Exhibit
10.6


 


MASTER
PROFESSIONAL SERVICES AGREEMENT


 


BY AND
BETWEEN


 


MACRO*WORLD
RESEARCH CORPORATION


 


AND


 


GENPACT
INTERNATIONAL




DATED:  NOVEMBER 30, 2005


 










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TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  BACKGROUND AND
  OBJECTIVES

  	
  1

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Performance and
  Management by Genpact

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.2

  	
  Master Agreement

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.3

  	
  Goals and Objectives

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.4

  	
  Interpretation

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  DEFINITIONS AND
  DOCUMENTS

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Definitions

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.2

  	
  Other Terms

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.3

  	
  Associated Contract
  Documents

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  TERM

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Initial Term

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.2

  	
  Renewal

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.3

  	
  SOW Term

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.4

  	
  No Stranded Costs or
  Termination Charge on Expiration

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  SERVICES

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Overview

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2

  	
  Statements of Work

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3

  	
  [RESERVED]

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.4

  	
  Transition Services

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.5

  	
  Eligible Recipient
  Services

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.6

  	
  Use of Third Parties

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.7

  	
  Notice of Adverse
  Impact

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.8

  	
  Key Wachovia
  Competitors

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  CONSENTS

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Genpact Consents

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.2

  	
  Wachovia Consents

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.3

  	
  Contingent Arrangements

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  INFRASTRUCTURE FOR THE
  PROVISION OF THE SERVICES

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Service Facilities

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.2

  	
  Physically Segregated
  Facilities

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.3

  	
  Wachovia Infrastructure
  Standards

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.4

  	
  Equipment

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.5

  	
  Network and Telephony
  Solution

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.6

  	
  Software

  	
  14

  



 










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  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  6.7

  	
  Wachovia Processes

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.8

  	
  Use of Genpact
  Facilities

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.9

  	
  Use of Wachovia
  Facilities

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.10

  	
  Assignment of Licenses,
  Leases and Related Agreements

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.11

  	
  Notice of Defaults

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.12

  	
  Wachovia-Specific
  Policies and Other Requirements

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  SERVICE LEVELS

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  General

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.2

  	
  Service Level Credits,
  Earnback and Deliverable Credits

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.3

  	
  Problem Analysis

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.4

  	
  Continuous Improvement
  Reviews

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.5

  	
  Measurement and
  Monitoring

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.6

  	
  Satisfaction Surveys

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  GENPACT PERSONNEL

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Genpact Personnel Are
  Not Wachovia Employees

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.2

  	
  Global Operations
  Leader

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.3

  	
  Key Employees

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.4

  	
  Selection,
  Qualifications, Retention and Replacement of Genpact Personnel

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.5

  	
  Turnover Rate and Data

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.6

  	
  Conduct of Genpact
  Personnel

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.7

  	
  Substance Abuse

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.8

  	
  Wachovia Employees

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  GENPACT
  RESPONSIBILITIES

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Procedures Manuals

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.2

  	
  Reports

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.3

  	
  Governance and Meetings

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.4

  	
  Operational Risk
  Management, Quality Assurance and Internal Controls

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.5

  	
  Processes, Procedures,
  Architecture, Standards and Information Technology Planning

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.6

  	
  Change Control

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.7

  	
  Agency and Disbursements

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.8

  	
  Subcontractors

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.9

  	
  Technology and Business
  Process Evolution

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.10

  	
  Genpact Technology and
  Business Process Plan

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.11

  	
  Unauthorized Use

  	
  35

  



 










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  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  9.12

  	
  Retained Systems and
  Business Processes

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.13

  	
  Network Configuration
  Data

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  CONTINUED PROVISION OF
  SERVICES

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  Disaster Recovery

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.2

  	
  Force Majeure

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.3

  	
  Payment Obligation

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.4

  	
  Allocation of Resources

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.5

  	
  Step-In Rights

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  WACHOVIA RESPONSIBILITIES

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.1

  	
  Responsibilities

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.2

  	
  Management of Issues

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  CHARGES

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.1

  	
  General

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.2

  	
  Pass-Through Expenses

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.3

  	
  Taxes

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.4

  	
  Extraordinary Events

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.5

  	
  Unanticipated Changes

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.6

  	
  Proration

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.7

  	
  Refundable Items

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.8

  	
  Wachovia Benchmarking
  Reviews

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.9

  	
  Gainsharing

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  INVOICING AND PAYMENT

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.1

  	
  Invoicing

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.2

  	
  Payment Due Date

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.3

  	
  Disputed Charges

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
  AUDIT RIGHTS

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.1

  	
  Contract Records

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.2

  	
  Operational Audits

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.3

  	
  Financial Audits

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.4

  	
  Audit Assistance

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.5

  	
  General Procedures

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.6

  	
  Genpact Internal Audit

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.7

  	
  Genpact Response

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.8

  	
  Genpact Response to
  External Audits

  	
  51

  



 










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  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  14.9

  	
  SAS 70 Type II Audit

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.10

  	
  Audit Costs

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
  WACHOVIA DATA AND OTHER
  PROPRIETARY INFORMATION

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.1

  	
  Wachovia Ownership of
  Wachovia Data

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.2

  	
  Safeguarding Wachovia
  Data

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.3

  	
  Wachovia Personal Data

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.4

  	
  Confidentiality

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.5

  	
  File Access

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
  OWNERSHIP OF MATERIALS

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.1

  	
  Wachovia Owned
  Materials

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.2

  	
  License to Wachovia
  Third Party Materials

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.3

  	
  Genpact Owned Materials

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.4

  	
  License to Genpact
  Third Party Materials

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.5

  	
  Developed Materials

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.6

  	
  Other Materials

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.7

  	
  General Rights

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  17.

  	
  REPRESENTATIONS

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.1

  	
  Representations by
  Wachovia

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.2

  	
  Representations by
  Genpact

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  18.

  	
  WARRANTIES AND
  ADDITIONAL COVENANTS

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.1

  	
  Work Standards

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.2

  	
  Efficiency and Cost
  Effectiveness

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.3

  	
  Software

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.4

  	
  Non-Infringement

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.5

  	
  Malicious Code

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.6

  	
  Disabling Code

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.7

  	
  Interoperability

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.8

  	
  Currencies

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.9

  	
  Genpact Personnel

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.10

  	
  Other Warranties by
  Genpact

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.11

  	
  Other Warranties by
  Wachovia

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  19.

  	
  COMPLIANCE WITH LAW

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.1

  	
  Compliance by Wachovia

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.2

  	
  Compliance by Genpact

  	
  72

  



 










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  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  19.3

  	
  Notice of Laws

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.4

  	
  Interpretation of Laws
  or Changes in Laws

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.5

  	
  Implementation of
  Changes in Laws

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  20.

  	
  DISCLAIMER

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  21.

  	
  INDEMNITIES

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  21.1

  	
  Indemnities by Genpact

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  21.2

  	
  Indemnity by Wachovia

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  21.3

  	
  Infringement

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  21.4

  	
  Indemnification
  Procedures

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  21.5

  	
  Indemnification
  Procedures — Governmental Claims

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  21.6

  	
  Subrogation

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  22.

  	
  DAMAGES

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  22.1

  	
  General Intent

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  22.2

  	
  Direct Damages

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  22.3

  	
  Operational Losses

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  22.4

  	
  Consequential Damages

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  22.5

  	
  Exclusions

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  22.6

  	
  Items Not Considered
  Damages

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  22.7

  	
  Mitigation Efforts

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
  23.

  	
  INSURANCE AND RISK OF
  LOSS

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  23.1

  	
  Insurance

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  23.2

  	
  Approved Companies

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  23.3

  	
  Location of Insurers

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  23.4

  	
  Endorsements

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  23.5

  	
  Other Requirements

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  23.6

  	
  Certificates

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  23.7

  	
  No Implied Limitation

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  23.8

  	
  Waiver of Subrogation

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  23.9

  	
  Risk of Loss

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
  24.

  	
  DISPUTE RESOLUTION

  	
  85

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  24.1

  	
  Informal Dispute
  Resolution

  	
  85

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  24.2

  	
  Arbitration

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  24.3

  	
  Continued Performance

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  24.4

  	
  Governing Law

  	
  86

  



 










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  25.

  	
  TERMINATION

  	
  87

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  25.1

  	
  Termination of
  Agreement for Cause

  	
  87

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  25.2

  	
  Termination of
  Statement of Work for Cause

  	
  88

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  25.3

  	
  Termination for
  Convenience

  	
  89

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  25.4

  	
  Termination Upon
  Genpact Change of Control

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  25.5

  	
  Termination for
  Insolvency

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  25.6

  	
  Wachovia Rights Upon
  Genpact’s Bankruptcy

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  25.7

  	
  Termination for Genpact
  Degraded Financial Condition

  	
  91

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  25.8

  	
  Termination by Wachovia
  by Based on Regulatory Action

  	
  91

  
	
   

  	
   

  	
   

  	
   

  
	
  26.

  	
  TERMINATION ASSISTANCE
  SERVICES AND EXIT RIGHTS

  	
  92

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  26.1

  	
  Termination Assistance
  Services

  	
  92

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  26.2

  	
  Exit Rights

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  26.3

  	
  Stranded Costs

  	
  99

  
	
   

  	
   

  	
   

  	
   

  
	
  27.

  	
  GENERAL

  	
  100

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.1

  	
  Binding Nature and
  Assignment

  	
  100

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.2

  	
  Entire Agreement;
  Amendment

  	
  100

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.3

  	
  Notices

  	
  100

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.4

  	
  Counterparts

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.5

  	
  Headings

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.6

  	
  Relationship of Parties

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.7

  	
  Severability

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.8

  	
  Consents, Approvals and
  Requests

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.9

  	
  Waiver of Default;
  Cumulative Remedies

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.10

  	
  Survival

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.11

  	
  Publicity

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.12

  	
  Service Marks

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.13

  	
  Export

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.14

  	
  Third Party
  Beneficiaries

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.15

  	
  Covenant Against
  Pledging

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.16

  	
  Order of Precedence

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.17

  	
  Hiring of Employees

  	
  105

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.18

  	
  Further Assurances

  	
  105

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.19

  	
  Liens

  	
  105

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.20

  	
  Covenant of Good Faith

  	
  105

  



 










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  27.21

  	
  Remarketing

  	
  105

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  27.22

  	
  Acknowledgment

  	
  105

  



 










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Table of Schedules and
Exhibits


 


A             Definitions 

B             Form of Statement of Work

C             Transition Methodology

D             Technology Infrastructure and Services

E              Disclosure Statement

F              Wachovia Security Standards and Requirements

G             Wachovia Rules and Wachovia Code of Ethics

H             Satisfaction Survey

I               Stranded Costs

J              Initial List of Key Employees

K             Governance

L              Change Control Procedures

M            [RESERVED]

N             [RESERVED]

O             Pricing Methodology

P              List of Approved Benchmarkers


 


Exhibit 1:  Form of Non-Disclosure Agreement

Exhibit 2:  [RESERVED]

Exhibit 3:  Form of Genpact
Personnel Agreement


 










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MASTER
PROFESSIONAL SERVICES AGREEMENT


 


This Master Professional Services Agreement (this “Agreement”)
is entered into effective November 30, 2005 (the “Effective
Date”) by and between Macro*World Research Corporation,  a North Carolina corporation having a principal place of
business at 301 S. College Street, Charlotte, NC 28288 (“Wachovia”), and  Genpact
International, a  Luxembourg  entity
having a principal place of business at 65, Boulevard Grande Duchesse
Charlotte, L-1331 Luxembourg  (“Genpact”).


 


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


 


WHEREAS, Wachovia desires to procure from Genpact, and Genpact desires to
provide to Wachovia and the Eligible Recipients, certain business process
services and products described in Statements of Work entered into under this
Agreement, on the terms and conditions specified herein;


 


WHEREAS, the parties acknowledge and agree that the services to be
performed by Genpact under this Agreement shall be performed by Genpact acting
through its Hungarian Branch from and after the date of the registration of the
Hungarian Branch in Hungary;


 


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


 


1.                                      BACKGROUND AND OBJECTIVES


 


1.1                               Performance and Management by Genpact.


 


Wachovia desires that certain
business process services presently performed and managed by or for Wachovia
and the Eligible Recipients, as described in Statements of Work entered into
under this Agreement, be performed and managed by Genpact.


 


1.2                               Master Agreement.


 


This Agreement is a master
agreement, the terms of which shall be incorporated by reference into all
Statements of Work.


 


1.3                               Goals and Objectives.


 


The Parties acknowledge and
agree that the general goals and objectives of the Parties in entering into
this Agreement are to:


 


(a)                                  Continue the provision of leading edge
processes and systems to Wachovia and provide integrated, efficient and
effective delivery of in-scope business process services to the Wachovia lines
of business;


 


(b)                                 Offer a highly-integrated delivery mechanism
for in-scope business process services;


 


(c)                                  Maintain and improve high levels of service
delivery to the Wachovia lines of business, including high levels of service
delivery for in-scope business process services delivered to Wachovia;


 


(d)                                 Maintain the ability to react quickly and
effectively to the changing needs of Wachovia;


 










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(e)                                  Foster a high level of cooperation and maintain
the confidence and trust of Wachovia;


 


(f)                                    Reduce the cost of service delivery to Wachovia
without compromising the quality or efficacy of the Services;


 


(g)                                 Maintain a well-understood, consistent
mechanism for understanding the cost of back-office and mid-office services,
for both standard and non-standard services, thereby enhancing Wachovia’s
ability to accurately establish cost-benefit models and customization;


 


(h)                                 Establish a mutually beneficial relationship
between Wachovia and Genpact, which focuses on ensuring high levels of customer
satisfaction and on continuous improvement in that satisfaction;


 


(i)                                     Develop a relationship whereby Genpact
proactively identifies opportunities to enhance the quality and level of
Services provided to Wachovia;


 


(j)                                     Develop a relationship whereby Genpact provides
strategic consultation related to back-office and mid-office management;


 


(k)                                  Establish strong relationships with existing
and future third party suppliers;


 


(l)                                     Provide opportunities for Wachovia to leverage
relationships that Genpact has with other third parties to the mutual advantage
of the Parties; and


 


(m)                               Manage operational risk and comply with
applicable Laws.


 


1.4                               Interpretation.


 


The provisions of this Article 1 are intended to be a
general introduction to this Agreement and are not intended to (a) expand the
scope of the Parties’ obligations, (b) alter the plain meaning of this
Agreement’s terms and conditions, as set forth hereinafter, or (c) impose
obligations on either Party that are not otherwise described in this Agreement
or any of the Statements of Work. 
However, to the extent the terms and conditions of this Agreement or any
of the Statements of Work are unclear or unambiguous, such terms and conditions
shall be construed so as to be consistent with the background and objectives
set forth in this Article 1.


 


2.                                      DEFINITIONS AND DOCUMENTS


 


2.1                               Definitions.


 


Except as otherwise expressly
provided in this Agreement, all capitalized terms used in this Agreement shall
have the meanings set forth in Schedule A and in the other Schedules or Exhibits to
this Agreement.


 


2.2                               Other Terms.


 


The terms defined in Schedule A, in the Schedules
or Exhibits to this Agreement or in Statements of Work entered into under this
Agreement include the plural as well as the singular and the derivatives of
such terms. Unless otherwise expressly stated, the words “herein,” “hereof,”
and “hereunder” and other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other subdivision.  Article, Section, Schedule and Exhibit
references refer to articles and sections of, and attachments to, this
Agreement.  The words “include” and “including”
shall not be construed as terms of limitation. 
Unless expressly stated otherwise, the words “day,” “month,” and “year”
mean, respectively,


 










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calendar day, calendar month
and calendar year.  As stated in Section 27.3, the word “notice”
and “notification” and their derivatives shall mean notice or notification in
writing.


 


2.3                               Associated Contract Documents.


 


This Agreement includes
(a) each Statement of Work executed by the Parties pursuant to Section 4.2 and (b) each
of the Schedules and Exhibits listed in the
Table of Schedules and Exhibits and attached to this Agreement, all of
which are incorporated into this Agreement by this reference.


 


3.                                      TERM


 


3.1                               Initial Term.


 


The initial term of this
Agreement shall commence as of 12:00:01 a.m., Eastern Time, on the Effective
Date and, unless this Agreement is earlier terminated as provided herein, shall
continue until 11:59:59 p.m., Eastern Time, on the seventh anniversary of the
Effective Date (the “Initial Term”)
or the date to which this Agreement is extended pursuant to Section 3.2.


 


3.2                               Renewal.


 


Genpact shall give Wachovia
notice of the expiration of the Initial Term at least seven (7) months prior to
the expiration date of the Initial Term. 
By giving notice to Genpact no less than six (6) months prior to the
expiration date of the Initial Term, Wachovia shall have the right to extend
the Term for one (1) renewal period of two (2) years (the “Renewal Term”), on the terms and conditions
set forth in this Agreement.  As used in
this Agreement, “Term” means the
Initial Term and, if extended pursuant to this Section 3.2, the Renewal Term.  If Wachovia does not give such notice to
Genpact, the Term will expire at the end of the Initial Term.


 


3.3                               SOW Term.


 


(a)                                  SOW Initial Term.  Each Statement of Work shall commence
on the applicable SOW Commencement Date as of 12:00:01 a.m., Eastern Time, on
such date and, unless such Statement of Work or this Agreement is earlier
terminated as provided herein, shall continue until 11:59:59 p.m., Eastern
Time, on the expiration date set forth in such Statement of Work (the “SOW Initial Term”) unless such Statement of Work is extended
as provided in Section 3.3(b); provided, however, that except for
project-based Statements of Work each Statement of Work entered into (i) during
the second, third and fourth Contract Years and, if Wachovia extends the
Initial Term of this Agreement for the Renewal Term pursuant to Section 3.2, during the fifth
and sixth Contract Years, shall have a
SOW Initial Term of at least three (3) years and (ii) if Wachovia does not
extend the Initial Term of this Agreement for the Renewal Term pursuant to Section 3.2, during the fifth and sixth Contract Years,
shall have a SOW Initial Term through the remainder of such Initial Term.


 


(b)                                 SOW Renewal Term.  Genpact shall give Wachovia notice
of the expiration of each SOW Initial Term at least one hundred twenty (120)
days prior to the expiration date of such SOW Initial Term.  At least ninety (90) days prior to the
expiration of the SOW Initial Term, Wachovia may extend the SOW Initial Term
for one (1) extension period of up to two (2) years (the “SOW Renewal Term”), on the terms and conditions set forth in
the applicable Statement of Work.  As
used in this Agreement, “SOW Term” means
the SOW Initial Term and, if extended pursuant to this Section 3.3(b),
the SOW Renewal Term.  If Wachovia does
not give such notice to Genpact, the SOW Term will expire at the end of the SOW
Initial Term.


 










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(c)                                  Coterminous.  Although the SOW Term may be
shorter than the Term of this Agreement, in no event will the term of a
Statement of Work extend beyond the Term of this Agreement.


 


3.4                               No Stranded Costs or Termination Charge on
Expiration.


 


Genpact shall not be entitled
to recover any Stranded Costs or
Termination Charge in connection with the expiration of this Agreement or any
Statement of Work.


 


4.                                      SERVICES


 


4.1                               Overview.


 


(a)                                  Services. 
Genpact shall pursuant to this Agreement and Statements of Work provide
the Services to Wachovia and, upon Wachovia’s request, to the Eligible
Recipients designated by Wachovia. 
Wachovia shall remain liable for all obligations of such Eligible
Recipients, including any payment obligations under this Agreement and under
Statements of Work.  The Services shall
consist of the following, as they may evolve during the Term or be
supplemented, enhanced, modified or replaced, in each case, in accordance with
the terms of this Agreement:


 


(i)                                     The applicable services, functions and
responsibilities described in this Agreement and Statements of Work;


 


(ii)                                  To the extent applicable, the services,
functions and responsibilities performed by Wachovia personnel who were
displaced or whose functions were displaced as a result of a Statement of Work,
even if the service, function, or responsibility is not specifically described
in such Statement of Work, that are identified during the first Contract Year
of such Statement of Work; and


 


(iii)                               If a Wachovia Base Case has been prepared in
connection with a Statement of Work and has been incorporated by reference in
such Statement of Work, the related services, functions, responsibilities and
tasks reflected in those categories of the Wachovia Base Case which Genpact is
assuming pursuant to such Statement of Work;


 


(collectively,
the “Services”).


 


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


 


(c)                                  Required Resources.  Except
as otherwise expressly provided in this Agreement or the applicable Statement
of Work, Genpact shall be responsible for providing the facilities, personnel,
Equipment, Software, technical knowledge, expertise, telecommunications lines
and other resources necessary to provide the Services.


 


4.2                               Statements of Work.


 


(a)                                  Statements of Work.  The
process to be followed with respect to new Statements of Work and amendments to
existing Statements of Work requested by Wachovia is described below.  The Parties intend that Statements of Work
shall be used as a means to bring work under this Agreement and to further
describe the Services to be provided by Genpact in accordance with this


 










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Agreement and the Schedules. 
Statements of Work are not intended, and shall not be used by Genpact or
Wachovia, to re-negotiate or otherwise change terms and conditions that have
been negotiated and set forth in this Agreement and the Schedules, except in
very limited or special circumstances where facts exist that are not
specifically addressed in this Agreement or the Schedules or where this
Agreement has expressly reserved such matters to the Statement of Work.


 


(b)                                 Statement of Work/Pricing.  The
pricing methodology, including FTE rates for personnel performing Services, for
Statements of Work is specified in Schedule O.  Genpact may propose lower FTE rates in
respect of any Statement of Work. 
Genpact may also propose transactional pricing or fixed pricing for new
Statements of Work or amendments to Statements of Work.  At Wachovia’s request at any time from or
after twelve (12) months (or, if specified in the applicable Statement of Work,
eighteen (18) months) after the Full Production Date, Genpact shall propose
transactional pricing in respect of any Statement of Work.  In all such instances, the transaction
pricing or fixed price proposed by Genpact shall be no less favorable to
Wachovia than the price obtained by applying the pricing methodology specified
in Schedule O to such Statement
of Work.  Wachovia also may request
Services using the FTE rates specified in Schedule O
for ad hoc time and materials projects
from time to time.  Each such ad hoc
project shall be set forth in a Statement of Work.


 


(c)                                  Statement of Work Proposals. 
Genpact shall scope, price and perform Services under a Statement of
Work in accordance with the following Statement of Work formation process and
implementation methodology.  Before
beginning work under any Statement of Work, the Parties must follow the
Statement of Work formation process set forth in this Section 4.2(c).  Services performed without a Statement of
Work signed by the Parties shall be at Genpact’s sole expense. The Statement of
Work formation process (including formation of amendments to existing
Statements of Work) shall be as follows:


 


(i)                                     Due Diligence. 
Wachovia shall reasonably cooperate with Genpact’s requests for relevant
information and access in connection with Genpact’s reasonable due diligence
activities relating to each Statement of Work. 
To the extent such due diligence requests are granted by Wachovia,
Genpact shall carefully review Wachovia’s requirements and perform all due
diligence it deems necessary prior to execution of each Statement of Work.


 


(ii)                                  Joint Activity. 
Formation of Statements of Work shall be a joint activity, led by the
Wachovia manager responsible for the process or service that is the subject of
the proposed Statement of Work.


 


(iii)                               Content.  Each
Statement of Work shall be substantially in the form set forth in Schedule B (except to the
extent any elements of Schedule B
are excluded from the scope of that Statement of Work) and shall include a
Transition Plan if applicable.


 


(iv)                              Statement of Work and Transition
Plan.  Genpact shall develop a draft Statement of
Work (or an amendment to an existing Statement of Work), including, if
applicable, a Transition Plan, for Wachovia’s review, as soon as possible after
Wachovia’s request therefor.  Genpact
shall make any amendments requested by Wachovia and agreed to by the
Parties.  The Statement of Work or
amendment to existing Statement of Work shall become effective only when signed
by the Parties.


 


(v)                                 Performance.  After
the Statement of Work or amendment has been signed by the Parties, Genpact
shall begin to perform the Services in accordance with the Statement of Work or
amended Statement of Work on the SOW Commencement Date.


 










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(d)                                 Statement of Work Proposal Costs.  The
hours expended by Genpact in performing the due diligence contemplated by Section 4.2(c)(i) and preparing
Statements of Work, Statement of Work amendments, or other proposals or plans
or reporting on the status of the development of such Statements of Work shall
not be charged to Wachovia unless otherwise agreed by the Parties.


 


(e)                                  Additional Work or
Reprioritization.


 


(i)                                     In addition to the foregoing, the Wachovia
Project Executive or his or her designee may identify new or additional work
activities to be performed by Genpact Personnel or reprioritize or reset the
schedule for existing work activities to be performed by Genpact
Personnel.  Unless otherwise agreed,
Wachovia shall incur no additional charges for the performance of such work
activities performed by Genpact Personnel to the extent such work activities
can be performed with the same level of FTE support as set forth in the
applicable Statement of Work.  If and to
the extent such work activities cannot be performed with the same level of FTE
support as set forth in the applicable Statement of Work, Genpact shall notify
Wachovia thereof and Wachovia may either (A) forego such new or additional
work activities or (B) address the cost of the additional FTE support
required.


 


(ii)                                  Genpact shall use commercially reasonable
efforts to perform such work activities without impacting (A) the
established schedule for other tasks or (B) the performance of the
Services in accordance with the Service Levels. 
If any such request is likely to have any such impact, Genpact shall
notify Wachovia of the anticipated impact and obtain its consent prior to
proceeding with such work activities.  If
Genpact so notifies Wachovia of such impact, Wachovia may, in its sole
discretion, either (1) forgo or delay such new or additional work
activities or (2) adjust the work to be performed by Genpact, the
schedules associated therewith or the Service Levels in order to permit Genpact
to perform such new or additional work activities without impacting the
established schedule for other tasks or the performance of the Services in
accordance with the Service Levels. 
Genpact shall not make changes to any such Statement of Work that may
affect the projected cost to Wachovia or the schedule for completion of the
activities and deliverables under such Statement of Work without obtaining
Wachovia’s prior approval.


 


4.3                               [RESERVED].


 


4.4                               Transition Services.


 


(a)                                  Methodology.  Except
to the extent otherwise agreed in any Statement of Work, the Parties shall use
Genpact’s transition methodology described in Schedule C,
supplemented by Wachovia’s then-current Corporate Readiness Assessment Program,
for Transition Services required under a Statement of Work and the Charges for
Transition Services shall conform to the pricing methodology for Transition
Services set forth in Schedule O.  In the event that the Parties agree in a
Statement of Work that Genpact’s transition methodology shall not be used for
Transition Services under such Statement of Work, the Parties shall still use
Wachovia’s then-current Corporate Readiness Assessment Program for such
Transition Services.


 


(b)                                 Transition.  During the Transition Period set
forth in any Statement of Work, Genpact shall perform the Transition Services
and provide the deliverables described in the Transition Plan set forth in such
Statement of Work.  During the Transition
Period, Wachovia shall perform those tasks which are designated to be Wachovia’s
responsibility in the Transition Plan. 
Unless otherwise agreed, Wachovia shall not incur any charges, fees or
expenses payable to Genpact or third parties in connection with the Transition
Services, other than those charges, fees and expenses specified in this
Agreement, Schedule O or the
applicable Statement of Work and those


 










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incurred by Wachovia in connection with its performance of tasks designated
in the Transition Plan as Wachovia’s responsibility.


 


(c)                                  Performance. 
Genpact shall perform the Transition Services described in the
Transition Plan pursuant to a Statement of Work in accordance with the schedule
and Transition Milestones set forth therein. 
Genpact shall provide all cooperation and assistance reasonably required
or requested by Wachovia in connection with Wachovia’s evaluation or testing of
the deliverables set forth in the Transition Plan.  Genpact shall perform the Transition Services
in a manner that will not, except as may be otherwise provided in the
Transition Plan, materially (i) disrupt or have an adverse impact on the
business or operations of Wachovia or the Eligible Recipients,
(ii) degrade the Services then being received by Wachovia or the Eligible
Recipients, or (iii) interfere with the ability of Wachovia or the
Eligible Recipients to obtain the full benefit of the Services.  Prior to performing any Transition Services,
Genpact shall discuss with Wachovia all known process-specific material risks
and shall not proceed with such activity until Wachovia is reasonably satisfied
with the plans with regard to such risks. 
Genpact shall identify and resolve, with Wachovia’s reasonable
assistance, any problems that may impede or delay the timely completion of each
task in the Transition Plan that is Genpact’s responsibility or in Genpact’s
control and shall use commercially reasonable efforts to assist Wachovia with
the resolution of any problems that may impede or delay the timely completion
of each task in the Transition Plan that is Wachovia’s responsibility or in
Wachovia’s control.


