliates
under this Agreement in contract (including under any indemnity), tort
(including negligence), misrepresentation, for breach of duty (including strict liability)
or otherwise, in respect of each Contract Year, shall be limited to:






	 	(A)	 	In the case of liability of the type specified in Clause 34.3(A):






	 	(i)	 	for the first Contract Year, ten per cent. (10%) of the
projected aggregate Charges payable by Customer for the first Contract Year;
and
	 
	 	(ii)	 	for each Contract Year other than the first Contract Year,
ten per cent. (10%) of the aggregate Charges under this Agreement paid or
invoiced by Customer in the immediately preceding Contract Year; and






	 	(B)	 	In the case of liability of the type specified in Clause 34.3(G):






	 	(i)	 	for the first Contract Year, thirty per cent. (30%) of the
projected aggregate Charges payable by Customer for the first Contract Year;
and
	 
	 	(ii)	 	for each Contract Year other than the first Contract Year,
thirty per cent. (30%) of the aggregate Charges under this Agreement paid or
invoiced by Customer in the immediately preceding Contract Year.






	34.9	 	Customer shall ensure that any each Service Recipient complies with the obligations of
Customer under this Agreement to the extent that such obligations relate to the receipt of the
Services by that Service Recipient.










	35.	 	TAX






	35.1	 	All sums payable under this Agreement shall be paid free and clear of all deductions and
withholdings whatsoever, save only as may be required by law. If any deductions or
withholdings are required by law to be made from any such sums, the Party liable to make the
payment shall pay to the recipient such sums as will, after the deduction or withholding is
made, leave the recipient with the same amount as it would have been entitled to receive in
the absence of any such requirement to make a deduction or withholding.
	 
	35.2	 	Subject to clause 35.3, all sums payable under this Agreement are exclusive of any Specified
Sales Taxes and are inclusive of any amounts in respect of any Other Sales Tax properly
chargeable in respect of them.
	 
	35.3	 	Notwithstanding clause 35.2,






	 	(A)	 	if any Indian Service Tax (other than Tax chargeable in respect of the
One-off Charge as defined in paragraph 5 of Schedule 4 (Pricing, Invoicing and
Payment) or the Incentive Payment) is chargeable in respect of the Services provided
pursuant to this Agreement and a Party (or a member of its Group) is liable to account
for such Tax to the relevant tax authority, Customer and 










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	 	 	 	Supplier shall each bear 50% of such Tax PROVIDED THAT if the total Indian Service Tax (other than Tax chargeable
in respect of the One-off Charge as defined in paragraph 5 of Schedule 4 (Pricing, Invoicing and Payment)or the
Incentive Payment) chargeable in respect of the Services exceeds or could exceed
GBP £2,000,000 in any twelve (12) month period (which amounts shall be determined
by reference to the spot rate(s) published in the Financial Times on any date on
which such a determination is made as the case may be), Supplier and Customer shall
use reasonable endeavours to mitigate such cost. If the Parties cannot agree an
effective method to mitigate such cost within three (3) months from the time such
taxes first become payable, Customer may terminate this Agreement by Notice to
Supplier with immediate effect; and
	 
	 	(B)	 	if any Services are held by a UK Tax authority to be a taxable supply in
respect of which Customer or a member of Customer Group is liable to account for VAT
to the UK Tax authority, Supplier shall not be liable under this Agreement to make any
payment to Customer, and Customer shall not be entitled to withhold or deduct any
amount from any sums payable under this Agreement, in respect of such VAT.






	 	 	For the avoidance of doubt this Clause 35.3 is not an “Agreement to Agree” for the purposes
of Clause 36.










	36.	 	AGREEMENTS TO AGREE






	36.1	 	Where any provision contained in this Agreement relates to a document, procedure, process or
any other matter which is to be determined or otherwise agreed by the Parties following the
execution of this Agreement (an “Agreement to Agree”), the Parties agree that they shall act
reasonably and in good faith in seeking to conclude each Agreement to Agree:






	 	(A)	 	as soon as reasonably practicable or, where timescales are stipulated in the
relevant Clause, Schedule or Appendices, within those timescales; and
	 
	 	(B)	 	in such manner and form as required by the relevant Clause, Schedule or
Appendix (as applicable).






