Exhibit 4.9


 


INFORMATION TECHNOLOGY SERVICES AGREEMENT


 


THIS
AGREEMENT is made at Atlanta, on August 3, 2006.


 


Between:


 


General Electric
International, Inc., a Delaware corporation (the “Company”) with
its head office at Two Corporate Drive, Shelton, CT.


 


And:


 


Patni Computer
Systems Limited, (the “Contractor”) with its head office at Akruti
Softech Park, MIDC Cross Road No. 21, Andheri (EAST), Mumbai 400093,
INDIA.


 


WHEREAS:


 


A                        The
Company wishes to authorize the Contractor to perform certain software related
services in accordance with this Agreement.


 


B                          The
parties understand that the work to be undertaken by the Contractor under this
Agreement will be performed in part by the employees of Contractor and its
controlled subsidiaries or controlled affiliates.


 


C                          The
Contractor has the requisite skills, personnel and legal right to perform such
software related services.


 


NOW,
THEREFORE, the parties agree as follows:


 


1                           APPOINTMENT
AND PURPOSE


 


1.1                   The overall
purpose of this Agreement is the continuing development and maintenance of a
center, owned and operated by the Contractor (“Global Development Center”
or “GDC”), which provides the Company with high quality and cost
effective Deliverables through various operational models, including providing
Services at GDC locations (“Low cost countries”), at Company locations (“Onshore”),
and at “Nearshore” GDC Locations (in countries neighboring and adjacent to
Company’s locations). Nothing in this Agreement affects service agreements or
Task Orders that were executed, or conduct that occurred prior to, the
effective date of this Agreement.


 


The Company hereby
appoints the Contractor on a non-exclusive basis either by itself or through
the GDC and its approved branch offices or affiliates, to provide software
development, implementation, maintenance, support and other information
technology services (together “Services”) in accordance with the terms
of this Agreement, and the Contractor hereby accepts such appointment. The
period of appointment is from January 1, 2007 through December 31,
2009 (“Agreement Duration”), which may be extended by mutual consent
under the same terms and conditions of this Agreement (including any amendments
made pursuant to Section 15.5 of this Agreement). Nothing in this
Agreement precludes the Company from obtaining the same or similar services
from other vendors, wherever located.


 


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2.                        PROCUREMENT
OF SERVICES


 


Task Orders


 


2.1                   The Company may
from time to time request that the Contractor perform Services by submitting,
pursuant to this Agreement, a request to the Contractor that specifies the
Deliverables (as defined below) to be provided by the Contractor (a “Task
Order”). The Contractor is not obligated to sign and accept the Company’s
Task Orders. However, the Contractor will use its best efforts to accept and
fulfill the requirements of such Task Orders. Within two working days of
receiving the Task Order, the Contractor shall notify the Company of either its
interest in pursuing the Task Order or its intention to decline the Task Order.
Repeated non-participation or delay in response for a constant period of six
months may result in termination of this Agreement, pursuant to Section 12.


 


Once the
Contractor accepts a Task Order, the Contractor is obligated to perform the
Services specified in such Task Order. In performing such work, and subject to
this Agreement or Task Order, the Contractor shall be free to exercise its
discretion as to the method and means of performance of its services. Task
Orders may specify a fixed price engagement or a time and materials engagement
or a combination/variation of these two basic models.


 


Fixed Price Task Order


 


2.2                   The
Contractor and Company will agree on a fixed price for Task Orders issued to
engage Contractor for a fixed scope of Deliverables within a defined timeframe
(“Fixed Price Task Order(s)”). The number and details of resources to be
applied to the Deliverables will be at the Contractor’s discretion. The Company
will specify certain norms to ensure quality and consistency in the Task Order,
which, once issued, will not be changed, except after mutual discussions. Norms
may include but are not limited, to target service levels and associated
rewards and penalties, acceptable personnel attrition, value, volume or early
payment discounts, or other requirements the Parties mutually agree to include.


 


Time and Materials Task Order


 


2.3                   The Company may
also issue Task Orders to engage Contractor for the availability of resources
at an agreed rate, to provide specific Deliverables (“Time and Materials
Task Orders”).


 


Norms


 


2.4                   Task Orders
shall specify certain norms to ensure quality and consistency of Deliverables.
Norms may include, but are not limited to any of the following: project
delivery processes (SDLC); Project Management practices such as effort
estimation; target service levels and associated rewards and penalties;
acceptable personnel retention period; [Knowledge retention requirements];
business continuity requirements; value, volume or early payment discounts; and
any other requirements the Parties mutually agree to include.


 


Communication


 


2.5                   All
communications with and Deliverables to the Company, including, without
limitation, software, documentation, manuals, training materials, reports,
screens, progress reports and invoices, shall be in English or such other
language as may be designated by the Company.


 


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Deliverables


 


2.6                   All Services,
software, documentation, manuals, training materials, test plans and results,
risk management documents, manuals, and any and all other Intellectual Property
developed, delivered, or enhanced pursuant to this Agreement or a Task Order
shall collectively be referred to as Deliverables.


 


Purchase Orders


 


2.7                   In addition to
any Task Order, the Company must also issue, and the Contractor must receive, a
Company Purchase Order (“PO”) prior to initiating work under the Task
Order. POs may incorporate or reference the terms of one or multiple Task
Orders. If the Contractor chooses to commence work on the Company’s
Deliverables without an appropriate PO in place, the Contractor does so at the
Contractor’s own risk and, unless otherwise agreed to in writing by the
Company, such efforts shall not be chargeable to the Company. Each PO shall be
deemed incorporated into and governed by the terms of this Agreement.


 


All POs shall
include the billing arrangements, terms of payment, the Company entity that
shall pay under the PO, and whether payment shall be made though the GE
Accelerated Payment Program.


 


Benefits of the Agreement


 


2.8                   Task Orders may
be issued by the Company, its parent company, General Electric Company, and the
subsidiaries and affiliates of its parent company (including, without
limitation, joint ventures or other entities in which any such entity is a
shareholder) (together “Company Affiliate(s)”). Task Orders may also be
issued by the Company or a Company Affiliate on behalf of divested entities of
Company or Company Affiliates for a period of up to one year after divestiture
has occurred.


 


Neither the
Company nor any Company Affiliate shall have liability or be in any way
responsible to the Contractor or to any other Company Affiliate for any act,
omission or failure of either party related to such Task Order, including for
the failure of any other Company Affiliate to fulfill such Company Affiliate’s
obligations under a Task Order placed by it. In the event that a Task Order is
terminated at the request of the Company or a Company Affiliate, the parties
involved will mutually resolve any issues from such termination pursuant to Section 12.4
of this Agreement.


 


2.9                   The Contractor
agrees, at the Company’s request, to incorporate the provisions of this
Agreement into a Task Order issued by the Company which may require the
Contractor to provide Deliverables directly for another entity named by, and
who is performing Services for, the Company. The Contractor further agrees to
make the terms of this Agreement available to the Company’s suppliers
(including software and system integrator suppliers), partners and customers,
when mutually identified and agreed by the Company and the Contractor. The
Contractor will cooperate with the Company to identify opportunities for the
Company’s suppliers and customers to reduce technology costs. If, as a result
of this cooperative relationship the Contractor benefits by receiving Task
Orders from or and contracting services directly with the Company’s suppliers
and/or customers, then these associated volumes shall be credited to any
Company volumes referenced in this Agreement, except to the extent that the
Company’s supplier and/or customer was a pre-existing customer of the
Contractor.


 


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Incorporation of terms


 


2.10             Any Task Order
submitted by a Company Affiliate to the Contractor that refers to this
Agreement specifically incorporates the provisions of this Agreement (such that
all references to the Company shall be read as references to the Company
Affiliate that submitted the Task Order), unless such Task Order explicitly
provides that such Task Order or any part thereof does not so incorporate this
Agreement or any part hereof. Should a Task Order submitted by the Company or a
Company Affiliate that is controlled by Company or its parent, General Electric
Company make no reference whatsoever to this Agreement, then this Agreement and
its provisions shall nonetheless be deemed to have attached to such Task Order,
with all references to the Company in the Agreement being read as a reference
to the Company Affiliate that submitted the Task Order.


 


Hierarchy


 


2.11             In the event of any
conflict between the terms of this Agreement and the terms of any Task Order or
PO, the terms of this Agreement shall prevail. In the event of any conflict
between the terms of a Task Order and the terms of a PO, the terms of the Task
Order shall prevail. Under no circumstances shall any terms of a PO be
construed as imposing any additional financial or other obligations on the
Contractor. Notwithstanding the foregoing, a Task Order may amend the terms of
this Agreement solely with respect to such Task Order by expressly referencing
the provisions of this Agreement that are being amended and by stating that in
the event of a conflict between the amended provisions of the Task Order and
the provisions of this Agreement, the provisions of the Task Order shall
prevail.


 


Technical Clarification


 


2.12             The Company may
notify the Contractor of technical clarifications to any Task Order at any time
provided such clarification is within the general scope of either this
Agreement or the relevant Task Order.


 


2.13             If the Contractor
receives a technical clarification that may affect cost, completion schedule or
any other provision of this Agreement or the relevant Task Order, then the
Contractor will provide the Company with a proposed amendment to the Task Order
incorporating the proposed changes and will not implement the technical
clarification unless and until the Contractor has received from the Company written
confirmation through both an amendment to the Task Order and an amendment to
the PO or a new PO of such clarification and acceptance of the proposed
amendment to the Task Order.


 


2.14             No cost that the
Contractor incurs as a result of implementing a technical clarification may be
the basis for an adjustment of the fees to be paid under a Task Order unless
the Company had agreed in writing to such price adjustment prior to the
Contractor incurring the additional costs.


 


Service Level Agreements


 


2.15             The terms of this
Agreement shall not supercede any Service Level Agreements separately
negotiated and agreed to between the Company and the Contractor.


 


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Transition between Time and Materials and Fixed Price


 


2.16             At the request of the
Company, the Contractor will cooperate with the Company in good faith to
convert existing Time and Materials Task Orders to Fixed Price Task Orders on
terms and conditions to be mutually agreed between the parties.


 


Express Services and Policies


 


2.17             If requested in a
specific Task Order, the Contractor will provide Workers (defined below),
computing and telecommunications resources seven days per week, twenty-four
hours per day, 365 days per year to support the Company’s designated critical
software and Deliverables (“Critical Software”). Such Critical Software
shall be so designated in specific Task Orders and shall contain specific
Service Level Agreements, response times and acknowledgment, business
continuity, and disaster recovery requirements.


 


2.18             The Contractor shall
commit to re-use of code/artifacts, carrying out root cause analysis and
applying permanent proactive fixes, as appropriate, even when not explicitly
specified in a Task Order.


 


2.19             The Contractor shall
undertake responsibility for ensuring that Company specific design and coding
standards are adhered to in all its work carried out on Task Orders.


 


3.        CONTRACTOR PERSONNEL


 


General


 


3.1                   The Contractor
is responsible for providing personnel to perform its obligations under this
Agreement and all Task Orders. Such personnel of Contractor, including
employees of Contractor, Contractor’s affiliates and any employees of
Subcontractors, where subcontracting is permitted, shall individually and
collectively be called “Worker(s).” The Contractor will enter into
written agreements with all such Workers, obligating them in a manner that will
enable the Contractor to fully discharge all of its obligations under this
Agreement and all Task Orders, including, without limitation, all obligations
under Sections 8 and 11 of this Agreement.


 


3.2                   The number of
Workers and staffing levels of each GDC will be based on the combined project
requirements of the Company as supplemented by annual forecasts of the Company’s
needs and will be mutually agreed from time to time. The accuracy and updates
to the forecast are the responsibility of the Contractor through its
relationship with the various Company Affiliates. The Contractor will be
entirely responsible for staff and Worker selection and hiring to meet the
forecasts, including, without limitation, determining and hiring the
appropriate mix of skill types and expertise levels. However, for Time and
Materials Task Orders, the Company may, at its sole discretion, review sample
resumes and capabilities and interview key Workers (identified in the relevant
Task Order) assigned to Task, and advise the Contractor as appropriate. The
Company may, at its sole discretion, audit Contractor’s staffing on Time and
Materials Task Orders and advise the Contractor as appropriate. The Contractor
shall be solely responsible for all matters in connection with its Workers
(including, without limitation, provision of salary, benefits, training,
promotions and provision of visas, work permits, housing and related matters
while on-site).


 


3.3                   The Contractor
will make available additional resources (with the required functional and
technical competencies inclusive of the engagement-specific requirements) to
staff unexpected, even temporary, increases in the forecasts on Time and
Materials Task


 


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Orders. These additional
resources will be committed to the GDC once the Contractor has accepted Task
Orders.


 


3.4                    The Contractor
will be solely responsible for maintaining satisfactory standards of Worker
competency, conduct and integrity and for taking such disciplinary action with
respect to Workers as may be required under the circumstances. Where the
Contractor removes a Worker from offshore locations, under such circumstances,
the Contractor shall provide competent replacements within five working days of
the Contractor receiving the information about the need for disciplinary
action, at no additional cost to the Company, or impact to any Task Orders. In
case of on-site/near-shore locations, the Contractor shall provide competent
replacements within a timeframe that is mutually agreed by the Company and the
Contractor.


 


3.5                    The Company
may require the Contractor to immediately remove any Worker from the
performance of a Task Order whose continued work on a Task Order is, in the
sole discretion of the Company, contrary to the Company’s interest. If, during
the first four weeks of performance pursuant to a Task Order, the Company
requests the Contractor to remove Workers from such performance, then the
Contractor will promptly reimburse the Company for the charges for the period
such Workers worked on such Task Order. The Company reserves the right to
remove Workers from any engagement, including Fixed Price Task Orders, in the
event that such Workers act contrary to Company interests.


 


3.6                    If any Worker
provided by the Contractor becomes unavailable for whatever reason during
performance of a Task Order, including without limitation, illness, death and
incapacitation, the Contractor will provide a fully trained replacement Worker.
The Contractor shall provide such replacement Worker within five working days
(for offshore locations) of the Contractor receiving the information about the
non-availability of the replaced Worker, at no additional cost to the Company
or impact to any Task Orders. In case of on-site/near-shore locations, the
Contractor shall provide competent replacements within a timeframe that is
mutually agreed by the Company and the Contractor.


 


Training


 


3.7                    The Contractor
will ensure that prior to their deployment, Workers are provided training that
is adequate to ensure that they are proficient and able to discharge their
duties, as defined by the Task Order. The Company reserves the right to
require, at the Company’s discretion, that the Contractor provide training
specific to the execution of Task Orders, free of cost to the Company, if
Workers are either inadequately trained or need specialized training for the
execution of Task Orders.


 


3.8                    It is the sole
responsibility of the Contractor to ensure that Workers are equipped with the
functional and technical competencies required to perform all Services and meet
all commitments under specific Task Orders.


 


Model
of Operation


 


3.9                    The Contractor
shall be flexible at all times to work on the most appropriate model of
operation, which may be Nearshore, Offshore, 121, Onshore, or a combination
thereof.


 


Retention


 


3.10              The Contractor
agrees that the total overall retention level of Workers will be a minimum of
85%, so as to ensure that the Company’s critical business applications and


 


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infrastructure maintain
the level of continuity and skill that is required for their development and
maintenance. The Retention Level Percentage (“RLP”) shall be measured at
a project level on a monthly basis on the last day of every month and added to
the Year-to-date percentages on the project. The consolidated project retention
data shall be aggregated to determine the Contractor’s Company RLP. The RLP
will be calculated as:


 


(1 - (Unplanned Attrition
+ Deviations on Planned Attrition)) / Total Workers on Project) * 100


 


where


(a)                     Un-Planned
Attrition is defined as the total number of Workers who have either left or
been removed from the GDC whose departure or removal was not due to a
previously agreed roll-out plan;


(b)                    Deviations on
Planned Attrition is defined as the total number of Workers removed from a
project whose removal is not in compliance with a previously agreed roll-out
plan.


 


In addition to any of the
remedies that are available under this Agreement, the Company may establish
non-monetary penalties from time to time if RLPs are found to be consistently
in material breach of this provision.


 


3.11              Specific Task Orders
may define retention levels that are greater than the 85% level defined above,
if such increased levels reflect a need for continuity of specific business
applications and infrastructure. The Company may define and impose penalties,
in the event that the Contractor fails to achieve such retention levels.


 


Independent
Contractor


 


3.12              The status of
Contractor shall be that of independent contractor, and neither Contractor nor
its Workers or agents shall, at any time or for any purpose, be deemed an
employee, or agent of Company. Except as specifically provided herein, neither
party shall act or represent or hold itself out as having authority to act as
an agent or partner of the other party, or in any way bind or commit the other
party to any obligations. The rights, duties, obligations and liabilities of
the parties shall be several and not joint or collective, and nothing contained
in this Agreement shall be construed as creating a partnership, joint venture,
agency, trust or other association of any kind, each party being individually
responsible only for its obligations and actions as set forth in this
Agreement.


 


Nothing in this Agreement
shall be interpreted or construed as creating or establishing the relationship
of employer and employee between Company and either Contractor or any Worker or
agent of Contractor. Each party will be solely responsible for payment of all
compensation owed to its employees, as well as federal and state income tax
withholding, Social Security taxes, and unemployment insurance applicable to
such personnel as employees of the applicable party. Each party shall bear sole
responsibility for any health or disability insurance, retirement benefits, or
other welfare or pension benefits (if any) to which such party’s employees may
be entitled. Contractor is not eligible for nor may Contractor participate in
any employment benefits or benefit plans of Company or any of Company
Affiliates. Contractor will not assert a claim of employment against Company or
Company Affiliates nor claim any entitlement to participation in their benefit
programs. If, however, Contractor is deemed to be eligible for participation in
such benefits or plans, Contractor hereby waives and releases any such rights.


 


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The Contractor and the
Company shall cooperate fully with each other to identify and execute any
measures required to mitigate any of the Company’s potential co-employment
risks associated with the continued presence of a Worker at a Company site.