 


(d)                                 Reports. 
Genpact shall meet at least weekly (or at such other intervals as may be
set forth in a Statement of Work) with Wachovia to report on its progress in
performing its responsibilities and meeting the timetable set forth in the
Transition Plan for the applicable Statement of Work.  Genpact also shall provide written reports to
Wachovia at least weekly (or at such other intervals as may be set forth in a
Statement of Work) regarding such matters, and shall provide oral reports more
frequently if reasonably requested by Wachovia. 
Genpact shall promptly notify Wachovia of material delays affecting the
timetable set forth in the Transition Plan and shall identify for Wachovia’s
consideration and approval specific measures to address such delay and mitigate
the risks associated therewith.


 


(e)                                  Suspension or Delay of Transition
Activities.  Wachovia reserves
the right, in its sole discretion and subject to Change Control Procedures
(except that the cost shall be allocated as set forth in this Section 4.4(e)), to suspend or
delay the performance of any Transition Services.  If Wachovia elects to exercise this right and
Wachovia’s decision is based, at least in material part, on reasonable concerns
about Genpact’s ability to perform the Services under the applicable Statement
of Work or Genpact’s failure to perform its obligations under this Agreement,
Wachovia shall not incur any additional Charges or reimbursable expenses in
connection with such decision.  If
Wachovia’s decision is not based in material part on reasonable concerns about
Genpact’s ability to perform the Services under the applicable Statement of
Work or Genpact’s failure to perform its obligations under this Agreement,
Wachovia shall reimburse Genpact for any additional costs reasonably incurred
by Genpact as a result of such decision, but only to the extent Genpact
notifies Wachovia in advance of such costs that are reasonably foreseeable, obtains
Wachovia’s approval prior to incurring any additional costs and uses
commercially reasonable efforts to minimize such costs.


 


(f)                                    Failure to Meet Transition
Milestones.


 


(i)                                     The Parties acknowledge and agree that each
Transition Plan shall specify various Transition Milestones by which material
transition activities and/or deliverables must be completed.  If Genpact fails to meet a Transition
Milestone, which failure is not excused as described in Section 7.1(e)(ii), Genpact shall
pay Wachovia the Deliverable Credit(s), if any, specified in the Transition
Plan for such Transition Milestone.


 










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(ii)                                  Neither the Transition Services nor the
activities and deliverables associated with individual Transition Milestones
shall be deemed complete until Wachovia’s acceptance of such activities and
deliverables in accordance with the acceptance criteria set forth in the
Transition Plan.


 


(iii)                               In addition to any Deliverable Credit provided
pursuant to this Section 4.4(f),
if Genpact fails to meet the date specified for any Transition Milestone
(subject to Section 7.1(e)(ii),
Genpact shall not be entitled to any incremental compensation for work
associated with such Transition Milestone beyond that which Genpact would have
received if it had met such date.


 


4.5                               Eligible Recipient Services.


 


(a)                                  Eligible Recipients. 
Genpact shall provide the Services to Eligible Recipients designated by
Wachovia.  To the extent a designated
Eligible Recipient will receive less than all of the Services, Wachovia shall
identify the categories of Services to be provided by Genpact to such Eligible
Recipient in the applicable Statement of Work.


 


(b)                                 New Eligible Recipients.  From
time to time Wachovia may request that Genpact provide Services to Eligible
Recipients not previously receiving such Services under a Statement of
Work.  Such Services shall be performed
in accordance with the terms, conditions and prices (excluding any
non-recurring transition or start-up activities specific to such Eligible
Recipients) then applicable to the provision of the same Services to existing
Eligible Recipients under the applicable Statement of Work.  The Parties shall agree upon the cost of any
such non-recurring transition or start-up activities pursuant to the Change
Control Procedures.


 


(c)                                  Merger or Acquisition.  If Wachovia
signs a definitive agreement to execute a merger or acquisition, Genpact shall
provide commercially reasonable support for such merger or acquisition subject
to and in accordance with the following provisions:


 


(i)                                     Wachovia shall give Genpact notice of a merger
or acquisition for which Wachovia desires support from Genpact as soon as
practicable after the announcement of such merger or acquisition.


 


(ii)                                  If Wachovia requests Genpact’s support for a
merger or acquisition, Genpact shall comply with the requirements of Wachovia’s
merger and acquisitions project management office, including the timeline for
all merger and acquisition related activities and projects.


 


In the event that Wachovia or
a Wachovia Affiliate merges with or acquires an Entity that has an existing
agreement with Genpact or a Genpact Affiliate, Wachovia may, at its option upon
notice to Genpact, require Genpact to (A) continue to provide the services then
being provided to such Entity under such existing agreement under the terms and
conditions of such existing agreement or (B) provide such services under the
terms and conditions of this Agreement. 
In addition, Wachovia may designate such Entity as a Eligible Recipient
under this Agreement for other Services. 
If Wachovia requires Genpact to provide the services then being provided
to such Entity under such existing agreement under the terms and conditions of
this Agreement and such existing agreement contemplates the payment of costs or
fees in connection with an early termination of such existing agreement, then
Wachovia shall pay Genpact all actual, unrecoverable Stranded Costs under such
existing agreement (as such term is defined in such agreement) plus all actual
transition costs incurred by Genpact in connection with the transition of the
services being performed under such existing services to this Agreement and
Genpact shall waive any portion of termination fees payable under such existing
agreement relating to lost profits.  In
addition, in no


 










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event shall the term of any
executory statement of work under the existing contract be reduced as a result
of such transition and the Executive Committee shall resolve any issues
concerning any pricing differential between such existing agreement and this
Agreement.


 


(d)                                 Divestiture.  In the
event Wachovia divests an Eligible Recipient, Wachovia may elect, on behalf of
the Eligible Recipient in question, that for a period (i) no greater than
twelve (12) months, such Eligible Recipient shall continue to obtain the
Services, or a portion of the Services specified by Wachovia, subject to and in
accordance with the terms and conditions of this Agreement and the applicable
Statement of Work or (ii) to be agreed upon by Genpact and the Entity
executing such separate agreement, such Eligible Recipient shall obtain some or
all of the Services under a separate agreement between Genpact and an Entity
containing substantially similar terms and conditions as this Agreement.  Alternatively, Wachovia may remove such
Eligible Recipient from the Eligible Recipients receiving Services under the
applicable Statement of Work as of a date specified by Wachovia and, at
Wachovia’s option, request Termination Assistance Services pursuant to Section 26.1 for such Eligible
Recipient.  If the Services are provided
under a separate agreement, the Entity executing such agreement shall be
financially responsible for Charges for such Services if on the date of
execution such Entity would be deemed “creditworthy” under the Genpact rating
system for new customers as consistently applied and Wachovia shall have no
obligation to pay any fees in relation to the Services provided to such
Entity.  If the Entity would not be
deemed creditworthy under such rating system and Wachovia is unwilling to
remain financially responsible for Charges for Services to be provided under a
separate agreement, Genpact may decline to enter into such an agreement with
such Entity.  Services provided under
such separate agreement shall be included in the calculation of Service volumes,
if any, under this Agreement, but shall be excluded when determining any
Termination Charges that may be payable under this Agreement as a result of
termination for convenience of the applicable Statement of Work.


 


4.6                               Use of Third Parties.


 


(a)                                  Right of Use.


 


(i)                                     As of the Effective Date Wachovia intends to
largely use Genpact for its offshore business process outsourcing during the
Term.  However, nothing in this Agreement
shall be construed as a requirements or “take-or-pay” contract, and Wachovia
makes [[[***]]] under this Agreement.  During
the Term, Wachovia shall provide Genpact an opportunity to bid on any business
processes considered by Wachovia for offshore outsourcing after the Effective
Date.


 


(ii)                                  Nothing in this Agreement shall be construed or
interpreted as limiting Wachovia’s right or ability to add or delete Eligible
Recipients or to increase or decrease its demand for Services.  Notwithstanding anything to the contrary
contained herein, but subject to Section 25.3,
this Agreement shall not be interpreted to prevent Wachovia or any Eligible
Recipient from obtaining from third parties (“Wachovia
Third Party Contractors”), or providing to itself, any or all of the
Services described in this Agreement or any Statement of Work or any other
services.  To the extent Wachovia or an Eligible
Recipient obtains from Wachovia Third Party Contractors, or provides to itself,
any of the Services, the amount to be paid to Genpact by Wachovia shall be
equitably adjusted downward based on the resource Charges set forth in Schedule O and in the applicable
Statement of Work.  Similarly, to the
extent Wachovia adds or deletes Eligible Recipients or increases or decreases
its demand for Services, the amount to be paid to Genpact by Wachovia shall be
adjusted in accordance with Schedule O
and the rates specified therein.


 










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(b)                                 Genpact Cooperation. 
Genpact shall fully cooperate with and work in good faith with Wachovia
or Wachovia Third Party Contractors as requested by Wachovia.  In connection with such cooperation, (i) Wachovia
personnel and Wachovia Third Party Contractors shall comply with Genpact’s
reasonable security requirements and (ii) Wachovia shall cause any
Wachovia Third Party Competitor who will have access to Proprietary Information
of Genpact to sign a confidentiality agreement in the form contained in Exhibit 1.  Genpact shall not be required to disclose
Genpact’s Proprietary Information to any Wachovia Third Party Contractor that
is a Genpact Competitor but only if Genpact proposes, in a timely manner, an
alternative arrangement (at no cost to Wachovia or such Wachovia Third Party
Contractor) that will not disrupt the provision of Services to Wachovia or the
provision of services by such Wachovia Third Party Contractor to Wachovia (such
as by replacing a proprietary Genpact tool with a third party tool, at no
charge to Wachovia or such Wachovia Third Party Contractor).


 


4.7                               Notice of Adverse Impact.


 


(a)                                  Genpact Failures.  If
Genpact becomes aware of any situation (including any act or omission of
Genpact, Wachovia, the Eligible Recipients or Wachovia Third Party Contractors)
(i) that has negatively impacted or reasonably could negatively impact the
maintenance of Wachovia’s or any Eligible Recipient’s financial integrity or
internal controls, the accuracy of Wachovia’s or any Eligible Recipient’s
financial, accounting, production quality or human resources records and
reports or compliance with Wachovia Rules, Wachovia Standards or applicable Laws, or (ii) that
has had or reasonably could have any other material adverse impact on the
Services, then Genpact shall promptly notify Wachovia of such situation and the
impact or expected impact and, if appropriate, Genpact and Wachovia shall meet
to formulate and implement an action plan to minimize or eliminate the impact
of such situation.


 


(b)                                 Wachovia Failures.  If
Wachovia or any Eligible Recipient becomes aware of any act or omission of
Wachovia, the Eligible Recipients or Wachovia Third Party Contractors that
(i) that has negatively impacted or reasonably could negatively impact
Genpact’s ability to perform the Services, or (ii) that has had or
reasonably could have any other material adverse impact on Genpact’s ability to
perform the Services, then Wachovia shall promptly notify Genpact of such act
or omission.


 


4.8                               Key Wachovia Competitors.


 


During the Term, Genpact shall
not provide any services to any
Key Wachovia Competitor unless approved by Wachovia in advance in its sole
discretion.  The foregoing sentence shall
not apply to finance and accounting services, human resource outsourcing
services, information technology or software services, or collection services
or any data analysis associated with such services, in each case provided by
Genpact on a shared service basis during the Term.  Genpact represents to Wachovia that as of the
Effective Date Genpact does not provide any services to any Key Wachovia
Competitor other than as permitted by the second sentence of this Section 4.8.


 


5.                                      CONSENTS


 


5.1                               Genpact Consents.


 


Genpact shall, at its own
expense, (a) obtain and maintain the Genpact Consents and (b) comply
with the Wachovia Consents, the terms of which Wachovia has given Genpact
notice.


 










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5.2                               Wachovia Consents.


 


Wachovia shall, at its own
expense, (a) obtain and maintain the Wachovia Consents and (b) comply
with the Genpact Consents, the terms of which Genpact has given Wachovia notice
of in connection with the negotiation or amendment of the applicable Statement
of Work.


 


5.3                               Contingent Arrangements.


 


(a)                                  Wachovia-licensed Third Party
Software.  If, despite using commercially reasonable
efforts, Wachovia is unable to obtain a Wachovia Consent with respect to
Wachovia-licensed Third Party Software, the Parties shall, at Wachovia’s option
and expense and with Wachovia’s consent, (i) replace the Wachovia license
for such Third Party Software with a Genpact license, (ii) replace such
Third Party Software with other Software offering equivalent features and
functionality, or (iii) secure the right for Genpact to manage the
Wachovia-licensed Third Party Software on behalf of Wachovia.


 


(b)                                 Other Third Party Contracts of
Wachovia.  If, despite using commercially reasonable
efforts, Wachovia is unable to obtain a Wachovia Consent with respect to any
other Third Party Contract of Wachovia, then, unless and until such Wachovia
Consent is obtained and subject to any restrictions in such Third Party
Contract, Genpact shall manage such Third Party Contract on Wachovia’s behalf
and at Wachovia’s expense and perform all obligations and enforce all rights
under such Third Party Contract as if Genpact were a party to such Third Party
Contract in Wachovia’s place.  If,
despite using commercially reasonable efforts, management of such Third Party
Contract is not legally or contractually possible, the Parties shall use
commercially reasonable efforts to determine and adopt such alternative
approaches as are necessary and sufficient to provide the Services without such
Wachovia Consent.  If such alternative
approaches are required for a period longer than sixty (60) days following
the applicable SOW Commencement Date and no reasonable workaround is available,
the Parties shall equitably adjust the applicable terms in the applicable
Statement of Work accordingly.


 


(c)                                  Other Consents.  If,
despite using commercially reasonable efforts, either Party is unable to obtain
any other Consent for which it is responsible (other than those described in Sections 5.3(a) and (b)), the Parties shall use
commercially reasonable efforts to determine and adopt such alternative
approaches as are necessary and sufficient to provide the Services without such
Consent.  If such alternative approaches
are required for a period longer than sixty (60) days following the
applicable SOW Commencement Date and no reasonable workaround is available, the
Parties will equitably adjust the applicable terms, including the Charges, in
the applicable Statement of Work accordingly.


 


(d)                                 Genpact Consents.  In
addition, if Genpact fails to obtain any Genpact Consent within sixty
(60) days after the SOW Commencement Date and such failure has a material
adverse impact on the use of the Services by Wachovia or the Eligible
Recipients, and no reasonable workaround is available, then within six (6)
months after the SOW Commencement Date Wachovia may terminate, pursuant to Section 25.2(a)(ii), any affected
portions of the relevant Statement of Work without payment of any Stranded
Costs or Termination Charges.


 


(e)                                  Genpact Obligation to Perform.  Except
as otherwise expressly provided herein, the failure to obtain any Genpact
Consent shall not relieve Genpact of its obligations under this Agreement and
Genpact shall not be entitled to any additional compensation or reimbursement
amounts in connection with obtaining or failing to obtain any Genpact Consent
or implementing any alternative approach.


 










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6.                                      INFRASTRUCTURE FOR THE
PROVISION OF THE SERVICES


 


6.1                               Service Facilities.


 


Genpact and its Subcontractors
shall provide the Services at or from (a) the Wachovia Sites or the
Wachovia Facilities described in the applicable Statement of Work, (b) the
Genpact Facilities described in the applicable Statement of Work, or (c) any
other service location agreed upon by the Parties.  Genpact shall obtain Wachovia’s prior
approval for any proposed relocation by Genpact or its Subcontractors of the
performance of the Services or any part thereof to a new or different Genpact
Facility or among Genpact Facilities. 
Genpact shall be financially responsible for all additional costs, taxes
or expenses related to or resulting from any Genpact-initiated relocation to a
new or different Genpact Facility, including any costs or expenses incurred or
experienced by Wachovia or any Eligible Recipient as a result of such
relocation unless the Parties agree that Wachovia shall have an identified
benefit due to such relocation that offsets such costs and expenses.


 


6.2                               Physically Segregated Facilities.


 


Genpact shall provide Services
to Wachovia either from dedicated, access-controlled floors, or dedicated,
access-controlled areas of a floor, of a Genpact Facility or from one or more
separate buildings dedicated to Wachovia, except in the event of a force majeure
event implementation of the applicable Genpact Internal Enabling Functions Plan
or Disaster Recovery Plan requires Services to be provided from non-dedicated
facilities approved by Wachovia in advance.


 


(a)                                  First Dedicated Genpact
Facilities.  Genpact shall
provide Services to Wachovia from a separate building dedicated to Wachovia by
the point in time that there are five hundred (500) FTEs on the Wachovia
account.  Pending due diligence and
review by the Parties, the Parties intend that such building shall be located
either in Gurgaon, India or in Hyderabad, India.


 


(b)                                 Second Dedicated Genpact Facility.  By the point in time that there
are one thousand (1,000) FTEs on the Wachovia account, Genpact shall provide
Services to Wachovia from a second separate building dedicated to
Wachovia.  The site of the second
dedicated building will be mutually agreed upon by the Parties.


 


6.3                               Wachovia Infrastructure Standards.


 


All Genpact Facilities, and
the technology in such Genpact Facilities and security at such Genpact
Facilities, shall comply with Wachovia Standards in accordance with the
following provisions:


 


(a)                                  Shared Genpact Facilities.  To the extent that Genpact
provides Services from a Genpact Facility from which it provides services to
other customers or which it shares with a third party, Genpact shall engineer
premises individual floors or access-controlled areas of a floor dedicated for
the provision of Services to Wachovia that meet Wachovia Standards (but not
including structural engineering changes to the existing building).  The technology in, and the security
applicable to, such dedicated premises floors or areas of a floor within such
shared Genpact Facility shall comply with Wachovia Standards and Wachovia shall
bear the actual, documented and approved incremental expenses for such
compliance.


 


(b)                                 Newly Constructed Genpact
Facilities.  In the event Genpact builds any
newly-constructed Genpact Facility that will be dedicated for the provision of
Services to Wachovia, such Genpact Facility shall be built in accordance with
Wachovia Standards or, if higher, applicable Law.  If Genpact believes that compliance to
Wachovia Standards will result in incremental costs above those that Genpact
would incur using Genpact’s normal standards or, if higher than Genpact’s
normal standards, applicable Law, then prior to incurring such costs Genpact
shall notify Wachovia and document and report to Wachovia the incremental costs
above the higher of Genpact’s normal standards or applicable Law.  For each such incremental cost, Wachovia
shall either waive the requirement for Genpact to comply with Wachovia
Standards or instruct Genpact


 










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to comply with Wachovia Standards and Wachovia shall bear the actual,
documented and approved incremental expenses for such compliance.


 


6.4                               Equipment.


 


(a)                                  Allocation of Responsibility.  Exhibit C to Schedule D sets forth the
allocation of responsibility (including financial responsibility) for the
design, ownership, installation, maintenance, oversight, monitoring and
management of all Equipment used to provide Services.  Wachovia retains the right to change the
allocation of responsibility set forth in Exhibit C
to Schedule D.  In the event Wachovia exercises such right,
the Parties shall make appropriate adjustments to Exhibit C to Schedule D
and the applicable Genpact Internal Enabling Functions Plan and Disaster
Recovery Plans and, unless such modifications are required by applicable Law,
the Parties shall agree upon the cost of any such changes pursuant to the
Change Control Procedures.


 


(b)                                 Compliance with Wachovia
Standards.


 


(i)                                     Genpact shall use Wachovia’s then-current “Common
Operating Environment Image” for all Equipment used by Genpact to provide
Services hereunder.


 


(ii)                                  Any Equipment (and all Software installed
thereon) provided or used by Genpact or Genpact Personnel (including
Equipment connected directly to the network(s) of Wachovia or any Eligible
Recipient or to transport Services to Wachovia or any Eligible Recipient) shall
be (A) subject to review and approval in advance by Wachovia (Genpact
shall cooperate with Wachovia in the testing, evaluation and approval of such
Equipment), (B) in compliance with Wachovia’s security policies,
architectures, standards, rules and procedures (including the security
requirements set forth in Schedule F)
in effect as of the applicable SOW Commencement Date and as modified by
Wachovia thereafter and (C) in compliance with Wachovia’s hardware and
software specifications in effect as of the applicable SOW Commencement Date
and as modified by Wachovia thereafter. 
Subject to Section 19.5,
the Parties shall address any incremental costs incurred by Genpact complying
with such modifications in accordance with the Change Control Procedures.  Genpact shall not install or permit the
installation of any other Software on such Equipment without Wachovia’s prior
approval.


 


(c)                                  Equipment Implementation,
Maintenance and Refresh.  Genpact shall implement Equipment located at
Genpact Facilities required to support Services under each new Statement of
Work.  Genpact shall maintain Equipment
located at Genpact Facilities in good operating condition, subject to normal
wear and tear.  Genpact shall refresh all
Equipment located at Genpact Facilities as set forth in Exhibit B to Schedule D.


 


(d)                                 Acquired Assets.  If a
Statement of Work contemplates that Wachovia shall convey to Genpact, and
Genpact shall accept Wachovia’s conveyance of, Acquired Assets, the Parties
shall include the terms and conditions of such conveyance or assignment or
both, as applicable, in such Statement of Work.


 


(e)                                  Wachovia Provided Equipment.  If and
to the extent contemplated by this Agreement or the applicable Statement of
Work, Wachovia shall provide Genpact with the use of the Wachovia owned and/or
leased Equipment (collectively, the “Wachovia
Provided Equipment”) for the periods specified in such Statement of
Work solely for, and in connection with, the provision of the Services.  Wachovia shall be responsible for the fees or
expenses associated with such Wachovia Provided Equipment unless and to the
extent otherwise set forth in such Statement of Work.  Upon the expiration of the period specified
in the applicable Statement of Work, for each item of Wachovia Provided
Equipment (or when such Wachovia Provided Equipment is no longer


 










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required by Genpact for the performance of the Services), Genpact shall
promptly return such Wachovia Provided Equipment to Wachovia in substantially
the same condition (as it may have been modified or improved by Genpact as
required by the applicable Statement of Work or with Wachovia’s approval) as
when such Wachovia Provided Equipment was first provided to Genpact, subject to
reasonable wear and tear.


 


6.5                               Network and Telephony Solution.


 


(a)                                  Network.  Exhibit A to Schedule D sets forth the
high-level architecture of the networks that Genpact will use to provide
Services to Wachovia.  Wachovia retains
the right to change the architecture of the networks that Genpact will use to
provide the Services.  In the event
Wachovia exercises such right, the Parties shall make appropriate adjustments
to Exhibit A to Schedule D and the applicable
Genpact Internal Enabling Functions Plan and Disaster Recovery Plans and, subject
to Section 19.5, the
Parties shall agree upon the cost of any such changes pursuant to the Change
Control Procedures.


 


(b)                                 Telephony Solution. 
Genpact shall provide telephony solutions in compliance with Wachovia’s
business and security requirements. 
Genpact shall enable proper options for controlling call logging as
approved by Wachovia.


 


(c)                                  Security Breaches.  Genpact
shall promptly investigate any security breach of Wachovia’s networks or
Systems associated with Genpact Personnel or the performance of the
Services.  Genpact shall notify Wachovia
and permit Wachovia to participate in any audit or investigation of any such security
breach.  Genpact shall promptly report
the findings of any such audit or investigation to Wachovia and shall provide
Wachovia with a copy of any written report prepared in connection therewith.


 


6.6                               Software.


 


(a)                                  Software Implementation and
Refresh.  Genpact shall implement new or changed
Software, tools and methodologies on Equipment located at Genpact Facilities as
required to support Services under each new Statement of Work.  Genpact shall refresh such Software as set
forth in Exhibit C to Schedule D.


 


(b)                                 Currency of Genpact Owned
Software.  Subject to, and in accordance with Sections 6.6(d), 9.5 and 9.6,  Genpact
shall maintain reasonable currency for Genpact Owned Software and shall provide
maintenance and support for new releases and versions of such Software.  At Wachovia’s direction, Genpact shall
operate multiple releases or versions of Genpact Owned Software and shall
continue to maintain and support each such release or version and the Parties
shall address any incremental costs incurred by Genpact complying with such
direction in accordance with the Change Control Procedures.  For purposes of this Section 6.6(b),
“reasonable currency” shall mean that,
unless otherwise directed by Wachovia, (i) Genpact shall maintain Genpact
Owned Software within one Major Release of the then current Major Release, and
(ii) Genpact shall install Minor Releases promptly.


 


(c)                                  Currency of Third Party Software. 
Subject to and in accordance with Sections 6.6(d),
9.5 and 9.6,
Genpact shall maintain reasonable currency for Third Party Software for which
it is financially responsible under this Agreement and provide maintenance and
support for new releases and versions of Third Party Software for which it is
operationally responsible.  At Wachovia’s
direction, Genpact shall operate multiple releases or versions of Third Party
Software and the Parties shall address any incremental costs incurred by
Genpact complying with such direction in accordance with the Change Control
Procedures.  In addition, unless
otherwise directed by Wachovia, Genpact shall keep Third Party Software within
release levels supported by


 










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the appropriate third party vendor. 
For purposes of this Section 6.6(c),
“reasonable currency” shall mean that,
unless otherwise directed by Wachovia, (i) Genpact shall maintain Third
Party Software within one Major Release of the then current Major Release, and
(ii) Genpact shall install Minor Releases promptly. and the Parties shall
address any incremental costs incurred by Genpact complying with such direction
in accordance with the Change Control Procedures.  To the extent Third Party Software for which
Genpact is operationally responsible under any Statement of Work is no longer
supported by the applicable licensor or manufacturer, Genpact shall use
commercially reasonable efforts to perform maintenance for such Software as
required.


 


(d)                                 Evaluation and Testing.  Prior
to implementing any new Software or installing a new Major Release or Minor
Release, Genpact shall evaluate and test such Software or release to verify
that it will perform in accordance with this Agreement, the Wachovia Standards
and Strategic Plans and the applicable Statement of Work and that it will not
(i) increase Wachovia’s total cost of receiving the Services,
(ii) have an adverse impact on the Services, or (iii) violate or be
inconsistent with Wachovia Standards, Strategic Plans, the applicable
Technology and Business Process Plan or applicable Laws.  The evaluation and testing performed by
Genpact shall be at least consistent with the reasonable and accepted industry
norms applicable to the performance of such Services and shall be at least as
rigorous and comprehensive as the evaluation and testing usually performed by
highly-qualified service providers under such circumstances.


 


(e)                                  Approval by Wachovia. 
Notwithstanding Section 6.6(b)
or (c), Genpact shall confer with
Wachovia prior to implementing any new Software or installing any Major Release
or Minor Release, shall provide Wachovia with the results of its testing and
evaluation of such Release and a detailed implementation plan and shall not
install such Release if directed not to do so by Wachovia.  Where specified by Wachovia, Genpact shall
not implement any new Software, install any Software releases or make other
Software changes until Wachovia has completed and provided formal signoff on
successful user acceptance testing. 
Genpact shall not implement new Software, install new Software releases
or make other Software changes if doing so would require Wachovia or the
Eligible Recipients to implement new Software or install new releases of,
replace, or make other changes to Applications Software or other Software for
which Wachovia is financially responsible unless Wachovia consents to such
change.


 


(f)                                    Updates by Wachovia. 
Wachovia and the Eligible Recipients shall have the right, but not the
obligation, to install new releases of, replace, or make other changes to
Applications Software or other Software for which Wachovia is financially
responsible under this Agreement and the Parties shall address any incremental
costs incurred by Genpact complying with such direction in accordance with the
Change Control Procedures.


 


6.7                               Wachovia Processes.


 


In connection with the
management of the infrastructure used by Genpact to provide the Services and
problem analysis pursuant to Section 7.3,
Genpact shall adopt, comply with and support (a) the Wachovia Change
Management policies, (b) the Wachovia Problem Management policies,
(c) the Wachovia Incident Management policies, (d) the Wachovia
Service Level Management policy and (e) the Wachovia Corporate Information
Standards, as modified from time to time by Wachovia’s IT Standards Board and
provided to Genpact.  Subject to Section 19.5, the Parties shall
address any incremental costs incurred by Genpact complying with changes in
such processes and standards after the applicable SOW Commencement Date
direction in accordance with the Change Control Procedures.