	36.2	 	Where an Agreement to Agree is not concluded by the relevant
date referred to in Clause 36.1(A) above and the Parties have failed to reach an agreement on the matter having acted
reasonably and in good faith and used all reasonable efforts to reach an agreement within
thirty (30) Business Days after such relevant date, then Supplier shall implement from such
date all reasonable written requests of Customer in connection with the subject matter of such
Agreement to Agree, provided that:






	 	(A)	 	it is technically and operationally feasible for Supplier to implement any
such request of Customer; and
	 
	 	(B)	 	Supplier shall not be obliged to implement any such request of Customer until
Supplier’s costs have been agreed in accordance with Clause 36.3.










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	36.3	 	To the extent that Supplier incurs costs in addition to those provided for in the Charges as
a result of complying with Customer’s request pursuant to Clause 36.2, Customer shall (except
where such request is the result of Supplier’s breach of any of its obligations under this
Agreement) reimburse Supplier its reasonable and direct costs, such costs to be determined
through the Change Control Procedure.
	 
	36.4	 	The Parties agree that in the event that the implementation of any request of Customer,
pursuant to Clause 36.2, causes Supplier to be in breach of this Agreement, such a request
shall be deemed to be a breach by Customer of its obligations under this Agreement solely for
the purposes of Clause 13 (Supplier Relief and Customer Relief) and in such an event Clause 13
(Supplier Relief and Customer Relief) shall apply.
	 
	36.5	 	For the avoidance of doubt, Clause 36.2 shall not apply:






	 	(A)	 	where the document, procedure, process or other matter which is to be
determined or otherwise agreed by the Parties following the execution of this
Agreement is stated in this Agreement to be for the discretion of one Party (including
where it is subject to a Party’s discretion or consent whether or not there are
limitations on the exercise of that discretion or the giving of that consent,
including Clause 40.1 (Announcements and Publicity) and Clause 41 (Assignment));
	 
	 	(B)	 	where this Agreement (other than in this Clause 36) expressly sets out a
process for settling any document, procedure, process or other matter not agreed
(including the appointment of an independent adjudicator);
	 
	 	(C)	 	to any discussions between the Parties as referred to in paragraph 6 of
Schedule 4 (Pricing, Invoicing and Payment) in relation to changing the charging
mechanism under this Agreement from a Billable FTE basis to a unit transaction pricing
basis for some or all of the Services; or
	 
	 	(D)	 	to the agreement of terms pursuant to Clauses 8.3(B) or 30.15.










	37.	 	NOTICES






	37.1	 	A Notice shall only be effective if it is in writing and in the English language. Faxes (but
not any other form of electronic communication) shall be permitted for the giving of a Notice.
	 
	37.2	 	All Notices shall be sent to a Party at its address or number and for the attention of the
individual set out below:
	 
	 	 	For Customer:
	 
	 	 	Address: 6 Temasek Boulevard, #22-01 Suntec Tower 4, Singapore 038986
	 
	 	 	For the attention of: Simon Machell










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	 	 	Fax No: +65 6829 1890
	 
	 	 	With a copy to each of the following:
	 
	 	 	Address: Aviva plc, St Helens, 1 Undershaft, London EC3P 3DQ
	 
	 	 	For the attention of: Deputy Group Company Secretary (Kirsty Cooper)
	 
	 	 	Fax No: +44 20 7662 7700
	 
	 	 	Address: Tower 1 Cyber City, Magarpatta City, Hadapsar, Pune 411013, Maharashtra, India
	 
	 	 	For the attention of: Chief Executive Officer, Aviva Global Services (Teresa Copping)
	 
	 	 	Fax No: +91 20 26824960
	 
	 	 	For Supplier:
	 
	 	 	Address: Multiconsult Limited, 10 Frere Felix de Valios Street, Port Louis, Mauritius
	 
	 	 	For the attention of: Manager, Company Administration (Sonia Lutchmiah)
	 