 


Non-Solicitation


 


3.13              The Company
covenants that for the term of this Agreement and for a period of six months
after its termination, the Company will not directly or indirectly:


 


a)                        recruit,
hire, engage or attempt to recruit, hire or engage or discuss employment with
any Worker within twelve months of such Worker providing Services to the Company
under any Task Order issued pursuant to this Agreement; or


 


b)                       induce any
Worker to terminate his relationship with the Contractor or any related company
or introduce such person to any potential employer.


 


For the purpose of this Section 3.13
only, the terms the “Company” and the “Contractor” respectively shall include
any parties together with all other entities controlling, controlled by or
under common control of such parties including but not limited to any agents or
representatives thereof collectively referred to as the “Controlled Entities”.


 


3.14              The Contractor, for
the term of this Agreement and for a period of six months after its
termination, will not recruit, hire, engage, or attempt to recruit, hire,
engage or discuss employment with any person who is an employee or agent of the
Company unless by explicit approval of an authorized representative of the
Company.


 


3.15              Any associates hired
by the Contractor from other suppliers of the Company, working on Information
Technology Services projects of the Company, will not be allocated in the
Company GDC program for twelve months after their recruitment.


 


Work
for competitors


 


3.16              Where the Company
lists or provides details of its competitors, the Contractor undertakes that it
will not assign its Workers who have worked on a Task Order to work on a
similar project for the named competitor of the Company for a period of twelve
months following completion of the work on such Task Order. Similarly, where
Contractor utilizes approved Subcontractor Workers or contractor affiliate
Workers on a Task Order, Contractor shall cause this Section 3.16 to apply
to such Workers in the same manner as such section would apply to Contractor’s
employees. Nothing in this Section 3.16 precludes the Contractor’s affiliated
companies who are not involved in performance of Services on any particular
Task Order from accepting employment from or engaging in work or business for
competitors of the Company, provided that such affiliated companies have not
received or had access to Confidential Information. Nothing in this Section 3.16
relieves the Contractor from any obligations it may have under this Agreement
or any Task Order to maintain the confidentiality of the Company’s information.


 


Background
checks for Contractor Personnel located at GDC


 


3.17


 


(a)                    At the Company’s
request, and at the Contractor’s expense, the Contractor shall perform, prior
to any Worker commencing work on behalf of the Company regardless of location,
and after securing appropriate written authorization from its Workers, a


 


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background screen to
assure that no Worker is included on a Government List (as defined herein)
prohibiting the Contractor, as the employer, from engaging in financial or
other transactions with any Worker. Government List is defined as including
those lists that: (a) are published by the United States Government: (i) Department
of State, Arms Export Control Debarment List; (ii) Department of State,
Proliferation List; (iii) Department of Commerce, Denied Parties List; (iv) Department
of Commerce, Entities List; (v) Department of Treasury, Specially
Designated National List; and (b) are similar to those described in (a) published
in jurisdictions where the Contractor is performing work for the Company. For
Workers providing services in the United States, Contractor shall also assure
the Worker’s status to rightfully work in the United States through compliance
with the Immigration and Naturalization Service’s 1-9 process (“I-9 Check”).
For Workers providing services in jurisdictions outside the United States, the
Contractor shall assure that such Workers comply with local law requirements in
such jurisdictions with respect to the right to work in such jurisdiction.


 


(b)                    In addition,
and at the Contractor’s expense, for Workers who are deployed in positions that
the Company, in its sole discretion, determines to be “security sensitive,” the
Contractor shall:


 


i.                             prior
to placement, perform criminal conviction screening through an authorized
background-reporting agency. To ensure sufficient criminal screening is
conducted, the Contractor must use a background-reporting agency that includes
in-person searches of county courthouse records, where such records are
available (e.g. United States, Mexico, etc). The background screen will cover
at least a seven (7) year time period, and include all locations in which
the worker resided during that period. The Contractor shall exercise its best
efforts to assure that none of its Workers pose a threat to the safe working
environment at the Company site, or a threat to the integrity of the business
operations. Workers shall not be placed at the Company if they lied by failing
to disclose any prior criminal conviction on their pre-placement or employment
application. The Contractor shall also verify (position or job title held,
dates of employment and duties) the past seven (7) years of employment.
The above shall be collectively referred to as “Background Screen.” For Workers
providing services in jurisdictions outside the United States, in the event
that local law does not permit the Contractor to perform a Background Screen to
the extent required under this subsection (i), the Contractor will perform such
Background Screen to the extent permissible under local law;


 


ii.                          utilize
the document “GE Guidelines for Service Provider Personnel Assigned to Security
Sensitive Positions,” which is attached hereto as Addendum D, in complying with
the above provision; and


 


iii.                       upon
request by the Company, and to the extent permitted by local law, the
Background Screen shall include verification of the Worker’s highest level of
education and driving record search.


 


(c)                     The
Contractor shall maintain as records any such background checks for the
duration of the Term, or any extended term, of this Agreement and for three
years thereafter.


 


3.18              All Workers will
obtain a passport, to establish their credentials and ensure facilitation of
travel overseas as and when it is required.


 


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4.0                  INFRASTRUCTURE


 


General


 


4.1                    The Contractor
is responsible for providing the base facility infrastructure of the GDC
including, without limitation, secure floor space, information/communications
technology hardware, software and associated support services, such as
telephones, amenities, communication facilities like video-conferencing and
adequate telephone lines and failure backup facilities. The Contractor
undertakes to maintain facilities, services and other standards that the
Company deems adequate for the conduct of work under this Agreement and as
specified by the Company from time to time.


 


4.2                    Unless a Task
Order explicitly states otherwise, the Contractor shall be responsible for
providing any hardware, software and any other assets that may be required for
the delivery of Services outlined in Task Orders.


 


4.3                    In the event
that the Contractor requires the use of business-specific hardware or software
to perform Services under a Task Order, such Task Order shall explicitly state
such requirement and the Company shall provide to the Contractor such business
specific hardware or software at no cost to the Contractor. The Contractor
shall be solely responsible for tracking and monitoring the use of such Company
assets and ensuring that they are properly managed until such time as the
assets are returned to the Company.


 


4.4                    The Contractor
is responsible for providing adequate discussion and conference rooms within
the GDC Site to enable the Workers to facilitate communication/discussions that
may be required for the performance of Services.


 


4.5                    Major
infrastructure needs will be identified and agreed upon by the Company ninety
days in advance to ensure adequate resources will be set aside by the
Contractor to implement infrastructure improvements in a timely manner.
Implementation of major infrastructure adjustments requires adequate
notification (a minimum of ninety days prior notice) to the Company prior to
commencement of the adjustments to ensure that there are no disruptions to
service levels. Such adjustments, including expansion of existing approved GDC
facilities, establishment of new GDC facilities or commencement of work in a
non-GDC facility from which the Company’s Task Orders are to be executed, will
only be undertaken by the Contractor upon receiving explicit approval from the
Company’s authorized official.


 


Company-provided
equipment


 


4.6                    If the Company
provides any asset (including, without limitation, hardware and software) to
the Contractor for TEMPORARY USE on delivering Services pursuant to a Task
Order, the Contractor shall keep such asset as a bailee and use such asset only
to complete Task Orders placed pursuant to the terms hereof. Such property,
while in the Contractor’s custody or control, shall be held at the Contractor’s
risk and shall be subject to removal at the Company’s written request. Further,
the Contractor recognizes and consents that it is responsible for:


 


(a)                    ensuring that
the asset is received along with appropriate documentation of the approval from
the Company, along with TERMS of USE and SURRENDER;


 


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(b)                   tracking
and monitoring the Company-supplied assets for its intended use at intended
location and reporting, taking the necessary actions in case of asset
damage/loss/in-appropriate use;


 


(c)                    surrendering
the assets to the company at the end of the approved period of use;


 


(d)                   auditing
the usage of the assets and reporting back to the Company on actions taken; and


 


(e)                    providing
semi-annual load forecasts to the Company.


 


The Contractor recognizes
and consents that it is liable for any unauthorized use of Company computing
resources by any Workers, whether or not with the Contractor’s knowledge and
approval, and that any such unauthorized use amounts to a material breach of
this Agreement.


 


4.7                   Where
Workers are operating out of Company sites and providing 24x7 support to the
Company, the Company shall issue “Company Configured Laptop Computers” (with
secure access capability) either on a “Pool” basis or to individual Workers.
The Contractor shall be responsible for providing the appropriate communication
equipments inclusive of Pagers/Blackberry/Cell phones, as appropriate.


 


Any assets allocated to
Workers by the Company will be on a “TEMPORARY USE” basis and will remain under
the ownership and control of the Company. It is expected that the asset is always
available for use at the Company site during normal working hours. Workers must
at all times respect the asset as belonging to the Company and must do nothing
that is contrary to Company security/use of equipment policies. Workers shall
be responsible for ensuring that adequate documentation and approval for USE of
the Company asset is available along with the asset at all times, especially
when the asset is carried out of Company Site. Once Workers complete their
engagement/rotation, the asset must be returned to the Company.


 


Company-provided
Third Party Software


 


4.8                   The
Company may from time to time secure large global licensing arrangements which
allow the Company to provide such Third Party Software to the Contractor. If
the Company provides any such Third Party Software to the Contractor for
TEMPORARY USE on delivering Services pursuant to a Task Order, the Contractor
shall keep such Third Party Software as a bailee and use such Third Party
Software only to complete Task Orders placed pursuant to the terms hereof. Such
Third Party Software, while in the Contractor’s custody or control, shall be
held at the Contractor’s risk and shall be subject to removal at the Company’s
written request. Further, the Contractor recognizes and consents that the Contractor
is responsible for:


 


(a)                    ensuring
that the Third Party Software is received along with appropriate documentation
of the approval from the Company, along with TERMS of USE and SURRENDER;


 


(b)                   tracking
and monitoring the Third Party Software to ensure such Third Party Software is
being used solely for its intended use at the intended location and reporting,
taking the necessary actions in case of Third Party Software
damage/loss/in-appropriate use;


 


11

















 


(c)                    reporting
to the Company, upon written request by the Company, the current aggregate use
of Third Party Software by the Contractor and the Task Orders for which such
Third Party Software is being used;


 


(d)                   surrendering
the Third Party Software to the company at the end of the approved period of
use; and


 


(e)                    auditing
the usage of the Third Party Software and reporting back to the Company on
actions taken.


 


The Contractor recognizes
and consents that it is liable for any unauthorized use of Third Party Software
by any Workers, whether or not with the Contractor’s knowledge and approval,
and that any such unauthorized use amounts to a material breach of this
Agreement. The Contractor further agrees that upon advance written notice by
the Company, the Contractor shall allow the Company to audit all use of Third
Party Software by the Contractor during the regular working hours of the
Contractor, with each party paying its own costs and expenses associated with
the audit.


 


Security


 


4.9                   The
Contractor is responsible for providing network and physical security for all
of its facilities. The Contractor will ensure that Company specified security
policies and guidelines are adhered to at all times. Such policies include but
are not limited to adequate site security, electronic access control, password
protection on infrastructure allowing access to Company information, virus
protection on networks, Company provided asset management and Worker background
checks. The Contractor is responsible for designating a senior member of the
Contractor’s organization with responsibility and accountability for ensuring
that security practices are adhered to consistently and proactively, across all
the sites of operation. The Contractor further commits to maintaining a 100% Secure
environment across  the GDC.


 


4.10             It
is the responsibility of the contractor to ensure that items that are not
explicitly covered under the purview of the “Company-specified Security
Guidelines” are brought to the notice of the appropriate authorities within the
Company and explicit approval is obtained for their use. The Contractor will be
responsible for compromise of the Company’s security that results from
unauthorized uses of such items.


 


4.11             The
Contractor shall incorporate application security guidelines and validate their
implementation across all its engagements, even when not explicitly specified
in a Task Order.


 


4.12             The
Contractor is responsible to ensure that only GE GDC members, GE GDC Support
staff and Company personnel are allowed access to the GE GDC work location.
Such access including “Conducted Tours” of GE GDC facilities for potential
clients of Contractor will only be undertaken by the Contractor upon receiving
explicit approval from the Company’s authorized official. In the event such
approval is granted, the Contractor shall bear sole responsibility for ensuring
that all security requirements are maintained.


 


4.13             In
the course of performing Task Orders issued pursuant to this Agreement, the
Contractor may have access to the Company’s computer resources. In such event,
the Contractor shall use such resources exclusively for performing Services on
specific Task Orders or other efforts authorized by the Company such as
disaster recovery testing and infrastructure maintenance. Unauthorized access
to or use of Company’s computer


 


12

















 


resources is prohibited.
Unauthorized use of the Company’s computing resources includes, without
limitation, the following:


 


(a)                    failing
to reasonably safeguard computer resources from damage, misuse or theft;


 


(b)                   circumventing
or attempting to compromise, for any reason, computer security regulations such
as security software, virus protection, remote dial-in controls and
administrative or operational procedures;


 


(c)                    tampering
with a computer system in a manner that may cause harm to computer information
or lead to the unavailability of the computer resources; and


 


(d)                   performing
work of a personal or business nature not directly related to the work being performed
under the relevant Task Order.


 


Communications


 


4.13             The
Contractor is required to be linked to the Company’s locations via high speed
(1Mbps or above) data link(s) connecting to GE’s recommended PoP or
Service provider. The cost of these and additional link(s) is to be borne
by the Contractor. The Contractor will provide no less than quarterly reports
to the Company detailing data, voice and video usage, originating to and from
the GDC.


 


4.14             The
Contractor shall, at the Contractor’s expense, ensure complete redundancy on
the last mile (no single point of failure) circuits between the GDC and the
Company’s network.


 


4.15             The
Contractor shall ensure that communication links are not to be constrained by
usage or capacity constraints. Use of devices (other than monitoring or
optimization devices) or other means by which capacity is constrained are
disallowed. Specifically, links shall be reliable and accessible on a 24-hour
basis, 7 days a week, 365 days a year. The Contractor is responsible for ensuring
that installation of links is executed in a timely fashion with adequate
planning and resource allocation.


 


4.16             The
Contractor shall ensure that usage of SNA-only links must not exceed an average
of 70%. Usage of lines into the Company’s multi-protocol network must not
exceed 70% over a 15 minute time period over a 10-hour day. The Company will
provide assistance in measuring such usage.


 


4.17             The
Contractor shall ensure that where multiple lines are used and multiplexed into
a single line, the multiplexing equipment must match Company’s standard.


 


4.18             The
Contractor must make available to each GDC site at least one Dialcomm Channel
per 4 projects, as well as ensure that there is at least one Dialcomm Channel
per fifteen Workers.


 


4.19             For
all sites with more than 100 Workers, Contractor must provide video
conferencing facilities.


 


4.20             The
Contractor must provide quarterly forecasted usage and performance reports for
each future two quarters. Any occasion of a repeatable performance problem must
be resolved within the next quarter. On request, the Contractor must provide
video access to a point accessible for selected Company businesses worldwide.


 


4.21             The
Company may provide the Contractor with the ability to buy network lines and
equipment at prices secured for Company. Where available, the Contractor may
elect to


 


13

















 


utilize, such pricing.
All equipment connected to the Company’s network must adhere to the Company’s
published standards and technology stacks. The Company will provide standards
and update them regularly. It is the responsibility of Company to provide
standards, plus allow reasonable time for the Contractor to move to new
standards.


 


4.22             The
Company may, at anytime and at Company’s expense, install its own communication
link(s) to the Contractor. If the Company installs its own links, the
Contractor will utilize the links and provide, free of charge, any assistance
required in connection with the installation and use of such links.


 


4.22             The
Contractor will meet service levels on network performance, as agreed with the
Company in operational procedures set from time to time. Operational procedures
and service level requirements may vary from site to site as required by the
Company.


 


Communications
Security


 


4.23             Workers
assigned to work for or perform duties for the Company shall sign a Network
Access Security Agreement prior to receiving an account and password that
provides access to Company materials. The format to be used for such Agreement
is specified in the GDC Security Guidelines. Each Worker performing work
on-site must present a copy of an executed Network Access Security Agreement to
Company’s on-site contact prior to beginning work.


 


In addition, the
Contractor will undertake to:


 


(a)                    prohibit
and prevent unauthorized dial-in access to the Contractor LAN;


 


(b)                   ensure
all connections to the Company network are done on isolated lines on which
Internet access is not allowed


 


(c)                    control
and audit physical access to any GDC building as well as to the wiring closets
of any GDC building;


 


(d)                   ensure
data encryption is performed in conformance with applicable laws and GE’s Data
Classification Guidelines (part of GE’ Security Guidelines);


 


(e)                    orient
every Worker on the Company security requirements before they are assigned to
work on a Company Task Order (or) provided access to company’s resources;


 


(f)                      ensure
that any exceptions around usage of USB drives (USB drives are not approved for
data storage/transfer within GDC/Company sites) are approved by the appropriate
authorized official (the Security Leader associated with the Entity) along with
a clear business case explaining the need;


 


(g)                   ensure
the security of Company Data that exists in any form, whether electronic
(access controls, safeboot encryption for mobile devices) or printed (lock &
key). The Company may set guidelines from time to time for ensuring that
Company data is secure;


 


(h)                   Implement
application security as per GE guidelines and monitor/test adherence to the
same as a part of its delivery on every Task Order;


 


(i)                       Implement
data classification as per GE guidelines and monitor/test adherence to the same
as a part of the internal audits;


 


14

















 


(j)                       Ensure
that backup and archival of Company data (inclusive of deliverables) is as per
business-specific requirements; control and audit compliance to backup and
archival as per requirements and classification guidelines;


 


(k)                    Implement
adequate controls to ensure that no resources (inclusive of data storage
devices, backup devices, network devices, servers, printers and the like)
allocated on the Company engagement are shared on assignments/engagements that
are not specific to the Company;


 


(l)                       Ensure
that Network scans are carried out every week; reduce the patching cycle time
to 7 calendar days;


 


(m)                 ensure
that any and all equipment installed by the Contractor with the agreement of
the Company adheres to the Company’s standards; ensure monthly review and
compliance to Company-wide end point and network security program (emergency
patches, monthly security metrics, security initiatives such as disk
encryption, personal firewall and antivirus);


 


(n)                   Adhere
to the GDC Security Guidelines maintained by the Company, a copy of which will
be made available to the Contractor and updated by the Company from time to
time; and


 


(o)                   Implement,
monitor and enforce prudent security measures and allow the Company to audit
such security measures.