 


6.8                               Use of Genpact Facilities.


 


(a)                                  Access.  For
the conduct of Wachovia’s business in connection with the Services, Genpact
shall provide to Wachovia at no charge (i) reasonable access to and use of
Genpact Facilities and (ii)


 










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access to reasonable work/conference space at Genpact Facilities.  At Wachovia’s request and subject to Genpact’s
reasonable security requirements and, in respect of Wachovia Third Party
Contractors, Genpact’s reasonable confidentiality requirements, Genpact shall
provide reasonable access to and use of such Genpact Facilities by Wachovia or
Wachovia Third Party Contractors to install and manage third party software and
equipment in connection with the Services.


 


(b)                                 Co-location of Wachovia Employees. 
Subject to Genpact’s reasonable security requirements, Wachovia shall
have the right to co-locate employees of Wachovia or a Wachovia Affiliate at
any Genpact Facility  used  in connection with the Services; provided that the Parties
shall agree on any facility charge in connection with such location.  Genpact shall provide all country- and
site-specific administrative services to support such co-located employees.  If requested by Wachovia, Genpact shall
provide dedicated space to such employees performing Wachovia-managed
processes.


 


6.9                               Use of Wachovia Facilities.


 


If a Statement of Work
contemplates that employees of Wachovia shall provide Genpact with the use of
and access to the Wachovia Facilities, Wachovia’s then-standard terms and
conditions for third party supplier use of such facilities shall apply.  When using the Wachovia Facilities and when
at other Wachovia Sites, Genpact shall observe and comply with all Wachovia
policies, rules, and regulations applicable to such Wachovia Sites that have
been communicated to Genpact or Genpact Personnel in advance by such means as
are generally used by Wachovia to disseminate such information to its employees
or contractors, including those set forth on Schedule G
and those applicable to specific Wachovia Sites (collectively, “Wachovia Rules”), including those with respect to safety,
health, security, and the environment.


 


6.10                        Assignment of Licenses, Leases and Related
Agreements.


 


If a Statement of Work
contemplates that Wachovia shall assign to Genpact, and Genpact shall assume
assignment of, particular Software licenses, Equipment leases or Third Party
Contracts, or both, the Parties shall include the terms and conditions of such
conveyance or assignment or both, as applicable, in such Statement of Work.


 


6.11                        Notice of Defaults.


 


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


 


6.12                        Wachovia-Specific Policies and Other
Requirements.


 


The obligation of Genpact to
adhere to, or otherwise comply with, the policies, procedures, standards, plans
and other specific requirements of Wachovia or any Eligible Recipient set forth
in Sections 4.4(a), 6.4(b), 6.5(b), 6.6(d),
6.7, 9.1(c), (d) and (e),
9.4(a), 9.5(b), 9.9(a), 9.10(a), 10.1(b),
13.1(b), 15.2(a) and (c), and 15.3(a) or in any Statement of Work, shall be contingent
on the timely receipt of such information including any training, updates or
modifications.  Except to the extent that
the applicable Section provides a specific time, Genpact shall adhere to, or
otherwise comply with, such policies, procedures, standards, plans or other
specific requirements within a reasonable time after receipt of such
information.


 










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7.                                      SERVICE LEVELS


 


7.1                               General.


 


(a)                                  General Performance Standards. 
Beginning on the SOW Commencement Date (or, if later, the date on which
Genpact assumes responsibility for the Services in question in accordance with
the applicable Transition Plan), Genpact shall perform each Service under a
Statement of Work [[[***]]]  In each
case, Genpact shall do so subject to, and as and to the extent permitted by,
the limitations of the agreed upon service delivery solution.  To the extent the Parties have established a
Service Level for a specific Service in the applicable Statement of Work, the
obligations described in this Section 7.1(a)
shall not be construed to alter, expand or supersede such Service Level.


 


(b)                                 Service Level Performance
Standards.  Beginning on the SOW Commencement Date (or,
if later, the date on which Genpact assumes responsibility for the Services in
question in accordance with the applicable Transition Plan), Genpact shall
perform the Services so as to meet or exceed the Service Levels set forth in Exhibit F to Schedule B (Service Levels Matrix) of
the applicable Statement of Work.  Unless
otherwise set forth in Exhibit F
to Schedule B to the
applicable Statement of Work, each Service Level shall consist of an expected
level (an “Expected Service Level”)
and a minimum level (a “Minimum Service Level”).  The Parties agree that the expected level for
each Service Level [[[***]]]  If such
levels are not documented and other suitable metrics (such as accepted industry
standards of leading providers of such business process outsourcing services)
do not exist and the Parties cannot agree on such metrics, the Parties shall
utilize a mutually agreeable service level determination methodology to
establish such metrics, during which period of time no Service Level Credits
shall apply.  Each Service Level shall be
either a Service Level for which
Service Level Credits are specified (a “Critical
Service Level”) or a Service Level for which no Service Level
Credits are specified (a “Key Measurement”).


 


(c)                                  Weighting and At Risk Amount.


 


(i)                                     Service Level Credits will be allocated among
the Critical Service Levels
using a multiplier of the At Risk Amount of [[[***]]] (“Pool Percentage Available for Allocation”).  Wachovia may from time to time, but no more
frequently than twice in any Contract Year, reallocate the Service Level Credit
percentages assigned to the Critical
Service Levels by giving Genpact at least sixty (60) days’ notice
of such reallocation.


 


(ii)                                  The aggregate monthly amount payable for
Service Level Credits under any Statement of Work will not exceed [[[***]]] of
the monthly Charges payable to Genpact
for that month (“At Risk Amount”)
and no individual Critical Service
Level shall be weighted such that more than [[[***]]] of such monthly
Charges.


 


(d)                                 Service Level Default.  Any failure to meet the minimum
specified level of any Service Level shall be a Service Level Default.  In addition, a number of failures (specified
in the applicable Statement of Work or, if not specified in such Statement of
Work, specified in the definition of Expected Service Level Default) to meet
any Expected Service Level shall be considered a Service Level Default.


 


(e)                                  Responsibility.


 


(i)                                     Genpact shall be responsible for meeting or
exceeding the applicable Service Levels even where doing so is dependent on the
provision of Services by Subcontractors or Managed Third Parties, except as
otherwise provided in the applicable Statement of Work.


 


(ii)                                  Genpact acknowledges and agrees that (A) the
circumstances described in Section 11.2(b)
or (B) a force majeure event are the only circumstances in which its


 










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failure to perform its responsibilities under this Agreement or any
Statement of Work or to meet the Service Levels will be excused.


 


7.2                               Service Level Credits, Earnback and Deliverable
Credits.


 


(a)                                  Service Level Credits. 
Genpact recognizes that Wachovia is paying Genpact to deliver the
Services at specified Service Levels. 
For each Service Level Default, in addition to other remedies available
to Wachovia, Genpact shall pay or credit to Wachovia the performance credits
specified in the applicable Statement of Work (“Service
Level Credits”) in recognition of the diminished value of the
Services resulting from Genpact’s failure to meet the agreed upon level of
performance, and not as a penalty, calculated as follows:


 


(i)                                     Exhibit F to Schedule
B to each Statement of Work sets forth the information required
to calculate the Service Level Credits Genpact shall pay to Wachovia (or apply
against the Charges) in the event of a Service Level Default.  For each Service Level Default, Genpact shall
pay to Wachovia a Service Level Credit that will be computed in accordance with
the following formula:


 


[[[***]]]


 


(ii)                                  If more than one Service Level Default has
occurred in a single month, the sum of the corresponding Service Level Credits
shall be credited to Wachovia.


 


(iii)                               In no event shall the aggregate amount of
Service Level Credits credited to Wachovia with respect to all Service Level
Defaults occurring in a single month exceed, in total, the At Risk Amount for
such month.


 


(iv)                              Genpact shall notify Wachovia if Wachovia
becomes entitled to a Service Level Credit, which notice shall be included in
the standard monthly reporting for Critical Service Levels and Key Measurements
and shall describe the Service Level Defaults for the month that is the subject
of the monthly Critical Service Level report. 
The monthly reports shall also describe any failure to meet Key
Measurements for the month being reported on.


 


(v)                                 The total amount of Service Level Credits that
Genpact will be obligated to pay to Wachovia with respect to Service Level
Defaults occurring each month (subject to Genpact’s earnback rights), shall be
reflected on an invoice and credited to Wachovia in accordance with this
Agreement.


 


Under no circumstances shall
the imposition of Service Level Credits be construed as Wachovia’s sole or
exclusive remedy for any failure to meet the Service Levels.  However, if Wachovia recovers monetary
damages from Genpact as a result of Genpact’s failure to meet a Service Level,
Genpact shall be entitled to set-off against such damages any Service Level
Credits paid for the failure giving rise to such recovery.  The express acknowledgment that a certain
amount of Service Level Credits or number of Service Level defaults constitutes
grounds for termination under Section 25.1(a)
or 25.2(a) does not imply
that a lesser amount or number cannot constitute a material breach of this
Agreement and therefore grounds for termination under other subsections.


 


(b)                                 Earnback. 
Genpact shall have Earnback opportunities with respect to each Service
Level Credit as follows:


 


(i)                                     Within thirty (30) days after the end of each
Contract Year, Genpact shall provide a report to Wachovia that will include,
with respect to each Critical Service Level for


 










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which there was a Service Level Default during the preceding Contract Year,
the following:


 


(A)                            Statistics on Genpact’s average monthly
performance in that Critical Service Level during the preceding Contract Year.


 


(B)                              The total amount of Service Level Credits
imposed for Service Level Defaults in that Critical Service Level.


 


(ii)                                  If, during the preceding Contract Year, Genpact
achieved a Yearly Performance Average in a Critical Service Level that was
equal to or greater than the Expected Service Level in effect for such Critical
Service Level during the preceding year, Genpact shall be entitled to receive
an earnback credit (“Earnback Credit”)
equal to all Service Level Credits assessed during the preceding Contract Year
for such Critical Service Level.  In no
event will:


 


(A)                            the total amount of Earnback Credits for any
Contract Year exceed the total amount of Service Level Credits assessed for
Service Level Defaults in the applicable Critical Service Levels for that
Contract Year; or


 


(B)                              any Earnback Credit carry forward to subsequent
Contract Years or back to previous Contract Years.


 


(iii)                               If the Critical Service Level was in effect for
less than the entire Contract Year, the foregoing process shall be undertaken
only with respect to the portion of the Contract Year during which the Critical
Service Level was in effect.  If the
Agreement (or any portion thereof) is terminated prior to the end of the Term,
the foregoing process shall be undertaken only with respect to the portion of
the Contract Year during which the Agreement (or applicable portion thereof)
was in effect.


 


(iv)                              The provision for Earnback shall only affect
Genpact’s right to receive return of Service Level Credits provided to Wachovia
and shall have no effect on any other rights or remedies of Wachovia under the
Agreement, including rights of termination.


 


(c)                                  Single Incident/Multiple
Defaults.  If a single incident results in the failure
of Genpact to meet more than one Minimum Service Level, Wachovia shall have the
right to select any one of such multiple Minimum Service Level Defaults for
which it will be entitled to receive a Service Level Credit. Wachovia shall not
be entitled to a Service Level Credit for each of such Minimum Service Level
Defaults.


 


(d)                                 Presumptive Service Levels.


 


(i)                                     Certain Service Levels may be identified on Exhibit F to Schedule B to each Statement of Work as
Presumptive Service Levels.  Genpact
shall begin measuring its performance against such Presumptive Service Levels
on the SOW Commencement Date (or, if later, the date on which Genpact assumes
responsibility for the Services in question in accordance with the Transition
Plan).  Genpact shall continue such
service measurements for six (6) months. 
Genpact shall use commercially reasonable efforts to meet the
Presumptive Service Levels during the measurement period, but Service Level
Credits shall not be assessed for any failure to meet such Presumptive Service
Levels during such period.


 










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(ii)                                  Notwithstanding the foregoing, if, prior to the
SOW Commencement Date (or, if later, the date on which Genpact assumes
responsibility for the Services in question in accordance with the Transition
Plan), Wachovia provides Genpact with historical measurement data sufficient to
verify a requested Service Level, such Service Level shall be final and shall
no longer be treated as a Presumptive Service Level.


 


(iii)                               After the level of service has been measured
for the specified number of months, Wachovia and Genpact shall review the
measurement trends and the levels of service quality that were attained or
demonstrated to be attainable during the measurement period and shall set the
final Service Level as follows:


 


(A)                            If the service measurements demonstrate that
Genpact has consistently met or is capable of consistently meeting a particular
Presumptive Service Level, such Presumptive Service Level shall be established
as the final Service Level for such Service.


 


(B)                              If the service measurements demonstrate that
Genpact has consistently exceeded or is capable of consistently exceeding a
particular Presumptive Service Level, the Parties shall increase the Service
Level accordingly in establishing the final Service Level for such Service.


 


(C)                              If the service measurements demonstrate that
Genpact has consistently and materially failed to meet a particular Presumptive
Service Level, the Parties shall review any available service measurements for
the twelve (12) months preceding the SOW Commencement Date. If service
measurements exist for at least six (6) consecutive months and the available
service measurements confirm that Wachovia met or exceeded the Presumptive
Service Level, such Presumptive Service Level shall be established as the final
Service Level for such Service.   Genpact
shall then expeditiously take all remedial action necessary to begin meeting
the final Service Level.


 


(D)                             In all other circumstances, if the service
measurements demonstrate that Genpact has consistently and materially failed to
meet a particular Presumptive Service Level, Genpact shall conduct an analysis
to determine: (1) the cause(s) of Genpact’s failure to meet the Presumptive
Service Levels; (2) whether it is possible for Genpact, using commercially
reasonable efforts, to meet the Presumptive Service Level without making
material changes in the Agreement; (3) the Service Level Genpact could meet using
commercially reasonable efforts, but without making material changes in the
Agreement; and (4) the changes that would have to be made to permit Genpact to
meet the higher Presumptive Service Level. If the Parties agree that the
analysis demonstrates that the Presumptive Service Level is capable of being
met, that Presumptive Service Level shall be established as the final Service
Level for such Service. Genpact shall then expeditiously take any remedial
action necessary to begin meeting the final Service Level. If the Parties agree
that the analysis demonstrates that the failure to meet the Presumptive Service
Level is not attributable to Genpact’s failure to competently perform its
obligations under the Agreement and that it is not possible for Genpact using
commercially reasonable efforts, to meet such Presumptive Service Level,
Wachovia may, at its option, (aa) set the applicable Service Level for such
Service at the highest level the Parties agree that Genpact could meet using
commercially reasonable efforts, or (bb) authorize Genpact to make some or all
of the changes identified as necessary to meet a higher Service Level.


 










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(e)                                  Deliverable Credits. 
Genpact recognizes that Wachovia is paying Genpact to provide certain Critical Deliverables by the time and
in the manner agreed by the Parties.  If
Genpact fails to meet its obligations with respect to such Critical Deliverables, then, in
addition to other remedies available to Wachovia, Genpact shall pay or credit
to Wachovia the amounts (the “Deliverable Credits”)
specified in the applicable Statement of Work or established by Wachovia as
part of the project approval
process on a case by case basis in recognition of the diminished value of the
Services resulting from Genpact’s failure to meet the agreed upon level of
performance, and not as penalty.  If
Wachovia recovers monetary damages from Genpact as a result of Genpact’s
failure to meet its obligations with respect to one (1) or more Critical Deliverables, Genpact shall
be entitled to set-off against such damages any Deliverable Credits paid for
the failures giving rise to such recovery.


 


7.3                               Problem Analysis.


 


If Genpact fails to provide
Services in accordance with the Service Levels and this Agreement, Genpact
shall (after restoring service or otherwise resolving any immediate
problem) (a) (i) promptly investigate and report on the causes of the
problem; (ii) provide a Root Cause Analysis of such failure as soon as
practicable after such failure; (iii) correct the problem as soon as
practicable (regardless of cause or fault) or coordinate the correction of
the problem if Genpact does not have responsibility for the cause of the
problem; and (iv) advise Wachovia of the status of remedial efforts being
undertaken with respect to such problem; and (b) if Genpact does have responsibility
for the cause of the problem, (i) demonstrate to Wachovia’s reasonable
satisfaction that the causes of such problem have been or will be corrected on
a permanent basis, and (ii) take commercially reasonable actions to
prevent any recurrence of such problem. 
Genpact shall use commercially reasonable efforts to complete the Root
Cause Analysis within thirty (30) days after the occurrence of the
failure; provided that, if it is not capable of being completed within thirty
(30) days using reasonable diligence, Genpact shall complete such Root
Cause Analysis as quickly as possible and shall notify Wachovia prior to the
end of the initial thirty (30) day period as to the status of the Root
Cause Analysis and the estimated completion date. Genpact shall implement a
process to execute Root Cause Analysis as specified in this Section 7.3.  Genpact shall submit a description of such
process to Wachovia for Wachovia’s approval. 
Genpact shall modify such process as requested by Wachovia.


 


7.4                               Continuous Improvement Reviews.


 


The Parties agree to the
concept of continuous improvement in Service Levels and that the Critical
Service Levels and Key Measurements should be modified during the Term to
reflect continuous improvement.  To
accomplish this, Critical Service Levels and Key Measurements will be modified
at the end of each Contract Year as described below and such modifications
shall be documented pursuant to the Change Control Procedures:


 


[[[***]]]


 


7.5                               Measurement and Monitoring.


 


On or before the SOW
Commencement Date, or such other date set forth in the Transition Plan for the
applicable Statement of Work, Genpact shall implement measurement and
monitoring tools and metrics as well as standard reporting procedures, all
acceptable to Wachovia, to measure and report Genpact’s performance of the
Services at a level of detail sufficient to verify Genpact’s compliance with
the applicable Service Levels.  If and to
the extent that Wachovia makes any of its existing tools available to Genpact
for such purpose, Genpact shall use such tools unless otherwise approved or
directed by Wachovia in writing. 
Wachovia or its designee (other than a Genpact Competitor) shall have
the right to audit all such measurement and reporting tools, performance
metrics and reporting procedures. 
Genpact shall provide Wachovia with on-line access to up-to-date problem
management data and other data regarding the status of service problems,
service requests and user inquiries. 
Genpact also shall provide Wachovia with


 










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access to the data used by
Genpact to calculate its performance against the Service Levels and the
measurement and monitoring tools and procedures utilized by Genpact to generate
such data for purposes of audit and verification.  Wachovia shall not be required to pay any
amount in addition to the Charges for such measurement and monitoring tools or
the resource utilization associated with their use.


 


7.6                               Satisfaction Surveys.


 


(a)                                  Genpact Conducted Surveys. 
Genpact (and/or independent third parties engaged by Genpact) shall
conduct satisfaction surveys of the applicable management of Wachovia and the
Eligible Recipients in accordance with the survey protocols and procedures
specified in Schedule H and the
applicable Statement of Work. 
Satisfaction as measured by such surveys shall be either a Critical
Service Level or a Key Measurement as specified in the applicable Statement of
Work.  If Genpact engages an independent
third party to perform all or any part of any satisfaction survey, such third
party shall be approved in advance by Wachovia. 
Genpact shall be responsible for the cost of all such surveys conducted
pursuant to this Section 7.6(a),
Schedule H or a Statement of
Work.


 


(b)                                 Wachovia Conducted Surveys.  In
addition to the satisfaction surveys to be conducted pursuant to Section 7.6(a), Wachovia may
survey satisfaction with Genpact’s performance in connection with, and as part
of, broader satisfaction surveys periodically conducted by Wachovia.  At Wachovia’s request, Genpact shall
cooperate and assist Wachovia with the formulation of the survey questions,
protocols and procedures and the execution and review of such surveys.  If Wachovia engages an independent third
party to perform all or any part of any satisfaction survey, Wachovia shall be
responsible for the cost of all such surveys conducted pursuant to this Section 7.6(b).


 


(c)                                  Survey Follow-up.  If the
results of any satisfaction survey conducted pursuant to Section 7.6(a)
or (b) indicate that the level of
satisfaction with Genpact’s performance of the Services is less than the target
level specified in the applicable Statement of Work, Genpact shall promptly
(consistent with the severity and materiality of the problem): (i) conduct
a Root Cause Analysis as to the cause of such dissatisfaction;
(ii) develop an action plan to address and improve the level of
satisfaction, including the specific measures to be taken by Genpact;
(iii) present such plan to Wachovia for its review, comment and approval;
and (iv) take action in accordance with the approved plan and as necessary
to improve the level of satisfaction. 
Within thirty (30) days after the completion of the measures
described in such action plan, Genpact shall conduct follow-up surveys with the
affected management to confirm that the cause of any dissatisfaction has been addressed
and that the level of satisfaction has improved.  Genpact shall pay to Wachovia any Deliverable
Credit(s) specified in the approved action plan for Genpact’s failure to attain
the prescribed satisfaction levels or to take the actions set forth in such
action plan by the agreed dates.


 


8.                                      GENPACT PERSONNEL


 


8.1                               Genpact Personnel Are Not Wachovia Employees.


 


Except as otherwise expressly
set forth in this Agreement, the Parties intend to create an independent
contractor relationship and nothing in this Agreement shall operate or be
construed as making Wachovia (or the Eligible Recipients) and Genpact
partners, joint venturers, principals, joint employers, agents or employees of
or with the other.  No officer, director,
employee, agent, Affiliate, contractor or subcontractor retained by Genpact to
perform work on Wachovia’s behalf hereunder shall be deemed to be an officer,
director, employee, agent, Affiliate, contractor or subcontractor of Wachovia
or the Eligible Recipients for any purpose. 
Genpact, not Wachovia or the Eligible Recipients, has the right, power,
authority and duty to supervise and direct the activities of the Genpact
Personnel and to compensate such Genpact Personnel for any work performed by
them on the behalf of Wachovia or the Eligible Recipients pursuant to this


 










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Agreement.  Genpact, and not Wachovia or the Eligible
Recipients, shall be responsible and therefore solely liable for all acts and
omissions of Genpact Personnel, including acts and omissions constituting
negligence, gross negligence, willful misconduct and/or fraud.


 


8.2                               Global Operations Leader.


 


Genpact shall designate a “Global Operations Leader” for the Wachovia engagement.  The Parties agree that the initial Global
Operations Leader shall be Anju Talwar.  The Global Operations Leader shall (a) be one of the Key
Employees; (b) be a full-time employee of Genpact; (c) devote his or
her full time and effort to managing the Services; (d) remain in this
position for a minimum period of three (3) years from the initial
assignment (except as a result of voluntary resignation, involuntary
termination for cause, illness, disability, or death); (e) serve as the
single point of accountability for the Services; (f) be the single point
of contact to whom all Wachovia communications concerning the Services under
this Agreement may be addressed; (g) have authority to act on behalf of
Genpact in all day-to-day matters pertaining to this Agreement; and
(h) have overall responsibility for overseeing the provision of the
Services, billing and relationship management.


 


8.3                               Key Employees.


 


(a)                                  Selection of Key Employees.


 


(i)                                     Genpact shall actively involve Wachovia in the
selection process for Key Employees.  Key
Employees shall be chosen from the top performers among Genpact’s employees
based on the last full year’s performance review, unless Wachovia approves the
hiring of a new employee for a Key Employee’s position in order to obtain an
individual with specific skill sets and experience required in connection with
the Services.  Without limiting the
generality of the foregoing two sentences, before assigning an individual to
act as one of the Key Employees whether as an initial assignment or a
subsequent assignment and whether under this Agreement or any Statement of
Work, Genpact shall discuss the proposed assignment with Wachovia, introduce
the individual to appropriate Wachovia representatives (including by
telephone), provide a reasonable opportunity for Wachovia representatives to
interview the individual, and provide Wachovia with a resume and such other
information about the individual as may be reasonably requested by
Wachovia.  Genpact shall only assign an
individual to a Key Employees position who has been approved by Wachovia.


 


(ii)                                  The Global Operations Leader and his or her
direct reports (the “Executive Management Team”)  shall be Key Employees. 
The Key Employees on the Executive Management Team that have been
selected and approved as of the Effective Date are listed in Schedule J.


 


(iii)                               Genpact shall identify and obtain Wachovia’s
approval of all Key Employees under a Statement of Work prior to the completion
of any Transition Services as set forth in a Statement of Work or, if no
Transition Services are specified, then prior to the SOW Commencement
Date.  Unless the Parties agree
otherwise, there shall be at least one (1) individual designated as a Key
Employee for each Statement of Work.


 


(iv)                              Wachovia may from time to time change the
positions designated as Key Employees under this Agreement or any Statement of
Work with Genpact’s approval.


 


(b)                                 Continuity of Key Employees. 
Genpact shall cause each of the Key Employees to devote full time and
effort for at least two (2) years from the date he or she assumes the
position in question to the provision of Services under this Agreement. Genpact
shall not transfer, reassign or remove


 










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any of the Key Employees (except as a result of voluntary resignation,
involuntary termination for cause, illness, disability or death) or
announce its intention to do so during such period without the prior approval
of both the Executive Committee and Wachovia. 
In the event of the voluntary resignation, involuntary termination for
cause, illness, disability or death of one of its Key Employees during or after
the specified period, Genpact shall (i) give Wachovia as much notice as
reasonably possible of such development, and (ii) expeditiously identify
and obtain Wachovia’s approval of a suitable replacement.  In addition, even after the period specified
above, Genpact shall transfer, reassign to another account or remove any of its
Key Employees only after (i) giving Wachovia at least forty-five
(45) days’ prior notice of such action, (ii) identifying and
obtaining Wachovia’s approval of a suitable replacement at least thirty
(30) days prior to the effective date of such transfer, reassignment or
removal, and (iii) completing any and all necessary knowledge transfer
between the departing Key Employees and his or her Wachovia-approved
replacement.  Under no circumstances
shall Genpact transfer, assign, reassign to another account or remove more than
twenty percent (20%) of the Key Employees in any six (6) month period except as
may result from a voluntary resignation, involuntary termination for cause,
illness, disability or death of any Key Employee.


 


(c)                                  Incentive Compensation.  To the
extent permitted by Law, Genpact shall consult Wachovia on the performance
reviews for the Global Operations Leader and the other Key Employees and shall
provide Wachovia a meaningful opportunity to provide information to Genpact
with respect to Wachovia’s evaluation of such Genpact Personnel’s
performance.  Such information shall be
considered and accorded substantial weight by Genpact in its evaluation of, and
in establishing compensation for, such Genpact Personnel.  Such input may be based upon (i) the
level of customer satisfaction reflected in the periodic customer satisfaction
surveys and (ii) the extent to which Genpact has met or exceeded the
Service Levels and Genpact’s other responsibilities and obligations under this
Agreement.


 


(d)                                 Retention and Succession. 
Genpact shall implement and maintain a retention strategy designed to
retain Key Employees on the Wachovia account for the prescribed period.  Genpact shall also maintain active succession
plans for each of the Key Employees positions.


 


(e)                                  Visas.  All
Key Employees shall have a valid visa for travel to the United States at any
time while he or she is designated as a Key Employee.


 


8.4                               Selection, Qualifications, Retention and
Replacement of Genpact Personnel.


 


(a)                                  Sufficiency and Suitability of
Genpact Personnel.  Genpact shall assign (or cause to be
assigned) sufficient Genpact Personnel possessing suitable competence, ability,
training and qualifications to provide the Services in accordance with this
Agreement.


 


(b)                                 Screening and Disqualification
of Genpact Personnel.


 


(i)                                     Genpact shall use commercially reasonable
efforts to ensure that Genpact Personnel have not been convicted of a felony,
do not use illegal drugs and are not otherwise disqualified from performing the
assigned work under applicable Laws.


 


(ii)                                  To the extent allowed by applicable Laws,
Genpact shall perform a background check and a Wachovia-approved drug test on,
and at Wachovia’s request, fingerprint, each individual prior to his or her
assignment as Genpact Personnel.


 


(iii)                               Genpact shall implement any additional
requirements imposed on Wachovia for screening of Genpact Personnel at Wachovia’s
expense.