	 	 	Fax No: +230 212 5265
	 
	 	 	With a copy to:
	 
	 	 	Address: Gate 4, Godrej & Boyce Complex, Pirojshahnager, Vikholi (W), Mumbai — 400079,
India
	 
	 	 	For the attention of: General Counsel, WNS Group (Vikas Gupta)
	 
	 	 	Fax No: +91 22 2518 8350
	 
	 	 	provided that either Party may change its Notice details on giving Notice of the change in
accordance with this Clause 37 to the other Party. That Notice shall only be effective on
the date falling five (5) Business Days after the notification has been received or such
later date as may be specified in the Notice.
	 
	37.3	 	Any Notice shall, in the absence of earlier receipt, be deemed to have been duly given as
follows:






	 	(A)	 	if delivered personally, on delivery;










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	 	(B)	 	if sent by registered post, two (2) Business Days after the date of posting;
and
	 
	 	(C)	 	if sent by fax, when correctly despatched.






	37.4	 	Any Notice given outside normal Working Hours in the place to which it is addressed shall be
deemed not to have been given until the start of the next period of Working Hours in such
place.










	38.	 	INSURANCE






	38.1	 	Subject to Clause 38.2, Supplier shall, at its own cost and by reference to Good
Professional Practice, effect insurance with a reputable insurer in relation to all risks
typically insured and which are associated with or arise in the connection with the
performance of its obligations under this Agreement (including in respect of the professional
indemnity risks (including errors and omissions), employer’s liability, public and products
liability, property damage and employee dishonesty and fraud.
	 
	38.2	 	Supplier shall not obtain the insurance referred to in Clause 38.1 through or from any member
of Customer Group notified in advance to the Supplier in writing.
	 
	38.3	 	Supplier shall maintain the insurance cover referred to in Clause 38.1 throughout the Term
and Supplier shall on request from Customer produce satisfactory evidence to Customer that
such insurance cover is in place.
	 
	38.4	 	Supplier shall not do or omit to do anything which would vitiate any of the policies of
insurance which it is required to effect and maintain pursuant to this Clause 38.










	39.	 	FORCE MAJEURE






	39.1	 	Neither Party (the “Claiming Party”) shall be liable to the other for any delay or failure to
perform any of its obligations hereunder to the extent such delay or failure is due to an
Event of Force Majeure provided that:






	 	(A)	 	the Claiming Party could not have avoided such circumstances by taking
reasonable precautions which he ought reasonably to have taken, including compliance
with Schedule 15 (Business Continuity, Disaster Recovery and Incident Management) save
to the extent the Claiming Party is unable to comply with Schedule 14 (Security
Management) due to an event of Force Majeure; and
	 
	 	(B)	 	the Claiming Party has used, and continues to use, its reasonable endeavours
to (i) mitigate the effect of such circumstance and (ii) perform its affected
obligations.






	39.2	 	The Claiming Party shall not be excused performance of its obligations unaffected by an Event
of Force Majeure.










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	39.3	 	The Claiming Party shall Notify the other upon becoming aware of an Event of Force Majeure,
which notice shall contain details of the matters or circumstances of which it is aware giving
rise to the Event of Force Majeure and its anticipated duration.
	 
	39.4	 	On every cessation of a Service (or part thereof) pursuant to this Clause 39 where Supplier
is the Claiming Party:






	 	(A)	 	Customer shall have no liability to Supplier in respect of any Charge for
such Service (or part thereof) to the extent such Service or part thereof are not
provided in accordance with this Agreement;
	 
	 	(B)	 	Supplier shall prepare a plan for the remediation of the Event of Force
Majeure as soon as reasonably practicable after Notice was given to Customer pursuant
to Clause 39.3. The Parties shall discuss these recommendations and Supplier, at its
own cost and expense, shall then take such action (including the use of additional
resources) as is reasonably necessary and as has been agreed in writing by the Parties
to avoid, remedy and otherwise minimise the impact of the Event of Force Majeure in
accordance with Good Professional Practice.