 


Upon advance written
notice by the Company, the Contractor shall allow the Company to audit all
security methods and measures undertaken by the Contractor during the regular
working hours of the Contractor, with each party paying its own costs and
expenses associated with the audit. All such methods and measures are subject
to the approval of the Company. The Contractor shall be responsible for
ensuring consistency of its security operations, proactive monitoring and
mitigation of all vulnerabilities across all its GDC Sites.


 


BCP/DRP


 


4.24             The Contractor shall have
an actionable Business Continuity Plan (“BCP”) and Disaster Recovery
Plan (“DRP”) in place for each GDC location, and the Contractor shall
ensure that such plans are in compliance with the BCP and DRP Requirements
stated in the GE GDC Guidelines. The Contractor shall designate a Crisis
Management Leader (as defined in Company’s standards on BCP and DRP) and also
ensure that BCPs and DRPs are updated at least monthly. The Contractor shall
also ensure that the BCPs and DRPs are tested for completeness, applicability
and robustness once every quarter (at a minimum) or as specified in the Task
Order. If (i) Contractor is in full compliance with this Section 4.24;
(ii) an act or event beyond the reasonable control of and not the fault of
Contractor nevertheless prevents Contractor from performing its obligations
under this Agreement,; and (iii) Contractor within ten (10) business
days after becoming aware of the occurrence of such event, gives Company
written notice describing the particulars of the occurrence, including an
estimation of its expected duration and probable impact on the performance of
Contractor’s obligations, and thereafter continues to furnish timely regular
reports with respect thereto during the continuation of the event and the
effects thereof; then Contractor’s performance of obligations affected by the
event are suspended, provided


 


15






 












that such suspension of
performance shall be of no greater scope and of no longer duration than is
reasonably required by the event.


 


4.25              The
Contractor shall ensure that periodic backup of all data related to conduct of
work under this Agreement are maintained to enable business continuity and
disaster recovery. Data retention beyond the duration of the engagement must be
in compliance with Company procedure (12 months) unless otherwise stated
explicitly in a Task Order. Such backup data shall be taken and stored securely
with the required data classification and access control norms established in
collaboration with the appropriate authorized personnel from the Entity
responsible for the Task Order. In case of Termination of Engagements, the
backup data thus stored securely must be delivered to the Company.


 


4.26              In
addition to the site specific BCP and DRP, the Contractor shall also undertake
responsibility for defining (in collaboration with Company) and maintaining
application / project / resource level continuity and recovery plans based on
task-order specific requirements. The Contractor shall be responsible to ensure
that the scope and level of continuity and recovery applicable to each Task
Order is well defined. As in the case of the Site BCP/DRP, the Contractor shall
be responsible for maintaining the current applicability of the plan and
testing the completeness, robustness and applicability/viability of the plans
for 100% of the critical work executed from the GDC location. Specific Task
Orders may also require the Contractors to focus on resource level backup plans
to mitigate resource contingency scenarios.


 


The Contractor will
ensure that the BCP/DRP and test results (location-specific and
application-specific) are available for verification and audit by the Company.
The Contractor further undertakes responsibility for orienting all its Workers
(100% Coverage) on the BC/DR procedures to be followed in the case of a crisis.


 


5                            OTHER CONTRACTOR
RESPONSIBILITIES


 


Use of
Subcontractors


 


5.1                    In
all cases, the Contractor will explicitly declare and seek approval from the
Company for use of subcontractors, including Subcontractors that are controlled
subsidiaries of the Contractor.


 


5.2                    The
Contractor will ensure that any Workers who are employees or agents of
Subcontractors and Contractor Affiliates are bound by all terms and conditions
of this Agreement, including, without limitation, those contained in Sections
3.16, 8 and 11. The Contractor holds the Company free of liability arising out
of the Contractor’s relationship with Subcontractors or Subcontractor Workers.


 


5.3                    The
Contractor shall ensure that no work on the Task Order will be executed in any
Sub-Contractor’s or Contractor Affiliates facility unless such work is
explicitly approved in the Task Order.


 


5.4                    The
Contractor shall ensure that no Company asset shall be moved to any
Sub-Contractor and Contractor Affiliate facility unless such move or transfer
is explicitly approved in the Task Order.


 


 


16

















 


Contractor’s
quality certification


 


5.5                    The
Contractor shall produce all Deliverables in strict accordance with this
Agreement and any Task Order. All Deliverables shall be produced promptly, with
a high degree of care, skill, diligence, professional knowledge, judgment, and
expertise according to sound work practices and professional and international
industry standards, in a well-managed, organized, responsive, workmanlike and
efficient manner and to the satisfaction of the Company. All Deliverables
provided by the Contractor shall be subject to the acceptance test / approval
of the Company.


 


5.6                    The
Contractor is responsible for ensuring that its Workers are fully trained in
Industry Quality Practices and are aware of the Contractor’s implementation of
the same. The Company shall assess the Contractor’s Quality Level based on the
quality of the Workers, Deliverables and the maturity of the process used by
the Contractor to provide Services and Deliverables to the Company.


 


5.7                    The
Contractor undertakes to integrate its Lean Six Sigma practices into its core
delivery and support processes so as to provide the Company with measurable
productivity in performance of work in connection with this Agreement. The
Company may choose to specify requirements around Green-Belt/Black-Belt
certification as a part of a Task Order.


 


5.8                    The
Contractor shall be responsible for imposing applicable quality assurance
requirements on Subcontractors.


 


Performance
measures


 


5.9                    The
Contractor acknowledges and agrees that its compliance with the terms and
conditions of this Agreement is critical to the Company and the Contractor
undertakes, as the Company may request from time to time, to provide in a
timely and consistent manner to the Company the following:


 


(a)                    Accurate data
and metrics regarding the Contractor’s performance around its Workers (on Time
and Materials Task Orders and other engagements where explicitly required by
the business) - including (but not limited to) Billable Headcount, non-
billable Headcount, Relevant work experience Data, Rotation Plans, Training
Plans, Unplanned Attrition;


 


(b)                   Accurate data
and metrics regarding Contractor’s performance on Project Engagements -
including (but not limited to) Effort Estimates, Actual efforts being expended,
project risk mitigations, productivity planned vs actual, quality, delivery
timelines (planned vs actual), defects prevented, requirements met;


 


(c)                    Accurate data
and metrics related to Contractor’s performance on Operational aspects of the
engagement - including but not limited to Company Customer Satisfaction scores. Security Metrics, Network Performance &
Availability, BCP/DRP Performance, Background Checks, Co-employment Risks,
Company-provided Asset Management, Audit Performance and any other compliance
requirements that may be included by the Company;


 


(d)                   Data related to
financial performance of Contractor;


 


(e)                    Data/measures
from internal (to Contractor) Audit Reports, external Customer satisfaction
surveys carried out by the Contractor and any other such measures that may be
identified by the Company from time to time; and


 


 


17

















 


(f)                      any other
data or metrics that may be required by the Company.


 


The Company may specify
common set of metrics and a minimum target level for each of the metrics.
Businesses may choose to monitor additional metrics and/or ay change the
minimum targets around the metrics specified by the Company. The Contractor
would be monitored for compliance on timelines, completeness and accuracy of
the reporting, which could be carried out either manually or through
digitization or, a combination of these efforts.


 


Digitization


 


5.10              The
Contractor undertakes to provide such data and metrics through the use of
automated tools and technology that the Company may require to be used,
presenting such data in a style, format, manner or frequency as desired by the
Company. Wherever the Company mandates the use of digitized tools for managing
the GDC Program, the Contractor shall consider the same and after mutual
agreement commits to purchase and use such tools at the Contractor’s expense.
In order to encourage use of tools, wherever possible in its discretion, the
Company will support and facilitate the purchase and development of such tools.


 


Leverage


 


5.11              The
Contractor will support in good faith the Company’s initiative to increase the
ratio of work executed out of GDC location at Low Cost Countries. Unless
otherwise agreed in a Task Order, at least 85% of all effort provided on a Task
Order shall be executed from the GDC Location at Low Cost Country.


 


Labor
permits and licenses


 


5.12              The
Contractor acknowledges and agrees that it is solely responsible for procuring
and keeping effective all necessary permits and licenses required in connection
with the Contractor’s performance of this Agreement and any Task Orders,
including, without limitation, processing and procuring all necessary visas and
passport documents for its Workers in advance of their assignment in connection
with a Task Order. The Contractor will obtain all such permits, licenses and
visas in a timely manner so as to avoid any undue delay.


 


Compliance
with Laws


 


5.13              The
Contractor undertakes to obey and abide by all applicable laws, regulations,
ordinances and other rules of the United States of America and any other
country and jurisdiction where work may be performed in connection with this
Agreement or any Task Order (including respective states, territories or
subdivisions thereof or any other duly constituted public authority in any such
jurisdiction). Without limiting the generality of the foregoing, the Contractor
warrants that Contractor and any subcontractor that it uses will:


 


i.                             use
no labor that violates any applicable minimum working age, conditions, wage or
overtime law in the performance of this Agreement or any Task Order;


 


ii.                          use no
prison, forced or indentured labor or labor subject to any force or coercion;


 


 


18

















 


iii.                       comply with
the tax and immigration laws of all jurisdictions in which its employees
perform work under this Agreement or any Task Order issued pursuant to the
terms of this Agreement;


 


iv.                      comply with
all personal data protection laws of all countries where Task Orders relating
to this Agreement are performed;


 


v.                         comply
with all laws, rules or regulations, or any Company policies of which
Contractor has notice, prohibiting or restricting the offering or acceptance of
unlawful inducements in connection with this Agreement and/or any Task Order;
and, without limiting the foregoing, will not offer gifts, bribes, kickbacks,
free travel or other cash or non-cash incentives to Company employees;


 


vi.                      comply with
all applicable environmental protection, health and safety laws and regulations
and any additional requirements of the Company; and


 


vii.                   comply with all
applicable employment laws of all countries where Task Orders relating to this
Agreement are performed.


 


5.14              Contractor
will ensure that Onshore Workers are provided with adequate living resources
that are based upon reasonable local community standards. Contractor’s
contractual agreements with Onshore Workers restricting activities of such
Workers must be reasonably related to legitimate purposes, such as the
assurance of compliance with visa requirements, and shall not be excessive in
nature.


 


If the Company
determines, in its sole discretion, that the Contractor has not complied with
this Section 5.14 in any material respect, then the Company may
immediately terminate this Agreement in which event the Company shall have no
liability whatsoever to pay compensation to the Contractor excluding for work
already satisfactorily performed. The Contractor undertakes to provide all
data, documents and reports as required by the Company from time to time, as
evidence of compliance with this Section. The Contractor agrees to employ
robust processes to ensure compliance with the provisions of this Section.


 


5.15              At
Customer’s request, Contractor will provide satisfactory SAS 70 (type I and II)
reports and evidence of compliance with ISO 17799.


 


5.16              The
Contractor represents and warrants that it is familiar with:


 


(a)                    the laws of
the United States of America;


 


(b)                   the laws of all
other countries and jurisdictions where Task Orders are performed; and


 


(c)                    all other
applicable laws


 


relating to international
transactions, including but not limited to such countries and jurisdictions’
export control laws and regulations, and that no such transaction involving the
technology or software the Contractor receives from the Company will be
undertaken without the required authority of the US Government and governments
of the countries and jurisdictions where (i) Task Orders are performed,
and (ii) data, Services or items incorporated or utilized in Task Orders
originated.


 


 


19

















 


Company
Policies


 


5.17              The
Contractor shall conform, when applicable, to the Company’s standards and
policies in handling Employment Data, as defined and reflected in the Company’s
Employment Data Protection Standards in the performance of work under this
Agreement and any Task Order issued pursuant to this Agreement. The Company
will provide the Contractor with copies of such policies, and reserves the
right to amend and modify the standards at its sole discretion.


 


5.18              Contractor
acknowledges that it has received a copy of and shall use its best efforts to
comply with the Company’s policies contained in the document “The Spirit and
the Letter: Sharing a Commitment to Integrity.”


 


5.19              The
Contractor undertakes responsibility for reporting/escalation of “COMPLIANCE
CONCERNS” to the appropriate Company Ombudsperson.


 


Material
Non-Public Information


 


5.20              In
connection with its work for the Company, the Contractor, Subcontractors and/or
Workers may be exposed to material non-public information (“MNPI”).
Contractor acknowledges and understands that improper use of MNPI may be a
violation of law, including the laws concerning insider trading, and may
subject it and its employees to prosecution, civil liability, fines and
criminal penalties. If the performance of any Task Order requires or permits
Contractor or Workers to have access to MNPI, Contractor agrees to abide by the
requirements of the Company Affiliate issuing such Task Order for the
prevention of illegal or inappropriate disclosure of, or trading on, such MNPI.
Preventive measures may include training for Contractor and Workers,
restrictions on trading in certain securities by Contractor and Workers, or
both. Any such requirements shall be set out in the relevant Task Order.


 


Disclosure


 


5.21              As
long as disclosure will not cause Contractor to violate any Securities and
Exchange Commission rules or regulations, or similar applicable laws, the
Contractor shall notify Company of any-anticipated or actual change in its
ownership or financial status during the Agreement Duration. Such changes
include but are not limited to public listing, changes in the constitution of
the Controlling Board, mergers and acquisitions, upgrading or downgrading of
financial ratings such as S&P and CRISIL The Contractor shall not enter
into merger and acquisition negotiations with any known competitors of the
Company or its affiliates, without the prior notification to an authorized
representative of the Company.


 


Company
Knowledge


 


5.22              The
Contractor shall be responsible to ensure that Company specific
project/application data/documentation/details are stored in the Company
Knowledge Management repository, or where such a repository is unavailable, in
the GE GDC Knowledge Management Portal; the same shall not be transferred to
the Contractor’s Knowledge Repository without prior approval from the
appropriate Company official.


 


5.23              If
the Company terminates a Task Order pursuant to Section 12.4 of this
Agreement, the Contractor will complete the necessary knowledge transfers to
the Company or to a party designated by the Company. Such a knowledge transfer
shall be executed as per the terms of this Agreement at costs negotiated with
the Company and shall be deemed ‘complete’ once the transition has been
signed-off by the appropriate Company authority.


 


 


20
















Nothing contained in this
section shall reduce the Contractor’s obligations under this Agreement.


 


6         AUDIT
RIGHTS


 


6.1                    To assess
Contractor’s work quality, conformance with applicable specifications, and
compliance with the terms and conditions of this Agreement or any Task Order
for the period of Agreement Duration, and for two years following its
termination, Contractor shall, upon reasonable notice, provide Company and its
designated representatives, and shall obtain a similar right from permitted
Subcontractors, with reasonable access to (a) all locations where work is
performed in connection with the goods or Services that are subject to this
Agreement or any Task Order, and (b) Contractor’s books and records
relating to this Agreement or any Task Order, wherever such records may be
located.


 


Audits shall be performed
during the regular working hours of the Contractor after providing the
Contractor with advance written notice, with each party paying its own costs
and expenses associated with the audit by the Company, is required. All audit
findings shall be treated as Confidential Information of the Contractor, and
shall not be disclosed except where required for compliance with a legal
obligation or where, at Company’s sole discretion, it is necessary or advisable
to disclose to an appropriate governmental authority with jurisdiction over an
actual or potential violation of law.


 


7         OTHER
COMPANY RESPONSIBILITIES


 


The Company will:


 


7.1                    Provide
consistency between overall strategy and the plans and operational requirements
associated with the projects entered into with the Contractor.


 


7.2                    Work with the
Contractor to ensure that operational requirements are consistent with the
Contractor’s capabilities and resources.


 


7.3                    Cooperate with
the Contractor to perform Services and create an environment where success can
be achieved. Support training the Contractor team in the Company technical
areas, standards and processes.


 


7.4                    Ensure
appropriate facilities and infrastructure at the Company sites to support the Contractor’s
Company on-site personnel, consistent with and subject to Sections 3.17,4.0,
5.21,8,11 and all other provisions of this Agreement.


 


7.5                    Where
appropriate, provide the Contractor with access to the Company’s host
environments to support projects, including providing access to Company’s
environment/equipment required for training, consistent with and subject to
Sections 3.17,4.0,5.21,8,11 and all other provisions of this Agreement.


 


7.6                    Where
appropriate, consider opportunities to sub-license, or loan, for the term of
this Agreement at no cost to the Contractor any hardware, software, case tools
etc. that the Company uses to enhance productivity (to the extent permitted by
the relevant product licenses) so as to assist usage of common “best practices”
in the development of personnel of the Company and the Contractor, consistent
with and subject to Sections 3.16,4.0.5.21,8,11 and all other provisions of
this Agreement.


 


21

















 


7.7                    Where
appropriate, make available staff resources, with specific identified expertise
as needed, and on a timely basis, to support the Contractor.


 


7.8                    Specify
performance responsibilities of the Company, which are not part of the
Contractor’s Services.


 


7.9                    Deliver
necessary data, forms and documents to support work under this Agreement,
consistent with and subject to Sections 3.16,4.0,5.21,8,11 and all other
provisions of this Agreement.


 


7.10              Define acceptance
criteria, test and certify work under Task Orders for acceptance.


 


7.11              Facilitate,
cooperate and support the Contractor as may be reasonable, including
conducting, reviews audits and meetings.


 


7.12              Procure such
software and licenses and keep current the same, which are agreed under a Task
Order to be provided by the Company.