 










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(iv)                              Individuals who do not meet criteria acceptable
to Wachovia shall not be assigned as Genpact Personnel.


 


(c)                                  Authority to Work. 
Genpact shall ensure that each member of the Genpact Personnel is
authorized to work in the country in which he or she is assigned to perform
Services (including holding valid passports and/or visas, as applicable).


 


(d)                                 Passports.  Within
nine (9) months after his or her assignment to the Genpact Personnel, each
member of the Genpact Personnel shall have a valid passport issued by his or
her country of origin.  If any member of
the Genpact Personnel is not able to obtain a passport within such period for
reasons other than procedural issues, Genpact shall remove such individual from
the Genpact Personnel unless otherwise approved by Wachovia.


 


(e)                                  Training and Orientation. 
Genpact shall provide new-hire orientation and generic, non-business
process specific training to Genpact Personnel. 
Genpact shall not invoice Wachovia any Charges for newly-hired Genpact
Personnel for the period of time after hiring during which Genpact provides
such orientation and training.  Such
generic orientation and training shall include training on Wachovia Rules and
Wachovia Standards (except process-specific Wachovia Standards).  Genpact shall also provide process-specific
training (including training on process-specific Wachovia Standards) for each
Statement of Work as set forth in such Statement of Work.  Genpact’s costs for process-specific training
for such newly-hired Genpact Personnel shall be reimbursed by Wachovia.


 


(f)                                    Resource Pool.  Genpact shall maintain a resource
pool of Genpact Personnel in addition to those Genpact Personnel dedicated to
performing Services and shall train such resource pool in Wachovia Rules,
Wachovia Standards and the tools, methodologies and other necessary areas to
provide support to Wachovia.  Where
appropriate, resources in such resource pool may perform productive work (i.e.,
job-shadowing) for Wachovia.  The
size of such resource pool shall be determined by the Operating Council from time to time based on Wachovia’s
three-month forecast of projected needs under Statements of Work and
then-current attrition rates, including the anticipated higher attrition rate
during the initial sixty (60) day period for each in-scope business process.


 


(g)                                 Selection of Supervisory and
Management Personnel.  Genpact shall actively involve Wachovia in
the selection process for Genpact Personnel in supervisory and/or management
positions.  Without limiting the
generality of the foregoing sentence, before assigning an individual to a
supervisory and/or management position, whether as an initial assignment or a
subsequent assignment and whether under this Agreement or any Statement of
Work, Genpact shall discuss the proposed assignment with Wachovia, introduce
the individual to appropriate Wachovia representatives (including by
telephone), and provide Wachovia with a resume and such other information about
the individual as may be reasonably requested by Wachovia.


 


(h)                                 Performance Reviews of
Supervisory and Management Personnel.  To the extent permitted by Law,
Genpact shall consult Wachovia on the performance reviews for Genpact Personnel
in supervisory and/or management positions and shall provide Wachovia a
meaningful opportunity to provide information to Genpact with respect to
Wachovia’s evaluation of such Genpact Personnel’s performance.  Such information shall be considered and
accorded substantial weight by Genpact in its evaluation of, and in
establishing compensation for, such Genpact Personnel.  Such input may be based upon (i) the
level of customer satisfaction reflected in the periodic customer satisfaction
surveys and (ii) the extent to which Genpact has met or exceeded the
Service Levels and Genpact’s other responsibilities and obligations under this
Agreement.


 










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(i)                                     Bonus Pool. 
Genpact Personnel shall be eligible at all times to participate in
Genpact’s standard annual bonus pool as part of their compensation.  Genpact shall consult Wachovia during the
establishment of its standard bonus pool program on an annual basis and shall
provide Wachovia a meaningful opportunity to provide input to Genpact with
respect to Wachovia’s evaluation of the Genpact Personnel’s performance.  Such input shall be considered and accorded
substantial weight by Genpact in its evaluation of Genpact Personnel and their
participation in the annual bonus pool. 
If after the annual bonus pool program has been established Wachovia
desires to increase such bonus pool for the Genpact Personnel, Genpact shall
accommodate Wachovia’s request and Wachovia shall reimburse Genpact for any
incremental amounts paid to the Genpact Personnel as a result of such request.


 


(j)                                     Continuity of Genpact Personnel. 
Genpact shall cause each of the Genpact Personnel (other than Key
Employees) to devote full time and effort for at least two (2) years
from the date he or she assumes the position in question to the provision of
Services under this Agreement.  Genpact
shall not transfer, reassign or remove any of the Genpact Personnel (except as
a result of voluntary resignation, involuntary termination for cause, illness,
disability or death) during such period without the prior approval of Wachovia.


 


(k)                                  Requested Replacement.  In the
event that Wachovia determines that the continued assignment to Wachovia of any
individual Genpact Personnel (including Key Employees) is not in the best
interests of Wachovia or the Eligible Recipients, then Wachovia shall give
Genpact notice to that effect requesting that such Genpact Personnel be
replaced.  Genpact shall (i) within four
weeks after such notice (or within a reasonable period of time in respect of
the removal of Key Employees so that the Parties may comply with Section 8.3(a)), remove such
Genpact Personnel and (ii) as soon as practical after such notice, replace such
Genpact Personnel with an individual of suitable ability and qualifications,
without cost to Wachovia.  If Wachovia
requires the immediate removal or replacement of any individual Genpact
Personnel (other than for breach of confidentiality or security obligations
under this Agreement or a Statement of Work, violation of Wachovia Rules, or
pursuant to Section 8.6(a)), Genpact
shall remove and replace such Genpact Personnel immediately and Wachovia shall
pay Genpact an amount equal to the compensation of such Genpact Personnel for
four (4) weeks.  However, Genpact shall
immediately remove such Genpact Personnel if Wachovia’s request is based upon
breach of confidentiality or security obligations under this Agreement or a
Statement of Work, violation of Wachovia Rules or pursuant to Section 8.6(a) without cost to
Wachovia and shall replace such Genpact Personnel as soon as practicable.  Nothing in this provision shall operate or be
construed to limit Genpact’s responsibility for the acts or omission of the
Genpact Personnel, or be construed as joint employment.


 


8.5                               Turnover Rate and Data.


 


(a)                                  Genpact acknowledges that Wachovia desires to
keep the turnover rate of Genpact Personnel as low as possible in order, among
other things, to maintain the continuity of management and key skills.  Wachovia shall consider in good faith paying
premium billing rates for members of the Genpact Personnel after they have been
in their position for [[[***]]] and, for select employees, prior to the end of
such period as approved by Wachovia.


 


(b)                                 Genpact shall monitor and provide a report to
Wachovia on the turnover rate within the Genpact Personnel on a monthly
basis.  Genpact shall take commercially
reasonable necessary steps to keep the turnover rate of Genpact Personnel to a
level reasonably satisfactory to Wachovia.


 


(c)                                  In connection with entering into a Statement of
Work, Wachovia and Genpact shall jointly establish a monthly “expected” level
of turnover and a “maximum acceptable” level of turnover based upon the
requirements of the business process
covered by such Statement of Work and the


 










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Service Levels set forth in such Statement of Work.  Such levels shall take into account
transaction volume fluctuations.  The
Parties shall reconsider these levels of turnover at the beginning of each
Contract Year of the SOW Term and make any mutually agreeable adjustment.


 


(i)                                     If during any month the turnover rate is above
the “expected” level but below the “maximum acceptable” level, then Genpact
shall prepare, and the Parties shall discuss and jointly agree upon, an action
plan to reduce such turnover rate and Genpact shall implement the agreed-upon
plan.


 


(ii)                                  If during any month the turnover rate is above
the “maximum acceptable” level, then the Operating Council shall act
immediately to reduce, and Genpact shall invest [[[***]]] of the monthly Charges
paid under the affected Statement(s) of Work into measures to reduce, the
turnover rate below the “maximum acceptable” level and Genpact shall continue
to do so until the turnover rate falls below such level.


 


(d)                                 Notwithstanding any turnover of Genpact
Personnel, Genpact shall remain obligated to perform the Services without
degradation and in accordance with the Service Levels.


 


8.6          Conduct of Genpact Personnel.


 


(a)           Conduct and Compliance.  While at Wachovia Sites or
Wachovia Facilities, Genpact Personnel shall, in addition to the requirements
under Section 6.9, (i) comply
with requests of Wachovia or the Eligible Recipients pertaining to personal and
professional conduct, (ii) attend workplace training offered by Wachovia
and/or the Eligible Recipients at Wachovia’s request, and (iii) otherwise
conduct themselves in a businesslike manner.


 


(b)           Identification of Genpact Personnel.  Except as expressly authorized by
Wachovia, all Genpact Personnel shall clearly identify themselves as Genpact
Personnel and not as employees of Wachovia and/or the Eligible Recipients.  This shall include any and all
communications, whether oral, written or electronic.  Each Genpact Personnel shall wear a badge
indicating that he or she is a “contractor” when at a Wachovia Facility or
Wachovia Site.


 


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


 


8.7          Substance Abuse.


 


(a)           Removal.  To the extent permitted by applicable Laws,
Genpact shall immediately remove (or cause to be removed) any Genpact
Personnel who is known to be or reasonably suspected of engaging in substance
abuse while at a Wachovia Facility or Wachovia Site, in a Wachovia vehicle or
while performing the Services.  In the
case of reasonable suspicion, such removal shall be pending completion of the
applicable investigation.  Substance
abuse includes the sale, attempted sale, possession or use of illegal drugs,
drug paraphernalia, or alcohol, or the misuse of prescription or non-prescription
drugs.


 


(b)           Substance Abuse Policy.  Genpact maintains, and during the
Term shall maintain, substance abuse policies, in each case in conformance with
applicable Laws, and Genpact Personnel will be subject to such policies.  Genpact shall require its Affiliate
Subcontractors, and shall use commercially reasonable efforts to causes its
Non-affiliate Subcontractors providing Services, to have and maintain such
policies in conformance with applicable Law and to adhere to this provision.


 










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8.8          Wachovia Employees.


 


(a)           Placement of Wachovia Employees in Genpact’s Operation.  Wachovia shall have the right to
assign Wachovia employees to positions within Genpact’s operations providing
Services to Wachovia (including Wachovia subject matter experts with process
knowledge) during the transition and start-up phases under a Statement of Work.


 


(b)           Offers to Genpact Personnel.  Notwithstanding Section 27.17, Wachovia may,
at its option and upon at least two (2) weeks’ prior notice to Genpact, offer
employment to high-performing Genpact Personnel interested in relocating to the
United States, subject to applicable Law.


 


9.             GENPACT RESPONSIBILITIES


 


9.1          Procedures Manuals.


 


(a)           Management Procedures Manual.  As
part of the Services, and at no additional cost to Wachovia, Genpact shall
deliver to Wachovia for its review, comment and approval (i) a reasonably
complete draft of a Management Procedures Manual within sixty (60) days after
the Effective Date and (ii) a final draft of the Management Procedures
Manual within ninety (90) days after the Effective Date.


 


(b)           Policy and Procedures Manuals.  As part of the Services, and at no
additional cost to Wachovia, Genpact shall deliver to Wachovia for its review,
comment and approval, a Policy and Procedures Manual for each Statement of Work
in accordance with Schedule K
(each, a “Policy and Procedures Manual”).  At a minimum, each Policy and Procedures
Manual shall include the following:


 


(i)            a detailed description of the Services and the
manner in which each will be performed by Genpact, including (A) the
Equipment, Software, and Systems to be procured, operated, supported or used to
provide the Services; (B) documentation (including operations manuals,
user guides, specifications, policies and procedures and disaster recovery and
business continuity plans) provider further details regarding such Services;
(C) the specific activities to be undertaken by Genpact in connection with
each Service, including, where appropriate, monitoring, staffing, reporting,
planning and oversight activities to be performed by Genpact under the
applicable Statement of Work; (D) the checkpoint reviews, testing,
acceptance, controls and other procedures to be implemented and used to assure
service quality; and (E) the processes, methodologies and controls to be
implemented and used by Genpact to ensure compliance with Genpact Laws and,
subject to Article 19,
Wachovia Laws under such Statement of Work; and


 


(ii)           the procedures for Wachovia and Genpact interaction and communication,
including (A) call lists; (B) procedures for and limits on direct
communication by Genpact with Wachovia personnel; (C) problem management
and escalation procedures; (D) priority and project procedures; (E) Acceptance procedures;
(F) Acceptance testing; (G) Quality Assurance procedures, internal
controls and checkpoint reviews; and (H) interaction and communication
regarding annual and quarterly financial objectives, budgets, and performance
goals.


 


Genpact shall incorporate
Wachovia’s then current policies and procedures by reference into the Policy
and Procedures Manual to the extent it is directed to do so by Wachovia.


 


(c)           Revision and Maintenance.  Genpact shall incorporate any
comments or suggestions of Wachovia into the Policy and Procedures Manual and
shall deliver a final revised version to


 










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Wachovia within thirty (30) days after its receipt of such comments
and suggestions for Wachovia’s approval. 
The Policy and Procedures Manual will be delivered and maintained by
Genpact in hard copy and electronic formats and will be accessible
electronically to Wachovia management via a secure web site in a manner
consistent with Wachovia’s security policies.


 


(d)           Compliance.  Genpact shall perform the Services under a
Statement of Work in accordance with applicable Laws and Wachovia’s
then-current policies and procedures until the Policy and Procedures Manual is
finalized and agreed upon by the Parties. 
Thereafter, Genpact shall perform the Services under such Statement of
Work in accordance with the provisions of the Policies and Procedures Manual
and this Agreement.  In the event of a
conflict between the provisions of this Agreement and the Policy and Procedures
Manual, the provisions of this Agreement shall control.


 


(e)           Modification and Updating.  Genpact shall promptly modify and
update the Policy and Procedures Manual quarterly to reflect changes in the
operations or procedures described therein and to comply with Wachovia
Standards and Strategic Plans as described in Section 9.5.  Genpact shall provide the proposed changes in
the manual to Wachovia for review, comment and approval.  To the extent any such change could
(i) increase Wachovia’s total costs of receiving the Services;
(ii) have an adverse impact or require changes described in Section 9.6; or
(iii) violate or be inconsistent with the Wachovia Standards or Strategic
Plans, Genpact shall not implement such change without first obtaining Wachovia’s
approval, which Wachovia may withhold in its sole discretion.


 


(f)            Annual Review.  In addition to the foregoing, the Parties
shall meet to perform a formal annual review of the Policy and Procedures
Manual on each anniversary of the applicable SOW Commencement Date.


 


9.2          Reports.


 


(a)           Reports.  Genpact shall provide Wachovia with reports (“Reports”) pertaining to the performance of
the Services sufficient to permit Wachovia to monitor and manage Genpact’s
performance of the Services.  The Reports
shall include those described in Schedule B or as determined by the Operating Council in
the format and at the frequencies provided therein, and those set forth in any
Statement of Work.  In addition, from
time to time, Wachovia may request additional Reports, including, to the extent
consistent with industry standards, Reports on Genpact’s compliance with other
obligations under this Agreement, to be generated by Genpact and delivered to
Wachovia on an ad hoc or periodic basis. 
All Reports shall be provided to Wachovia as part of the Services and at
no additional charge to Wachovia.  The Reports
described in Schedule B or as determined by the Operating Council
and, to the extent reasonably possible, all other Reports shall be provided to
Wachovia (i) by secure on-line connection in an electronic format capable
of being accessed by Microsoft Office components and downloadable by Wachovia,
with the information contained therein capable of being displayed graphically
and accessible from a web browser, and/or (ii) in traditional printed
form.


 


(b)           Back-Up Documentation.  As part of the Services, Genpact shall
provide Wachovia with such documentation and other information available to
Genpact as may be reasonably requested by Wachovia from time to time in order
to verify the accuracy of the Reports provided by Genpact.


 


(c)           Correction of Errors.  As part of the Services and at no additional
charge to Wachovia, Genpact shall promptly correct any errors or inaccuracies
in the Reports or the information or data contained in such Reports.


 










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9.3          Governance and Meetings.


 


(a)           Governance Model.  The Parties shall manage and coordinate their
relationship under this Agreement using the governance procedures and processes
set forth in Schedule K, as the same
may be amended from time to time.


 


(b)           Meetings.  During the Term, representatives of the
Parties shall meet periodically or as requested by Wachovia to discuss matters
arising under this Agreement or any Statement of Work, including any such
meetings provided for in this Agreement or any Statement of Work, the
Management Procedures Manual, the applicable Policy and Procedures Manual or Schedule K.  Each Party shall bear its own costs in
connection with the attendance and participation of such Party’s
representatives in such meetings.


 


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


 


(d)           Forecasts.  In connection with each Statement of Work,
Wachovia shall on a mutually agreed periodic basis provide volume projections
to Genpact for Services under such Statement of Work.  In addition, in order to assist Genpact with
infrastructure planning, Wachovia shall on a mutually agreed periodic basis
provide volume projections to Genpact for Services under this Agreement.  Genpact may use volume projections provided
by Wachovia under this Section 9.3(d)
as a planning tool, but acknowledges that such projections do not constitute a
commitment by Wachovia.


 


(e)           Eligible Recipient Meetings.  Genpact shall notify the Wachovia
Project Executive in advance of scheduled meetings with Eligible Recipients in
respect of new or additional services proposed to be provided by Genpact and
shall invite the Wachovia Project Executive to attend such meetings or to
designate a representative to do so.


 


9.4          Operational Risk Management, Quality Assurance
and Internal Controls.


 


(a)           Operational Risk Management, Quality Assurance and Internal Controls. 
Genpact shall develop and implement operational risk management, Quality
Assurance and internal controls (e.g., financial and accounting controls,
organizational controls, input/output controls, system modification controls,
processing controls, system design controls, and access controls) and processes
and procedures (including implementing tools and methodologies) designed to
ensure that the Services are performed in an accurate and timely manner and in
accordance with (i) the Service Levels and other requirements of this
Agreement, (ii) generally accepted accounting principles, (iii) the
best practices of leading providers of in-scope business process outsourcing
services, (iv) industry standards (e.g., SEI CMM Level 5, QS 9000,
ISO 9001/2000, ISO 14000, applicable data security practices identified in ISO
17799) applicable to Wachovia and the Eligible Recipients or the performance of
the Services, and (v) the Laws applicable to Wachovia and the Eligible
Recipients.  On a quarterly basis,
Genpact shall in writing (i) report to Wachovia on the status of such
internal controls developed and implemented by Genpact pursuant to, and
associated activities described in, this Section 9.4(a),
and (ii) certify Genpact’s compliance with the internal controls contained
in Wachovia Rules and Wachovia Standards or prescribed by any Statement of
Work.  Without limiting the generality of
the foregoing, Genpact shall with respect to its environment and the Services:


 


(A)          Maintain a strong control environment in day-to-day operations to assure
that the following fundamental control objectives are met:  (1) financial and operational
information is valid, complete and accurate; (2) the Services are
performed efficiently


 










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and achieve effective results, consistent with the requirements of this
Agreement; (3) assets are safeguarded; (4) actions and decisions of
Genpact are in compliance with applicable Laws; (5) financial transactions
processed on behalf of Wachovia or the Eligible Recipients are executed only in
accordance with management authorization; (6) controls exist to prevent or
timely detect the unauthorized acquisition, use or disposition of assets of
Wachovia or of the Eligible Recipients; and (7) records are maintained to
reflect the transactions and dispositions of the assets of Wachovia and the
Eligible Recipients;


 


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


 


(C)           Assist Wachovia with all risk management-related policies, functions and
processes.  Wachovia will establish an
in-country risk management function to oversee all operational risk-related
matters with Genpact;


 


(D)          Develop and execute a process to ensure periodic control self-assessments
are performed, and periodic certifications and attestations are made, with
respect to applicable Services (such self-assessments to be performed and such
certifications and attestations to be made at least quarterly unless and until
Wachovia approves less frequent self-assessments);


 


(E)           Maintain an internal audit function to sufficiently monitor the processes
and Systems used to provide the Services (i.e., perform audits, track control
measures, communicate status to management, drive corrective action,
etc.).  As part of such internal audit
function, Genpact shall:


 


(1)           Develop and execute an annual risk assessment process to evaluate risk in
the Services.  This assessment shall
become the basis to create an annual risk-based audit plan of Services.  The plan shall be provided to Wachovia for
its review and approval in sufficient time to permit Wachovia to comply with
its obligations and requirements;


 


(2)           Adopt a qualitative methodology (e.g. high, medium, low
effectiveness) of reporting the level of controls and internal audit
results; and


 


(3)           Provide to Wachovia a summary of planned audit activity, audit activity
performed, associated significant findings, and status or follow-up activity,
and a summary of control incidents (i.e., frauds, conflict of interest
situations, etc.) and related corrective action at least quarterly;


 


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


 


(G)           Comply with all applicable requirements and guidelines established by
Wachovia in order to assist Wachovia to meet the requirements of the
Sarbanes-Oxley Act of 2002 and


 










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implementing regulations promulgated by the United States Securities and
Exchange Commission and Public Company Accounting Oversight Board and the Basel
II Accord and implementing regulations;


 


(H)          Comply with the Wachovia Code of Ethics; and


 


(I)            Inform Wachovia of compliance measures Genpact
is taking to satisfy Sarbanes-Oxley requirements, including certification as to
internal controls and, with Wachovia’s prior approval, implement such
compliance measures for in-scope business processes.


 


(b)           Wachovia Approval.  Genpact shall submit such processes,
procedures and controls to Wachovia for its review, comment and approval in a
draft Policy and Procedures Manual in accordance with Section 9.1(b) and in any event
prior to the start of production under any Statement of Work.  Upon Wachovia’s approval, such processes,
procedures and controls shall be included in the final Policy and Procedures
Manual.  Prior to the approval of such
processes and procedures by Wachovia, Genpact shall adhere to Wachovia’s
then-current policies, procedures and controls. 
No failure or inability of the quality assurance procedures to disclose
any errors or problems with the Services shall excuse Genpact’s failure to
comply with the Service Levels and other terms of this Agreement and the
Statements of Work.


 


(c)           Industry Standards – Certifications and Compliance. 
Genpact has achieved and, to the extent relevant, will maintain
compliance with Six Sigma methodologies in connection with the delivery of the
Services.  Genpact shall employ Six Sigma
methodologies and tools to continuously improve the process, procedures and
controls associated with the Services.


 


9.5          Processes, Procedures, Architecture, Standards
and Information Technology Planning.


 


(a)           Wachovia Standards.  Wachovia shall have the right to establish
and modify from time to time the standards, policies, practices, processes,
procedures and controls to be adhered to and enforced by Genpact in the
performance of the Services, and the associated IT technologies, architectures,
standards, products and systems to be provided, operated, managed, supported
and/or used by Genpact in connection therewith (collectively, the “Wachovia Standards”), including those set forth in Schedule F.  Wachovia shall notify Genpact of the Wachovia
Standards, including modifications thereto. 
As requested by Wachovia, Genpact shall assist Wachovia on an on-going
basis in reviewing the Wachovia Standards. 
Subject to Section 19.5,
the Parties shall address any incremental costs incurred by Genpact complying
with changes in such Wachovia Standards after the applicable SOW Commencement
Date in accordance with the Change Control Procedures.


 


(b)           Genpact Compliance with Wachovia Standards. 
Genpact shall (i) except as otherwise provided herein, comply in
all material respects with the Wachovia Standards and Strategic Plans in
providing the Services, (ii)  modify the Services as and to the extent
necessary to comply with such Wachovia Standards and Strategic Plans (and use
commercially reasonable efforts to do so in accordance with the milestone dates
specified in such Strategic Plans or otherwise prescribed by Wachovia),
(iii) cause that all Software or Systems installed and operated in Genpact
Facilities and used by Genpact to provide the Services comply with the Wachovia
Standards and Strategic Plans, and (iv) obtain Wachovia’s prior approval
for any deviations from such Wachovia Standards and Strategic Plans.  Wachovia shall have final authority to
promulgate Wachovia Standards and Strategic Plans and to modify or grant
waivers from such Wachovia Standards and Strategic Plans.  Subject to Section 19.5, the Parties shall address any
incremental costs incurred by Genpact in modifying the Services as and to the
extent necessary to comply with changes in such Wachovia Standards and
Strategic Plans after the applicable SOW Commencement Date in accordance with
the Change Control Procedures.


 










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(c)           Financial, Forecasting and Budgeting Support.  To
support Wachovia’s forecasting and budgeting processes, Genpact shall provide
the following information regarding the costs to be incurred by Wachovia and/or
the Eligible Recipients in connection with the Services: (i) actual and
forecasted utilization of FTEs; (ii) actual and forecasted changes in the total
cost or resource utilization of Wachovia and the Eligible Recipients associated
with changes to the environment; and (iii) opportunities to modify or
improve the Services and to reduce the Charges and/or total cost to Wachovia of
receiving the Services, Pass-Through Expenses or retained expenses incurred by
Wachovia.  Such information shall be
provided in accordance with the schedule established by Wachovia and Genpact.


 


9.6          Change Control.


 


In making any change in the
standards, processes, policies, procedures and controls of the in-scope
business processes or, subject to Section 6.7,
in the associated IT technologies, architectures, standards, products,
Software, Equipment, Systems, Services or Materials provided, operated,
managed, supported or used in connection with the in-scope business processes,
Genpact shall comply with the change control procedures specified in Schedule L (the “Change Control Procedures”). 
Genpact shall make no such change without first obtaining Wachovia’s
approval.


 


9.7          Agency and Disbursements.


 


If a Statement of Work
contemplates that Genpact shall make payments to certain lessors, licensors and
suppliers as paying agent of Wachovia or the Eligible Recipients, or reimburse
Wachovia for payments made by Wachovia or the Eligible Recipients to such
lessors, licensors and suppliers, if and to the extent such payments relate to
Third Party Contracts, Equipment leases or Third Party Software licenses as to
which Genpact is financially responsible, but which have not been formally
transferred to Genpact, the Parties shall include the terms and conditions of
such payments in such Statement of Work.


 


9.8          Subcontractors.


 


(a)           Use of Subcontractors.  Genpact may subcontract any of its
responsibilities under this Agreement or any Statement of Work for the
provision of Services to any of its Affiliates (each, an “Affiliate Subcontractor”) without Wachovia’s
approval.  Genpact shall not subcontract
any of its responsibilities under this Agreement or any Statement of Work for
the provision of Services to any Entity or person that is not an Affiliate of
Genpact (each, a “Non-affiliate Subcontractor”)
without Wachovia’s prior approval.  If an
Affiliate Subcontractor ceases to be an Affiliate of Genpact, then Genpact must
obtain Wachovia’s prior approval if Genpact desires to continue to subcontract
any of its responsibilities to such Entity. 
Prior to entering into a subcontract with respect to the Services with a
Non-affiliate Subcontractor, Genpact shall (i) at Wachovia’s request,
forward to Wachovia a copy of the proposed subcontract, or (in Wachovia’s
reasonable discretion) a detailed description of the scope and material terms
(other than pricing terms) of the proposed subcontract; (ii) give
Wachovia reasonable prior notice of the subcontract specifying the components
of the Services and the Statements of Work affected, the scope of the proposed
subcontract, the identity and qualifications of the proposed Subcontractor and
the reasons for subcontracting the work in question, the location of the
Subcontractor facilities from which the Services will be provided, the extent
to which the subcontract will be dedicated, and the Subcontractor’s willingness
to grant the rights described in Section 26.2
upon expiration or termination; and (iii) subject to Section 9.8(b),
obtain Wachovia’s prior approval of such Non-affiliate Subcontractor.  If a Governmental Entity having jurisdiction
over Wachovia or an Eligible Recipient requests any information described in
the foregoing sentence in respect of an Affiliate Subcontractor, Genpact shall
promptly provide such information to Wachovia.


 










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(b)           Right to Revoke Approval.  Wachovia shall have the right
during the applicable SOW Term to revoke its prior approval of a Non-affiliate
Subcontractor for any reason and
direct Genpact to replace such Non-affiliate Subcontractor, in which case
Genpact shall immediately replace such Subcontractor at no additional cost to
Wachovia.


 


(c)           Identified Subcontractors. 
Wachovia reserves the right to specify in a Statement of Work that
Genpact use an identified Subcontractor for the provision of any Services under
such Statement of Work in cases where such selection is necessary to preserve
an existing contract or business relationship.