	39.5	 	If an Event of Force Majeure prevents the proper receipt of the Services by a Service
Recipient in accordance with this Agreement for more than sixty (60) days Customer shall be
entitled to terminate certain Services identified in accordance with Clauses 23.2 and 23.3, by
written notice to Supplier with immediate effect.
	 
	39.6	 	If an Event of Force Majeure prevents the proper supply of the Services in accordance with
this Agreement by or on behalf of the Supplier for more than sixty (60) days Customer shall be
entitled to terminate certain Services identified in accordance with Clauses 23.2 and 23.3, by
written notice to Supplier with immediate effect.










	40.	 	ANNOUNCEMENTS AND PUBLICITY






	40.1	 	Neither Party shall make any:






	 	(A)	 	public announcement concerning the transactions contemplated by this
Agreement or any ancillary matter; or
	 
	 	(B)	 	reference to the other in any of its advertising or promotional material,






	 	 	without the prior written approval of the other Party such approval not to be unreasonably
withheld or delayed. This Clause 40.1 does not apply in the circumstances described in
Clause 40.2.
	 
	40.2	 	Notwithstanding Clause 40.1, either Party may make an announcement concerning this Agreement
or any ancillary matter if:






	 	(A)	 	required by Applicable Law; or
	 
	 	(B)	 	required by any Regulator, whether or not the requirement has the force of
law,










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	 	 	in which case the Party concerned shall take all such steps as may be reasonable and
practicable in the circumstances to agree the contents of such announcement with the other
Party before making such announcement.
	 
	40.3	 	Each Party shall be responsible for the observance of the provisions of this Clause 40 by
each of its respective employees, contractors and agents (and in the case of Supplier, each
Supplier Personnel).
	 
	40.4	 	Notwithstanding the expiry or early termination of this Agreement, the provisions of this
Clause 40 shall continue to apply to each Party without limit in time.










	41.	 	ASSIGNMENT AND PLACE OF BUSINESS






	41.1	 	Without limitation to Clause 23.24 but subject at all times to Clauses 41.3, this Agreement
and all rights and obligations of Customer hereunder may not be novated, assigned, transferred
or otherwise dealt with in whole or in part (including by way of making a declaration of trust
in respect of, or entering into any arrangement whereby Customer agrees to hold on trust for
any other person all or any part of the benefit of, or its rights or benefits under, this
Agreement) by Customer without the prior written consent of Supplier, such consent not to be
unreasonably withheld or delayed, except that no consent shall be required in the case of an
assignment to a member of Customer Group (a “Customer Intra-Group Assignment”), provided that
such assignment has no material adverse tax consequences for Supplier.
	 
	41.2	 	Subject at all times to Clauses 41.3, this Agreement and all rights and obligations of
Supplier hereunder are personal to Supplier and may not be novated, assigned, transferred or
otherwise dealt with in whole or in part (including by way of making a declaration of trust in
respect of, or enter into any arrangement whereby Supplier agrees to hold on trust for any
other person all or any part of the benefit of, or its rights or benefits under, this
Agreement) by Supplier without the prior written consent of Customer, such consent not to be
unreasonably withheld or delayed, except that no consent shall be required in the case of a
transfer of all (but not part) of the benefit of this Agreement (subject to the burden) to a
Mauritian company that is wholly owned by Supplier (a “Supplier Intra-Group Assignment”).
	 
	41.3	 	Each Permitted Intra-Group Assignment shall be null and void ab initio if the execution
and/or completion of such Permitted Intra-Group Assignment has an adverse impact directly or
indirectly on any rights or other benefits of the beneficiaries under the terms of the
Customer Guarantee and the Supplier Guarantee (as applicable).
	 
	41.4	 	Subject to Clause 41.5, Supplier undertakes that it will not have a place of business outside
Mauritius.
	 
	41.5	 	Notwithstanding Clause 41.4, Supplier may change its place of business or open a new place of
business with the consent of the Customer, such consent not to be unreasonably withheld.
