 


8         INTELLECTUAL
PROPERTY


 


8.1                    For the
purposes of this Agreement, “Intellectual Property” shall be defined as
any and all Deliverables, work product or results of Services and inventions,
innovations, discoveries, designs, plans, models, prototypes, computer programs
(including source and object code and documentation), know-how, techniques and
specifications (whether patentable or not or copyrightable or not and whether
made solely by Contractor or jointly with others) that are conceived, created,
developed or discovered directly or indirectly as part of or in connection with
any work performed pursuant to this Agreement or any Task Order, whether or not
the Intellectual Property is complete or incomplete, and any and all
intellectual property rights associated with any of the foregoing. In
consideration of the confidential relations contemplated between the Contractor
and the Company and the mutual agreements exchanged and monies paid or to be
paid as set forth in this Agreement the Contractor hereby agrees and represents
that:


 


(a)                    Except for the
Contractor’s Materials (as defined below), it is the intention of the parties
that the Company be the exclusive owner of all Deliverables and other
Intellectual Property, and, in that regard, the Contractor agrees to take, and
to cause all Workers and Subcontractors to take, any and alls steps and execute
and deliver any and all assignments and other documents as are necessary or
appropriate to secure in the Company the exclusive ownership of all Deliverables
and other Intellectual Property.


 


(b)                   The Contractor
will cause Subcontractors and Workers to sign a Secrecy and Inventions
Agreement using the form specified by the Company in the GDC Security
Guidelines, attached as Addendum C to this Agreement, which form may be updated
by the Company from time to time. Upon the earlier of Company’s request, with
reasonable notice, or at the time the first Deliverable is due under a Task
Order, Contractor will present to Company signed Secrecy and Inventions
Agreements from all Subcontractors and Workers providing or to be providing
Services under the Task Order.


 


(c)                    The Contractor
shall promptly notify the Company in writing upon the identification by the
Contractor of any Intellectual Property (unless the notification regarding such


 


22

















 


Intellectual Property has
already been provided in fulfillment of an obligation under a Task Order);
provided, however, that such Intellectual Property, whether identified or not,
is intended by the parties to be the sole and exclusive property of the
Company, and upon identification, whether during or subsequent to the term of
this Agreement, the Contractor agrees to take, and to cause all Workers
Subcontractors to take, any and all steps and to execute and deliver any and
all assignments and other documents as are necessary or appropriate to secure
in the Company the exclusive ownership of all such Intellectual Property. The
Contractor shall, and shall cause Subcontractors and Workers to, make, obtain,
and preserve adequate and current written records of, and otherwise document
all Intellectual Property in the form of notes, sketches, drawings, flow
charts, or reports relating thereto, which records shall be deemed to be owned
by the Company at all times and made available to the Company upon the sooner
of the request of the Company or the termination or expiration of the Task
Order to which the materials relate.


 


(d)                   To the extent
any Deliverable or other Intellectual Property is copyrightable material, the
parties agree that such Deliverable or other Intellectual Property shall be
deemed to be and shall be treated as if it were works made for hire under the
U.S. Copyright Act and shall belong exclusively to the Company. If by operation
of law any such copyrightable material is deemed not to be a work made for hire
under the U.S. Copyright Act, then Contractor hereby agrees to assign, and to
cause its Subcontractors and Workers to assign, to Company the ownership of and
copyright in such materials. The Company may obtain and hold in its own name
copyrights, registrations, and other protection that may be available for such
Intellectual Property.


 


(e)                    The Contractor
agrees to waive and to cause Workers and Subcontractors to waive, any “artist’s
rights”, “moral rights”, or other similar rights, however denominated, that the
Contractor, a Subcontractor or a Worker might otherwise have in any
copyrightable materials developed during the term of this Agreement. To the
extent the Contractor, a Subcontractor or a Worker cannot effectively waive
such rights, the Contractor agrees not to enforce and to cause its Worker and
Subcontractor not to enforce such rights against the Company or any purchaser
or licensee of such materials from the Company.


 


(f)                      The
Contractor agrees to assign, and shall cause Workers and Subcontractors to
assign to the Company, pursuant to the form of Assignment attached as Addendum
C-l to this Agreement (the “Post Development Assignment”), all rights,
if any, that any of them may have in any Deliverable or other item of
Intellectual Property. The Contractor shall deliver executed copies of the Post
Development Assignment as required by this Section 8.1(f) upon the
earlier of the Company’s request or at the completion of the Task Order to
which the Deliverable or other Intellectual Property relates.


 


(g)                   The Contractor
shall unconditionally co-operate with and assist the Company and its nominees
in every proper way during and subsequent to the term of this Agreement, at the
Company’s expense, to perfect the Company’s (or its nominee’s) rights and title
to all Deliverables and to all other Intellectual Property (by executing or
causing to be executed such instruments of assignment, affidavits, declarations
or other documentation as the Company may reasonably require), and to obtain
and / or secure and to maintain for the Company’s (or its nominee’s) benefit
patents, copyrights, and / or trade secret protection for such Deliverables or
other Intellectual Property, in any and all countries of the world. If the
Contractor fails to take any action required of it under this Agreement, the
Company may execute any such


 


23

















 


instruments of assignment
or other documentation as the Contractor’s attorney-in-fact, which appointment
is hereby agreed to be irrevocable and coupled with an interest.


 


(h)                   None of the
Contractor, Subcontractor, nor any Worker shall use any legends or author names
on or in connection with any intellectual Property unless the Contractor
obtains the prior written consent of the Company.


 


(i)                       The
Contractor shall not (and shall cause any Subcontractor or Worker to not) take
any action or assert any claim during or subsequent to the term of this
Agreement, based on intellectual property rights now held or hereafter acquired
by the Contractor, Subcontractor or Worker, which action or claim would impair
or restrict the freedom of the Company, its subsidiaries or affiliates, or
their respective vendors, customers, assignees or licensee to make any use of,
or to sell, license or otherwise exploit in any manner, any Deliverable or
other item of Intellectual Property or to develop derivatives or improvements
with respect to such Deliverable or other item of Intellectual Property.


 


8.2                    The Contractor
may not transfer from one Company Affiliate to another or expand the use of any
software application of a Company Affiliate to another Company Affiliate
without the written approval of the Company Affiliate that provided the
software application to the Contractor.


 


8.3                    The parties
acknowledge that in providing Services or in producing any Deliverable under
any Task Order, the Contractor may utilize pre-existing proprietary
methodologies, tools, software and know-how developed by or owned by the
Contractor (“Contractor Materials”). During the course of the project,
Contractor may modify or improve the Contractor Materials, all of which
modifications or improvements will be owned by Contractor. Notwithstanding
anything to the contrary contained in this Agreement, the assignments and
requirements for assignments in connection with Intellectual Property or any
other Deliverables, including as set forth in Section 8.1 above shall not
apply to any Contractor Material or improvements, enhancements and derivative
works of Contractor Material. Nothing contained in this Agreement shall be
construed to prevent Contractor from using any such Contractor Material for the
benefit of Contractor, its affiliates or any other parties. To the extent any
Contractor Materials are incorporated into or furnished with a Deliverable (or
will be incorporated into or furnished with a Deliverable), the Contractor
shall notify the Company sufficiently in advance of incorporating or furnishing
such Contractor Materials in relation to a Deliverable to allow the Company the
opportunity to object to such use of the Contractor Materials. In each case
when Contractor’s Materials are incorporated or furnished as necessary for use
in connection with a Deliverable, the Contractor hereby grants, and shall grant
to Company a perpetual, worldwide, royalty-free, irrevocable and non-exclusive
license to (i) use, execute, reproduce, display, perform, distribute,
modify and prepare derivative works of, transfer, license to third parties and
otherwise fully exploit the Contractor Materials as a part of the Deliverable
into which such Contractor Materials were incorporated or with respect to which
such Contractor Materials were furnished, and (ii) authorize or sublicense
third parties to do any of the above. The foregoing shall not in any way
diminish the Contractor’s rights to use or commercialize the Contractor
Materials in connection with any future projects or services. Unless otherwise
agreed, nothing in this Section 8.3 shall obligate Contractor to provide
to Company any support or maintenance with respect to any Contractor Materials
beyond the limits of the applicable warranty period for the related Deliverable
unless otherwise specifically agreed.


 


Contractor and Company
shall each be entitled to use the general knowledge and experience gained and
retained in the unaided human memory of its personnel in the


 


24

















 


performance of this
Agreement and any Task Orders hereunder provided that this clause shall not
relieve either party of its confidentiality obligations with respect to the
proprietary and confidential information or material of the other party.


 


8.4                    The Contractor
agrees to obtain (a) an agreement in writing from each of its
Subcontractors containing all commitments required by this Section 8, and (b) signed
Secrecy and Inventions Agreements and Post Development Assignments from all
Workers, for the benefit of the Company, its subsidiaries and affiliates and
their respective licensees and assignees.


 


Use of
Third Party Copyrighted Material and Intellectual Property


 


8.5                    (a)  The Contractor warrants and represents that no
Deliverable or other item of Intellectual Property shall contain or use any
article, equipment, material, invention, mark, name, diagram, drawing, design,
apparatus, process, or work of authorship (including computer programs and
documentation), or any other component that is subject to a patent, copyright,
trademark, proprietary interest, or other intellectual property of a Third
Party (“Third Party IP”) unless Contractor:


 


i.                             Notifies
the Company sufficiently in advance of any use of such Third Party IP in
connection with a Deliverable so that the Company may object to such use if it
so desires;


 


ii.                          has
acquired a perpetual, worldwide and irrevocable license to use, execute,
reproduce, display, perform, distribute, modify and prepare derivative works
of, transfer, license to third parties and otherwise fully exploit the Third
Party IP as a part of the Deliverable, and further has the right to license or
assign such rights to the Company with no restrictions on sublicensing or
assignment by the Company;


 


iii.                       agrees to
license or assign its license to such rights to the Company, and executes and
delivers such license or assignment to the Company; and


 


iv.                      represents
that the Company’s use or exploitation of the Deliverable is in no way limited
by the incorporation or use of such Third Party IP in connection with such
Deliverable.


 


(b)        The defined term “Third
Party IP” shall not include any software or source or object code that is “open
source” including but not limited to software or source or object code that is
subject to the GNU General Public License, the BSD license or other similar “public”,
“open” or “free” software license (“Open Source IP”). No Open Source IP
shall be used as a component of or in relation to any Deliverable without the
prior written instruction of the Company specifically directing that such Open
Source IP be used.


 


(c)         The Contractor represents
and warrants that no Deliverable or component thereof nor the use of any
Deliverable by the Company as contemplated in this Agreement or any applicable
Task Order will infringe upon any patent, copyright, trade secret or other
intellectual property right of any third party.


 


(d)        For the purposes of this Section 8.5,
the term Third Party IP shall include Deliverables or other items of
Intellectual Property developed for and owned by the Company that


 


25
















 


the Contractor seeks to
incorporate into the Services or Deliverables of a Company Affiliate. Where
such Company-owned Third Party IP is to be used in the Services or
Deliverables, the Contractor shall adhere to the terms of this Section 8.5.


 


9         WARRANTIES


 


9.1                    The Contractor
represents, warrants and covenants that:


 


(a)                    Any and all
Deliverables shall at the time of delivery and acceptance conform to the
applicable specifications; shall be free from any error, malfunction, or
defect; shall be fit for any particular purpose for which the Deliverable is
developed and of which the Company advises the Contractor; and, if intended to
serve as one or more components of an associated system, program, device,
network or data, such Deliverable shall comply with the warranties and other
requirements of this Agreement (including, without limitation, this Section 9.1(a))
when integrated or used with such associated system, program, device, network
or data, which it shall not adversely impact.


 


(b)                   Other than any
disabling code or lock required as  part
of the specifications, no security device, program routine, device, code or
instructions (including any code or instructions provided by third parties) or
other undisclosed feature, including, without limitation, a time bomb, virus,
software lock, drop-dead device, digital rights management tool (including
without limitation so-called DRM root kits), malicious logic, worm, Trojan
horse, trap door, or other routine, device, code or instructions with similar
effect or intent, that is capable of accessing, modifying, deleting, damaging,
disabling, deactivating, interfering with, shutting down, or otherwise harming
any software, computer, network, Deliverable, data or other electronically
stored information, or computer programs or systems (collectively, “Harmful
Procedures”) is or shall be incorporated into any Deliverable or otherwise
introduced by or through the Contractor into any Company software, computer,
network, data or other electronically stored information or computer program or
system (any of them, a “Harmful Event”). Such representation and
warranty does not apply if such Harmful Procedures or Harmful Events are
authorized by the Company in writing by its CIO to be included in the
Deliverable.


 


Without limiting any other
of the Company’s remedies, the Contractor agrees to notify the Company
immediately upon discovery of any Harmful Procedure or Harmful Event that has
occurred or is reasonably suspected, and, after consultation with the Company,
the Contractor agrees to take action immediately, at its own expense, to
identify and eradicate (or to equip the Company to identify and eradicate) such
Harmful Procedures and carry out any recovery necessary to remedy any impact of
any Harmful Procedures. The Contractor hereby expressly waives and disclaims
any right or remedy it may have at law or in equity to, and agrees that in any
event it shall not, de-install, disable or repossess any Deliverable by means
of any Harmful Procedure for any reason including, without limitation, in the
event the Company fails to perform any of its obligations under this or any
other Agreement.


 


(c)                    No Contractor
proprietary materials will be included with any of the Deliverables, except to
the extent provided in Section 8 of this Agreement.


 


(d)                   The Company
shall have good title to all Deliverables and other Intellectual Property free
of the claim of any third person, including, without limitation, by way of


 


 


26

















 


 


infringement or
misappropriation. No person holds a claim to or interest in any Deliverables
that could interfere with the Company’s use or enjoyment of its title to and
interest in any Deliverables.


 


The Contractor’s
performance under any and all Task Orders shall be deemed to constitute a
confirmation that each of the above representations, warranties and covenants
is true and correct in all material respects.


 


9.2                    The Contractor
will provide warranty support at no cost to the Company for a period of ninety
days from acceptance of the Deliverable. However, if a specific warranty period
is mentioned in any Task Order, that period will be the applicable warranty
period.


 


9.3                    Warranty work
will be performed, on mutual agreement, either on site or off site, depending
on the nature of the work being conducted. Contractor’s obligations under this Section 9.3
may be waived only by written instruction of the Company.


 


9.4                    The Contractor’s
liability for breach of or failure to conform to the warranty contained in Section 9.1(a) is
limited to the remedies below, which are cumulative and are at the Company’s
option:


 


(i)                       If such
breach or failure occurs within the warranty period, and the Company notifies
the Contractor of such defect or failure to conform, the Contractor shall, at
the Company’s option, either promptly correct any nonconformity or defect, or
promptly replace the defective item with an item free from defect or
nonconformity, in each case at the Contractor’s expense. As appropriate, defect
and non-conformity may be further defined in specific Task Orders.


 


(ii)                    if in Company’s
judgment the Contractor may be unable to provide the Company with conforming
and non-defective Deliverables within a time period suitable to the Company,
then, upon notice from the Company, the Contractor will pay to the Company
whichever is greater (1) all amounts paid or payable with respect to such
Deliverables, or (2) the cost of repairing or replacing (at the Company’s
option) such Deliverables and Services.


 


(iii)                 Contractor shall
pay to Company the Company’s direct damages resulting from the breach of
section 9.1(a) to the extent not otherwise compensated or mitigated in
paragraphs (i) and (ii) of this Section 9.4, not to exceed two
times (A) the total amount paid or payable under a Fixed Price Task Order
or (B) the fees paid or payable in the previous twelve months under a Time
and Materials Task Order.


 


The warranty provided in Section 9.1(a) of
this Agreement shall not apply to the extent, but only to the extent, that the
Contractor’s breach of Section 9.1(a) is due to:


 


(a)                    use by the
Company of a superseded or altered release of some or all of the Deliverable
where the Contractor has notified the Company in writing that the Deliverable
contains infringement issues and that such infringement issues would be avoided
by the Company using the current or modified release of the Deliverable to the
extent that the alleged infringement results from such use or features;


 


(b)                   the
combination, operation, or use of some or all of the Deliverables or any
modification thereof furnished under this Agreement with information, software,
specifications, instructions, data, or materials not approved by Contractor in
writing or contemplated and/or authorized by relevant specifications, Task
Orders, or documentation;


 


 


27

















 


 


(c)                    the
Deliverables having been tampered with, altered or modified by the Company or
anybody on its behalf without the permission or authorization of Contractor or
as contemplated and/or authorized by relevant specifications, Task Orders, or
documentation; or


 


(d)                   use of the
Deliverables otherwise than in accordance with the relevant documentation and
otherwise than for the purposes for which they have been developed or supplied,
or as contemplated and/or authorized by relevant specifications, Task Orders,
or documentation.


 


The warranties expressly
and specifically provided in this Agreement by the Contractor are in lieu of
warranty of merchantability and/or warranty of fitness for intended purpose.


 


9.5                    Contractor
shall be liable for any and all damages caused by breach of the warranties
contained in Sections 9.1(b), (c) and (d). Contractor shall not be liable
for exemplary, punitive, consequential, indirect or incidental damages arising
out of or in connection with any breach of Section 9.1(a) of this
Agreement. This exclusion shall apply only to damages resulting solely from the
Contractor’s breach of Section 9.1(a) and not to damages resulting
from any other breach by the Contractor.