 


(d)           Genpact Responsibility.  Genpact shall be and remain responsible
and liable for any failure by any Subcontractor or Subcontractor personnel to
perform in accordance with this Agreement or to comply with any duties or
obligations imposed on Genpact under this Agreement to the same extent as if
such failure to perform or comply was committed by Genpact or Genpact
employees.  Genpact shall be responsible
for the performance of all such Subcontractors and Subcontractor personnel
providing any of the Services hereunder. 
Genpact shall be Wachovia’s sole point of contact regarding the
Services, including with respect to payment. 
Genpact shall use a common methodology and tool set to manage all of the
Subcontractors effectively and efficiently.


 


9.9          Technology and Business Process Evolution.


 


(a)           Obligation to Propose Technology
and Business Process Evolutions.  Genpact shall identify, communicate to Wachovia on an ongoing basis,
and propose the implementation of Technology and Business Process Evolutions
that are likely to: (i) improve the efficiency and effectiveness of the
Services (including cost savings); (ii) improve the efficiency and
effectiveness of the in-scope business process functions performed by or for
Wachovia and the Eligible Recipients; (iii) result in cost savings or
revenue increases to Wachovia and the Eligible Recipients in areas of their
business outside the Services; (iv) enhance the ability of Wachovia and
the Eligible Recipients to conduct their business and serve their customers;
and (v) achieve the Strategic Plans faster and/or more efficiently.  At
least semi-annually, Genpact shall meet with Wachovia to formally brief
Wachovia regarding such Technology and Business Process Evolutions.  Such briefing shall include Genpact’s
assessment of the business impact, performance improvements and cost savings
associated with such Technology and Business Process Evolutions.  Where requested by Wachovia, Genpact shall
develop and present to Wachovia proposals for implementing Technology and
Business Process Evolutions.


 


(b)           Genpact Developed Advances.  Subject
to any applicable non-disclosure obligations, if Genpact develops or implements
technological advances or changes Genpact’s systems and technologies used to
provide the same or substantially similar services to the Services or Genpact
develops or implements new or enhanced processes, services, software, tools,
products or methodologies (collectively, “New
Advances”), Genpact shall (i) offer Wachovia the opportunity to
serve as a pilot customer in connection with the implementation of such New
Advances; and (ii) if Wachovia declines such opportunity, offer Wachovia
preferred access to such New Advances and the opportunity to be among the first
of the Genpact customer base to implement and receive the benefits of any New
Advances.


 


9.10        Genpact Technology and Business Process Plan.


 


(a)           Plan.  The Parties may designate in a Statement of
Work that Genpact shall develop a technology and business process plan
in respect of the Services to be provided under such Statement of Work (each, a
“Technology and Business Process Plan”).  Each Technology and Business Process Plan
shall be consistent with the Wachovia Standards and Strategic Plan and, if
applicable, demonstrate how Genpact shall provide the Services to enable
Wachovia to achieve the Strategic Plan


 










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objectives and to implement and support Wachovia’s business and information
technology objectives and strategies as provided by Wachovia to Genpact.


 


(b)           Process.  The process for developing and approving each
Technology and Business Process Plan shall be as follows.  Genpact shall provide a draft Technology and
Business Process Plan each Contract Year that includes multi-year
implementation plans to achieve multi-year objectives.  Wachovia shall review the draft Technology
and Business Process Plan and provide requested amendments.  Genpact shall incorporate any such
amendments, unless it reasonably believes that any requested amendment would
not assist Wachovia to achieve its objectives and strategies.  Wachovia and Genpact shall escalate any
disagreements about requested amendments to the draft Technology and Business
Process Plan in accordance with the dispute resolution procedure in Article 24.  Following approval by Wachovia, the draft
Technology and Business Process Plan will replace the previous plan.  Approval of the Technology and Business
Process Plan by Wachovia shall not relieve Genpact of any obligation under the
applicable Statement of Work or this Agreement in relation to its provision of
the Services under such Statement of Work.


 


(c)           Contents.  In the Technology and Business Process Plan,
Genpact shall, among other things, include plans for: (i) refreshing
Equipment and Software (consistent with the refresh cycles defined in Section 6.6);
(ii) adopting new technologies and business processes as part of the
Technology and Business Process Evolution of the Services, as defined in this
Agreement; and (iii) employing technologies and business process
strategies that are flexible enough to allow integration with new technologies
or business processes.  In the Technology
and Business Process Plan, Genpact shall also present implementation plans for
the achievement of the Strategic Plan.


 


(d)           Compliance and Reporting.  Genpact shall implement the
Technology and Business Process Plan at all times, unless Wachovia agrees to
depart from the Technology and Business Process Plan.  Any such agreement to depart from the
Technology and Business Process Plan from the date on which it is signed by
Wachovia shall not relieve Genpact of its responsibilities under the previous
plan prior to the date of such agreement.


 


9.11        Unauthorized Use.


 


Wachovia and Genpact shall
cooperate fully in efforts to prevent and cure unauthorized use of the Services
and/or Wachovia Facilities (including its network and transport
services) by expeditiously informing each other of suspected abuse and,
when known, the identity of the responsible individuals.  Genpact shall advise Wachovia regarding
methods to minimize Wachovia’s and the Eligible Recipients’ exposure to misuse
and abuse of Wachovia’s and the Eligible Recipients’ service that results from
the operation of Wachovia or Eligible Recipient-provided systems, equipment,
facilities or services interconnected with Genpact’s Services.  Genpact shall provide assistance to Wachovia
and/or the Eligible Recipients’ upon Wachovia’s request in Genpact’s efforts to
minimize ongoing misuse or abuse. 
Appropriate representatives of Genpact, Wachovia and Eligible Recipient
shall meet periodically (including by telephone conference) at the request of
Wachovia to establish appropriate operational fraud control procedures.  The Parties acknowledge and agree that each
of the Party’s performance of its obligations under this Section 9.11
shall be subject to, and in accordance with, applicable Privacy Laws.


 


9.12        Retained Systems and Business
Processes.


 


(a)          No Adverse Effect.  Except
as expressly contemplated by any Statement of Work, Genpact shall not, by any
act or omission, (i) adversely affect or alter the functionality,
interoperability, performance, accuracy, speed, responsiveness, quality, cost
or resource efficiency of the Retained Systems and Business Processes without
the prior consent of Wachovia or (ii) require changes to the Retained
Systems and Business Processes, including associated business processes,


 










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applications, systems, software, utilities, tools or equipment, without the
prior consent of Wachovia.


 


(b)           Interface.  Genpact
shall ensure that the processes, Systems, Software and Equipment used by
Genpact to provide the Services will interface and integrate with the Retained
Systems and Business Processes.


 


(c)           Keep Informed.  Genpact shall inform itself and maintain up
to date knowledge about all aspects of the existing and future Retained Systems
and Business Processes.


 


(d)           Assistance.  As part
of the Services, Genpact shall provide Wachovia (upon Wachovia’s request) with
Services in relation to Retained Systems and Business Processes,
including:  (i) liaising with
Wachovia or third parties regarding the impact of any alterations to the
Retained Systems and Business Processes and of the impact of any alternation to
the Services on the Retained Systems and Business Processes; and
(ii) identifying favorable vendors in relation to the acquisition, support
and development of Retained Systems and Business Processes.


 


9.13        Network Configuration Data.


 


Genpact (a) shall provide
Wachovia (and Wachovia Third Party Contractors) with network configuration
data with respect to any network provided and used by Genpact to provide
Services to Wachovia and/or the Eligible Recipients; and (b) hereby grants
Wachovia (and Wachovia Third Party Contractors) the right to use such data
in connection with the performance of ancillary
services (e.g., security reviews or audits).


 


10.          CONTINUED PROVISION OF
SERVICES


 


10.1        Disaster Recovery.


 


(a)           Genpact Internal Enabling Functions Plan.  During
the Term and any Termination Assistance
Period, Genpact shall maintain in effect a business continuity and
disaster recovery plan for the Genpact Facilities and all related Equipment,
Software, people, communications equipment and other infrastructure components
located at such Genpact Facilities (“Genpact Internal Enabling
Functions Plan”).


 


(b)           Genpact Development of Wachovia-specific Disaster Recovery Plan.  Within
sixty (60) days after each
SOW Commencement Date, Genpact shall, subject to Wachovia’s review and
approval, develop and implement a business continuity and disaster recovery
plan specifically for the applicable Services provided thereunder (each, a “Disaster Recovery Plan”). 
Each Disaster Recovery Plan shall be coordinated with the Genpact
Internal Enabling Functions Plan and shall comply with the reasonable
requirements of Wachovia’s overall disaster recovery and business continuity
plans.  Genpact shall have, at a minimum,
a secured backup site at a location approved by Wachovia at least two hundred
fifty (250) miles from the primary Genpact Facility containing all Equipment,
Software, communications equipment, and current copies of data and files
necessary to perform Genpact’s obligations hereunder.  Transfer to the backup site shall occur
within the period of time specified in the applicable Statement of Work after
system failure or other event that prevents Genpact from operating as usual at
its primary site.  Genpact shall maintain
sufficient geographically dispersed facilities and resources, including staff,
equipment and data, to meet recovery and resumption objectives for critical
processes as defined by Wachovia from time to time.  By doing so, Genpact agrees to the
appropriate management of risk related to the concentration of people, process
and technology.  At the point in time
that there are five hundred (500) FTE’s on the Wachovia account, Genpact shall
provide redundant capability, with adequate staffing and cross training, in an
alternate location that is not in the same metropolitan area.


 










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(c)           Updating and Testing of Plans.  In
addition to the business continuity and disaster recovery Services described in
the applicable Statement of Work, Genpact shall, at least on a quarterly basis,
update and test the operability and effectiveness of the Genpact Internal
Enabling Functions Plan and each Disaster Recovery Plan, promptly provide the
results of testing to Wachovia and certify to Wachovia that such plans are
fully operational. At Wachovia’s request, Genpact shall (i) permit
Wachovia to participate in testing of the Genpact Internal Enabling Functions
Plan and each Disaster Recovery Plan  and
(ii) at no additional cost to Wachovia, participate in an annual test of
Wachovia’s business continuity, disaster recovery and backup plans.


 


(d)           Implementation.  Upon the occurrence of a force majeure event,
Genpact shall implement promptly, as appropriate, the Genpact Internal Enabling
Functions Plan and the Disaster Recovery Plan and provide disaster recovery
Services as described in the applicable Statement of Work.  The occurrence of a force majeure event shall
not relieve Genpact of its obligation to implement the Disaster Recovery Plan
and provide disaster recovery Services, except to the extent a force majeure
event impacts Genpact’s ability to implement such plan and provide such
services.


 


10.2        Force Majeure.


 


(a)           General.  Subject to Section 10.1,
neither Party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default or delay
is caused, directly or indirectly, by fire, flood, earthquake, elements of
nature or acts of God, wars, riots, civil disorders, rebellions or revolutions,
acts of terrorism, strikes, lockouts or labor disputes or any other similar
cause beyond the reasonable control of such Party, except to the extent such
default or delay is caused by such Party’s failure to perform its obligations
under this Agreement or the applicable Statement of Work and provided that such
default or delay cannot reasonably be circumvented by the non-performing Party
through the use of alternative sources, workaround plans or other means.  A strike, lockout or labor dispute involving
Genpact Personnel shall not excuse Genpact from its obligations hereunder.  In addition, the refusal of a Genpact
Personnel to enter a facility that is the subject of a labor dispute shall
excuse Genpact from its obligations hereunder only if and to the extent such
refusal is based upon a reasonable fear of harm.


 


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


 


(c)          Substitute Services; Termination.  Each Statement of Work shall
identify critical Wachovia or Eligible Recipient functions.  If any event described in Section 10.2(a) has
substantially prevented, hindered or delayed or is reasonably expected to
substantially prevent, hinder or delay the performance by Genpact of Services
necessary for the performance of critical Wachovia or Eligible Recipient
functions for longer than the recovery period specified in the applicable
Disaster Recovery Plan or, if there is no such recovery period specified in
such Disaster Recovery Plan, three (3) days, Genpact shall, unless and until
otherwise directed by Wachovia, use commercially reasonable efforts to procure
such Services from an alternate source at Genpact’s expense for so long as the
delay in performance shall continue, up to the Charges actually paid to Genpact
for the Services with respect to the period of non-performance.  If Genpact is unable to procure such substitute
services on an expedited basis or Wachovia elects to contract directly for such
services, Wachovia may procure such Services from an alternate source at
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                expense.  In addition, if any event described in Section 10.2(a)
substantially prevents, hinders or delays the performance by Genpact, its
Subcontractors or an alternate source paid by Genpact of Services necessary for
the performance of critical Wachovia or Eligible Recipient functions for more
than fifteen (15) days, Wachovia, at its option, may terminate any portion of a
Statement of Work so affected immediately upon notice to Genpact without
payment of any Stranded Costs or Termination Charges and the Charges payable
hereunder shall be equitably adjusted to reflect those terminated Services.  Genpact shall not be entitled to any
additional payments or increased usage charges as a result of any force majeure
event affecting Genpact’s ability to perform (unless such ability to perform is
affected solely because of the effect of such force majeure event on Wachovia).


 


10.3        Payment Obligation.


 


If Genpact
fails to provide Services due to the occurrence of a force majeure event, the
Charges payable to Genpact under the applicable Statement of Work shall be
equitably adjusted in a manner such that Wachovia is not required to pay any
amounts for Services that it is not receiving whether from Genpact or from an
alternate source at Genpact’s expense pursuant to Section 10.2(c).


 


10.4        Allocation of Resources.


 


Without
limiting Genpact’s obligations under this Agreement or the applicable Statement
of Work, whenever a force majeure event or disaster causes Genpact to allocate
limited resources between or among Genpact’s customers and Affiliates, Wachovia
and the Eligible Recipients shall receive at least the same treatment as
comparable Genpact customers.  In no
event will Genpact re-deploy or re-assign any Key Employees to another customer
or account in the event of the occurrence of a force majeure event.


 


10.5        Step-In Rights.


 


(a)           Step-In Events.  The Parties may
specify in any Statement of Work an event or events upon the occurrence of
which Wachovia may exercise step-in rights as set forth in such Statement of
Work (“Step-In Events”), which shall be in the
nature of significant, unresolved operational problems or to address regulatory
concerns.


 


(b)           Step-In Rights.  Upon the occurrence
of any Step-In Event in respect of a Statement of Work in which the Parties
have specified Step-In Events, Wachovia may, at its option, take control of the
Services being performed under such Statement of Work as set forth in such
Statement of Work and, in doing so, may take such other action as is reasonably
necessary to ensure continuity of such Services as set forth in such Statement
of Work.


 


(c)           Cooperation.  Genpact shall fully
cooperate with Wachovia (and the Wachovia personnel, Wachovia agents and Wachovia Third Party Contractors) as
reasonably necessary to ensure continuity of the Services being performed at
any Genpact Facility or at any Wachovia Facility at which Wachovia exercises its
step-in rights set forth in the applicable Statement of Work, including giving
Wachovia (and the Wachovia personnel, Wachovia agents and Wachovia Third Party Contractors)
reasonable access to all relevant Genpact Personnel and resources, Equipment
and Software located at such Genpact Facility or Wachovia Facility and
following the reasonable instructions of Wachovia (and the Wachovia personnel,
Wachovia agents and Wachovia Third Party Contractors).


 


(d)           Resolution Plan.  Subject to Section 10.5(e):


 


(i)            If Wachovia’s control over the Services under a
Statement of Work providing for step-in rights is likely to exceed thirty (30)
days, Genpact will work with Wachovia to develop a


 










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plan to rectify the Step-In Event, which if appropriate shall include the
process set forth in Section 7.3.  The plan shall describe the objective
criteria upon the satisfaction of which Wachovia will transfer control over the
Services back to Genpact.


 


(ii)           Once such a plan is approved by Wachovia, Genpact will implement the
approved plan.


 


(iii)          Upon successful implementation of the approved plan and satisfaction of
such objective criteria to Wachovia’s reasonable satisfaction, Wachovia will
transfer control over the Services back to Genpact.


 


(e)           Termination or Removal of
Services.


 


(i)            If Wachovia’s control over the Services under a
Statement of Work persists for a period in excess of the recovery period
specified in the applicable Disaster Recovery Plan or, if there is no such
recovery period, three (3) days with respect to any Wachovia or Eligible
Recipient functions identified in such Statement of Work as critical, Wachovia,
at its option, may terminate the applicable Statement of Work, or remove the
affected portion of the Services under such Statement of Work, immediately upon
notice to Genpact without payment of any Stranded Costs or Termination Charges,
unless the Parties are complying with the plan agreed pursuant to Section 10.5(d) or the Parties
otherwise agreed in writing, and Article 26
shall apply to the terminated or removed Services.


 


(ii)           If Wachovia’s control over the Services under a Statement of Work persists
for one hundred eighty (180) days and Wachovia has not earlier exercised its
rights to terminate such Statement of Work, Wachovia shall be deemed to have
exercised its rights under Section 25.2(a)
on the 180th day and Article 26
shall apply; provided, however, that any such termination under this Section 10.5(e) shall not be
construed as an admission by Genpact of a breach of this Agreement or of the
applicable Statement of Work.


 


(f)            No Charges for Services Performed by Wachovia.  If Wachovia exercises its step-in rights
under a Statement of Work providing for such rights, Genpact shall not invoice Wachovia for Services
that are performed by Wachovia, Wachovia Personnel or Wachovia Third Party
Contractors.


 


(g)           No Presumption of
Responsibility.  Nothing in this Section 10.5 shall be construed to either limit
Wachovia’s rights with respect to any default or non-performance by Genpact
under this Agreement or waive Genpact’s rights to raise defenses to any
assertion of such claims by Wachovia.


 


11.          WACHOVIA RESPONSIBILITIES


 


11.1        Responsibilities.


 


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


 


(a)           Wachovia Project Executive.  Wachovia shall designate one
(1) individual to whom all Genpact communications concerning this
Agreement may be addressed (the “Wachovia Project Executive”),
who shall have the authority to act on behalf of Wachovia and the Eligible
Recipients in all day-to-day matters pertaining to this Agreement.  Wachovia may change the designated Wachovia
Project Executive from time to time by providing notice to Genpact.  Additionally, Wachovia shall have the option,
but will not be obligated, to designate additional


 










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representatives who will be authorized to make certain decisions (e.g.,
regarding emergency maintenance) if the Wachovia Project Executive is not
available.


 


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


 


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


 


11.2        Management of Issues.


 


(a)           Proactive Management.  Notwithstanding anything contained in this Article 11, Genpact shall
proactively manage issues in a manner such that all tasks required to be
performed pursuant to this Agreement or a Statement of Work are performed in a
timely manner.  Each member of the
Genpact Personnel is expected to immediately escalate an issue if the
performance of any such Genpact Personnel’s obligation is directly impacted by
the failure of Wachovia to perform a preceding required task.  Genpact will not have met its obligation with
respect to the hindered task unless and until the Wachovia Project Executive
(or other relevant Wachovia team member identified in Schedule K)
has been notified of such failure to perform.


 


(b)           Wachovia Failure.  Wachovia’s failure to perform any of its
stated operational responsibilities or provide any Wachovia resources will not
constitute a breach of this Agreement or the applicable Statement of Work or
give rise to any right to terminate this Agreement or the applicable Statement
of Work.  If Wachovia fails to perform
any of its operations tasks set forth in the applicable Statement of Work or
provide any Wachovia resources set forth in the applicable Statement of Work,
Genpact will be excused from the performance of its obligations under this
Agreement or such Statement of Work adversely affected by such failure to the
extent and only for so long as Wachovia’s failure is the direct cause of
Genpact’s non-performance, but only if:


 


(i)            Genpact promptly notifies the Wachovia Project
Executive of Wachovia’s failure and if, after notifying the Wachovia Project
Executive, Wachovia fails to promptly rectify the failure; and


 


(ii)           there is no reasonable workaround for Wachovia’s failure that would permit
Genpact to perform such obligations.


 


12.          CHARGES.


 


12.1        General.


 


(a)           Payment of Charges.  In consideration of Genpact’s performance of
the Services, Wachovia agrees to pay Genpact the applicable Charges set forth
in this Article 12, Schedule O or the applicable
Statement of Work.  Genpact shall
continually seek to identify methods of reducing such Charges, including as
part of its productivity commitment under the Agreement, and will notify
Wachovia of such methods and the estimated potential savings associated with
each such method.


 


(b)           Currency.  All Charges will be denominated in United
States dollars.


 










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(c)           No Additional Charges.  Wachovia shall not pay any Charges for the
Services in addition to those set forth in this Article 12,
or Schedule O, or as may be
expressly provided in a Statement of Work or this Agreement.  Any costs incurred by Genpact prior to the
Effective Date are included in the Charges set forth in Schedule O
and are not to be separately paid or reimbursed by Wachovia.


 


(d)           Incidental Expenses.  Genpact acknowledges
that, except as expressly provided otherwise in this Agreement, expenses that
Genpact incurs in performing the Services (including management, travel and
lodging, document reproduction and shipping, desktop Equipment and other office
Equipment required by Genpact Personnel, and long-distance telephone) are
included in Genpact’s charges and rates set forth in this Agreement.  Accordingly, such Genpact expenses are not
separately reimbursable by Wachovia unless Wachovia has agreed in advance to
reimburse Genpact for the expense.


 


(e)           No Charge for Reperformance.  At no additional expense to
Wachovia, Genpact shall reperform (including any required backup or restoration
of data from scheduled backups or, if not available on such backups,
restoration by other means with Wachovia’s reasonable cooperation) any Services that result in incorrect
outputs to the extent due to an error or breach by Genpact, and the resources
required for such reperformance shall not be counted in calculating the Charges
payable or resources utilized by Wachovia hereunder.


 


12.2        Pass-Through Expenses.


 


If any Statement of Work
contemplates Pass-Through Expenses, Genpact shall not (a) mark-up any such
Pass-Through Expenses, or (b) add any management, administrative or other
fees to any Pass-Through Expenses, including in connection with its processing
or review of invoices for Pass-Through Expenses in accordance with such
Statement of Work.


 


12.3        Taxes.


 


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


 


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


 


(b)           Sales, Use and Property Taxes.  Each Party shall be responsible
for any sales, lease, use, personal property, value-added, gross receipts,
stamp duty or other such taxes on Equipment, Software or personal property it
owns or leases from a third party.  If a
Statement of Work contemplates that Wachovia shall convey to Genpact, and
Genpact shall accept Wachovia’s conveyance of, Acquired Assets, the Parties
shall specify the responsibility for Transfer Taxes in such Statement of Work.


 


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


 


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


 










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(e)           Service Taxes.


 


(i)            US Service Taxes.  For purposes of this provision, “US Service Taxes” shall mean Service Taxes assessed by any
Tax Authority in the United States against Wachovia or the Eligible Recipients
on the receipt of the Services as a whole, or on any particular Service
received by Wachovia or the Eligible Recipients from Genpact.  Except as set forth in this Section 12.3(e)(i), Wachovia shall
be financially responsible for all US Service Taxes.  If
additional US Service Taxes become applicable to the Services as a result of
Genpact moving all or part of its operations to a jurisdiction different from
the jurisdiction in which it operates as of the Effective Date, other than at
Wachovia’s request (e.g., Genpact relocating performance of Services to a
shared service center or assigning this Agreement to an Affiliate), Genpact
shall be financially responsible for the incremental US Service Taxes.


 


(ii)           Other Service Taxes.  Except as set forth otherwise in the applicable
Statement of Work in respect of value-added taxes, Genpact shall be financially
responsible for all Service Taxes assessed by Tax Authorities outside the
United States against either Party on the provision of the Services as a whole,
or on any particular Service received by Wachovia or the Eligible Recipients
from Genpact.


 


(f)            Withholding.  The Parties do not intend to enter into an
arrangement that will result in withholding taxes on cross-border payments
being levied by any Tax Authority. 
Genpact may refuse to enter into any Statement of Work that would result
in the levy of such withholding taxes.  If
Wachovia specifically requests that Genpact enter into a Statement of Work of
Services that would result in the levy of withholding taxes by a Tax Authority,
Genpact will do so only if Wachovia agrees to increase the sum payable to
Genpact so that after Wachovia makes all required deductions Genpact receives
an amount equal to the sum it would have received had no such deductions been
made.  Wachovia shall provide Genpact
with appropriate documentation or certification of the taxes so withheld to
enable Genpact to obtain a tax credit or deduction.  Genpact shall use commercially reasonable
efforts to obtain a credit or deduction for any withholding, and pay over to
Wachovia the amount, after accounting for such credit or deduction, that
Genpact received that exceeds the amount Genpact would have received had there
been no withholding on Wachovia’s payment to Genpact.  All such receipts and other evidence of
withholding shall be forwarded to: Genpact US Holdings, Inc., 1251 Avenue of
the Americas, New York, NY 10020, Attention: 
Eileen S. Silvers or such other address as Genpact may from time to time
specify.


 


(g)           Telecommunication Surcharges or User Fees.  To the
extent Wachovia is responsible under Schedule O
for telecommunication surcharges or user fees imposed by government authorities
and associated with the Services and the allocation of such fees or surcharges
is within Genpact’s or its Subcontractors’ discretion, Genpact and its
Subcontractors shall act fairly and equitably in allocating such fees and
surcharges to Wachovia, and Wachovia and the Eligible Recipients shall not
receive more than a proportionate share of such fees and surcharges.  In addition, in the event any such fee or
surcharge for which Wachovia or an Eligible Recipient is responsible is
subsequently reduced or vacated by the appropriate regulatory authority or
court of competent jurisdiction, Genpact shall take commercially reasonable
steps to seek on behalf of Wachovia a refund of any overpayment of such fee or
surcharge by Wachovia or the Eligible Recipient.


 


(h)           Notice of Additional Taxes and
Charges.  Genpact shall promptly notify Wachovia when it becomes aware
of any additional taxes or other charges (including changes to existing taxes
or charges) to be passed through to and/or collected by Wachovia under this Section 12.3.  Such notification (which may be separate from
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charges) shall contain a detailed explanation
of such taxes or charges, including the effective date of each additional tax
or charge.


 


(i)            Efforts to Minimize Taxes. Each Party shall cooperate with the other Party to enable the other Party
to more accurately determine its own tax liability and to minimize such
liability to the extent legally permissible. 
Genpact’s invoices shall separately state the Charges that are subject
to taxation and the amount of taxes included therein.  Each Party will provide and make available to
the other Party any resale certificates, information regarding out-of-state or
out-of-country sales or use of equipment, materials, or services, and other
exemption certificates or information reasonably requested by either
Party.  Each Party shall, upon the other
Party’s request, provide a written confirmation that it has filed all required
tax forms and returns required in connection with any Service Taxes and has
collected and remitted all applicable Service Taxes.


 


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


 


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


 


12.4        Extraordinary Events.


 


(a)           Definition.  As used in this Agreement, an “Extraordinary Event” means a circumstance in which an event
or discrete set of events has occurred or is planned with respect to the
business of Wachovia or the Eligible Recipients that results or will result in
a change in the scope, nature or volume of the Services that Wachovia or the
Eligible Recipients will require from Genpact, and which is expected to cause
the estimated average monthly usage of chargeable Resource Units to generally
increase or decrease by twenty-five
percent (25%) or more from the then-existing level of usage.


 


(b)           Consequence.  If an Extraordinary Event occurs, Wachovia
may, at its option, request more favorable pricing with respect to applicable
Charges for any Statement of Work in accordance with this Section 12.4(b).  Genpact and Wachovia shall mutually determine
on a reasonable basis the efficiencies, economies, savings and resource
utilization reductions or increases, if any, resulting from such Extraordinary
Event and, upon Wachovia’s approval, Genpact shall then proceed to implement
such efficiencies, economies, savings and resource utilization reductions or
increases as quickly as practicable and in accordance with the agreed upon
schedule.  As the efficiencies,
economies, savings or resource utilization reductions are realized, the Charges
specified in the applicable Statement of Work and any affected Resource
Baselines shall be


 










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promptly and equitably adjusted to pass through to Wachovia or compensate
Genpact for such efficiencies.


 


(c)           Termination.  If an
Extraordinary Event results in Charges to Wachovia higher than such Charges
would have been if the ARCs or RRCs specified in the applicable Statement(s) of
Work for usage twenty-five percent (25%) or less had been applied, then
Wachovia may terminate the affected Statement(s) of Work by giving Genpact
notice of such termination.