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	42.	 	SEVERABILITY






	 	 	If any term or provision or any part thereof (in this Clause 42 called the “offending
provision”) contained in this Agreement is or shall be declared or become unenforceable,
invalid or illegal for any reason whatsoever (including in respect of the laws of any
jurisdiction), the other terms and provisions of this Agreement shall remain in full force
and effect as if the same had been executed without the offending provision appearing
therein and the Parties shall negotiate in good faith to agree a replacement provision or
part in place of such offending provision, such provision or part to have an equivalent
economic and commercial effect to the offending provision or part.










			
	43.	 	NO PARTNERSHIP






	 	 	Nothing in this Agreement and no action taken by Customer or Supplier under this Agreement
shall constitute a partnership, association, joint venture or other co-operative entity
between Customer and Supplier.










			
	44.	 	REMEDIES AND WAIVERS






	44.1	 	No delay or omission by either Party in exercising any right, power or remedy provided by law
or under this Agreement or any other documents referred to in it shall:






	 	(A)	 	affect that right, power or remedy; or
	 
	 	(B)	 	operate as a waiver thereof.






	44.2	 	The single or partial exercise of any right, power or remedy provided by law or under this
Agreement shall not preclude any other or further exercise of it or the exercise of any other
right, power or remedy.






	44.3	 	Except as otherwise expressly provided in this Agreement, the rights, powers and remedies
provided in this Agreement are cumulative and not exclusive of any rights, powers and remedies
provided by law.










			
	45.	 	ENTIRE AGREEMENT






	45.1	 	This Agreement (together with any agreement concluded by the Parties pursuant to Clause 46
(Variation)) constitutes the whole and only agreement between the Parties relating to its
subject matter.






	45.2	 	Each Party acknowledges that in entering into this Agreement it is not relying upon any
pre-contractual statement which is not set out in this Agreement.






	45.3	 	Except in the case of fraud, neither Party shall have any right of action against the other
Party to this Agreement arising out of or in connection with any pre-contractual statement
except to the extent that it is repeated in this Agreement.




 









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	45.4	 	For the purposes of this Clause 45, “pre-contractual statement” means any draft, agreement,
undertaking, representation, warranty, promise, assurance or arrangement
of any nature whatsoever, whether or not in writing, relating to the subject matter of this
Agreement made or given by any person at any time prior to the date of this Agreement.










			
	46.	 	VARIATION






	46.1	 	Save as otherwise provided in this Agreement, the terms of this Agreement may not be varied
except in writing and signed by an authorised representative of Customer and Supplier.






	46.2	 	Without prejudice to Clause 46.1, this Agreement (including any part thereof) may not be
rescinded or varied except by Customer in any way or at any time by any member of Customer
Group.










			
	47.	 	DISPUTE RESOLUTION






	47.1	 	In the event that a dispute or difference arises between the Parties, out of or in relation
to this Agreement (a “Dispute”), such Dispute shall be dealt with in accordance with the
provisions of paragraph 4 of Schedule 6 (Governance and Service Management).






	47.2	 	If any Dispute is not resolved pursuant to Clause 48, then either Party may by notice to the
other refer such Dispute to mediation in accordance with the provisions of Clauses 47.3 to
47.5 (inclusive).





Reference to Mediation





	47.3	 	If the Parties are unable to agree a mediation procedure or any aspect of such procedure they
will seek assistance from the Centre for Effective Dispute Resolution at International Dispute
Resolution Centre, 70 Fleet Street, London EC4Y 1EU.






	47.4	 	Unless otherwise agreed, the Parties will share equally the costs of mediation and the use of
mediation shall be without prejudice to the rights of the Parties in all respects if the
mediation does not achieve an agreed resolution of the Dispute within 25 Business Days (or
such longer period as the Parties may agree) of the matter being first referred for mediation.






	47.5	 	If the Parties agree to accept the recommendations of the mediator, or otherwise reach an
agreement on the Dispute, such agreement shall be set out in writing. Once it is signed by
authorised representatives of the Parties such agreement shall be final and binding and shall
be implemented by the Parties in accordance with its terms.