 


10       INDEMNITY
AND INSURANCE


 


Work on
Premises


 


10.1              Workers who work on
the premises of the Company or a customer of the Company will comply with all
applicable site rules and regulations, and the Contractor will take all
necessary precautions to prevent injury to persons or property during the
performance of Services and work under this Agreement. The Contractor
specifically and expressly agrees to defend, indemnify and hold harmless and
reimburse, at its own expense, the Company, its directors, officers, employees,
agents representatives, successors and assigns (each an “Indemnified Party”)
against any and all loss, damage, suits, liability, claims, demands, costs,
judgments, fines, penalties, expenses, and attorneys’ fees and disbursements (“Liabilities”)
resulting from injury or harm to persons or property, including claims of the
Contractor’s own Workers, arising out of or in any way related to the
Contractor’s performance under this Agreement, and the Contractor shall
indemnify, hold harmless, and reimburse the Company with respect to such
Liabilities as such Liabilities are incurred. The Contractor’s activities shall
be deemed to include those of its Workers, officers, agents and Subcontractors.
In claims made by a Workers of the Contractor or a Subcontractor (or anyone
directly or indirectly employed by Contractor or Subcontractor or for whose
acts Contractor or Subcontractor may be liable) against any Indemnified Party
under this section, the Contractor’s indemnification obligation shall not be
limited by a limitation on amount or type of damages, compensation, or benefits
payable by or for the Contractor or a Subcontractor under workers’ or workmen’s
compensation acts, disability benefits acts, or other employee benefit acts.
The purchase of insurance by the Contractor with respect to its performance
hereunder shall in no event be construed as fulfillment or discharge of its
indemnification obligations under this Agreement. None of the foregoing
provisions shall deprive the Company of any action, right, or remedy otherwise
available to it at law or in equity.


 


 


28

















 


 


Intellectual
Property Indemnification


 


10.2              (a) The
Contractor shall indemnify and hold harmless and reimburse at its own expense
Company against any and all Liabilities arising out of all claims, suits, or
proceedings brought against or incurred by Company, its employees, directors
and officers relating to any claim of infringement or other misappropriation of
rights with respect to any Intellectual Property. The Contractor shall defend,
at its sole expense, every such claim, suit or proceeding and the Contractor
shall pay and reimburse the Company for all Liabilities awarded against or
incurred by Company (as incurred) in every such claim, suit, or proceeding,
provided that:


 


(i)                        the
Company promptly notifies Contractor in writing of the claim; provided,
however, that the failure of the Company to notify the Contractor promptly
shall not relieve the Contractor from its obligations under this Section 10.2
except to the extent that the Contractor suffered some prejudice due to timing
of such notice;


 


(ii)                     the
Contractor has sole control of the defense and all related settlement
negotiations subject to the limitations on settlement agreements stated in Section 10.3;
and


 


(iii)                  the Company
provides the Contractor with the assistance, information, and authority
reasonably necessary to defend the claim.


 


(b)                   Contractor
shall have no liability for any claim of infringement to the extent that it is
based on:


 


(i)                        use by the
Company of a superseded or altered release of some or all of the Deliverable
where the Contractor has notified the Company in writing that the Deliverable
contains infringement issues and that such infringement issues would be avoided
by the Company using the current or modified release of the Deliverable to the
extent that the alleged infringement results from such use or features;


 


(ii)                     the
combination, operation, or use of some or all of the Deliverables or any
modification thereof furnished under this Agreement with information, software,
specifications, instructions, data, or materials not furnished or approved by
Contractor or not contemplated by the relevant specifications, Task Order, or
documentation, if the infringement would have been avoided by not combining,
operating, or using the Deliverable or the modification thereof, with such
material;


 


(iii)                  a Deliverable or
the modification thereof based on material provided by the Company to the
extent, but only to the extent, such claim of infringement is based on the
material provided by the Company; or


 


(iv)                 the Company’s
misuse of some or all of the Deliverables or any modification thereof or use of
the Deliverables otherwise than for the purposes for which they have been
developed or supplied, or as contemplated by the relevant specifications, Task
Orders or documentation, to the extent that the alleged infringement results
from such misuse.


 


(c)                    If the use of
such Intellectual Property, or any part thereof, shall in any suit or
proceeding be held to constitute an infringement and the use thereof be
enjoined, and if the Contractor shall not be relieved from liability therefore
under Section 10.2(b) then the Company shall have the option to cause
the Contractor, at the Contractor’s


 


 


29

















 


 


sole expense, to remedy
such infringement in one or more of the following ways, which are cumulative,
in the Company’s option:


 


(i)                        modify the
Deliverable so as to be non-infringing;


 


(ii)                     obtain for
the Company a license to continue using the Deliverable; or


 


(iii)                  pay or credit to
the Company the greater of all amounts paid or payable with respect to such
Deliverables, or replacement costs for the Deliverables.


 


Any substituted
non-infringing items shall be in quality and performance equal to or better
than the items replaced.


 


General
Indemnification


 


10.3              The Contractor shall
defend, indemnify, release and hold harmless and reimburse each Indemnified
Party, whether acting in the course of their employment or otherwise, against
any and all Liabilities (as incurred) arising out of any and all suits,
actions, or proceedings, at law or in equity, and from any and all claims,
demands, losses, judgments, damages, costs, expenses (including attorneys’ fees
and disbursements), or liabilities (including without limitation claims for
personal injury or property damage, and breaches of Contractor’s obligations,
representations, warranties, covenants and/or certifications set forth
elsewhere in Sections 3.15, 3.16, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.23, 5.13,
5.14, 5.15, 5.16, 5.17, 5.18, 5.19, 5.20, 8, 9.1(b) and 11 arising from
any act or omission of the Contractor, its agents, Workers, or Subcontractors,
or from any conditions of real or personal property of Contractor, except to
the extent attributable to the sole and direct gross negligence of Company. An
Indemnified Party shall have the right to participate in the selection of
counsel reasonably satisfactory to such Indemnified Party. The Contractor shall
not enter into any settlement agreement that contains any admission of
liability on the part of the Company and/or any other Indemnified Party without
having first received express written approval of such Indemnified Party.


 


Intellectual
Property and General indemnification by the Company


 


10.4              (a) The Company
shall indemnify, hold harmless and reimburse at its own expense the Contractor
against any and all Liabilities arising out of all claims, suits, or
proceedings brought by third parties against the Contractor, its affiliates,
Subcontractors and their respective, officers, employees and contractors (“Contractor
Indemnified Party”) (i) for any claim of infringement or other
misappropriation of rights with respect to any materials provided by the
Company for use by the Contractor after the effective date of this Agreement (“Company
Materials”), (ii) resulting from any negligent or willful act of Company
that causes injury to Workers of, or physical damage to property of,
Contractor, and (iii) resulting from the use by third parties of any
Deliverable when placed into “live” use by the Company. The Company shall
defend, at its sole expense, every such claim, suit or proceeding, and the
Company shall pay and reimburse the Contractor for all Liabilities awarded
against or incurred by Contractor (as incurred) in every such claim, suit, or
proceeding, provided that:


 


(i)                        the
Contractor promptly notifies Company in writing of the claim; provided,
however, that the failure of the Contractor to notify the Company promptly
shall not relieve the Company from its obligations under this Section 10.4(a) except
to the extent that the Company suffered prejudice due to timing of such notice;


 


 


30
















 


(ii)                     the Company
has sole control of the defense and all related settlement negotiations,
provided however that the Company shall not enter into any settlement agreement
that contains any admission of liability on the part of the Contractor without
having first received express written approval of the Contractor to do so which
approval shall not be withheld unreasonably;


 


(iii)                  the Contractor
provides the Company with the assistance, information and authority reasonably
necessary to defend the claim; and


 


(iv)                 the claim, suit,
or proceeding does not result from the negligence or willful conduct of the
Contractor, its agents, employees, representatives.


 


(b)                   The Company
shall have no liability for any claim of infringement to the extent that any
claim or Liability is based on:


 


(i)                        use by the
Contractor of a superseded or altered version of some or all of the Company
Materials containing infringement issues of which the Company has notified the
Contractor in writing and that would have been avoided or significantly
mitigated by the Contractor using the current or modified version of the same
Company Materials that (A) was furnished under this Agreement by the
Company promptly after its becoming aware of any issues with the Company
Materials, and (B) would have cured or significantly mitigated the
infringement to the extent that the infringement results from such use or
features;


 


(ii)                     the
combination, operation, or use of some or all of the Company Materials or any
modification thereof furnished under this Agreement with information, software,
specifications, instructions, data, or materials not furnished or approved by
the Company or not contemplated by the relevant specifications, Task Orders, or
documentation, if the infringement would have been avoided by not combining,
operating, or using the Company Materials or the modification thereof, with
such other materials; or


 


(iii)                  misuse of some
or all of the Company Materials or any modification thereof (unless authorized
in writing by the Company) or the use of Company Materials otherwise than for
the purposes for which they were developed or supplied, or as contemplated by
the relevant specifications, Task Orders or documentation.


 


Insurance


 


10.5              Without limiting its
liability under this Agreement, the Contractor agrees to maintain the following
insurance coverage and limits with respect to personnel located at and work
performed at the Company’s locations:


 


(a)                     Workmen’s
Compensation and Employer’s Liability-Statutory; Comprehensive General
Liability including Personal Injury and Property Damage - $1,000,000 combined
single limit per occurrence;


 


(b)                    Business
Automobile Liability and Physical Damage - Bodily Injury / Property Damage
combined limit $1,000,000 - or - the minimum prescribed by the Company’s
Corporate Insurance Department per occurrence;


 


 


31

















 


 


(c)                     Commercial
General Liability Insurance, including Completed Operations and Product
Liability (maintained in effect for a period of at least ten years after the
date of final payment) and Contractual Liability and Independent Contractors
Protective Liability, with at least a $1,000,000 minimum limit for Bodily
Injury and Property Damage on an occurrence basis;


 


(d)                    Excess
Liability Insurance, in the umbrella form and on an occurrence basis covering
loss in excess of the limits of the other insurance policies required herein,
with limits of at least $5,000,000 per occurrence;


 


(e)                     Professional
Errors and omissions Liability Insurance, with at least $4,000,000 minimum
limit per occurrence, for liability arising out of any negligent act, error,
mistake or omission of Contractor or any Subcontractor performing Services
pursuant to the terms of this Agreement.


 


Additional
Named Insureds


 


10.6              Company, its
officers, directors, agents and employees and Company’s parent company
officers, directors, agents and employees shall be named as additional named
insureds under the policies of insurance set forth in this Section 10.3 of
this Agreement for any and all purposes arising out of or connected to the
Services performed under this Agreement or any Task Order issued pursuant to
this Agreement.


 


Contractor’s
Insurance to be Primary


 


10.7              It is the intent of
the parties to this Agreement that all insurance purchased by the Contractor in
compliance with this Agreement, will be primary to any other insurance owned,
secured, or in place by the Company. The Company’s insurance shall not be
called upon by the Contractor’s insurer to contribute in any way. The
Contractor shall secure endorsements to this effect from all insurers of such
policies.


 


Verification
of Coverage


 


10.8              At Company’s
request, Contractor shall furnish Company with certificates of insurance and
with original endorsements effecting coverage required by this Section 10.
The certificates and endorsements shall identify Company, and others as set
forth in this Agreement, as additional insureds and shall be signed by a person
authorized by that insurer to bind coverage on its behalf. Company reserves the
right to require complete, certified copies of all required insurance policies,
at any time.


 


Policy
Change or Termination


 


10.9              All policies
provided for herein shall expressly provide that such policies shall not be
cancelled, terminated or altered without thirty days prior written notice to
Company.


 


Waiver
of Right of Subrogation


 


10.10        To the extent permitted by
its respective policies of insurance, Contractor hereby waives any right of
recovery against Company for any loss or damage that is covered by any insurance
policy maintained or required to be maintained with respect to the Services
performed under this Agreement or any Task Order issued pursuant to this
Agreement. Contractor shall, in addition to naming Company and Company’s parent
company as an additional insured on all applicable policies, inform all its
insurers of policies described in this Agreement herein about this waiver of
subrogation, and shall secure from such


 


 


32

















 


 


insurers amendments,
where necessary, to the policies recognizing and providing for such waiver.


 


Limitation
on Liability


 


10.11        The Contractor’s liability
for any claims under this Agreement, however, characterized, shall be limited
to an amount equivalent to 2 times the fees billed under the Task Order from
which the damages arose. This limit does not apply to any claims or breaches
that arise or are alleged to arise under Section 8, 10, and/or 11, or
claims for personal injury or death or damage to real estate or personal
property for which the Contractor is or may be legally responsible. Further,
this limit does not apply where the Company, its employees, directors or
officers, incur a claim or liability by reason of any statutory or regulatory
non-compliance by the Contractor.


 


11       CONFIDENTIALITY


 


11.1              For a period of
seven years following the date of disclosure thereof to it, the Contractor will
not disclose to any third party or itself use, except in the performance of
this Agreement, any Confidential Information that may be made available to it
in connection with its performance of this Agreement, except as may be
specifically authorized in writing by a duly authorized representative of the
Company. The term “Confidential Information” means and includes all information
furnished or made available to the Contractor orally or in writing pursuant to
this Agreement or in connection with a Task Order, without limitation,
non-public Intellectual Property, Deliverables, ideas, concepts, procedures,
agreements, notes, summaries, reports, analyses, compilations, studies, lists,
charts, surveys and other materials, both written and oral, in whatever form
maintained concerning the business of the Company and its customers and/or
vendors. Confidential Information shall also include, without limitation, any
reports, findings, conclusions, recommendations, or reporting data and analysis
prepared by Contractor for Company in furtherance of this Agreement, except the
following:


 


(a)                    information
actually known to the Contractor prior to its disclosure by the Company under
this Agreement; or


 


(b)                   information
independently developed by any Worker who had no access to Company information
disclosed or developed under this Agreement;


 


(c)                    information
available to the general public or general industry knowledge at the time of
its disclosure; or which thereafter becomes available to the public or becomes
general industry knowledge, without a breach of this Agreement by the
Contractor, Subcontractor or Workers; or


 


(d)                   information
furnished to the Contractor by a third party without restriction on its further
disclosure.


 


Notwithstanding the
foregoing, the Contractor shall not disclose to any third party or itself use,
except in the performance of this Agreement, any Confidential Information that
is deemed a trade secret of the Company for as long as such Confidential
Information remains a trade secret.


 


11.2              The Contractor
agrees to use the same degree of care in protecting the Company’s Confidential
Information that it uses to protect its own confidential information of a
similar nature and value, but in no event less than a reasonable standard of
care.


 


 


33

















 


 


11.3              If the Company
approves using a Subcontractor, Contractor may only reveal and share
Confidential Information that must reasonably be disclosed by the Contractor to
its Subcontractors as essential to their tender or performance of work;
provided, however that the Contractor shall require such Subcontractors to use
such information solely for the performance of work as Subcontractors for the
Contractor hereunder and to maintain such information in confidence to the
extent of the foregoing requirements of this Section 11.


 


11.4              If the Contractor is
requested or required (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar
process, or in connection with a filing required by regulation) to use or
disclose any Confidential Information, the Contractor shall notify the Company
promptly in writing of each request so that the Company may seek an appropriate
protective order or waive compliance with the provisions of this Agreement, or
both.


 


11.5              The Contractor
acknowledges that money damages would not be a sufficient remedy for its breach
of the obligations not to use or disclose Confidential Information in this
Agreement. Accordingly, the Contractor agrees that, in the event of such breach
or threatened breach, the Company will be entitled, in addition to any other
remedies at law or in equity that it may have, to equitable relief, including
injunctive relief or specific performance or both, without the requirement of
posting a bond or other security.


 


11.6              The Contractor will
promptly notify the Company of any unauthorized use or disclosure of Confidential
Information of which it becomes aware and shall cooperate with and assist the
Company in every reasonable way to stop or minimize such unauthorized use or
disclosure.


 


11.7              Contractor hereby
acknowledges that the Confidential Information of the Company is the property
of the Company and, by entering into this Agreement, the Contractor will
receive no proprietary, possessory or other right, title or interest in or
license to such Company Confidential Information or the use thereof.


 


11.8              The Contractor shall
promptly, upon the earlier of (a) termination or expiration of this
Agreement or (b) request by Company, return to the Company all
Confidential Information disclosed to Contractor or to which Contractor had
access, including without limitation all copies of such Confidential
Information provided.


 


11.9              The parties have no
expectation that the Contractor will have any need to disclose its proprietary
and confidential information to the Company. However, if in the performance of
this Agreement or any Task Order placed hereunder, disclosure of the Contractor’s
confidential or proprietary information is required, such information will be
disclosed only in writing that has been duly marked as confidential and only
after the Company has agreed in writing to accept disclosure of such
information. The Company agrees to treat such information with the same degree
of care in respect of use and disclosure that it uses with respect to its own
similar confidential and proprietary information and shall not make available
the same to any third party at any time nor make any copies or reproductions in
excess of those required for business purposes at any time nor use the same,
except as may be required for the reasons such information was originally
disclosed. Contractor represents and warrants that the Contractor has the full
and unrestricted right to disclose any information, knowledge or data it
chooses to disclose to the Company, without incurring legal liability to
others, and that, unless otherwise agreed, the Company shall have full and
unrestricted right to use and publish the same as it may see fit.


 


 


34

















 


 


11.10        In the conduct of work
under this Agreement, the Contractor shall not use confidential or proprietary
information of any third party and if such information is, or comes into the
possession of the Contractor, during the term of this Agreement, the Contractor
shall not communicate or otherwise disclose such confidential or proprietary
information to the Company without a proper license from such third party.


 


11.11        Notwithstanding any
contrary provision that may be contained herein, any Party to this Agreement
(and each employee, representative, or other agent of any such Party) may
disclose to any and all persons, without limitation of any kind, the United
States federal income tax treatment and United States federal income tax
structure of the transactions contemplated by this Agreement and all materials
of any kind (including opinions or other tax analyses) that are provided to
such party relating to such tax treatment and tax structure; provided, however,
that the foregoing shall not serve to authorize the disclosure of such
information to the extent such information is subject to restrictions reasonably
necessary to comply with applicable securities laws, and provided, further,
that the foregoing shall not serve to authorize the disclosure of the identity
of any party or any confidential business information of any party to the
extent the disclosure of such identity or information is not related to the
United States federal income tax treatment and United States federal income tax
structure of the transactions contemplated by this Agreement. Company and
Contractor acknowledge that they have no knowledge or reason to know that such
disclosure is otherwise limited.


 


11.12        The Parties’ obligations
not to use or disclose Confidential Information pursuant to this Section shall
survive for the period stated in Section 11.1; provided that Confidential
Information deemed a trade secret shall not be used or disclosed by the Parties
for as long as such information continues to be deemed a trade secret.