 


(i)            If Wachovia terminates the affected
Statement(s) of Work because the Extraordinary Event results in Charges to
Wachovia higher than such Charges would have been if the ARCs specified in the
applicable Statement(s) of Work for usage twenty-five percent (25%) or less had
been applied, Wachovia shall pay Genpact its Stranded Costs, in accordance with the Stranded Cost calculation
methodology set forth in Schedule I
and subject to the cap(s) set forth in such Statement(s) of Work, but Genpact
shall not be entitled to any Termination Charge in respect of such
termination(s).


 


(ii)           If Wachovia terminates the affected Statement(s) of Work because the
Extraordinary Event results in Charges to Wachovia higher than such Charges
would have been if the RRCs specified in the applicable Statement(s) of Work
for usage twenty-five percent (25%) or less had been applied, Wachovia shall
pay Genpact its Stranded Costs, in
accordance with the Stranded Cost calculation methodology set forth in Schedule I and subject to the
cap(s) set forth in such Statement(s) of Work, plus a Termination Charge equal
to [[[***]]].


 


(iii)          In either event, any such termination under this Section 12.4(c) shall not be
deemed a termination for convenience by Wachovia subject to Section 25.3.


 


12.5        Unanticipated Changes.


 


If an Unanticipated Change
occurs, and if Wachovia requests that the Services be modified to incorporate
such Unanticipated Change, the Parties shall use the procedures in Section 12.4(b) to equitably
adjust the Charges and other relevant provisions of this Agreement to take such
Unanticipated Change into account.  An “Unanticipated Change” shall consist of a material change in
the technologies and/or business processes available to provide all or part of
the Services that is unforeseen as of the applicable SOW Commencement Date, is
outside the normal evolution of technology experienced by providers of in-scope
business process outsourcing services, was not available as of the applicable
SOW Commencement Date, and would materially reduce Genpact’s cost of providing
the Services.


 


12.6        Proration.


 


Any periodic charges under
this Agreement shall be computed on a calendar month basis, and such monthly
charges shall be prorated for any partial month on a calendar day basis.


 


12.7        Refundable Items.


 


(a)           Prepaid Amounts.  Where Wachovia and/or the Eligible Recipients
have prepaid for a service or function for which Genpact is assuming financial
responsibility under a Statement of Work, Genpact shall promptly refund to
Wachovia or the Eligible Recipients, upon either Party identifying the
prepayment, that portion of such prepaid expense which is attributable to
periods on and after the applicable SOW Commencement Date.


 


(b)           Refunds and Credits.  If Genpact should receive a refund, credit,
discount or other rebate for goods or services paid for by Wachovia and/or the
Eligible Recipients on a Pass-Through Expense,


 










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a retained expense, a
cost-plus or cost-reimbursement basis, then Genpact shall (i) notify
Wachovia of such refund, credit, discount or rebate and (ii) promptly pay
or credit the full amount of such refund, credit, discount or rebate to
Wachovia or such Eligible Recipient.


 


12.8        Wachovia Benchmarking Reviews.


 


(a)           Benchmarking Review.  At any time after the first anniversary of a
SOW Commencement Date and no more frequently than once each Contract Year
thereafter, Wachovia may, subject to this Section 12.8,
engage the services of an independent third party (a “Benchmarker”)
to compare the Charges, performance against Service Levels, level of turnover
and customer satisfaction in respect of all or any portion of the Services
under such Statement of Work against the charges by other well-managed business
process outsourcing service providers performing similar services (and, at
Wachovia’s option, the fully-loaded cost of captive operations performing
similar services) to ensure that the pricing, performance against Service
Levels, turnover levels and customer satisfaction under such Statement of Work
is competitive with market pricing, performance, turnover and customer
satisfaction, given the nature, quality, volume, type and Service Levels of the
Services provided by Genpact under such Statement of Work (“Benchmarking”).  At
Wachovia’s discretion, a benchmarking may be conducted with respect to
(i) all of the Services under such Statement of Work in the aggregate;
(ii) all of such Services provided from any country(ies) in which a
Genpact Facility then providing Services to Wachovia or the Eligible Recipients
is located provided that in such case the benchmarking shall be done only in
relation to service providers or captive operators in such country(ies); or
(iii) any Service under a Statement of Work.  In making this comparison, the Benchmarker
shall consider the following factors and other similar variables and adjust the
prices as and to the extent appropriate: 
(i) whether and to what extent supplier transition charges are paid
by the customer as incurred or amortized over the term of the agreement;
(ii) the extent to which supplier pricing includes the purchase of the
customer’s existing assets; (iii) the extent to which supplier pricing
includes the cost of acquiring future assets; (iv) allocation of the
Management Fee as necessary for comparison purposes; (v) the extent to
which this Agreement calls for Genpact to provide and comply with unique
Wachovia requirements; (vi) whether Service Taxes are included in such
pricing or stated separately in supplier invoices; (vii) extent of
financial engineering required under the Agreement; (viii) the countries
in which the Services are required, and (ix) if captive operations
performing similar services are used in the comparison, the profit margin of
such captive operations.  The Benchmarker
shall identify any additional services provided by Genpact that are not
specifically set forth in the Statement of Work and are not paid for by
Wachovia (such as extra hours, extra services, management information systems
services, training support and documentation support).


 


(b)           General.  Wachovia shall retain, at Wachovia’s cost and
expense, a Benchmarker for each Benchmarking from among those set forth in Schedule P or another mutually
agreed company.  The Benchmarker shall
execute a non-disclosure agreement substantially in the form attached hereto as
Exhibit 1.  Genpact shall cooperate fully with Wachovia
and the Benchmarker and will (i) provide the Benchmarker reasonable access
to any premises, equipment, personnel or documents, and (ii) provide any
assistance required by the Benchmarker to conduct the Benchmarking, all at
Genpact’s cost and expense.  The
Benchmarking shall be conducted so as not to unreasonably disrupt Genpact’s
operations under this Agreement.


 


(c)           Result of Benchmarking.


 


(i)            The Benchmarker shall determine the median cost
for the Services or any service element under a Statement of Work based upon
the prices charged by other well-managed information technology service
providers or the cost of captive operations performing work of a similar
nature, type, quality (as measured by the Service Levels) and volume as


 










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the Services excluding in the calculation of the median the lowest and the
highest price or cost comparison identified in the Benchmarking (the “Benchmark Standard”).


 


(ii)           If the Charges paid by Wachovia for such Services or any service element
under a Statement of Work are more than [[[***]]] higher than the Benchmark
Standard, then, within [[[***]]] following the end of the review period set
forth in Section 12.8(d)
Genpact shall decrease the Charges under such Statement of Work so that the
decreased Charges are less than [[[***]]] higher than the Benchmark Standard
and, at Wachovia’s request, the Parties shall negotiate an action plan to
reduce the Charges further to the Benchmark Standard.  If the Parties are unable to agree upon an
action plan, Wachovia may, at its option, terminate the Services in whole or in
part pursuant to Section 25.3.  If the Services are terminated in part,
Genpact’s Charges shall be equitably adjusted to reflect the Services no longer
performed by Genpact.


 


(iii)          If the Charges paid by Wachovia for such Services or any service element
under a Statement of Work are less than the Benchmark Standard, then Genpact
may review the results with Wachovia and request an increase to the Charges to
equal the Benchmark Standard.  Wachovia
may choose to approve or disapprove such an increase at its discretion.


 


(d)           Genpact Review and Dispute.  Wachovia shall provide Genpact
with a copy of the Benchmarker’s report and Genpact shall have forty-five (45) days to review such
report and contest the Benchmarker’s findings. 
If the Parties are unable to agree upon the validity of such findings,
the matter shall be resolved pursuant to the dispute resolution procedures set
forth in Article 24.


 


(e)           Benchmarking Data.  All Benchmarking data shall be deemed
confidential information and shall be solely for the use of Genpact and
Wachovia.


 


12.9        Gainsharing.


 


The Parties anticipate that
there will be opportunities for significant cost improvement and other
financial benefits through process redesign and improvement of business
processes outsourced to Genpact under this Agreement.  Accordingly, the Parties will implement the
following process for mutually agreed gain sharing opportunities in connection
with the in-scope business processes:


 


(a)           Direct Benefits.  Pursuant to the Change Control Procedures,
Genpact may from time to time propose for Wachovia’s consideration changes to
the processes under an existing Statement of Work that are in production that
Genpact believes would result in reduction in the cost of performing the
Services under such Statement of Work for the remainder of the applicable SOW
Term (“Direct Benefits”).


 


(i)            Each such proposal
shall include an estimate of the
process improvement costs associated with any process improvement.


 


(ii)           As part of the approval process, the Parties shall agree upon how Direct
Benefits shall be calculated.


 


(iii)          If, pursuant and subject to the Change Control Procedures, Wachovia
approves any change in process proposed by Genpact, Genpact will make any
investments required for the process improvements and Wachovia will make any
related investments in respect of the Retained Systems and Business Processes
as required to facilitate such process improvement.


 










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(iv)          The Parties shall account for the Direct Benefits resulting from such
approved process change as agreed pursuant to the Change Control Procedures.  Actual Direct Benefits shall be first be
applied to reimburse Wachovia for the cost of its related investments, then to
reimburse Genpact for the cost of its investments.


 


(v)           After Wachovia and Genpact have each recouped such investments, the Parties
shall each receive [[[***]]] of the actual Direct Benefits from approved
process changes.


 


(b)           Indirect Benefits.  Pursuant to the Change Control Procedures and
this Section 12.9(b), in addition
to Direct Benefits from any process improvement, Genpact may propose for
Wachovia’s consideration the sharing of other financial benefits to Wachovia
other than Direct Benefits resulting from process improvements proposed
pursuant to this Section 12.9.  Sharing of any indirect financial benefits
shall require approval of each of (i) the CFO of the affected Wachovia
business line, (ii) the Wachovia Outsourcing Governance Director and
(iii) the Executive Committee.  Any
agreement to share indirect financial benefits must include how such indirect
financial benefits shall be calculated and a cap of the indirect financial
benefits to be shared.


 


13.          INVOICING AND PAYMENT


 


13.1        Invoicing.


 


(a)           Invoice.  Within five (5) days after the beginning
of each month, Genpact shall present Wachovia with preliminary billing details
for any Charges due and owing for the preceding month, pursuant to all existing
Statements of Work.  Wachovia shall
review such preliminary billing details and shall either accept or reject such
billing details within twelve (12) days after receipt.  If Wachovia accepts such billing details,
Genpact shall issue an invoice for the Charges due and owing for the preceding
month consistent with the preliminary billing details.  At Wachovia’s request, Genpact shall provide
separate monthly invoices for each Eligible Recipient then receiving Services,
with the Charges allocated among such Eligible Recipients based on the
chargeback data generated by Genpact and/or the allocation formula provided by
Wachovia.  The invoice shall be delivered
to Wachovia, at its request, at the address listed in Section 27.3
and/or electronically.  Unless otherwise
required under a Statement of Work, Genpact shall not invoice Wachovia for any
advance or concurrent charges or other amounts.


 


(b)           Form and Data.  Each invoice shall (i) comply with all
applicable legal, regulatory and accounting requirements, (ii) allow
Wachovia to validate volumes and fees, (iii) comply with Wachovia’s and
the Eligible Recipient’s accounting, management reporting and billing
requirement, and (iv) permit Wachovia to allocate the Charges among the
Eligible Recipients based on chargeback data generated by Genpact and/or
allocation formulae provided by Wachovia. 
Each invoice shall include the pricing calculations and related data
utilized to establish the Charges and sufficient information to validate the
service volumes and associated Charges. 
The data underlying each invoice shall be delivered to Wachovia electronically
(if requested by Wachovia) in a form and format compatible with Wachovia’s
accounting systems.


 


(c)           Credits.  To the extent a credit may be due to Wachovia
pursuant to this Agreement, Genpact shall provide Wachovia with an appropriate
credit against amounts then due and owing; if no further payments are due to
Genpact, Genpact shall pay such amounts to Wachovia within thirty
(30) days after the date the credit has accrued.


 


(d)           Time Limitation.  If Genpact fails to provide an invoice to
Wachovia for any amount within ninety (90) days after the end of month in which
the Services in question are rendered or the expense incurred, Genpact shall
waive any right it may otherwise have to invoice for and collect such amount.


 










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13.2        Payment Due Date.  Subject to the other provisions of this Article 13,
each invoice provided for under Section 13.1 shall be due and payable within
forty-five (45) days after receipt by Wachovia of such invoice unless the
amount in question is disputed in accordance with Section 13.3.  Any undisputed amount due under this
Agreement for which a time for payment is not otherwise specified also shall be
due and payable within forty-five (45) days.


 


13.3        Disputed Charges.


 


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


 


(a)           Notice of Dispute.  If Genpact’s invoice includes sufficient
detail and supporting documentation to enable Wachovia to reasonably determine
whether Genpact’s Charges are in accordance with this Agreement, Wachovia shall
notify Genpact as soon as possible (but in any event on or before the payment
due date of such invoice) if it disputes any of the Charges in such invoice.


 


(b)           Notice of Insufficient Detail, Documentation and Dispute.  If
Genpact’s invoice does not include sufficient detail and supporting
documentation to enable Wachovia to reasonably determine whether Genpact’s
Charges are in accordance with this Agreement, Wachovia shall so notify Genpact
as soon as possible (but in any event on or before the payment due date).  Genpact shall promptly provide such
reasonable detail and supporting documentation, and Wachovia shall notify
Genpact within ten (10) business days after receipt thereof by the Wachovia
Project Executive whether it disputes any of the Charges in Genpact’s invoice.


 


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


 


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


 


14.          AUDIT RIGHTS


 


14.1        Contract Records.


 


Genpact shall, and shall cause
its Subcontractors to, maintain complete and accurate records of and supporting
documentation for all Charges, all Wachovia Data and all transactions,
authorizations, changes, implementations, soft document accesses, system access
and log reports, filings, reports, returns, analyses, procedures, controls,
records, data or information created, generated, collected, processed or stored
by Genpact in the performance of its obligations under this Agreement (the “Contract Records”). 
Genpact shall maintain such Contract Records in accordance with
applicable Laws. Genpact shall retain Contract Records in accordance with
Wachovia’s record retention policy (as such policy may be reasonably modified
from time to time and provided to Genpact in writing) during the Term and any
Termination Assistance Period and thereafter through the end of the second full
calendar year after the calendar year in which Genpact stopped performing the
applicable Services (including any Termination Assistance Services) (the “Audit Period”). 
Unless such changes are required by applicable Law, the Parties shall
address any incremental costs incurred by Genpact complying with changes in
Wachovia’s record retention policy after the applicable SOW Commencement Date
direction in accordance with the Change Control Procedures.


 










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14.2        Operational Audits.


 


During the Audit Period and
subject to Section 14.5,
Genpact shall, and shall cause its Subcontractors and suppliers to, provide  to Wachovia (and internal and external auditors (provided
that Wachovia shall not appoint any Genpact Competitor as an auditor)),
inspectors, regulators and other representatives that Wachovia may designate
from time to time, including customers, vendors, licensees and other third
parties to the extent Wachovia or the Eligible Recipients are legally or
contractually obligated to submit to audits by such entities in each case (each
a “Wachovia Auditor”)) access to Genpact
Personnel, to the facilities at or from which Services are then being provided
and to Contract Records and other pertinent information, all to the extent
relevant to the Services and Genpact’s obligations under this Agreement;
provided, however, that in no event shall Wachovia or any Wachovia Auditor be
provided with access to, or permitted to review, any data or information of any
customer of Genpact or its Subcontractors (other than Wachovia and the Eligible
Recipients).  Such access shall be provided
for the purpose of performing audits and inspections, to (a) verify the
integrity of Wachovia Data, in accordance with the terms of this Agreement;
(b) examine the systems that process, store, support and transmit that
data; (c) examine the internal controls (e.g., financial and accounting
controls, in-scope business process controls, organizational controls,
input/output controls, system modification controls, processing controls,
system design controls, and access controls) and the security, disaster
recovery and back-up practices and procedures; (d) examine Genpact’s
performance of the Services; (e) verify Genpact’s reported performance
against the applicable Service Levels; (f) examine Genpact’s measurement,
monitoring and management tools; (g) verify Genpact’s compliance with
physical and logical security requirements; (h) examine Genpact’s audit
systems, accounting and administrative processes and procedures for compliance
with Wachovia Standards, applicable data security practices and government regulations;
and (i) enable Wachovia and the Eligible Recipients to meet the
requirements under applicable Laws (including those associated with the
Sarbanes-Oxley Act of 2002 and the implementing regulations promulgated by the
United States Securities and Exchange Commission and Public Company Accounting
Oversight Board and the Basel II Accord and implementing regulations).  Genpact shall (a) provide any assistance
reasonably requested by Wachovia or its designee in conducting any such audit,
including installing and operating audit software, (b) make requested
personnel (to the extent still employed by Genpact or its Affiliates or
Subcontractors), records and information reasonably available to Wachovia or
its designee, and (c) in all cases, provide such assistance, personnel,
records and information in an expeditious manner to facilitate the timely
completion of such audit.  If an audit
reveals a material breach of this Agreement and Genpact does not successfully
dispute such finding in accordance with Article 24,
then any amount of damages recoverable as a result of such breach shall include
the actual cost of such audit (including fees charged by any Wachovia Auditor).


 


14.3        Financial Audits.


 


During the Audit Period and
subject to Section 14.5,
Genpact shall, and shall cause its Subcontractors to, provide to Wachovia (and
a Wachovia Auditor) access to Genpact Personnel and to Contract Records and
other pertinent information to conduct financial audits, all to the extent
relevant to the performance of Genpact’s obligations under this Agreement;
provided, however, that in no event shall Wachovia or any Wachovia Auditor be
provided with access to, or permitted to review, any data or information of any
customer of Genpact or its Subcontractors (other than Wachovia and the Eligible
Recipients).  Such access shall be
provided for the sole purpose of performing audits and inspections to
(a) verify that the Charges are in accordance with this Agreement,
(b) verify the accuracy of any Pass-Through Expenses and Out-of-Pocket
Expenses, (c) examine the financial controls, processes and procedures
utilized by Genpact in connection with the Services, (d) examine Genpact’s
performance of its other financial and accounting obligations to Wachovia under
this Agreement, (e) review the costs of Genpact in performing the Services
(but only to the extent such costs are the basis upon which Wachovia is charged
(e.g., reimbursable expenses, Out-of-Pocket Expenses, Pass-Through Expenses or
cost-plus Charges) and/or are necessary to calculate the applicable Charges),
and (f) enable Wachovia and the Eligible Recipients to meet the
requirements under applicable Law, in each case to the extent applicable to the
Services and/or the Charges for such Services. 
Genpact shall (a) provide any assistance reasonably requested by
Wachovia or a Wachovia Auditor in conducting any such audit, (b) make
requested personnel (to the extent still employed by Genpact or its Affiliates
or Subcontractors), records and information available to Wachovia or a


 










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Wachovia Auditor, and
(c) in all cases, provide such assistance, personnel, records and
information in an expeditious manner to facilitate the timely completion of
such audit.  If any such audit reveals an
overcharge by Genpact, and Genpact does not successfully dispute the amount
questioned by such audit in accordance with Article 24, Genpact shall promptly pay to Wachovia
the amount of such overcharge.  In
addition, if any such audit reveals an overcharge of more than one percent (1%)
of the audited Charges, Genpact shall promptly reimburse Wachovia for the
actual cost of such audit (including fees charged by any Wachovia Auditor).


 


14.4        Audit Assistance.


 


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


 


14.5        General Procedures.


 


(a)           Genpact shall (i) cause its Affiliate Subcontractors to comply with
this Article 14 and
(ii) use commercially reasonable efforts to obtain, and extend to
Wachovia, audit rights equivalent to those specified in this Article 14 from all
Non-affiliate Subcontractors.


 


(b)           Wachovia shall use commercially reasonable efforts to minimize the
frequency of audits under this Article 14
and to provide reasonable notice of the exercise of its audit rights hereunder,
but Genpact acknowledges and agrees that audits by Wachovia’s inspectors or
regulators or security audits cannot be limited or any notice period
prescribed.  Similarly, Wachovia shall
use commercially reasonable efforts to conduct audits (other than audits by
Wachovia’s inspectors or regulators or security audits) under this Article 14 during normal business
hours.


 


(c)           Wachovia shall use commercially reasonable efforts to cause each Wachovia
Auditor (other than Wachovia internal auditors or Wachovia’s inspectors or
regulators) to execute a confidentiality agreement substantially in the form
set forth in Exhibit 1
prior to the commencement of an audit under this Article 14.


 


(d)           Except as set forth in Section 14.2 or 14.3,
Wachovia shall be responsible for the fees and expenses charged by a Wachovia
Auditor.


 


(e)           Notwithstanding the intended breadth of Wachovia’s audit rights, Wachovia
shall not be given access to (i) the proprietary information of other
Genpact customers, (ii) Genpact locations that are not related to Wachovia,
Eligible Recipients or the Services or (iii) Genpact’s internal costs,
except to the extent such costs are the basis upon which Wachovia is charged
(e.g., reimbursable expenses, Out-of-Pocket Expenses, Pass-Through Expenses or
cost-plus Charges) and/or are necessary to calculate the applicable Charges.


 


(f)            In performing audits, Wachovia shall use
commercially reasonable efforts to avoid unnecessary disruption of Genpact’s
operations and unnecessary interference with Genpact’s ability to perform the
Services in accordance with the Service Levels. 
In the event (i) any audit performed by Wachovia or a Wachovia
Auditor pursuant to Section 14.2 or 14.3
or (ii) Genpact’s compliance with its obligations set forth in Section 14.2 or 14.3,
in either case, adversely affects Genpact’s


 










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performance of its obligations under this Agreement, then subject to Section 11.2 Wachovia shall
relieve Genpact from such obligations, including liability for any Service
Level Credits or Deliverable Credits that Genpact may incur.


 


(g)           Wachovia shall be given reasonable private workspace in which to perform an
audit, plus access to photocopiers, telephone, facsimile machines, computer
hook-ups and any other facilities or equipment reasonably required for the
performance of the audit.


 


(h)           Prior to receiving access to Proprietary Information of Genpact, external
Wachovia Auditors (other than Wachovia’s inspectors or regulators) shall
execute a non-disclosure agreement substantially in the form attached hereto as
Exhibit 1.


 


14.6        Genpact Internal Audit.


 


(a)           Material Deficiencies.  If a review or audit conducted by Genpact or its Affiliates (including
internal and external auditors) of any of its operations relating to the
Services reveals any material deficiencies, Genpact shall promptly notify
Wachovia of such findings.


 


(b)           Overcharges.  If
Genpact determines as a result of a review or audit conducted by Genpact or its
Affiliates (including internal and external auditors) of its operations
relating to the Services that it has overcharged Wachovia, then Genpact shall
promptly pay or credit to Wachovia the amount of such overcharge, net of any
undercharges.


 


14.7        Genpact Response.


 


Following the completion of an
audit conducted pursuant to this Article 14
or the issuance of an interim or final report to Genpact and Wachovia following
any such audit, Wachovia shall conduct (in the case of an internal audit), or
request its external auditors or examiners to conduct, an exit conference with
Genpact to obtain factual concurrence with issues identified in the review.  Genpact shall respond to each exit interview
and/or audit report in writing within thirty (30) days, unless a shorter
response time is specified in such report. 
Genpact and Wachovia shall develop and agree upon an action plan to
promptly address and resolve any deficiencies, concerns and/or recommendations
identified in such exit interview or audit report and Genpact, at its own
expense, shall undertake remedial action in accordance with such action plan
and the dates specified therein to the extent necessary to comply with Genpact’s
obligations under this Agreement.


 


14.8        Genpact Response to External Audits.


 


If an audit by a governmental
body, standards organization or regulatory authority having jurisdiction over
Wachovia, an Eligible Recipient or Genpact results in a finding that Genpact is
not in compliance with any applicable Law or standard, including any generally
accepted accounting principle or other audit requirement relating to the
performance of its obligations under this Agreement, then Genpact shall, at its
own expense and within the time period specified by such auditor, address and
resolve the deficiency(ies) identified by such governmental body, standards
organization or regulatory authority, in a manner approved by Wachovia.


 


14.9        SAS 70 Type II Audit.


 


(a)           In addition to its other obligations under this Article 14,
Genpact shall cause a Type II Statement of Auditing Standards (“SAS”) 70 audit (or equivalent audit) to be conducted at
least annually for each business process which is subject to one or more
Statement(s) of Work and related internal controls for each Genpact Facility at
or from which the Services are provided to Wachovia or the Eligible
Recipients.  Genpact shall consider
issues and concerns raised by Wachovia in the


 










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planning of each such audit, provide notice to Wachovia as to the scope and
timing of each such audit and accommodate Wachovia’s requirements and concerns
to the extent practicable.  Genpact shall
provide Wachovia with a report from each SAS 70 audit to facilitate periodic compliance
reporting by Wachovia and the Eligible Recipients under the Sarbanes-Oxley Act
of 2002 (and implementing regulations promulgated by the United States
Securities and Exchange Commission and Public Company Accounting Oversight
Board) and comparable Laws in other jurisdictions.  To the extent the resulting audit report is
relevant to Wachovia or the Eligible Recipients, Genpact shall provide a copy
of such report to Wachovia and its independent auditors for review and comment
as soon as reasonably practicable and in all events within forty-five
(45) days after the issuance of the report.  Genpact shall respond to such report in
accordance with this Section 14.9(a).


 


(b)           If Genpact undertakes additional or different Type II SAS 70 audits (or
equivalent audits) of Genpact Facilities at, from or through which Services are
provided to Wachovia or the Eligible Recipients (other than customer-specific
audits requested and paid for by other Genpact customers), Genpact shall accord
Wachovia the rights described in Section 14.9(a)
with respect to such audits.


 


(c)           To the extent Wachovia provides reasonable notice and requests that, in
addition to the Type II SAS 70 audit described in this Section 14.9(a) or (b), Genpact conduct a
Wachovia-specific Type II SAS 70 audit, Genpact shall do so at Wachovia’s
expense (provided, Genpact notifies Wachovia of such expense, obtains Wachovia’s
approval, and uses commercially reasonable efforts to minimize such expense).


 


14.10      Audit Costs.


 


Except as otherwise noted,
Genpact and its Subcontractors shall comply with its obligations described in
this Article 14 at no additional
charge to Wachovia.


 


15.          WACHOVIA DATA AND OTHER
PROPRIETARY INFORMATION


 


15.1        Wachovia Ownership of Wachovia Data.


 


Wachovia Data is and shall
remain the property of Wachovia (and/or the applicable Eligible
Recipients).  Genpact shall promptly
deliver Wachovia Data (or the portion of such Wachovia Data specified by
Wachovia) to Wachovia in the format, on the media and in the timing reasonably
prescribed by Wachovia (a) at any time upon Wachovia’s request,
(b) at the end of the Term and at the completion of all requested
Termination Assistance Services (except Contract Records, which shall be
retained by Genpact for the Audit Period specified in Section 14.1
unless and to the extent Genpact is directed by Wachovia to deliver such
Contract Records to Wachovia prior to the expiration of such Audit Period),
(c) with respect to particular Wachovia Data, at such earlier date that
such data are no longer required by Genpact to perform the Services, or
(d) if such Wachovia Data is Wachovia Personal Data, at the time such
Wachovia Personal Data is required to be returned to Wachovia and/or an
Eligible Recipient to satisfy its or their obligations under Privacy Laws.  Genpact shall not withhold any Wachovia Data
as a means of resolving any dispute. 
After any return of Wachovia Data pursuant to the second sentence of
this Section 15.1, if
requested by Wachovia, Genpact shall return or destroy, as directed by
Wachovia, all copies of the Wachovia Data in Genpact’s possession or under
Genpact’s control as soon as possible, but in any event within ten
(10) business days, and deliver to Wachovia written certification of such
return or destruction signed by an authorized representative of Genpact;
provided, however, that Genpact may retain one copy of the Wachovia Data (other
than Wachovia Personal Data) for the sole purpose of defending itself or its
Affiliates in any legal proceedings that may be brought against Genpact or its
Affiliates and that in respect of Wachovia Personal Data Wachovia shall give
Genpact access to Wachovia Personal Data after such return or destruction for
the sole purpose of defending Genpact or its Affiliates in any such legal


 










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proceedings.  Wachovia Data shall not be utilized by
Genpact for any purpose other than the performance of Services under this
Agreement or as set forth in the in the immediately preceding sentence, and
Genpact shall at all times comply with the Wachovia Privacy Policy, as modified
by Wachovia and provided to Genpact from time to time.  Except as required under a Statement of Work
or this Agreement, Wachovia Data shall not be sold, assigned, leased,
encumbered, commercially exploited or otherwise provided to third parties by or
on behalf of Genpact or any Genpact Personnel.