Jurisdiction and Court Proceedings





	47.6	 	The Parties irrevocably agree that if the Dispute cannot be resolved by the Parties in
accordance with Clauses 47.1 to 47.5 (or a Party is unwilling to participate in mediation),
the English courts shall have exclusive jurisdiction to settle that Dispute and that
accordingly any proceeding, suit or action arising out of or in connection with this












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	 	 	Agreement
(“Proceedings”) shall be brought in the English courts. This clause is not concluded for the
benefit of any particular Party or Parties to this Agreement







	47.7	 	Each Party waives (and agrees not to raise) any objection, on the ground of forum non
conveniens or on any other ground, to the taking of Proceedings in the English courts. Each
Party also agrees that a judgment against it in Proceedings brought in England shall be
conclusive and binding upon it and may be enforced in that and in any other jurisdiction.






	47.8	 	Each Party irrevocably submits and agrees to submit to the jurisdiction of the English
courts.






	47.9	 	All negotiations connected with any Dispute shall be conducted in confidence and without
prejudice to the rights of the Parties in any future proceedings.






	47.10	 	Notwithstanding any other provision of this Clause 47 and Schedule 6 (Governance and Service
Management) and the good faith intention of the Parties to fully utilise the relevant dispute
resolution procedures set out in this Clause 47 and Schedule 6 (Governance and Service
Management), nothing herein shall prevent either Party from taking steps to preserve or
enforce its rights including by way of interlocutory or other interim or immediate relief
through the English courts.










	48.	 	LIQUIDATED DAMAGES






	 	 	Where a sum is expressed to be payable or due under this Agreement as and by way of
liquidated damages (including as a Service Credit) Supplier agrees that each such sum is
fair and reasonable in all the circumstances and represents a genuine pre-estimate of the
loss that will be suffered by Customer Group in respect of the breach of this Agreement or
other circumstances which give rise to its payment.










	49.	 	COSTS AND EXPENSES






	49.1	 	Except as stated in this Agreement or otherwise agreed between the Parties, each Party shall
pay its own costs and expenses in relation to the negotiation, preparation, execution and
carrying into effect of this Agreement.










	50.	 	COUNTERPARTS






	50.1	 	This Agreement may be executed in any number of counterparts, and by the Parties on separate
counterparts, but shall not be effective until each of the Parties has executed at least one
counterpart.






	50.2	 	Each counterpart shall constitute an original of this Agreement, but all the counterparts
shall together constitute but one and the same instrument.




 









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	51.	 	THIRD PARTY RIGHTS AND RIGHTS OF SERVICE RECIPIENTS






	51.1	 	Subject to any Clause stating that the Contracts (Rights of Third Parties) Act 1999 (“the
1999 Act”) will apply to liability provisions in relation to the Affiliates of any Party;






	 	(A)	 	the 1999 Act will not apply to this Agreement; and
	 
	 	(B)	 	no term of this Agreement shall be enforceable by a Party’s Affiliate (or by
any person who is not a Party to this Agreement) against the other Party.






	51.2	 	The Parties acknowledge that Customer enters this Agreement in order to receive Services for
Customer Group and other Service Recipients.






	51.3	 	Supplier undertakes that it shall not oppose in any way or seek to rule out any attempt by
Customer to bring any claim against Supplier in respect of Losses incurred by or equitable
relief claimed by an Affiliate of Customer.






	51.4	 	For the avoidance of doubt, nothing in this Clause 51 shall prevent Customer from making any
claim against Supplier in respect of Losses incurred by or equitable relief on behalf of an
Affiliate and nothing in this Clause 51 shall prevent Supplier from making any claim against
Customer in respect of Losses incurred by or equitable relief on behalf of an Affiliate.