 


Personal
Data Protection


 


11.13        (a) For the purposes
of this Agreement and any Task Order, the following terms are defined as:


 


i.                             “Personal
Data” is any information relating to an identified or identifiable natural
person (“Data Subject”).


 


ii.                          “Company
Personal Data” includes (i) Personal Data provided to Contractor by or on
behalf of Company; (ii) Personal Data (from whatever source) being
Processed by Contractor on behalf of Company; (iii) Personal Data (from
whatever source) pertaining to Company personnel; and (iv) Personal Data
created by Contractor based on data in section (i), (ii) or (iii) above.


 


iii.                       “Processing”
of Personal Data shall mean and include any operation or set of operations that
is performed upon Personal Data, whether or not by automatic means, such as
collection, recording, organization, storage, adaptation or alteration,
retrieval, accessing, consultation, use, disclosure by transmission,
dissemination or otherwise making available, alignment or combination,
blocking, erasure or destruction.


 


iv.                      “Affiliate,”
where used in this Section 11.13, with respect to either party shall mean
any entity, including without limitation, any individual, corporation, company,
partnership, limited liability company or group, that directly, or indirectly
through one or more intermediaries, controls, is controlled by or is under
common control with such party.


 


35
















 


(b)                   Contractor
shall view and Process Company Personal Data only on a need-to-know basis and
only to the extent necessary to perform this Agreement, any Task Order, or
Company’s further written instructions.


 


(c)                    Contractor
agrees not to disclose Company Personal Data to third parties without having
first received express written approval from Company.


 


(d)                   Contractor
shall implement technical and organizational measures to ensure the security
and confidentiality of Company Personal Data to prevent, among other things: (i) accidental,
unauthorized or unlawful destruction, alteration, modification or loss of
Company Personal Data, (ii) accidental, unauthorized or unlawful
disclosure or access to Company Personal Data, (iii) unlawful forms of
Processing. The security measures taken shall be in compliance with applicable
data protection regulations and shall be adapted to the risks presented by the
Processing and the nature of the Company Personal Data to be Processed, having
regard to the state of the art.


 


(e)                    Contractor
shall notify Company as expeditiously as possible under the circumstances and
without unreasonable delay of any Security Breach involving any Company
Personal Data, where “Security Breach” is defined as any event involving
an actual, potential or threatened compromise of the security, confidentiality
or integrity of the data, including but not limited to any unauthorized access
or use, or any broader circumstances as defined in any applicable local law.
Contractor shall provide Company with a detailed description of the Security
Breach, the type of data that was the subject of the Security Breach, the
identity of each affected person, and any other information Company may request
concerning such affected persons and the details of the breach, as soon as such
information can be collected or otherwise becomes available. Contractor agrees
to take action immediately, at its own expense, to investigate the Security
Breach and to identify, prevent and mitigate the effects of any such Security
Breach, and to carry out any recovery or other action (e.g., mailing statutory
notices) necessary to remedy the Security Breach. The content of any filings,
communications, notices, press releases, or reports related to any Security
Breach (“Notices”) must first be approved by Company prior to any
publication or communication thereof to any third party. Contractor shall pay
for or reimburse Company for all costs, losses and expenses relating to any
Security Breach, including without limitation, the cost of Notices.


 


(f)                      Contractor
shall implement all measures necessary to ensure compliance by its staff with
the obligations relating to Company Personal Data, and shall require Workers,
as a condition of having access to Company Personal Data, to sign
confidentiality agreements in which they each agree individually to comply with
the obligations of this Section 11.13 of this Agreement. Company may also
require Workers, as a condition of participating in specific assignments, to
sign individual confidentiality agreements that are tailored for specific
assignments. Contractor shall comply with all applicable laws and regulations
pertaining to Personal Data protection, and will process Employment Data
consistent with the “GE Employment Data Protection Standards,” a copy of which
will be provided to Contractor upon request. In particular, when Personal Data
is collected by the Contractor from a Data Subject directly during the course
of Contractor’s performance under this Agreement, Contractor shall: provide the
Data Subject with the information required by applicable laws and regulations;
permit access by the Data Subject to the Personal Data collected about him/her;
and, when necessary, obtain the consent of Data Subjects. Contractor must,
however, seek and obtain prior written approval from Company regarding the
scope of Personal Data to be collected and the consent language to be used.


 


 


36

















 


 


(g)                   Failure by the
Contractor or permitted Subcontractor to comply with the obligations set forth
in this Agreement relating to Personal Data is considered a material breach of
this Agreement.


 


(h)                   Company
reserves the right to conduct at any time, subject to a prior written notice,
an on-site verification of Contractor’s compliance with obligations relating to
Company Personal Data, even after the termination of this Agreement. Contractor
shall provide access to all concerned facilities, equipment and records in
order to conduct such verification.


 


(i)                       Upon
termination of this Agreement, for whatever reason, Contractor shall stop all
Processing of Company Personal Data and shall return to Company all Company
Personal Data and any copies and reproductions of Company Personal Data,
electronic or otherwise.


 


(j)                       These
undertakings remain in force even after termination of this Agreement for
whatever reason.


 


(k)                    Health
Information & HIPAA: If Contractor will Process any Company Data that
is “protected health information, including any medical, demographic, visual or
descriptive information that can be used to identify a particular
patient/individual” subject to the U.S. “Health Insurance Portability &
Accountability Act of 1996” and regulations promulgated under that Act
(collectively “HIPAA”), then Contractor shall enter into the subcontractor
Business Associates Agreement (“BAA”).


 


(l)                       GLB: If
Contractor will Process any Company Personal Data or other information of
Company’s customers (“Customer Information”) that is subject to Title V
of the Gramm-Leach-Bliley Financial Services Modernization Act of 1999 and
regulations promulgated under that Act (collectively “GLB”) or other
federal, state, and local laws, rules, regulations, and ordinances governing
the privacy and security of Customer Information (collectively “Customer
Information Privacy Laws”), Contractor agrees to comply with GLB and other
Customer Information Privacy Laws, and to protect and maintain the privacy of
such Customer Information accordingly. Such compliance shall include, but not
be limited to, Contractor (i) not disclosing any Customer Information to
any third party except as expressly provided in this Agreement or otherwise
directed or authorized in writing by Company; (ii) ensuring that its
employees and subcontractors who obtain or have access to Customer Information
comply at all times with the Customer Information Privacy Laws and the
applicable provisions of this Agreement; and (iii) protecting and
maintaining the security of all Customer Information in Contractor’s custody or
under Contractor’s control. Contractor shall immediately report to Company any
unauthorized disclosure or use of or any unauthorized access to any Customer
Information in Contractor’s custody or under Contractor’s control.


 


(m)                 EU: If in the
course of the parties’ performance of a Task Order issued pursuant to this
Agreement, any Personal Data will be transferred from a member state of the
European Union (“EU”) to a jurisdiction outside the EU that has not been
declared “adequate” for personal data protection by the European Commission,
the party becoming aware of this situation will inform the other, and Company
and Contractor (or other Processor, if approved by Company) will enter into the
Standard Contractual Clauses for Controller-to-Processor Transfers (attached as
Attachment B). In the event that such a task Order is executed without clauses
that incorporate Appendix B of this Agreement, then Appendix B of this
Agreement shall nonetheless be deemed to have attached to that Task Order.


 


 


37

















 


 


11.14        Contractor understands and
agrees that Company may require Contractor to provide certain Personal Data (“Contractor
Personal Data”) such as the name, address, telephone number, and e-mail
address of Contractor’s representatives in transactions, and that Company and
its affiliates and their contractors may store such data in databases located
and accessible globally by their personnel and use it for purposes reasonably
related to the performance of this Agreement, including but not limited to
supplier and payment administration. Contractor agrees that it will comply with
all legal requirements associated with transferring any Contractor Personal
Data to Company. Company will be the “Controller” of this data for legal
purposes, and agrees not to share Contractor Personal Data beyond Company, its
affiliates and their contractors, and to use reasonable technical and
organizational measures to ensure that Contractor Personal Data is processed in
conformity with applicable data protection laws. Contractor may obtain a copy
of the Contractor Personal Data and submit updates and corrections to it by
sending Company a written notice in accordance with the “notice” provision in
this Agreement.


 


12       TERMINATION


 


12.1              Either party may
terminate this Agreement on ninety days prior written notice to the other party
except that any such termination shall be effective as to an ongoing assignment
specified in a Task Order only when the minimum term for such ongoing
assignment is completed. Sections 3.12, 3.15, 5.21, 8, 10.1, 10.1, 10.2, 10.3,
10.4 and 11 of this Agreement shall survive any expiration or termination of
this Agreement. If either party terminates this Agreement pursuant to this
Section, the Contractor shall, at the Company’s discretion, continue to provide
Services to the Company for a period of up to six months subject to the terms
of this agreement. Both parties will use their best efforts to ensure smooth
and efficient transition of all work to Company or any new contractor or
contractors designated by Company.


 


Contractor hereby waives
any and all claims for additional compensation or charges (including any claim
for lost profits), as a result of any termination and Contractor hereby agrees
that its sole remedy hereunder shall be to receive compensation in accordance
with this Section.


 


12.2              If either party
terminates this Agreement pursuant to Section 12.1, then promptly upon the
expiration of the ninety day notice period and at such reasonable time as may
be necessary for orderly transition, the Contractor will deliver to the Company
all documents, document drafts, work papers, notes, and charts of any
description, including electronic media, furnished or made available by the
Company or produced by the Contractor in the course of work effort pursuant to
this Agreement and retain no copy and shall certify same to Company. The
Contractor shall also return to the Company any equipment it may have received
from the Company under the terms of Section 4.5 of this Agreement.
Notwithstanding anything contained herein, the parties may separately provide
in a Task Order for termination of such Task Order in accordance with terms
specifically agreed upon by the parties for that Task Order.


 


12.3              Except for
termination based on Sections 5.13 of this Agreement, upon termination, all
amounts payable by the Company to the Contractor for Services rendered
(including parts thereof) up to the effective date of termination, shall be
paid by the Company.


 


 


38

















 


 


12.4              Company may terminate
any Task Order on ninety days prior written notice to Contractor.
Notwithstanding the foregoing, Company may terminate a Task Order on thirty
days prior written notice to Contractor where such Task Order’s duration is
less than twelve months.


 


13       GOVERNING
LAW


 


13.1              This Agreement, its
validity, performance, construction and effect shall be governed by the laws of
the State of New York, United States of America, excluding its conflict of laws
rules. The laws of the United States of America shall govern issues involving
the creation, protection, or exercise of rights in Intellectual Property.


 


14       DISPUTE
RESOLUTION


 


14.1              Both parties
acknowledge that the non-breaching party will be irreparably harmed by any
breach of Sections 5.21, 8 and or 11 of this Agreement and that damages would
be difficult or impossible to ascertain and that the non-breaching party will
have no adequate remedy at law. Accordingly, upon any such breach or threatened
breach with respect to Sections 5.21, 8 and 11 of this Agreement, in addition
to any other rights or remedies at law or other relief to which non-breaching
party may be entitled, and notwithstanding the arbitration clause herein, the
non-breaching party shall be entitled, without the posting of any bond or other
security, to seek an injunction or an order of specific performance or other
equitable relief with respect to such breach or threatened breach to protect
the non-breaching party’s rights. All ancillary claims as well as damages for
such claims shall remain subject to dispute resolution as described in this
section.


 


14.2              With the exception
of any disputes, controversies and questions directly or indirectly arising
under, out of, in connection with or in relation to Section 5.21, 8 and or
11 of this Agreement, any dispute, controversy or claim arising out of,
relating to, or in connection with, this Agreement, or the formation, breach,
termination or validity thereof, shall be finally settled by arbitration. The
arbitration shall be conducted in accordance with the Rules of the London
Court of International Arbitration (“LCIA Court”) in effect at the time
of arbitration, except as they may be modified herein or by mutual consent of
the parties. The seat of the arbitration shall be London, England, and it shall
be conducted in the English language.


 


Three arbitrators shall
conduct the arbitration. The party initiating arbitration (the “Claimant”)
shall appoint an arbitrator in its request for arbitration (the “Request”).
The other party (the “Respondent”) shall appoint an arbitrator within
thirty days of receipt of the Request and shall notify the Claimant of such
appointment in writing. If within thirty days of receipt of the Request by the
Respondent, either party has not appointed an arbitrator, then that arbitrator
shall be appointed by the LCIA Court. The first two arbitrators appointed in
accord with this provision shall appoint a third arbitrator within thirty days
after the Respondent has notified Claimant of the appointment of the Respondent’s
arbitrator or, in the event of a failure by a party to appoint, within thirty
days after the LCIA Court has notified the parties and any arbitrator already
appointed of its appointment of an arbitrator on behalf of the party failing to
appoint. When the third arbitrator has accepted the appointment, the two
arbitrators making the appointment shall promptly notify the parties of the
appointment. If the first two arbitrators appointed fail to appoint a third
arbitrator or so to notify the parties within the time period


 


 


39

















 


 


prescribed above, then
the LCIA Court shall appoint the third arbitrator and shall promptly notify the
parties of the appointment. The third arbitrator shall act as Chair of the
tribunal.


 


The arbitral award shall
be in writing, state the reasons for the award, and be final and binding on the
parties. The award may include an award of costs, including reasonable
attorneys’ fees and disbursements. Any court having jurisdiction thereof or
having jurisdiction over the relevant party or its assets, may enter judgment
upon the award.


 


14.3              Section 13.1 of
this Agreement determines the governing law of this Agreement, including for
arbitration purposes.


 


14.4              For the purposes of
section 45 of the Arbitration Act 1996 (UK), the Company and the Contractor
hereby agree to exclude their right to apply to the Court to determine any
question of law.


 


14.5              For the purposes of
section 69 of the Arbitration Act 1996 (UK), the Company and the Contractor
hereby agree to exclude their right to appeal to the Court on a question of
law.


 


14.6              The Company and the
Contractor hereby stipulate that this Agreement and the obligations and
relationships resulting here from are commercial and that the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (the “New York
Convention”) applies to this Agreement and to any arbitral award or order
resulting from any arbitration conducted hereunder.


 


14.7              Should either the
Company or the Contractor make application to the Arbitral Tribunal in
accordance with Article 22.1(h) of the LCIA Rules for the
joinder in the arbitration of sub-contractors or agents of the Contractor, the
Company and the Contractor hereby consent to such joinder.


 


14.8              The Contractor shall
include in its contracts with its sub-contractors and agents a provision
requiring such persons to consent to any application that may be made by the
Company or the Contractor under Article 22.1(h) of the LCIA Rules to
join such sub-contractors or agents as parties to any arbitration under this
Agreement.


 


15       PENALTIES


 


15.1              The Company reserves
the right to define and manage Task Order specific service levels, including,
but not limited to, provisions on network security, among other service
requirements. Task Orders may explicitly state service levels and penalties for
failure to meet such service levels. Failure to meet the service levels in a
Task Order, may, at Company’s sole discretion, result in the penalties outlined
under such Task Orders.


 


16       GENERAL


 


Assignment


 


16.1              Neither party may
assign the rights and obligations of this Agreement to any other party without
the prior written consent of the other party (such consent not to be
unreasonably withheld), except that Company may assign the rights and
obligations of this Agreement


 


 


40
















 


to another subsidiary of
General Electric Company without obtaining the Contractor’s prior written
consent, and Contractor may assign receivable under this Agreement to third
parties without obtaining Company’s prior written consent.


 


 


Offsets


 


16.2              The Company reserves
the right to credit the value of this Agreement and any Task Orders against any
present or future offset or industrial participation requirements incurred by
the Company with any applicable Government or with any applicable company
provided such credit is permissible under the applicable counter trade or
offset guidelines and there is no loss of export earnings benefits to the
Contractor. The Contractor agrees to use its best efforts to assist the Company
to secure such credit.


 


Severability


 


16.3              If any part, term or
provision of this Agreement is held by any court to be unenforceable or
prohibited by any law applicable to this Agreement, the rights and obligations
of the parties shall be construed and enforced with that part, term or provision
limited so as  to make it
enforceable to the greatest extent allowed by law, or, if it is totally
unenforceable, as if this Agreement did not contain that particular part, term
or provision.


 


Headings
and Language


 


16.4              Headings contained
in this Agreement are for reference or convenience purposes only and will not
affect the meaning, interpretation or effect of this Agreement. This Agreement
is drawn up in the English language. If it is translated into another language,
the English language text shall in any event prevail.


 


Amendments


 


16.5              The terms and
conditions of this Agreement may not be amended or modified, except in a
writing signed by both parties or in connection with an approved Change Order.
It is expressly agreed that any terms and conditions of Company’s Change Order
shall be superseded by the terms and conditions of this Agreement to the extent
that such terms may be in conflict unless expressly agreed otherwise in the
Change Order.


 


Survival


 


16.6              Sections 3.12, 3.15,
5.21, 8, 10.1, 10.2, 10.3, 10.4 and 11 shall survive the expiration or
termination of this Agreement, as well as any other provision of this
Agreement, which in accordance with its terms is intended to survive the
termination of this Agreement.


 


Waiver/Non-exercise


 


16.7              Failure of either
party at any time to exercise a right under, or require performance of, any
provision of this Agreement shall not affect the right to subsequently exercise
that right or require full performance thereof (as the case may be) at any time
thereafter. The waiver by any party of a breach of any provision of this
Agreement shall not be taken or held to be a waiver of any subsequent breach or
as nullifying the effectiveness of such provision.


 


41

















 


Entire
Agreement


 


16.8              This Agreement,
including all Addenda, Attachments and Exhibits, constitutes the entire
Agreement between the parties and shall supersede all prior offers,
negotiations, exceptions and understandings, whether oral or written, between the
parties hereto relating to the products and services called for hereunder. If
there is any conflict between this Agreement and its Addendums, Attachments,
and Exhibits, the language in this Agreement shall apply. No modification of
any provision of this Agreement shall be binding upon the Company or the
Contractor unless evidenced by a written agreement executed by both parties.