 


15.2        Safeguarding Wachovia Data.


 


(a)           Safeguarding Procedures.  Genpact shall, subject to Wachovia’s
approval, establish and maintain environmental, safety and facility procedures,
data security procedures and other safeguards against the destruction, loss,
unauthorized access or alteration of Wachovia Data in the possession of Genpact
which are no less rigorous than (i)(A) those maintained by Wachovia as of
the applicable SOW Commencement Date (or implemented thereafter by Wachovia to
the extent deemed necessary by Wachovia), (B) those maintained by Genpact
for its own information of a similar nature and (C) accepted security
standards in the industry, and (ii) adequate to meet the requirements of
the Wachovia Standards and applicable Laws. 
Subject to Section 19.5,
the Parties shall address any incremental costs incurred by Genpact complying
with such procedures or safeguards implemented by Wachovia after the applicable
SOW Commencement Date in accordance with the Change Control Procedures.  Genpact shall create backup copies of
Wachovia Data in its possession and shall store such backup copies in a secure
location, as further described in Section 10.1(b)
and the applicable Statement of Work. 
Wachovia shall have the right to establish backup security for Wachovia
Data and to keep backup copies of the Wachovia Data in Wachovia possession at
Wachovia expense if Wachovia so chooses. Genpact shall provide Wachovia with
downloads of Wachovia Data, as requested by Wachovia, to enable Wachovia to
maintain such backup security or backup copies of Wachovia Data.  Genpact shall remove all Wachovia Data from
any media taken out of service and shall destroy or securely erase such media
in accordance with the applicable Policy and Procedures Manual.  No media on which Wachovia Data is stored may
be used or re-used to store data of any other customer of Genpact or to deliver
data to a third party, including another Genpact customer, unless securely
erased in accordance with the applicable Policy and Procedures Manual.


 


(b)           Response to Security Breach.  In
the event Genpact discovers or is notified of a breach or potential breach of
security relating to Wachovia Data, Genpact shall expeditiously (i) notify
Wachovia of such breach or potential breach, (ii) investigate such breach
or potential breach and perform a risk assessment, Root Cause Analysis and
corrective action plan thereon, (iii) provide a written report to Wachovia
of such risk assessment, Root Cause Analysis and action plan, (iv) remedy the
effects of such breach or potential breach of security, and (v) provide
Wachovia with such assurances as Wachovia shall request that such breach or
potential breach will not recur. Nothing in this Agreement will be construed as
a limitation on Wachovia’s right to use Wachovia Data for its own purposes.


 


(c)           Reconstruction Procedures.  As part of the Services, Genpact
shall be responsible for developing and maintaining procedures for the
reconstruction of lost Wachovia Data which are no less rigorous than those
maintained by (i) Wachovia as of the applicable SOW Commencement Date (or
implemented thereafter by Wachovia to the extent reasonably deemed necessary by
Wachovia), and (ii) Genpact for its own information of a similar nature.  These procedures shall be included in the
applicable Policy and Procedures Manual. 
Subject to Section 19.5,
the Parties shall address any incremental costs incurred by Genpact complying
with such procedures implemented by Wachovia after the applicable SOW
Commencement Date in accordance with the Change Control Procedures.


 










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(d)           Corrections.  The correction of any errors or inaccuracies
in or with respect to Wachovia Data shall be performed by the Party that caused
such errors or inaccuracies at such Party’s cost, except that Genpact shall
correct any Wachovia Personal Data in its possession or control if required by
Wachovia to do so in order for Wachovia or an Eligible Recipient to satisfy its
or their obligations under Privacy Laws. 
Genpact may request reimbursement from Wachovia for additional resources
Genpact is required to expend to correct material, excessive or systemic errors
caused by Wachovia’s failure to submit data in accordance with the applicable
Policy and Procedures Manual.


 


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


 


(f)            Restoration of Data.  The re-loading of any destroyed, lost or
altered Wachovia Data shall be performed by the Party that has operational
responsibility for maintaining the System on which such Wachovia Data resides
and for creating and maintaining backup copies of such Wachovia Data.  To the extent (i) Genpact is
operationally responsible under the applicable Statement of Work for performing
such restoration or (ii) such destruction, loss or alteration is
attributable to the failure of Genpact or Genpact Personnel to comply with
Genpact’s obligations under this Agreement, Genpact shall be responsible for
re-loading such data and/or otherwise re-performing the necessary Services
without additional Charges.


 


(g)           Electronic Incident Reporting.  For purposes hereof, “Electronic Incident” shall mean any
unauthorized action by a known or unknown person which, if successfully
completed, should reasonably be considered one of the following:  an attack, penetration, denial of service,
unauthorized electronic disclosure of Wachovia’s Proprietary Information,
misuse of system access, unauthorized access or intrusion (hacking), virus
intrusion, scan of Wachovia’s or Genpact’s systems or networks, or any other
activity that could adversely affect Wachovia’s Proprietary Information.  For purposes hereof, “Genpact’s systems or networks” shall
include the systems, networks, technology, content or web sites of third party
vendors used by Genpact to provide the Services hereunder.  Genpact shall report to Wachovia all known or
suspected Electronic Incidents.  If an
Electronic Incident occurs, Genpact shall immediately notify Wachovia’s
Incident Management Center at (866) 922-4911 — Option 2, and provide the
following information:  nature and impact
of the Electronic Incident; actions already taken by Genpact; Genpact’s
assessment of immediate risk; and corrective measures to be taken, evaluation
of alternatives, and next steps.  Genpact
shall continue providing appropriate status reports to Wachovia regarding the
resolution of the Electronic Incident and prevention of future such Electronic
Incidents.  Wachovia may require that
Genpact’s accessing, processing, or storing of Wachovia’s Proprietary
Information be suspended, connectivity with Genpact be terminated, or other
appropriate action be taken pending such resolution.  Should Genpact fail to report, or take
reasonable measures to resolve, an Electronic Incident, Wachovia may terminate
this Agreement pursuant to Section 25.1(a)(i)(D).


 


(h)           Information Security Review.  Genpact shall, with respect to all
systems, applications, networks, or sites, used by Genpact in accessing,
processing, or storing Wachovia Proprietary Information, comply with Wachovia’s
then-current Corporate Information Standards as set forth in Schedule F.


 










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Wachovia shall disclose modifications to its Corporate Information
Standards to Genpact.  Genpact shall,
within thirty (30) days after notice thereof, comply with any change in
Wachovia’s Corporate Information
Standards.  Unless such change is
required by applicable Law, the Parties shall address any incremental costs
incurred by Genpact complying with any change in Wachovia’s Corporate
Information Standards implemented by Wachovia after the applicable SOW
Commencement Date in accordance with the Change Control Procedures.  Wachovia may perform information security
reviews on any systems, applications, networks, or sites, used by Genpact in
accessing, processing, or storing Wachovia Proprietary Information (“Reviews”).  The
Reviews shall include, but not be limited to, physical inspection, external
scan, internal scan, code review, process reviews, and reviews of system
configurations.  The Reviews shall be
conducted in Wachovia’s discretion, by Wachovia or its designee (who will be a
nationally known security firm and shall not be a Genpact Competitor), and at
Wachovia’s expense.  Genpact hereby
grants permission to Wachovia or its designee to perform the Reviews.  Should any Review result in the discovery of
material security risks to the systems, applications, networks, or sites, used
by Genpact in accessing, processing, or storing Wachovia Proprietary
Information, Wachovia shall immediately notify Genpact of such risks, and
Genpact shall respond to Wachovia in writing within five (5) days with Genpact’s
plan to take reasonable measures to promptly correct, repair, or modify the
applicable system, application, network, or site to effectively eliminate the
risk.  Should Genpact fail to take
reasonable measures to remedy the identified risk, Wachovia may terminate this
Agreement pursuant to Section 25.1(a)(i)(E).


 


(i)            Advice on Better Procedures.  Genpact shall regularly advise
Wachovia of data security practices, procedures and safeguards of which Genpact
is aware, if such practices, procedures and safeguards are of a higher standard
than those contemplated under this Agreement.


 


15.3        Wachovia Personal Data.


 


(a)           Compliance with Privacy Laws.  Genpact shall comply with the
provisions of and the obligations imposed on Genpact and applicable to its
performance of the Services under applicable Privacy Laws, including the
implementing legislation and regulations of European Union member states under
EU Directives 95/46/EC and 2002/58/EC.  Genpact also shall comply with the data
privacy policies of Wachovia as well as the global data privacy policies of any
self-regulatory organizations to which Wachovia or the Eligible Recipients
belong in accordance with Article 19 and as set forth in the Policy and
Procedures Manual, and which are applicable to Genpact in its role as a data
processor and third party service provider to Wachovia and the Eligible
Recipients in relation to Wachovia Personal Data.


 


(b)           Return of Personal Data.  All Wachovia Personal Data
provided to Genpact shall be returned or destroyed (at the option of
Wachovia) by Genpact on request as and to the extent provided in Section 15.1, unless and to
the extent such Wachovia Personal Data is required by Genpact to discharge its
obligations hereunder or under applicable Privacy Laws.  For the avoidance of doubt,
nothing in this Section 15.3(b) shall entitle Genpact to retain any Wachovia
Personal Data if such retention would cause Wachovia and/or an Eligible
Recipient to violate applicable Privacy Laws.


 


(c)           Genpact Responsible for Third Parties.  Genpact shall be responsible for
the acts and omissions of any Subcontractor that processes (within the meaning
of the applicable Privacy Laws) Wachovia Personal Data on Genpact’s behalf
in the same manner and to the same extent as it is responsible for its own acts
and omissions with respect to such Wachovia Personal Data.  Genpact
shall not be responsible for the acts and omissions of any Managed Third Party
that processes (within the meaning of the applicable Privacy
Laws) Wachovia Personal Data except to the extent such acts or omissions
are a direct result of Genpact’s failure to comply with its obligation under a
Statement of Work to manage such Managed Third Party.


 










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(d)           Data Controller.  The Parties acknowledge and agree that unless
applicable Privacy Laws require otherwise each Eligible Recipient located in
the European Economic Area is
the data controller of all Wachovia Personal Data processed by Genpact for such
Eligible Recipient in providing the Services. 
Unless applicable Privacy Laws require otherwise, Genpact shall merely
act in relation to such Wachovia Personal Data as the data processor on behalf
of such data controller and shall act only in accordance with the reasonable
instructions of the relevant Eligible Recipient in relation to such Wachovia
Personal Data.  Such reasonable
instructions shall be consistent with the Services and shall not expand the
scope of such Services.


 


(e)           Wachovia Personal Data Security.  Without limiting Genpact’s
obligations under Section 15.1
or 15.2 or otherwise with respect to
data security, Genpact shall:


 


(i)            take commercially reasonable steps to limit
access to the Wachovia Personal Data to those Genpact Personnel who have a need
to know such Wachovia Personal Data; and


 


(ii)           provide Wachovia or the relevant Eligible Recipient with such information,
assistance and cooperation (insofar as it relates to its processing activities)
as Wachovia or such Eligible Recipient may reasonably require from time to time
to establish Genpact’s compliance with the obligations relating to security
contained in the Privacy Laws, subject to Article 19
and as set forth in the Policy and Procedures Manual.


 


Genpact shall satisfy its
obligations under this Section 15.3(e)
as and to the extent described in Section 15.3(a).


 


(f)            Transfers of Wachovia Personal
Data outside the European Economic Area.


 


(i)            In the event that Genpact processes Wachovia  Personal Data outside the European Economic Area (EEA),
Genpact shall enter into an agreement with Wachovia and/or the Eligible
Recipient obligating both Parties to adhere to the requirements imposed by the
standard contractual clauses for the transfer of Wachovia  Personal
Data to processors established in third countries issued by the European
Commission pursuant to Article 26(2) and (4) of EU Directive
95/46/EC, unless the country in which Genpact processes Wachovia  Personal Data is a country the European Commission has determined ensures an adequate level
of privacy protection by reason of its domestic law, in accordance with
Article 25(6) of EU Directive 95/46/EC or unless another form of
standard contractual clauses is required under applicable Privacy Laws (in
which case Genpact shall enter into such other standard contractual clauses
with Wachovia and/or the Eligible Recipients).


 


(ii)           In the event Genpact is
located in the EEA or a country the European Commission has determined ensures
an adequate level of privacy protection under Article 25(6) of EU
Directive 95/46/EC, Genpact shall, among other things, enter into contracts
with such Subcontractors and third parties on terms reasonably acceptable to
Wachovia that require implementation of adequate technical, administrative and
physical safeguards to protect Wachovia Personal Data.


 


(iii)          Genpact shall not, and shall ensure that
Subcontractors and other third parties with whom it contracts to process
Wachovia Personal Data on its behalf shall not, (A) transfer Wachovia
Personal Data to a territory outside the EEA, except on terms substantially in
accordance with the standard contractual clauses issued by the European
Commission pursuant to EU Directive 95/46/EC, and (B) operate in relation
to such Wachovia Personal Data in any way that would be in breach of the
applicable contract.


 










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(g)           Further Data Processor Obligations.  Genpact shall promptly, and in any
event not later than twenty (20) days after receipt, pass on to Wachovia
or the relevant Eligible Recipient any inquiries or communication (including
subject access requests) from an employee of Wachovia or an Eligible Recipient
relating to their Wachovia Personal Data or its processing or by a Governmental
Entity.  If Genpact receives such a
request from a Governmental Entity, after consultation with Wachovia or the
relevant Eligible Recipient, Genpact shall respond to such Governmental Entity
on or before the deadline imposed by such Governmental Entity.  Genpact shall at all times act in a manner
consistent with the requirements of any and all codes of practice and guidelines relating to personal data
processing which are generally accepted within the finance, accounting and
human resources outsourcing sectors in so far as they are relevant to the
Services performed by Genpact and in so far as they are applicable to Genpact
in its role as a data processor in relation to Wachovia Personal Data.


 


15.4        Confidentiality.


 


(a)           Proprietary Information.  Genpact and Wachovia each
acknowledge that the other possesses and will continue to possess information
that has been developed or received by it, has commercial value in its or its
customers’ business and is not generally available to the public.  Except as otherwise specifically agreed by
the Parties, “Proprietary Information” means (i) this
Agreement and the terms hereof; (ii) all information marked confidential,
restricted or proprietary by either Party; and (iii) any other information
that is treated as confidential by the disclosing Party and would reasonably be
understood to be confidential, whether or not so marked.  In case of:


 


(i)            Wachovia and the Eligible Recipients and
regardless of whether Wachovia marks the information as confidential as
provided above, Proprietary Information of Wachovia shall also include Software
provided to Genpact by or through Wachovia or the Eligible Recipients or its or
their agents (other than any Genpact Owned Materials), Developed Materials,
Wachovia Data, Wachovia Personal Data, attorney-client privileged materials,
attorney work product, customer lists, customer contracts, customer
information, rates and pricing, information with respect to competitors,
strategic plans, account information, rate case strategies, research
information, chemical formulae, product formulations, plant and equipment
design information, catalyst information, information that contains trade
secrets, financial/accounting information (including assets, expenditures,
mergers, acquisitions, divestitures, billings collections, revenues and
finances), human resources and personnel information, marketing/sales
information, information regarding businesses, plans, operations, third party
contracts, licenses, internal or external audits, law suits, regulatory
compliance or other information or data of Wachovia, the Eligible Recipients or
its or their customers or suppliers obtained, received, transmitted, processed,
stored, archived, or maintained by Genpact under this Agreement; and


 


(ii)           Genpact and Genpact Affiliates and regardless
of whether Genpact marks the information as confidential as provided above,
Proprietary Information of Genpact shall also include Genpact Owned Materials,
attorney-client privileged materials, attorney work product, customer lists,
customer contracts, customer information, rates and pricing, information with
respect to competitors, strategic plans, account information, rate case
strategies, research information, information that contains trade secrets,
financial/accounting information (including assets, expenditures, mergers,
acquisitions, divestitures, billings collections, revenues and finances), human
resources and personnel information, marketing/sales information, information
regarding businesses, plans, operations, third party contracts, licenses,
internal or external audits, law suits, regulatory compliance or other
information or data of Genpact and Genpact Personnel obtained, received,
transmitted, processed, stored, archived, or provided by or to Wachovia or any
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Recipient under this Agreement, including
information in respect of systems, applications, networks, or sites of Genpact
obtained by Wachovia during Reviews performed pursuant to Section 15.2(h).


 


In addition, Proprietary Information of a Party
shall include plans for changes in facilities, business units and product
lines, plans for business mergers, acquisitions or divestitures, rate
information, plans for the development and marketing of new products, financial
forecasts and budgets, technical proprietary information, employee lists and
company telephone or e-mail directories.


 


(b)           Obligations.


 


(i)            During the Term and at all times thereafter, Genpact
and Wachovia shall not disclose any, and shall maintain the confidentiality of
all, Proprietary Information of the other Party (and in the case of Genpact,
the Eligible Recipients).  Wachovia and
Genpact shall each use at least the same degree of care to safeguard and to
prevent disclosing to third parties the Proprietary Information of the other as
it employs to avoid unauthorized disclosure, publication, dissemination,
destruction, loss, or alteration of its own like information (or information of
its customers) of a similar nature, but not less than reasonable
care.  Genpact has required, or shall
require, all Genpact Personnel having access to Wachovia Proprietary
Information to execute a written confidentiality agreement substantially in the
form attached hereto as Exhibit 3.  Genpact Personnel shall not have access to
Wachovia Proprietary Information without proper authorization. Upon receiving
such authorization, authorized Genpact Personnel shall have access to Wachovia
Proprietary Information only to the extent necessary for such person to perform
his or her obligations under or with respect to this Agreement or as otherwise
naturally occurs in such person’s scope of responsibility, provided that such
access is not in violation of Law.


 


(ii)           The Parties may disclose Proprietary
Information to their respective Affiliates, auditors, attorneys, accountants,
consultants, contractors and subcontractors, where (A) use by such person
or entity is authorized under this Agreement, (B) such disclosure is
necessary for the performance of such person’s or entity’s obligations under or
with respect to this Agreement or otherwise naturally occurs in such person’s
or entity’s scope of responsibility, and (C) the disclosing Party assumes
full responsibility for the acts or omissions of such person or entity and
takes all reasonable measures to prevent the Proprietary Information from being
disclosed or used in contravention of this Agreement.  Any disclosure to such person or entity shall
be under the terms and conditions as provided herein.  Each Party’s Proprietary Information shall
remain the property of such Party.


 


(iii)          Neither Party shall (A) make any use or
copies of the Proprietary Information of the other Party except as contemplated
by this Agreement, (B) acquire any right in or assert any lien against the
Proprietary Information of the other Party, (C) sell, assign, transfer,
lease, or otherwise dispose of Proprietary Information to third parties or
commercially exploit such information, including through Derivative Works
incorporating such Proprietary Information, or (D) refuse for any reason
(including a default or material breach of this Agreement by the other
Party) to promptly provide the other Party’s Proprietary Information
(including copies thereof) to the other Party if requested to do so.  Notwithstanding the foregoing, Wachovia may
disclose Proprietary Information relating to the terms of this Agreement and/or
Genpact’s performance hereunder (e.g., applicable Service Levels and
measurements of Genpact’s performance with respect to such Service Levels, but
not including the Charges or information in respect of Genpact’s costs of such
performance) in connection with a benchmarking under Section 12.8 or the solicitation of 


 






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proposals for or the
procurement of the same or similar services from Wachovia Third Party
Contractors.  Upon expiration or any termination of this
Agreement and completion of each Party’s obligations under this Agreement, each
Party shall return or destroy, as the other Party may direct, all documentation
in any medium that contains, refers to, or relates to the other Party’s
Proprietary Information within thirty (30) days (except Contract Records, which
shall be retained by Genpact for the Audit Period specified in Section 14.1 unless and to the extent Genpact is directed
by Wachovia to deliver such Contract Records to Wachovia prior to the
expiration of such Audit Period). 
Each Party shall deliver to the other Party written certification of its
compliance with the preceding sentence signed by an authorized representative
of such Party.  In addition, each Party
shall take all necessary steps to ensure that its employees comply with these
confidentiality provisions.


 


(iv)          Wachovia shall cause each of the Eligible
Recipients to comply with the obligations set forth in this Section 15.4(b)(i) and (iii) as they apply to the
Proprietary Information of Genpact.


 


(c)           Exclusions.  Section 15.4(b) shall
not apply to any particular information which the receiving Party can
demonstrate (i) is, at the time of disclosure, generally available to the
public other than through a breach of the receiving Party’s or a third party’s
confidentiality obligations; (ii) after disclosure, is published by the
disclosing Party or otherwise becomes generally available to the public other
than through a breach of the receiving Party’s or a third party’s
confidentiality obligations; (iii) is lawfully in the possession of the
receiving Party at the time of disclosure; (iv) is received from a third
party having a lawful right to disclose such information; or (v) is
independently developed by the receiving Party without reference to Proprietary
Information of the furnishing Party, provided however, that the exclusions in
the foregoing subsections (i) and (ii) shall not be applicable to the
extent that the disclosure or sharing of such information by one or both
Parties is subject to any limitation, restriction, consent or notification
requirement under any applicable federal or state information Privacy Laws or
regulation then in effect.  In addition,
the receiving Party shall not be considered to have breached its obligations
under this Section 15.4 to the
extent it discloses Proprietary Information of the other Party or causes Proprietary Information of the other Party to
be disclosed (i) in a public disclosure or report required by applicable Law,
(ii) in response to a subpoena or information request of a competent Governmental
Entity, or (iii) as otherwise required to satisfy any legal or regulatory
requirement of a competent Governmental Entity. 
In such circumstances, the receiving Party shall, to the extent it may
legally do so, advise the other Party of the Proprietary Information to be
disclosed and the identity of the third party requiring such disclosure
promptly upon receiving a subpoena or request for information and/or prior to
making any such disclosure in order that the other Party may interpose an
objection to such disclosure, take action to assure confidential handling of
the Proprietary Information, or take such other action as it deems appropriate
to protect the Proprietary Information. 
The receiving Party shall use commercially reasonable efforts to
cooperate with the disclosing Party in its efforts to seek a protective order
or other appropriate remedy or in the event such protective order or other
remedy is not obtained, to obtain assurance that confidential treatment will be
accorded such Proprietary Information. 
Notwithstanding the foregoing, Wachovia may delay advising Genpact of
any public disclosure or report or withhold such information if and to the
extent, in Wachovia’s reasonable discretion, there are legal or business
reasons to do so, such as protection of attorney-client privilege or attorney
work product.


 


(d)           Loss of Proprietary Information.  Each Party shall (and with respect
to Proprietary Information of Genpact, Wachovia shall cause the Eligible
Recipients to) (i) immediately notify the other Party of any possession,
use, knowledge, disclosure, or loss of such other Party’s Proprietary
Information in contravention of this Agreement, (ii) promptly furnish to
the other Party all known details and assist such other Party in investigating
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possession, use, knowledge, disclosure, or
loss, (iii) cooperate with the other Party in any investigation or
litigation deemed necessary by such other Party to protect its rights, and (iv) promptly
use commercially reasonable efforts to prevent further possession, use,
knowledge, disclosure, or loss of Proprietary Information in contravention of
this Agreement.  Each Party shall bear
any costs it incurs in complying with this Section 15.4(d).


 


(e)           No Implied Rights.  Nothing contained in this Section 15.4 shall be
construed as obligating a Party to disclose its Proprietary Information to the other
Party, or as granting to or conferring on a Party, expressly or impliedly, any
rights or license to any Proprietary Information of the other Party.


 


15.5        File Access.


 


Wachovia
shall have unrestricted access to, and the right to review and retain the
entirety of, all computer or other files containing Wachovia Data.  At no time will any of such files or other
materials or information be stored or held in a form or manner not immediately
accessible to Wachovia.  Genpact shall
provide to the Wachovia Project Executive all passwords, codes, comments, keys,
documentation and the locations of any such files promptly upon the request of
Wachovia, including Equipment and Software keys and such information as to
format, encryption (if any) and any other specifications or information
necessary for Wachovia to retrieve, read, revise and/or maintain such
files.   Upon the request of the Wachovia
Project Executive, Genpact shall certify in writing that, to the best of its
knowledge, all such files and other information provided to Wachovia are
complete and that no material element, amount, or other fraction of such files
or other information to which Wachovia may request access or review has been
deleted, withheld, disguised or encoded in a manner inconsistent with the
purpose and intent of providing full and complete access to Wachovia as
contemplated by this Agreement.


 


16.          OWNERSHIP OF MATERIALS


 


16.1        Wachovia Owned Materials.


 


(a)           Ownership of Wachovia Owned Materials.  Wachovia
shall be the sole and exclusive owner of (i) all intellectual property,
Software and other Materials owned by Wachovia or the Eligible Recipients as of
the applicable SOW Commencement Date (including Wachovia Owned Software), (ii) all
enhancements and Derivative Works of such intellectual property, Software and
Materials (including all United States and foreign patent, copyright and other
intellectual property rights), and (iii) certain Developed Materials, as
provided in Section 16.5
(collectively, “Wachovia Owned Materials”).  As between Wachovia and Genpact, Wachovia
Owned Materials shall include (i) all intellectual property, Software and
Materials pertaining to Wachovia products or services created by or obtained
from sellers, distributors, purchasers or users of such products or services,
and (ii) all enhancements or Derivative Works of such intellectual
property, Software and Materials.


 


(b)           License to Wachovia Owned Materials.  As of the applicable SOW
Commencement Date, Wachovia hereby grants to Genpact, Affiliate Subcontractors
and Non-affiliate Subcontractors a non-exclusive, world-wide, non-transferable,
fully paid-up, royalty-free limited right and license during the applicable SOW
Term (and thereafter to the extent necessary to perform any Termination
Assistance Services requested by Wachovia) to access, use, execute, reproduce,
display, perform, modify, enhance and distribute the Wachovia Owned Materials
(including all modifications, replacements, Upgrades, enhancements,
methodologies, tools, documentation, materials and media related thereto) for
the express and sole purpose of providing the Services described in such
Statement of Work.  Genpact and its
Subcontractors shall have no right to the Source Code to such Wachovia Owned
Materials unless and only to the extent required under a Statement of Work or
otherwise approved in advance by Wachovia. 
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shall remain the property of Wachovia.  Genpact and its Subcontractors shall not,
without the prior approval of Wachovia, which may be withheld at Wachovia’s
sole discretion, (i) use any Wachovia Owned Materials for the benefit of
any person or Entity other than Wachovia or the Eligible Recipients, (ii) separate
or uncouple any portions of the Wachovia Owned Materials, in whole or in part,
from any other portions thereof, or (iii) reverse assemble, reverse
engineer, translate, disassemble, decompile or otherwise attempt to create or
discover any source or human readable code, underlying algorithms, ideas, file
formats or programming interfaces of the Wachovia Owned Materials by any means
whatsoever.  Except as otherwise
requested or approved by Wachovia, Genpact and its Subcontractors shall cease
all use of Wachovia Owned Materials upon the end of the applicable SOW Term and
the completion of any Termination Assistance Services requested thereunder by
Wachovia pursuant to Section 26.1
and shall certify such cessation to Wachovia in a notice signed by an officer
of Genpact and each applicable Subcontractor.