	51.5	 	Clause 51.1 shall not apply, and the 1999 Act shall apply subject to the other provisions of
this Clause 51, so that a Party’s Affiliates shall be entitled to make a claim against the
other Party, if and only if, to the extent that a court rules that a Party is not entitled to
claim for the Losses of its Affiliate or for equitable relief due to those Losses not having
been incurred by that Party or due to an inability for such equitable relief to be awarded to
that Party subject to the following:






	 	(A)	 	in the course of bringing such claim or action, such Party’s Affiliate will
not have greater rights under this Agreement than does the Party and the rights or
benefits conferred on the Party of the Affiliate bringing such claim or action will be
subject to the terms and conditions of this Agreement;
	 
	 	(B)	 	if any such Party’s Affiliate brings a claim or action against the other
Party, the Party of such Affiliates will not also bring a claim or action against the
other Party on such Affiliate’s behalf with regard to the same subject matter; and
	 
	 	(C)	 	the Party and its Affiliates will reasonably cooperate with the other Party
to consolidate any such claims or actions.






	51.6	 	Notwithstanding the provisions of Clause 51.5 this Agreement may be rescinded or varied in
any way and at any time by the Parties without the consent of any Affiliate.






	51.7	 	For the avoidance of doubt, any claim brought by any Affiliate in exercise of its rights or
benefits under this Clause 51 shall be subject to the limitation and exclusions of liability
set out in this Agreement.




 









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	51.8	 	Subject to Clause 51.3, the Parties do not intend that any term of this Agreement, should be
enforceable, by virtue of the 1999 Act, by any person who is not a Party to this Agreement.






	51.9	 	The Parties acknowledge and agree that for the purposes of this Clause 51 the term
“Affiliate” with respect to Customer shall include Service Recipient.










			
	52.	 	AGENT FOR SERVICE






	52.1	 	Supplier irrevocably appoints WNS Global Services (UK) Limited of Acre House, 11-15 William
Road, London NW1 3ER to be its agent for the receipt of service of process in England. It
agrees that any Service Document may be effectively served on it in connection with
Proceedings in England and Wales by service on its agent.






	52.2	 	Any Service Document shall be deemed to have been duly served if marked for the attention of
WNS Global Services (UK) Limited at Acre House, 11-15 William Road, London NW1 3ER or such
other address within England and Wales as may be notified to the Party wishing to serve the
Service Document and:






	 	(A)	 	left at the specified address; or
	 
	 	(B)	 	sent to the specified address by first class post.






	 	 	In the case of Clause 52.2(A), the Service Document will be deemed to have been duly served
when it is left. In the case of Clause 52.2.2(B), the Service Document shall be deemed
to have been duly served two clear Business Days after the date of posting.






	52.3	 	Customer irrevocably appoints Aviva International Holdings Limited (Company No. 02180206) of
St Helens, 1 Undershaft, London EC3P 3DQ to be its agent for the receipt of service of process
in England. It agrees that any Service Document may be effectively served on it in connection
with Proceedings in England and Wales by service on its agent.






	52.4	 	Any Service Document shall be deemed to have been duly served if marked for the attention of
Aviva International Holdings Limited (Company No. 02180206) at St Helens, 1 Undershaft, London
EC3P 3DQ or such other address within England and Wales as may be notified to the Party
wishing to serve the Service Document and:






	 	(A)	 	left at the specified address; or
	 
	 	(B)	 	sent to the specified address by first class post.






	 	 	In the case of Clause 52.4(A), the Service Document will be deemed to have been duly served
when it is left. In the case of Clause 52.4(B), the Service Document shall be deemed to
have been duly served two clear Business Days after the date of posting.






	52.5	 	If an agent at any time ceases for any reason to act as such, Supplier or Customer (as
relevant) shall appoint its replacement agent having an address for service in England




 









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	 	 	or Wales and shall notify the other Party of the name and address of the replacement agent.
Failing such appointment and notification, either Party shall be entitled by notice to the
other Party to appoint a replacement agent to act on behalf of the relevant Party. The
provisions of this Clause 52.5 applying to service on an agent apply equally to service on a
replacement agent.






	52.6	 	A copy of any Service Document served on an agent shall be sent by post to the relevant
Party. Failure or delay in so doing shall not prejudice the effectiveness of service of the
Service Document.