 


16.9              The parties agree
that signed fax copies or e-mail signatures (i.e. scanned copies) of all Task
Orders issued pursuant to this Agreement, as well as any approved change
requests thereof, shall be binding and enforceable.


 


IN
WITNESS WHEREOF, the parties have executed this Agreement.


 


	
  GENERAL
  ELECTRIC INTERNATIONAL, INC.

  	
   

  	
  Patni
  Computer Systems Limited

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Steven John
  Morrison

  	
   

  	
  By:

  	
  /s/ Sunil Chitale

  
	
  Name:

  	
  Steven John Morrison

  	
   

  	
  Name:

  	
  Sunil Chitale

  
	
  Title:

  	
  GE GDC Director

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
  Date:

  	
  3rd
  August 2006

  	
   

  	
  Date:

  	
  August 3, 2006

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  In the presence of:

  	
   

  	
  In the presence of:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Chris Wardle

  	
   

  	
  /s/ Mohamed Asim Malik

  
	
  Name:

  	
  Chris Wardle

  	
   

  	
  Name:

  	
  Mohamed Asim Malik

  
	
  Title:

  	
  Head of IT Service Delivery

  	
   

  	
  Title:

  	
  Sr. Account Manager

  
	
   

  	
  GE Money UK

  	
   

  	
   

  	
   

  



 


42

















 


Addendum
A


 


Fees and
Payment


 


All fees, pricing, rates
and payment details are contained in this Addendum A to the Agreement.


 


Al.                   The Contractor
should predominantly engage with the Company through Fixed Price engagements as
defined in Section 2.2 of this Agreement. On a quarterly basis, Contractor
should share with Company their plans of achieving a target of 90% of
Contractor and Company engagements being Fixed Price.


 


The Company shall bid
those few engagements that need to be on Time and Materials on a
project-by-project basis. Unless otherwise agreed in advance by the Company,
the terms of bids submitted by Contractor for Time and Materials engagements
are inclusive of all overhead costs (including, without limitation,
communication and networked desktop PCs with standard software (such as MS-DOS,
Windows and Terminal emulation software), all payroll taxes, employee benefits,
training, travel and living, supplies, administration, insurance and other
expenses or costs of any nature and all the Contractor equipment. Prices are
exclusive of all taxes that may be levied or assessed on these services outside
of the home jurisdiction of the GDC (such as sales, use, excise, value added or
taxes based on the Company’s income) that shall be the responsibility of the
Company to pay. Any taxes on these services that may be levied or assessed in
the home jurisdiction of the GDC shall be the responsibility of the Contractor
to pay.


 


Task
Orders


 


A.2                Each Task Order
will specify the payment terms applicable to that Task Order.


 


A.3                Task Orders issued
pursuant to this Agreement shall set out a fixed price or an appropriate
estimate of person years to complete projects. If the Contractor takes less
than the estimated person years on a fixed price project because of efficiency
or productivity gains, no credit accrues directly to the Company on that
project.


 


A.4                If the Contractor
takes more than the estimated person years on a fixed price project because of
poor estimation or loss of productivity through the Contractor’s inefficiency,
or for any other reason, the Contractor is solely responsible for the extra
resources applied to complete the project.


 


A.5                If the delay in
completion of project is due to the Company, then the incremental charge beyond
scoped timeframe would be at the T&M rate defined in the Task Order for
such a situation.


 


Purchase
Order


 


A.6                All Task Orders
must be associated with a Purchase Order, at the time the Company places such
Task Order with the Contractor. The Contractor agrees that the Company is not
obligated to make any payment for services rendered before or without the
placement of a Purchase Order, unless the parties have expressly agreed
otherwise.


 


Competitiveness


 


A.7                The Company and
the Contractor shall hold meetings once or twice a year (timing consistent with
other meetings) to specifically review the pricing and Productivity


 


A-1

















 


Improvements (defined
below) the Contractor has implemented to ensure the Contractor’s competitive
position in the marketplace and to ensure that the Company’s contract with the
Contractor reflects the Contractor’s competitiveness. Productivity Improvements
include:


 


a                            transaction
improvements, measured during any month as: (i) the increase in the volume
of Services performed per full-time Worker as compared to the prior month and (ii) the
performance of a fixed amount of Services utilizing fewer full-time Workers as
compared to the prior month; and


 


b                           cost
improvements, measured during any year as the sum of the reductions in each of
the following as compared to the prior year: (i) direct and indirect
material prices, (ii) overhead costs, (iii) the number of management
working hours per Service and (iv) direct labor rates.


 


Most
favored customer pricing


 


A.8                The Company
expects that all of the pricing terms, warranties and benefits granted by the
Contractor herein are comparable to or better than the equivalent terms
currently being offered by the Contractor to any present similarly placed
customer. If the Contractor, agrees with any other similarly placed customer to
providing greater benefits or more favorable terms, this Agreement shall
thereupon be deemed amended to require Contractor to provide the same to the
Company and the Contractor shall promptly inform the Company of such change.
For the purpose of this clause, the term Customer excludes all customers that
do not receive services materially similar to those offered to the Company.


 


Invoices


 


A.9                Company may, in
each Task Order, designate the form of invoice to be used by Contractor under
that Task Order. The Contractor agrees that any invoices submitted for payment
to the Company will include the following details, without which the Company is
not obligated to make payment of such invoices. Details required include but
are not limited to associated Company Purchase Order number, associated Task
Order number, detailed breakup of amount to be paid, date by which payment is
due, details of service provided, name of Company official placing Task Order,
details of applicable discount if any, the Company entity that shall pay under
the PO and whether payment shall be made through the GE Accelerated Payment
Program.


 


Currency


 


A.10          To the extent permitted
by applicable law, Company may designate in any Task Order that payment will be
made in the currency of the jurisdiction from which the Task Order is issued.
In such cases, Contractor will bill Company monthly, converting the US Dollar
contract rate to local currency at the rate published in Financial Times of
London on the last Tuesday of the month in which work is performed. In all
other cases, Contractor will bill and Company will remit payment in US Dollars.


 


The Company can negotiate
a Fixed Price Contract with the Contractor in any currency depending on the
jurisdiction from which the Task Order is issued.


 


A.11          All Contractor invoices
shall be delivered to Company within 15 days of the Invoice Date, and must
clearly identify the Task Order, Purchase Order, or other Company authorization


 


A-2

















 


to which it applies. The
Company will not pay invoices older than 180 days unless a documented dispute
proceeding is ongoing.


 


A.12          All quotations in
response to requests for proposals to perform Task Orders issued pursuant to
this Agreement shall specify whether and which taxes, if any, are excluded from
the quoted price, and the amount of such taxes. No taxes other than sales, use,
consumption, service or other similar taxes and levies may be included in any
price quotation responding to a request for proposal to perform a Task Order.
Under no circumstances shall income taxes or similar taxes payable on the
income of the Contractor or Workers be included in any quoted price.


 


A-3

















 


Addendum B


 


Standard
Contractual Clauses for to be Incorporated when Adherence to Article 26(2) of
the 

European Commission Directive 95/46/EC is Required


 


The following clauses are
to be incorporated into all Task Orders issued pursuant to this Agreement where
adherence to Article 26(2) of the European Commission Directive
95/46/EC is required.


 


For the purposes of Article 26(2) of
Directive 95/46/EC for the transfer of personal data to processors established
in third countries which do not ensure an adequate level of data protection


 


	
  Name of the Data Exporting Organization
  [Name of Company or Company Affiliate] 

  
	
  Address                                                                                                                   

  
	
                                                                                                                                

  
	
  tel:                                       ;

  	
  fax:                                     ;

  	
  e-mail:                                 

  	
   

  



 


Other information needed to identify the organization


 


Above
named organization shall hereby be known as “the Data Exporter”


 


and


 


	
  Name of the Data Importing Organization
  [Name of Contractor]

  
	
  Address                                                                                                                   

  
	
                                                                                                                                

  
	
  tel:                                       ;

  	
  fax:                                     ;

  	
  e-mail:                                 

  	
   

  



 


Other information needed to identify the organization


 


Above
named organization shall hereby be known as “the Data Importer”


 


HAVE
AGREED on the following contractual clauses (‘the Clauses”) in order to adduce adequate
safeguards with respect to the protection of privacy and fundamental rights and
freedoms of individuals for the transfer by the Data Exporter to the Data
Importer of the personal data specified in Appendix 1 of Article 26(2) of
Directive 95/46/EC.


 


Clause
1


 


Definitions


 


For the purposes of the
Clauses:


 


(a)                     “personal data”, “special categories
of data”, “process/processing”, “controller”, “processor”, “Data Subject”  and “Supervisory Authority”  shall have the same meaning as in
Directive 95/46/EC of the European Parliament and of the Council of 24 October


 


B-1

















 


1995 .on the protection
of individuals with regard to the processing of personal data and on the free
movement of such data (“the Directive”)(1);






(1)                     Parties
may reproduce Directive 95/46/EC’s definitions and meanings within this clause
if they considered it better for the contract to stand-alone.


 


(b)                    “the Data Exporter”  shall mean the Controller who transfers
the Personal Data;


 


(c)                     “the Data Importer”  shall mean the processor who agrees to
receive from the Data Exporter personal data intended for processing on his
behalf after the transfer in accordance with his instructions and the terms of
these Clauses and who is not subject to a third country’s system ensuring
adequate protection;


 


(d)                    “the Applicable Data Protection Law” shall mean
the legislation protecting the fundamental rights and freedoms of natural
persons and, in particular, their right to privacy with respect to the
processing of personal data applicable to a Data Controller in the Member State
in which the Data Exporter is established;


 


(e)                     “technical and organizational security measures”
shall mean those measures aimed at protecting personal data against accidental
or unlawful destruction or accidental loss, alteration, unauthorised disclosure
or access, in particular where the processing involves the transmission of data
over a network, and against all other unlawful forms of processing.


 


Clause
2


 


Details
of the transfer


 


The details of the
transfer and in particular the special categories of personal data where
applicable are specified in Appendix 1 which forms an integral part of the
Clauses.


 


Clause
3


 


Third-party
beneficiary clause


 


The Data Subject can
enforce against the Data Exporter this Clause, Clause 4 (b) to (h), Clause
5 (a) to (e), and (g), Clause 6 (1) and (2), Clause 7, Clause 8 (2),
and Clauses 9,10 and 11, as third-party beneficiaries.


 


The Data Subject can
enforce against the Data Importer this Clause, Clause 5 la) to (e) and
(g), Clause 6 (1) and (2), Clause 7, Clause 8 (2), and Clauses 9.10 and
11, in cases where the Data Exporter has factually disappeared or has ceased to
exist in law.


 


The parties do not object
to a Data Subject being represented by an association or other body if the Data
Subject so expressly wishes and if permitted by national law.


 


Clause 4


 


Obligations
of the Data Exporter


 


The Data Exporter agrees
and warrants:


 


(a)                     that the
processing, including the transfer itself, of the personal data has been and
will continue to be carried out in accordance with the relevant provisions of
the applicable data protection law (and, where applicable, has been notified to
the relevant Authorities of the Member State where the Data Exporter is
established) and does not violate the relevant provisions of that State;


 


(b)                    that he has
instructed and throughout the duration of the personal data processing services
will instruct the Data Importer to process the personal data transferred only
on the Data Exporter’s behalf and in accordance with the applicable data
protection law and these clauses;


 


B-2

















 


(c)                     that the Data
Importer shall provide sufficient guarantees in respect of the technical and
organizational security measures specified in Appendix 2 to this contract;


 


(d)                    that after
assessment of the requirements of the applicable data protection law, the
security measures are appropriate to protect personal data against accidental
or unlawful destruction or accidental loss, alteration, unauthorized disclosure
or access, in particular where the processing involves the transmission of data
over a network, and against all other unlawful forms of processing, and that
these measures ensure a level of security appropriate to the risks presented by
the processing and the nature of the data to be protected having regard to the
state of the art and the cost of their implementation;


 


(e)                     that he will
ensure compliance with the security measures;


 


(f)                       that, if
the transfer involves special categories of Data, the Data Subject has been
informed or will be informed before, or as soon as possible after, the transfer
that his data could be transmitted to a third country not providing adequate
protection;


 


(g)                    that he agrees
to forward the notification received from the Data Importer pursuant to Clause
5(b) to the Data Protection Supervisory Authority if he decides to
continue the transfer or to lift his suspension;


 


(h)                    to make
available to the Data Subjects upon request a copy of the Clauses set out in
this Annex, with the exception of Appendix 2 which shall be replaced by a
summary description of the security measures.


 


Clause
5


 


Obligations
of the Data Importer(2)


 


The Data Importer agrees
and warrants:


 


(a)                     to process
the Personal Data only on behalf of the Data Exporter and in compliance with
his instructions and the clauses; if he cannot provide such compliance for
whatever reasons, he agrees to inform promptly the Data Exporter of his
inability to comply, in which case the Data Exporter is entitled to suspend the
transfer of data and/or terminate the contract;


 


(b)                    that he has no
reason to believe that the legislation applicable to him prevents him from
fulfilling the instructions received from the Data Exporter and his obligations
under the contract and that in the event of a change in this legislation which
is likely to have a substantial adverse effect on the warranties and
obligations provided by the Clauses, he will promptly notify the change to the
Data Exporter as soon as he is aware, in which case the Data Exporter is
entitled to suspend the transfer of data and/or terminate the contract;


 


(c)                     that he has
implemented the technical and Organizational security measures specified in
Appendix 2 before processing the personal data transferred;


 


(d)                    that he shall promptly
notify the Data Exporter about:


 


(i)                       any legally
binding request for disclosure of the personal data by a law enforcement
authority unless otherwise prohibited, such as a prohibition under criminal law
to preserve the confidentiality of a law enforcement investigation;






(2)                     Mandatory requirements of the national
legislation applicable to the Data Importer which do not go beyond what is
necessary in a democratic society on the basis of one of the interests listed
in Article 13(1) of Directive 95/46/EC, that is, if they constitute a
necessary measure to safeguard national security, defence, public security, the
prevention, investigation, detection and prosecution of criminal offences or of
breaches of ethics for the regulated professions, an important economic or
financial interest of the State or the protection of the data subject or the
rights and freedoms of others, are not in contradiction with the standard
contractual clauses. Some examples of such mandatory requirements which do not
go beyond what is necessary in a democratic society are, inter alia,
internationally recognised sanctions, tax-reporting requirements or
anti-money-laundering reporting requirements.


 


B-3

















 


(ii)                    any accidental
or unauthorised access; and


 


(iii)                 any request
received directly from the data subjects without responding to that request,
unless he has been otherwise authorised to do so.


 


(e)                     to deal
promptly and properly with all inquiries from the Data Exporter relating to his
processing of the Personal Data subject to the transfer and to abide by the
advice of the Supervisory Authority with regard to the processing of the data
transferred;


 


(f)                       at the
request of the Data Exporter to submit his data processing facilities for audit
of the processing activities covered by the clauses which shall be carried out
by the Data Exporter or an inspection body composed of independent members and
in possession of the required professional qualifications bound by a duty of
confidentiality, selected by the Data Exporter, where applicable, in agreement
with the Supervisory Authority;


 


(g)                    to make
available to the Data Subject upon request a copy of the Clauses set out in
this Annex, with the exception of Appendix 2 which shall be replaced by a summary
description of the security measures in those cases where the Data Subject is
unable to obtain a copy from the Data Exporter.


 


Clause
6


 


Liability


 


1.                          The
parties agree that a Data Subject who has suffered damage as a result of any
violation of the provisions referred to in Clause 3 is entitled to receive
compensation from the Data Exporter for the damage suffered.


 


2.                          If a
Data Subject is not able to bring the action referred to in paragraph 1 arising
out of a breach by the Data Importer of any of his obligations referred to in
Clause 3 against the Data Exporter because the Data Exporter has disappeared
factually or has ceased to exist in law or became insolvent, the Data Importer
agrees that the Data Subject may issue a claim against the Data Importer as if
he were the Data Exporter.


 


3.                          The
parties agree that if one party is held liable for a violation of the clauses
committed by the other party, the latter will, to the extent to which it is
liable, indemnify the first party for any cost, charge, damages, expenses or
loss it has incurred.


 


Indemnification is
contingent upon:


 


(a)                    the Data
Exporter promptly notifying the Data Importer of a claim; and


 


(b)                   the Data
Importer being given the possibility to cooperate with the Data Exporter in the
defence and settlement of the claim(3).






(3)       Paragraph 3 is optional.


 


Clause
7


 


Mediation
and Jurisdiction


 


1.                          The Data
Importer agrees that if the Data Subject invokes against him third-party
beneficiary rights and/or claims compensation for damages under the clauses,
the Data Importer will accept the decision of the Data Subject:


 


(a)                    to refer the
dispute to mediation, by an independent person or, where applicable, by the
Supervisory Authority;


 


(b)                   to refer the
dispute to the courts in the Member State in which the Data Exporter is
established.


 


2.                          The Data
Importer agrees that, by agreement with the Data Subject, the resolution of a
specific dispute can be referred to an arbitration body if the Data Importer is
established


 


B-4

















 


in a country that has
ratified the New York Convention on enforcement of arbitration awards.


 


3.                          The
parties agree that the choice made by the Data Subject will not prejudice his
substantive or procedural rights to seek remedies in accordance with other
provisions of national or international law.


 


Clause
8


 


Cooperation
with Supervisory Authorities


 


1.                          The Data
Exporter agrees to deposit a copy of this contract with the Supervisory
Authority if it so requests or if such deposit is required under the applicable
data protection law.


 


2.                          The
parties agree that the Supervisory Authority has the right to conduct an audit
of the Data Importer which has the same scope and is subject to the same
conditions as would apply to an audit of the Data Exporter under the applicable
data protection law.


 


Clause
9


 


Governing
Law


 


The Clauses shall be
governed by the law of the Member State in which the Data Exporter is
established, namely [Enter name of European Union Country]


 


Clause
10


 


Variation
of the contract


 


The parties undertake not
to vary or modify the terms of the Clauses.