			
	53.	 	INTERPRETATION






	53.1	 	In construing this Agreement, unless otherwise expressly specified:






	 	(A)	 	references to Clauses, paragraphs, Schedules and Appendices are to clauses
and paragraphs of, and schedules, appendices to, this Agreement;
	 
	 	(B)	 	use of either gender includes the other gender, and use of the singular
includes the plural and vice versa;
	 
	 	(C)	 	references to a “person” shall be construed so as to include any individual,
firm, company or other body corporate, government, state or agency of a state, local
or municipal authority or government body or any joint venture, association,
partnership or limited partnership (whether or not having separate legal personality);
	 
	 	(D)	 	a reference to any statute or statutory provision shall be construed as a
reference to the same as it may, from time to time, be amended, modified or
re-enacted;
	 
	 	(E)	 	any reference to a “day” (including within the phrase “Business Day”) shall
mean a period of 24 hours running from midnight to midnight;
	 
	 	(F)	 	references to a “month” are to a calendar month and “year” are to a calendar
year;
	 
	 	(G)	 	references to a “quarter” are to the periods of January to March, April to
June, July to September and October to December, in any calendar year, and “quarterly”
shall be interpreted accordingly;
	 
	 	(H)	 	references to times are to London times, except where expressly stated to the
contrary;
	 
	 	(I)	 	references to “indemnifying” any person against or with respect to any
circumstance shall include indemnifying and keeping it (and each member of its Group)
harmless, on an after Tax basis, from all actions, claims and proceedings from time to
time made against it and each member of its Group and all losses, damages,
liabilities, payments, costs and expenses suffered




 









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	 	 	 	made or incurred by it and each
member of its Group as a consequence of or in connection with that circumstance;






	 	(J)	 	references to “costs” and/or “expenses” incurred by a person shall include
any amount in respect of VAT comprised in such costs or expenses for which neither
that person nor, if relevant, the representative member of the VAT group to which that
persons belongs is entitled to credit as VAT input tax;
	 
	 	(K)	 	a reference to any other document in this Agreement is a reference to that
other document as amended, varied, novated or supplemented (other than in breach of
the provisions of this Agreement) from time to time;
	 
	 	(L)	 	a reference to any part of this Agreement is a reference to that part as
amended, varied, novated or supplemented from time to time in accordance with the
terms of this Agreement;
	 
	 	(M)	 	headings and titles are for convenience only and do not affect the
interpretation of this Agreement;
	 
	 	(N)	 	any words following the words “include” or “including” shall be interpreted
without limitation to the generality of the preceding words;
	 
	 	(O)	 	general words shall not be given a restrictive meaning by reason of the fact
that they are followed by particular examples intended to be embraced by the general
words;
	 
	 	(P)	 	a reference to any English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, court, official or any legal
concept or thing shall in respect of any jurisdiction other than England be treated as
a reference to any analogous term in that jurisdiction; and






	53.2	 	The Schedules and Appendices form part of this Agreement and shall have the same force and
effect as if expressly set out in the body of this Agreement, and any reference to this
Agreement shall include the Schedules and the Appendices.






	53.3	 	In the event of a conflict between any provision of this Agreement (excluding the Schedules
and the Appendices) and the Schedules and the Appendices, the provisions of this Agreement
shall prevail.










			
	54.	 	GOVERNING LAW




This Agreement is governed by and shall be construed in accordance with English law.



THE PARTIES have shown their acceptance of the terms of this Agreement by executing it at the end
of the Schedules.




 









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	Signed by
	 	 	)	 	 	 	 	 
	 
	 	 	)	 	 	 	 	 
	for and on behalf of
	 	 	)	 	 	 	 	 
	AVIVA GLOBAL SERVICES
	 	 	)	 	 	/s/ Steven Turpie
	(MANAGEMENT SERVICES)
	 	 	)	 	 	 	 	 
	PRIVATE LIMITED
	 	 	)	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Signed by
	 	 	)	 	 	 	 	 
	Johnson J. Selvadurai
	 	 	)	 	 	 	 	 
	for and on behalf of
	 	 	)	 	 	 	 	 
	WNS CAPITAL INVESTMENT
	 	 	)	 	 	/s/  Johnson J. Selvadurai
	LIMITED
	 	 	)