 


Clause
11


 


Obligation
after the termination of Personal Data Processing Services


 


1.                          The
parties agree that on the termination of the provision of Data Processing
Services, the Data Importer shall, at the choice of the Data Exporter, return
all the personal data transferred and the copies thereof to the Data Exporter
or shall destroy all the personal data and certify to the Data Exporter that he
has done so, unless legislation imposed upon the Data Importer prevents him
from returning or destroying all or part of the personal data transferred. In
that case, the Data Importer warrants that he will guarantee the
confidentiality of the personal data transferred and will not actively process
the personal data transferred anymore.


 


2.                          The Data
Importer warrants that upon request of the Data Exporter and/or of the
Supervisory Authority, he will submit his data processing facilities for an
audit of the measures referred to in paragraph 1.


 


B-5
















 


On
behalf of the Data Exporter


 


	
  Name (written out in full):

  
	
  Position:

  
	
  Address:

  
	
  Other information necessary in order for the
  contract to be binding (if any):

  
	
   

  
	
  Signature

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (stamp of Organization)

  



 


	
  Name (written out in full):

  
	
  Position:

  
	
  Address:

  
	
  Other information necessary in order for the
  contract to be binding (if any):

  
	
   

  
	
  Signature

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (stamp of Organization)

  



 


B-6

















 


APPENDIX
1 to the Standard Contractual clauses


 


This
appendix forms part of the Clauses and must be completed and signed by the
parties (“The Member States may complete or specify, according to their
national procedures, any additional necessary information to be contained in
this Appendix)


 


Data Exporter


The Data Exporter is (please specify briefly your activities relevant to
the transfer):


 


 


Data Importer


The Data Importer is (please specify briefly your activities relevant to
the transfer):


 


 


Data Subjects


The personal data
transferred concern the following categories of Data Subjects (please specify):


 


 


Categories of data


The personal data
transferred concern the following categories of data (please specify):


 


 


Special Categories of data (if appropriate)


The personal data
transferred concern the following special categories of data (please specify):


 


 


Processing Operations


The personal data
transferred will be subject to the following basic processing activities (please specify):


 


 


 


 


 


	
  DATA EXPORTER

  	
   

  	
  DATA IMPORTER

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Authorized

  	
   

  	
   

  	
   

  	
   

  
	
  Signature

  	
   

  	
   

  	
   

  	
   

  



 


B-7

















 


APPENDIX
2 to the Standard Contractual Clauses


 


This
appendix forms part of the Clauses and must be completed and signed by the
parties


Description of the
technical and Organizational security measures implemented by the Data Importer
in accordance with Clauses 4(d) and 5(c) (or document/legislation
attached:


 


 


 


 


 


 


 


 


B-8

















 


Addendum C 

To be Signed by All Workers At Initiation of Task Order


 


Secrecy and Inventions Agreement


 


All Contractor and
Subcontractor personnel who are assigned to perform work, services or tasks for
the Company are required to sign the following Agreement.


 


Dear
                                                        :


 


You have been assigned by
                                                          
(“Contractor”) to perform contract services for General Electric
Company, General Electric International, Inc. or an affiliate or
subsidiary of the foregoing (individually and collectively, the “Company”). As
a condition of Contractor’s engagement by Company, it is a requirement that you
agree (i) to hold in confidence information that you learn about the
Company as a result of your work, and (ii) that the results of your work
will be owned by the Company.


 


This Agreement is for the
benefit of the Company.


 


1.                         Conflict
of Interest. You warrant that your work with the Company will not in any
way conflict with any obligations you may have in favor of prior or other
employers or in favor of other persons or entities. You further warrant that,
during the time you are providing services to the Company, you will refrain
from any other activities that would present a conflict of interest with your
work on behalf of the Company.


 


2.                         Secrecy.
You agree to hold in confidence all proprietary and confidential information
that you obtain from, or as a result of your work for the Company, or that you
develop for the Company, and you agree not to use for your own benefit or for
the benefit of others, or disclose to others, at any time during or after
termination of your work for the Company, such information without the prior
written consent of the Company. You also agree that you will not knowingly
disclose to the Company any information that is the secret, confidential, or
proprietary information of any other person or entity. Confidential information
includes, but is not limited to, all non-public information furnished or made
available to you orally or in writing in connection with your work for the Company
or developed by you, such as data, ideas, concepts, procedures, agreements,
deliverables, notes, summaries, reports, analyses, compilations, studies,
lists, charts, surveys and other materials, both written and oral, in whatever
form maintained concerning the business of the Company or the Company’s
customers and/or vendors. Confidential information also includes any personal
data you may be furnished with or exposed to in the performance of your work
for the Company. Confidential information excludes all information and
materials that are or become publicly available through means other than
through the violation of an obligation of confidentiality to the Company or any
other party. Your obligation of confidentiality shall continue in effect (a) for
seven years following the date you last provided services to the Company with
respect to all confidential information that is not a trade secret, (b) for
as long as such confidential information remains a trade secret under
applicable law, with respect to confidential information that is a trade
secret, and (c) in perpetuity with respect to all personal or customer
data.


 


3.                         Inventions.
You agree that any work product that you produce in providing services to the
Company and any inventions, developments, suggestions, ideas, innovations,
concepts or reports conceived, created, developed or discovered by you as a
part or a result of your to the Company (a “Development”) shall be the sole
property of, the Company. You agree to promptly notify the Company of any
Development, and, if


 


C-1

















 


deemed necessary or
desirable by the Company, you agree to execute any documents provided by the
Company to convey or perfect ownership in any such Development in the Company
or its designee, including an assignment in the form attached to this agreement
or as otherwise provided. You agree to cooperate with the Company, at the
Company’s expense, in obtaining, maintaining or sustaining patents or other
intellectual property protection anywhere in the world with respect to any such
Developments. Should any such Developments be the result of combined efforts
with, or the invention of, any person or persons, other than yourself, you will
so inform the Company of this at the time you notify the Company of the
Development. Your obligations under this letter will survive any termination of
your agreement with the Company and any expiration or termination of any Task
Order or other agreement with the Company under which you are performing services.


 


4.                         Copyrights.
You agree that all copyrightable material that results from services performed
by you for the Company shall belong exclusively to the Company. If by operation
of law any such copyrightable materials are deemed not to be works made for
hire, then you hereby assign, and agree to assign in the future, to the Company
the ownership of such materials and the copyrights for the same. The Company
may obtain and hold in its own name copyrights, registrations, and other
protection that may be available with respect to such copyrightable material,
and you agree to provide the Company any assistance required to perfect such
protection. You also agree to waive any “artist’s
rights”, “moral rights”, or other similar rights you might otherwise have in
any copyrightable materials you develop during the term of this Agreement. To
the extent you cannot effectively waive such rights, you agree not to seek to
enforce such rights against the Company or any purchaser or licensee of such
materials from the Company.


 


5.                         Employer-employee
Relationship. In furnishing services to the Company under any Task Order or
other agreement between the Company and Contractor, you will not be an employee
of the Company and will not by reason of this agreement or the performance of
your services be entitled to participate in or receive any benefit or right
under any of it’s the Company’s employee benefit or welfare plans, including,
without limitation, employee insurance, pension, savings and stock bonus, and
savings and security plans.


 


6.                         Governing
Law. This agreement, its validity, performance, construction and effect
shall be governed by the laws of the State of New York, United States of
America, excluding its conflict of laws rules. The laws of the United States of
America shall govern issues involving the creation, protection, or exercise of
rights in Intellectual Property.


 


If the foregoing terms
are acceptable to you as a condition for performing services for the Company,
please indicate your acceptance by signing one copy of this letter and
returning it to us. You may retain the other copy for your information and
file.


 


Very truly yours,


 


Company


 


	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  ACCEPTED:

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  



 


C-2

















 


Addendum C-1


 


For Execution By Contractors,
Subcontractors and Workers Upon Completion of a Task Order


 


Assignment of Rights


 


This is an
Assignment made on                               ,
200   , between
              
(“Assignor” or “you”) and
                                                          
(“Company”, “us” or “we”).


 


This Assignment
relates to any work product, invention, development, suggestion, idea,
innovation, concept or report conceived, created, developed or discovered by
Assignor in connection with services provided by Assignor to the Company under
Task Order
             (the “Work
Product”), which Work Product may be more specifically described in Annex A to
this Assignment.


 


You represent that
you are the sole creator (or have noted other contributors below) of the Work
Product and that the Work Product is original and exclusive to the Company, has
not been previously sold in any form, is not in the public domain and does not
infringe upon any statutory copyright or upon any common law right, proprietary
right or any other right of any third party; that you have not previously
assigned, pledged or otherwise encumbered the same; and that you have full
power to enter into this Assignment and to make the transfer provided for in
this Assignment.


 


You hereby
transfer and assign to us any and all rights you might have in the Work
Product, including any right, title, and interest in and to the physical
embodiment of the Work Product and to any copyright or other intellectual
property right in the Work Product. You acknowledge that this transfer is in
furtherance of your [and your employer’s obligations] to the Company under
prior agreements.


 


You hereby agree
to waive or in any case to not enforce any “moral rights”, “artist’s rights”,
or other similar rights, you might have in relation to the Work Product


 


You acknowledge
that this Assignment transfers complete ownership in the Work Product, the
copyright and any other intellectual property right in the Work Product to the
Company, and therefore forecloses your use, sale, authorizing the sale by any
third party of, reproducing, licensing or otherwise exploiting the Work
Product. This Assignment imposes no obligation on the Company to use the Work
Product.


 


This Agreement,
its validity, performance, construction and effect shall be governed by the
laws of the State of New York, United States of America and by the laws of the
United States, excluding its conflict of laws rules.


 


In Witness
Whereof, the parties have executed this Assignment on the day and year first
above written.


 


List of Other
Contributors, if any:
                                                                                                            


 


 


	
   

  	
  ASSIGNOR

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GE

  



 


C-3

















 


	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  



 


 


	
  STATE OF

  	
  )

  
	
   

  	
  ) SS

  
	
   

  	
   

  
	
  COUNTY OF

  	
  )

  



 


The foregoing
Assignment was acknowledged before me this
                      
day of                                     ,
          , by
                                  ,
[                                 
of
                                                ].


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notary Public

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Commission Expires:

  



 


 


	
  STATE OF

  	
  )

  
	
   

  	
  ) SS

  
	
   

  	
   

  
	
  COUNTY OF

  	
  )

  



 


The foregoing
Assignment was acknowledged before me this
                      
day of                                     ,
          , by
                                  ,
[
                                
of
                                                .


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notary Public

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Commission Expires:

  



 


C-4

















 


ADDENDUM D


 


GE GUIDELINES FOR 

WORKERS ASSIGNED TO GE “SECURITY SENSITIVE” POSITIONS


 


I.              The term “security sensitive
position” as used in connection with the background checking of certain Service
Provider workers means any position which requires that the incumbent perform
or be responsible for performing duties which:


 


(i)                       are
directly related to the safe operation or security of a GE facility, piece of
equipment or electronic data system or financial/accounting system, and


 


(ii)                    which, if not
performed properly, could constitute a serious environmental, health or safety
hazard to employees or the general public or a serious breach of security
respecting the Company’s proprietary rights or financial, accounting or other
systems.


 


This term shall also include
positions which, although not characterized by the above criteria, are
otherwise subject to this designation because they are located at a GE worksite
that is designated in its entirety as “security sensitive” or have access to
certain security sensitive operations or facilities, even though the work
responsibilities, if performed in another context, would not be security
sensitive. Subject to applicable law, this designation shall be determined
solely by GE on a business-by-business basis.


 


 


II.            Actions or events that preclude the
Service Provider or subcontractor from assigning an employee, worker, agent, or
subcontractor, or other personnel (“Worker”) to a GE worksite or facility in a “security
sensitive” position:


 


(a)           A Worker is serving probation for any
criminal conviction, whether or not a felony.


 


(b)           The Worker misrepresents information
provided to his/her employer on the employment application or pre-placement
questionnaire.


 


Care should be taken to
ensure that decisions are in accordance with applicable state and federal
regulations regarding hiring practices. Service Provider should consult with
its local Human Resources and/or Legal Department to ensure compliance with
these guidelines and applicable law. In general, however, these regulations
prohibit disqualifying an applicant solely on the basis of a felony or
misdemeanor conviction unless the conviction relates to dishonesty or breach of
trust; or a matter that directly relates to the Worker’s suitability for
assignment to the position for which he or she is intended.


 


III.           Actions or events that require the
Service Provider or subcontractor to notify GE and seek approval prior to
assigning a Worker to a GE worksite or facility in a “security sensitive”
position.


 


(a)           The Worker has been convicted of, or
pled guilty to, any of the following felonies at any time.


 


Homicide


Burglary


Aggravated Assault


Criminal Sexual Abuse


Kidnapping, Abduction,
Unrestraint


 


D-1

















 


Threatening or. Harassing


Altering or tampering
with Motor Vehicle ID Numbers


All offenses involving
drugs


Offenses involving
Criminal enterprises and Racketeering


Prostitution, Sexual
Exploitation of minors, and Obscenity


Individual Rights
(Peonage, Involuntary Servitude, and Slave Trade)


Antitrust


Public Safety (Explosives
and Arson, Firearms, Mailing Injurious Articles)


 


(b)           Other types of felonies and
misdemeanors should also result in exclusion for a GE “security sensitive”
assignment if the nature of the act is such that it would cause us to doubt the
trustworthiness of the Worker; or assigning the Worker to GE could cause GE to
be put in a significantly increased risk of litigation or negative publicity.


 


(c)           In reaching a placement decision in
light of (a) and (b) above, consideration should be given to factors
that may mitigate the doubts and/or risks noted above. These factors may
include such things as the circumstances surrounding the act(s) or
event(s), the amount of time that has elapsed since the conviction, the age of the
individual when he/she committed the act and whether there have been repeated
incidences of unlawful acts.


 


D-2
















 


Global Delivery Addendum


 


This Addendum is made on August 3,
2006 and is applicable from 1st January 2007.


 


Between:


 


General Electric
International, Inc., a Delaware corporation (the “COMPANY”) with its head
office at Two Corporate Drive, Shelton, CT.


 


And:


 


Patni Computer Systems
Limited, a Corporation (“CONTRACTOR”) with its offices at Akruti Softech Park, MIDC Cross Road No. 21, Andheri
(EAST), Mumbai 400093, INDIA.


 


Having negotiated an
Information Technology Services agreement dated August 3, 2006 to extend the status of CONTRACTOR as a GE certified
Global Development Center through December 31,
2009 (the AGREEMENT), COMPANY and CONTRACTOR intend to enter into a supplemental addendum to encourage the growth of
the CONTRACTOR’S relationship with the
COMPANY.


 


The parties now wish to
set forth the following terms of the global delivery operations for the Software Services that COMPANY acquires and
CONTRACTOR provides as per AGREEMENT.


 


1.                          The target LCC price across COMPANY will not exceed
$16/hr averaged for the full LCC volume
delivered by the CONTRACTOR. Following considerations will apply:


 


·                       Prices
for individual Task Orders may vary based on LCC location, skills and other conditions as mutually agreed to the execution of
the Task Order


·                       Performance
against the target average LCC price will be reviewed on a quarterly basis
starting July 1, 2007.


 


2.                            CONTRACTOR
commits to achieving the LCC leverage target of 85% by December 31, 2007.


 


3.                            CONTRACTOR
will grant COMPANY service credits beginning January 1, 2007 through the term of the agreement. Service Credits earned
during each quarter would be computed @1.45%
of the total value of the invoices raised during that quarter. CONTRACTOR will also grant additional service credits towards the
cost of maintaining the eGDC suite of applications
from January 1, 2007 through the term of the agreement, provided however that these additional service credits shall not
exceed annual amount of $160,000. The following
details terms on usage of Service Credits.


·                       Service
Credits can be redeemed only in the
form of offshore work.


·                       Service
Credits can be redeemed only for new
purchase orders.


 


4.                            On
request from CONTRACTOR, COMPANY personnel may agree to participate in knowledge and best practice sharing sessions at
various industry events.


 


5.                            To support
the globalization initiatives anticipated under this agreement, the agreement is
signed between COMPANY and Patni Computer Systems Limited, INDIA.


 


 

















 


6.                          The
CONTRACTOR commits to deliver services out of global LCC facilities as per the following plan:


 


·                            Ratio
of services delivered from India-Mexico-China-Others will progress as follows


 


·                       December 31,
2007: 100-0-0-0


·           December 31, 2008: 90-0-5-5


·                       December 31, 2009: 80-0-15-5


 


 





















 


Critical Value Measure Consequences:


 


Scorecard:


 


LCC Leverage >= 85%

Target Average LCC Rate <=$16.00 (based on 2000 hours = FTE)

Global Diversity 50 - 20 - 20 - 10

O360 and/or NPS as Quality Measure


 


Measures collected and
reported monthly. Evaluated on a quarterly basis. Consequence Level:


 


LEVEL 1 - Corporate
Review with 6+1 GDC Leadership with response:

GDC Improvement Plan (roadmap, corrective
action)


 


LEVEL 2 - Corporate
Review with Steering Committee with response:

Order Embargo - Limited


 


LEVEL 3 - Corporate
Review with IM Council:

Order Embargo - Comprehensive

Work transition plans

Task order Reduction


 


LEVEL A - Contract
Termination:

GDC certification revoked

GDC MSA cancelled and removal within 12 months


 


COMPANY can choose to use
any of the above tools.


 


CONTRACTOR understands
and agrees to the above measurement model.


 


	
  GENERAL ELECTRIC INTERNATIONAL, INC.

  	
   

  	
  Patni Computer Systems Limited

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  

  /s/ Steven John Morrison

  	
   

  	
  By:

  	
  

  /s/ Sunil Chitale

  
	
  Name:

  	
  Steven John Morrison

  	
   

  	
  Name:

  	
  Sunil Chitale

  
	
  Title:

  	
  GDC Director

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
  Date:

  	
  3rd August 2006

  	
   

  	
  Date:

  	
  Aug 3, 2006