 


16.2        License to Wachovia Third Party Materials.


 


Subject
to Wachovia having obtained the applicable Wachovia Consents, Wachovia hereby
grants to Genpact and to the extent necessary for Genpact to provide the
Services, Genpact Affiliates, during the applicable SOW Term and the applicable
Termination Assistance Period, for the sole purpose of performing the Services
and solely to the extent of Wachovia’s underlying rights, the same rights of
access and use as Wachovia possesses under the applicable software licenses
with respect to Wachovia licensed Third Party Materials.  Wachovia shall provide Genpact notice of the
license terms for such Third Party Materials and any restrictions with respect
thereto.  Wachovia also shall grant such
rights to Subcontractors designated by Genpact if and only to the extent
necessary for Genpact to provide the Services; provided that Genpact shall pay
all fees, costs and expenses associated with the granting of such rights to
such Subcontractors.  Genpact and its
Subcontractors shall comply with the duties, including use restrictions and
nondisclosure obligations, imposed on Wachovia by such licenses.  Except as otherwise requested or approved by
Wachovia (or the relevant licensor), Genpact and its Subcontractors shall cease
all use of such Third Party Materials upon the end of the applicable SOW Term and
the completion of any Termination Assistance Services requested thereunder by
Wachovia pursuant to Section 26.1 and shall certify such cessation to
Wachovia in a notice signed by an officer of Genpact and each applicable
Subcontractor.


 


16.3        Genpact Owned Materials.


 


(a)           Ownership of Genpact Owned Materials.  Genpact shall be the sole and
exclusive owner of the (i) intellectual property, Software and Materials
owned by Genpact or the Genpact Affiliates as of the applicable SOW
Commencement Date, (ii) intellectual property, Software and Materials
acquired by Genpact or the Genpact Affiliates on or after the applicable SOW
Commencement Date (including any such Materials purchased from Wachovia
pursuant to a Statement of Work) other than acquisitions for Wachovia or an
Eligible Recipient in connection with the performance of the Services that
constitute Wachovia Owned Materials, (iii) all enhancements and Derivative
Works of such intellectual property, Software and Materials described in Section 16.3(a)(i) or (ii) that are created by or for
Genpact or Genpact Affiliates in accordance with Sections 16.5(e) and
(f), (iv) Software or
Materials developed by or on behalf of Genpact other than in the course of the
performance of its obligations under this Agreement or in connection with the
use of any Wachovia Data or Wachovia Owned Materials (including all United
States and foreign patent, copyright and other intellectual property rights in
such Materials described in clauses (i) through (iv) of this
paragraph) (collectively, “Genpact Owned Materials”).


 


(b)           License to Genpact Owned Materials.  Genpact hereby grants to Wachovia,
its successors and assigns, and the Eligible Recipients a world-wide,
non-exclusive, non-transferable (except in connection with a permissible
assignment under Section 27.1),
fully paid-up, royalty-free limited right and license to access, use, execute,
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and create Derivative Work of the Genpact Owned
Materials (including all modifications, replacements, Upgrades, enhancements,
methodologies, tools, documentation, materials and media related thereto),
during the Term and any Termination Assistance Period, to (i) receive the
full benefit of the Services provided by Genpact and (ii) perform
ancillary services and functions, including related information technology
services and functions.  In addition, at no additional Charge, Genpact
hereby grants to Wachovia Third Party Contractors a non-exclusive, royalty-free
right and license to access and use such Materials (including all
modifications, replacements, Upgrades, enhancements, methodologies, tools,
documentation, materials and media related thereto), during the Term and any
Termination Assistance Period, solely for the benefit of Wachovia and the
Eligible Recipients to receive the Services and as and only to the extent
reasonably necessary for such Wachovia Third Party Contractors to (i) monitor,
access, interface with or use the Materials then being used by Genpact and (ii) perform
ancillary services and functions for Wachovia and/or the Eligible Recipients,
including related information technology services and functions.  Genpact Owned Materials shall remain the
property of Genpact.  Wachovia shall
cause each Wachovia Third Party Contractor receiving such right and license to
execute a confidentiality agreement substantially in the form set forth in Exhibit 1 prior to its exercise of
such right and license under this Section 16.3(b).  The rights and obligations of Wachovia, the
Eligible Recipients and Wachovia Third Party Contractors with respect to such
Genpact Owned Materials following the expiration or termination of the
Agreement or termination of any Service are set forth in Section 26.2.


 


(c)           Embedded Materials.  To the extent that Genpact Owned Materials
are embedded in any Developed Materials owned by Wachovia pursuant to Section 16.5(a), (b) or (c),
Genpact shall not be deemed to have assigned its intellectual property rights
in such Genpact Owned Materials to Wachovia, but Genpact hereby grants to Wachovia
and its successors and Permitted Assigns a worldwide, perpetual, irrevocable,
non-exclusive, fully paid-up, royalty-free license, with the right to grant
sublicenses, to use, execute, reproduce, display, perform, modify, enhance,
distribute and create Derivative Works of such Genpact Owned Materials
(including all modifications, replacements, Upgrades, enhancements,
methodologies, tools, documentation, materials and media related thereto
related thereto) for the benefit and use of Wachovia, Wachovia Affiliates and
the Eligible Recipients for so long as such Genpact Owned Materials remain
embedded in such Developed Materials and are not separately commercially
exploited by Wachovia, Wachovia Affiliates and the Eligible Recipients.  Following the expiration or termination of
the Term and the termination of the Service(s) for which such Materials were
used, Genpact shall offer to provide to Wachovia and the Eligible Recipients
Upgrades, maintenance, support and other services for such embedded Genpact Owned
Materials that are commercial off-the-shelf Materials in accordance with Section 26.2(c)(iii).


 


(d)           Approval.  Wachovia shall have the right to approve the
use of any Software constituting Genpact Owned Materials to provide the
Services.


 


16.4        License to Genpact Third Party Materials.


 


(a)           License.  Subject to Genpact having obtained the
applicable Genpact Consents, Genpact hereby grants to Wachovia, its successors
and Permitted Assigns, and the Eligible Recipients a world-wide, non-exclusive,
non-transferable (except in connection with a permissible assignment under Section 27.1), fully-paid-up,
royalty-free limited right and license to access and/or use the Third Party
Materials as to which Genpact, an Affiliate of Genpact or a Non-affiliate
Subcontractor holds the license (including all modifications, substitutions,
Upgrades, enhancements, methodologies, tools, documentation, materials and
media related thereto), during the Term and any Termination Assistance Period,
to (i) receive the full benefit of the Services provided by Genpact and (ii) perform
or have performed ancillary services and functions, including related
information technology services and functions. 
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hereby grants to Wachovia Third Party
Contractor(s) a non-exclusive, royalty-free right and license to access
and/or use such Materials (including all modifications, substitutions,
Upgrades, enhancements, methodologies, tools, documentation, materials and
media related thereto), during the Term and any Termination Assistance Period,
solely for the benefit of Wachovia and the Eligible Recipients to receive the
Services, as and only to the extent reasonably necessary for such Wachovia
Third Party Contractor(s) to (i) monitor, access, interface with or use
the Materials then being used by Genpact and (ii) perform ancillary
services and functions for Wachovia and/or the Eligible Recipients, including
related information technology services and functions.  Wachovia shall cause each Wachovia Third
Party Contractor receiving such right and license to execute a confidentiality
agreement substantially in the form set forth in Exhibit 1
prior to its exercise of such right and license under this Section 16.4(a).  The rights and obligations of Wachovia, the
Eligible Recipients and Wachovia Third Party Contractors with respect to such
Third Party Materials following the expiration or termination of the Agreement
or termination of any Service are set forth in Section 26.2.


 


(b)           Approval.  Wachovia shall have the right to approve the
use of any Software constituting Genpact Third Party Materials to provide the
Services.


 


16.5        Developed Materials.


 


(a)           Wachovia Ownership of Derivative Works of Wachovia Owned Materials.  Unless
the Parties agree otherwise in the applicable Statement of Work, Wachovia shall
be the sole and exclusive owner of all Developed Materials that are Derivative
Works of Wachovia Owned Materials, including all United States and foreign
patent, copyright and other intellectual property rights in such Materials.  Such Developed Materials shall be considered
works made for hire (as that term is used in Section 101 of the United
States Copyright Act, 17 U.S.C. § 101 or in an analogous provisions of
other applicable Law) and owned by Wachovia.  If any such Derivative Works may not be
considered a work made for hire under applicable Law, Genpact hereby
irrevocably assigns, and shall assign, to Wachovia without further
consideration, all of Genpact’s right, title and interest in and to such
Developed Materials, including United States and foreign patent, copyright and
other intellectual property rights. 
Genpact acknowledges that Wachovia and the successors and assigns of
Wachovia shall have the right to obtain and hold in their own name any patent,
copyright and other intellectual property rights in and to such Derivative
Works.  Genpact agrees to execute any
documents and take any other actions reasonably requested by Wachovia to
effectuate the purposes of this Section 16.5(a).  Wachovia hereby grants Genpact certain license
and other rights with respect to such Derivative Works, as described in Section 16.1(b).  Wachovia may, in its sole discretion and upon
such terms and at such financial arrangement as Wachovia and Genpact may agree,
grant Genpact a license to use such Derivative Works for other purposes and to
sublicense such Derivative Works.


 


(b)           Wachovia Ownership of Derivative Works of Wachovia Licensed Materials.  Unless
the Parties agree otherwise in the applicable Statement of Work, as between the
Parties, Wachovia shall be considered the sole and exclusive owner of all
Developed Materials that are Derivative Works of Third Party Materials licensed
by Wachovia, a Wachovia Affiliate or an Eligible Recipient (“Wachovia Third Party Materials”), including all United States
and foreign patent, copyright and other intellectual property rights in such
Materials.  Such Developed Materials
shall be considered works made for hire (as that term is used in Section 101
of the United States Copyright Act, 17 U.S.C. § 101, or in analogous
provisions of other applicable Laws) and owned by Wachovia.  If any such Developed Materials may not be
considered a work made for hire under applicable Law, Genpact hereby
irrevocably assigns, and shall assign, to Wachovia without further consideration,
all of Genpact’s right, title and interest in and to such Developed Materials,
including United States and foreign patent, copyright and other intellectual
property rights.  Genpact acknowledges
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right to obtain and hold in their own name any
patent, copyright and other intellectual property rights in and to such
Developed Materials.  Genpact agrees to
execute any documents and take any other actions reasonably requested by
Wachovia to effectuate the purposes of this Section 16.5(b).  Subject to Genpact obtaining any Genpact Consents, Wachovia hereby
grants Genpact certain license and other rights with respect to such Developed
Materials, as described in Section 16.1(b).  Wachovia may, in its sole discretion and upon
such terms and at such financial arrangement as Wachovia and Genpact may agree,
grant Genpact a license to use such Derivative Works for other purposes and to
sublicense such Derivative Works, to the extent permitted under the applicable
third party license agreement or agreed to by the applicable third party
licensor.


 


(c)           Wachovia Ownership of Wachovia–Specific Developed Materials.  Except
as provided in Sections 16.5(e) and
(f) or otherwise agreed by the
Parties in the applicable Statement of Work, Wachovia shall be the sole and
exclusive owner of the United States and foreign copyrights in all Developed
Materials that are (i) created in accordance with the customized
requirements of Wachovia or the Eligible Recipients, (ii) usable only by
Wachovia or the Eligible Recipients or in conjunction with Wachovia Owned
Materials, (iii) specific to the businesses of Wachovia or the Eligible
Recipients or (iv) Deliverables. 
For purposes of this Section 16.5(c),
“Deliverables” shall mean Developed
Materials (i) required to be delivered to Wachovia or the Eligible
Recipients pursuant to this Agreement, (ii) developed at the specific
request of and paid for by Wachovia, or (iii) associated specifically with
the Application Software operated, maintained or supported exclusively for
Wachovia or the Eligible Recipients. 
Such Developed Materials shall be considered “works made for hire” (as
that term is used in Section 101 of the United States Copyright Act, 17
U.S.C. § 101, or in analogous provisions of other applicable
Laws) owned by Wachovia.  If any
such Developed Materials may not be considered a work made for hire under
applicable Law, Genpact hereby irrevocably assigns, and shall assign, to Wachovia
without further consideration, all of Genpact’s right, title and interest in
and to the copyrights in such Developed Materials.  Genpact acknowledges that Wachovia and the
successors and assigns of Wachovia shall have the right to obtain and hold in
their own name any copyrights in and to such Developed Materials.  Genpact agrees to execute any documents and
take any other actions reasonably requested by Wachovia to effectuate the
purposes of this Section 16.5(c).  Wachovia hereby grants Genpact certain
license and other rights with respect to such Developed Materials, as described
in Section 16.1(b).  Wachovia may, in its sole discretion and upon
such terms and at such financial arrangement as Wachovia and Genpact may agree,
grant Genpact a license to use such Developed Materials for other purposes and
to sublicense such Developed Materials.


 


(d)           Source Code and Documentation.  Genpact shall, promptly as it is
developed by Genpact, provide Wachovia with the Source Code and Object Code and
documentation for all Wachovia owned Developed Materials, as described in Sections 16.5(a), (b) and (c).  Such source code and technical documentation
shall be sufficient to allow a reasonably knowledgeable and experienced
programmer to maintain and support such Materials, and the user documentation
for such Materials shall accurately describe in terms understandable by a
typical Eligible Recipient the functions and features of such Materials and the
procedures for exercising such functions and features.


 


(e)           Genpact Owned Developed Materials.  Notwithstanding Sections 16.5(a) and (c), unless the Parties agree
otherwise in the applicable Statement of Work, Genpact shall be the sole and
exclusive owner of all Developed Materials that are Derivative Works of Genpact
Owned Materials (as defined in Section 16.3(a)),
including all United States and foreign patent, copyright and other
intellectual property rights in such Materials. 
In addition, except as provided in Sections 16.5(b) and
(c) or otherwise agreed by the
Parties in the applicable Statement of Work, Genpact shall be the sole and
exclusive owner of all other Developed Materials that are not Derivative Works
of Wachovia Owned Materials, including all United States and foreign patent,
copyright and other intellectual property rights in such Materials.  Wachovia acknowledges that 


 






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Genpact and the successors and assigns of
Genpact shall have the right to obtain and hold in their own name any
intellectual property rights in and to such Genpact owned Developed
Materials.  Wachovia agrees to execute
any documents and take any other actions reasonably requested by Genpact to
effectuate the purposes of this Section 16.5(e).  Genpact hereby grants Wachovia and the
Eligible Recipients certain license and other rights with respect to such
Developed Materials, as described in Sections 16.3(b) and
26.2.


 


(f)            Genpact Ownership of Derivative Works of Genpact Licensed Materials.  Unless
the Parties agree otherwise in the applicable Statement of Work, as between the
Parties, Genpact shall be considered the sole and exclusive owner of all
Developed Materials that are Derivative Works of Third Party Materials licensed
by Genpact or a Genpact Affiliate or Subcontractor (“Genpact
Third Party Materials”), including all United States and foreign
patent, copyright and other intellectual property rights in such
Materials.  Wachovia acknowledges that
Genpact and the successors and assigns of Genpact shall have the right to
obtain and hold in their own name any intellectual property rights in and to
such Genpact owned Developed Materials. 
Wachovia agrees to execute any documents and take any other actions
reasonably requested by Genpact to effectuate the purposes of this Section 16.5(f).  Genpact hereby grants to Wachovia and the
Eligible Recipients certain license and other rights with respect to such
Developed Materials, as described in Sections 16.3(b) and
26.2.


 


(g)           Financial Arrangement for
Genpact Owned Developed Materials.  If Genpact markets any Genpact
owned Developed Materials, as described in Sections 16.5(e) and
(f), then Genpact and
Wachovia shall agree upon an equitable financial arrangement, such as a royalty
arrangement, pursuant to which Wachovia shall be entitled to share in the
benefits of marketing such Genpact owned Developed Materials.


 


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


 


16.6        Other Materials.


 


This
Agreement shall not confer upon either Party intellectual property rights in
Materials of the other Party (to the extent not covered by this Article 16) unless otherwise
so provided elsewhere in this Agreement.


 


16.7        General Rights.


 


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


 


(b)           Residuals.  Nothing in this Agreement shall restrict any
employee or representative of a Party from using general ideas, concepts,
practices, learning or know-how relating to the processing of in-scope business
process transactions that are retained in the unaided memory of such employee
or representative after performing the obligations of such Party under this
Agreement, except to the extent that such use infringes upon any patent,
copyright or other intellectual property right of a Party or its Affiliates
(or, in the case of Genpact, any Eligible Recipient); provided, however, that
this Section 16.7(b) shall not
(i) be deemed to limit either Party’s obligations under this Agreement
with respect to the disclosure or use of Proprietary Information, or (ii) operate
or be construed as permitting an employee or representative of a Party to
disclose, publish, disseminate or use (A) the source of any Proprietary
Information of the other Party, (B) any financial, statistical or
personnel information of a Party, or (C) the business plans of a
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individual’s memory is unaided if the
individual has not intentionally memorized the Proprietary Information for the
purpose of retaining and subsequently using or disclosing it and does not
identify the information as Proprietary Information upon recollection. For
avoidance of doubt, the foregoing would not permit Genpact Personnel to use
Proprietary Information of Wachovia or an Eligible Recipient (other than ideas,
concepts, practices, learning and know-how relating generally to the processing
of in-scope business process transactions) for any purpose other than the
provision of Services under this Agreement.


 


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


 


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


 


(e)           Derivative Works.  Any rights granted herein with respect to any
Developed Material that is a derivative work of any existing Material shall not
limit or expand the rights, if any, of either Party in the underlying Material.


 


17.          REPRESENTATIONS


 


17.1        Representations by Wachovia.


 


Wachovia
represents that as of the Effective Date:


 


(a)           Wachovia is a corporation duly incorporated, validly existing and in good
standing under the Laws of the State of North Carolina;


 


(b)           Wachovia has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement;


 


(c)           the execution, delivery and performance of this Agreement by Wachovia and
the consummation by Wachovia of the transactions contemplated by this
Agreement:


 


(i)            have been duly authorized by Wachovia; and


 


(ii)           do not conflict with, result in a breach of or
constitute a default under any other agreement to which Wachovia is a party or
by which Wachovia is bound;


 


(d)           Wachovia is duly licensed, authorized or qualified to do business and is in
good standing in every jurisdiction in which a license, authorization or
qualification is required for the ownership or leasing of its assets or the
transaction of business of the character transacted by it, except where the
failure to be so licensed, authorized or qualified would not have a material
adverse effect on Wachovia’s ability to fulfill its obligations under this
Agreement; and


 


(e)           except as set forth in Schedule E,
there is no outstanding litigation, arbitrated matter or other dispute to which
Wachovia is a party which, if decided unfavorably to Wachovia, would 


 






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reasonably be expected to have a material
adverse effect on Genpact’s or Wachovia’s ability to fulfill their respective
obligations under this Agreement.


 


17.2        Representations by Genpact.


 


Genpact
represents that as of the Effective Date:


 


(a)           Genpact is an entity duly organized, validly existing and in good standing
under the Laws of Luxembourg;


 


(b)           Genpact has all requisite power and authority to execute, deliver and
perform its obligations under this Agreement;


 


(c)           the execution, delivery and performance of this Agreement by Genpact and
the consummation by Wachovia of the transactions contemplated by this
Agreement:


 


(i)            have been duly authorized by Genpact; and


 


(ii)           do not conflict with, result in a breach of or
constitute a default under any other agreement to which Genpact is a party or
by which Genpact is bound;


 


(d)           Genpact is duly licensed, authorized or qualified to do business and is in
good standing in every jurisdiction in which a license, authorization or
qualification is required for the ownership or leasing of its assets or the
transaction of business of the character transacted by it, except where the
failure to be so licensed, authorized or qualified would not have a material
adverse effect on Genpact’s ability to fulfill its obligations under this
Agreement;


 


(e)           Genpact has not given, and to the best of its knowledge, no officer,
director, employee, agent or representative of Genpact has given, commissions,
payments, kickbacks, lavish or extensive entertainment, or other inducements of
more than minimal value to any employee or agent of Wachovia in connection with
this Agreement; and


 


(f)            there is no outstanding litigation, arbitrated
matter or other dispute to which Genpact is a party which, if decided
unfavorably to Genpact, would reasonably be expected to have a material adverse
effect on Wachovia’s or Genpact’s ability to fulfill their respective
obligations under this Agreement.


 


18.          WARRANTIES AND ADDITIONAL
COVENANTS


 


18.1        Work Standards.


 


Genpact
warrants to and covenants with Wachovia that during the Term and any Termination Assistance Period, Genpact
shall:


 


(a)           render the Services with promptness, due care, skill and diligence;


 


(b)           execute the Services in a manner consistent with the industry-recognized
best practices of business process outsourcing service providers of similar
size and scale;


 


(c)           use adequate numbers of qualified individuals with suitable training and
skills to perform the Services and provide such individuals with training
concerning new products and services prior to the implementation of such
products and services in the Wachovia environment; and


 






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(d)           have the resources, capacity, expertise and ability in terms of Equipment,
Software, know-how and personnel to provide the Services.


 


18.2        Efficiency and Cost Effectiveness.


 


Genpact
warrants to and covenants with Wachovia that during the Term and any
Termination Assistance Period Genpact shall use commercially reasonable efforts
to provide the Services in the most cost-effective and efficient manner
consistent with the required level of quality and performance if and only to
the extent that the cost of providing the Services are the basis upon which
Wachovia is charged (e.g., reimbursable expenses, Out-of-Pocket Expenses,
Pass-Through Expenses or cost-plus Charges).


 


18.3        Software.


 


Genpact
warrants to and covenants with Wachovia that during the Term and any
Termination Assistance Period:


 


(a)           Genpact shall either be the owner of, or authorized to use, all Software provided
by Genpact in connection with the Services;


 


(b)           any Genpact Owned Software made available to Wachovia shall perform in
conformance with its specifications and will provide the functions and features
and operate in the manner described in such specifications;


 


(c)           Developed Materials will be free from material errors in operation and
performance and will comply with the applicable documentation and
specifications in all material respects for a period of one (1) year from the Acceptance of the Developed Materials
(the “Warranty Period”).  During the Warranty Period, Genpact shall
correct any such error or failure to comply at no additional charge to Wachovia
and will use commercially reasonable efforts to do so as promptly as possible.  In the event that Genpact is unable to repair
or replace such nonconforming Developed Material, Wachovia shall, in addition
to any and all other remedies available to it hereunder, be entitled to obtain
from Genpact a copy of the source code and object code to such Developed Material; and


 


(d)           in the event that any Genpact Owned Software (excluding Genpact owned
Developed Materials  that are
addressed in Section 18.3(c)) does not
conform to the Specifications and criteria set forth in this Agreement or
materially adversely affects the Services provided hereunder, Genpact shall
expeditiously repair such Software or replace such Software with conforming
Software.


 


18.4        Non-Infringement.


 


(a)           Genpact warrants to and covenants with Wachovia that during the Term and
any Termination Assistance Period that, except as otherwise provided in this
Agreement, the Developed Materials will not, and Genpact’s performance of its
responsibilities under this Agreement and the Statements of Work do not,
infringe, or constitute an infringement or misappropriation of, any patent,
copyright, trademark, trade secret or other proprietary or privacy rights of
any third party; provided, however, that Genpact shall not have any obligation
or liability to the extent any infringement or misappropriation is caused by:


 


(i)            modifications made by Wachovia, the Eligible
Recipients or Wachovia Third Party Contractors without the knowledge or
approval of Genpact;


 






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(ii)           Wachovia’s combination of Genpact’s work
product or Materials with items not furnished, specified or reasonably
anticipated by Genpact or contemplated by this Agreement, the applicable
Statement of Work or the applicable Specifications;


 


(iii)          the failure of Wachovia to use corrections or
modifications provided by Genpact offering equivalent features and functionality
provided Genpact has notified Wachovia that the use of such corrections or
modifications are necessary to avoid an infringement claim; or


 


(iv)          in respect of infringement of patent rights of
a third party only, Genpact’s compliance with detailed design specifications
furnished by Wachovia to Genpact.


 


(b)           Wachovia warrants to and covenants with Genpact that during the Term and
any Termination Assistance Period that, except as otherwise provided in this
Agreement (including Schedule E)
and to its knowledge, the Wachovia Data, the Wachovia Owned Materials and
Wachovia Third Party Materials, Wachovia’s performance of its responsibilities
under this Agreement and the Statements of Work do not, infringe, or constitute
an infringement or misappropriation of, any patent, copyright, trademark, trade
secret or other proprietary or privacy rights of any third party; provided,
however, that Wachovia shall not have any obligation or liability to the extent
any infringement or misappropriation is caused by:


 


(i)            modifications made by Genpact or Genpact
Subcontractors without the approval of Wachovia;


 


(ii)           Genpact’s combination of Wachovia’s work
product or Materials with items not furnished, specified or reasonably
anticipated by Wachovia or contemplated by this Agreement, the applicable
Statement of Work or the applicable Specifications; or


 


(iii)          the failure of Genpact to use corrections or
modifications provided by Wachovia offering equivalent features and
functionality provided Wachovia has notified Genpact that the use of such
corrections or modifications are necessary to avoid an infringement claim.


 


(c)           Each Party warrants to and covenants with the other Party that during the
Term and any Termination Assistance Period it will not use or create materials
in connection with the Services which are libelous, defamatory or obscene.


 


18.5        Malicious Code.


 


Each
Party warrants to and covenants with the other Party that during the Term and
any Termination Assistance Period it
will cooperate with the other Party and will take commercially reasonable
actions and precautions consistent with the applicable Statement of Work to
prevent the introduction and proliferation of Malicious Code into Wachovia’s
environment or any System used by Genpact to provide the Services.  Without limiting Genpact’s other obligations
under this Agreement or the applicable Statement of Work, in the event
Malicious Code is found in Equipment, Software or Systems within Genpact’s
control or as to which Genpact is operationally responsible under this
Agreement or the applicable Statement of Work, Genpact shall eliminate and
reduce the effects of such Malicious Code and, if the Malicious Code causes a
loss of operational efficiency or loss of data, will mitigate such losses and
restore such data with generally accepted data restoration techniques.


 


18.6        Disabling Code.


 


Genpact
warrants to and covenants with Wachovia that during the Term and any
Termination Assistance Period:


 






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(a)           without the prior written consent of Wachovia, it will not intentionally
insert into the Software, and will use commercially reasonable efforts to
prevent the non-intentional insertion into the Software of, any code that could
be invoked to disable or otherwise shut down all or any portion of the
Software, Equipment or Systems;


 


(b)           with respect to any disabling code that may be part of the Software,
Genpact shall not invoke or cause to be invoked such disabling code at any
time, including upon expiration or termination of this Agreement for any
reason, without Wachovia’s prior consent; and


 


(c)           it will use commercially reasonable efforts not to use Third Party Software
which contains disabling code without the prior approval of Wachovia.


 


For
purposes of this Section 18.6,
code that relates to normal security routines (e.g., code that shuts out a user
who fails to correctly input his or her password within a defined number of
attempts) or that serves the function of ensuring software license
compliance (including passwords) will not be deemed disabling code, provided
that Genpact notifies Wachovia in advance of all such code and obtains Wachovia’s
approval prior to installing such code in any Software, Equipment or System
used to provide the Services.


 


18.7        Interoperability.


 


Genpact
warrants to and covenants with Wachovia that (a) the Software, Equipment
and Systems provided by Genpact, or used to provide the Services, will be fully
interoperable as of the applicable SOW Commencement Date with the software,
equipment and systems used by Wachovia to provide the same or similar services
or to deliver records to, receive records from, or otherwise interact with the
Software, Equipment and Systems to receive the Services and (b) during the
Term and any Termination Assistance
Period shall remain fully interoperable as of the applicable SOW
Commencement Date with the software, equipment and systems used by Wachovia to
provide the same or similar services or to deliver records to, receive records
from, or otherwise interact with the Software, Equipment and Systems to receive
the Services.


 


18.8        Currencies.


 


Genpact
warrants to and covenants with Wachovia that during the Term and any Termination Assistance Period the
applicable Software, Equipment, Systems and Services provided by Genpact, or
used to provide the Services, will be able to receive, transmit, process,
store, archive, maintain and support the currencies of all countries as
necessary under any applicable Statement of Work.


 


18.9        Genpact Personnel.


 


Genpact
warrants to and covenants with Wachovia that during the Term and any Termination Assistance Period:


 


(a)           the Genpact Personnel shall be authorized to work in each of the locations
where such personnel are providing Services, and that Genpact has complied
with, and will cause its Subcontractors to comply with, all obligations under
applicable Laws regarding immigration; and


 


(b)           Genpact shall bear all financial responsibility for all matters relating to
Genpact obtaining any visa, immigration, naturalization or other similar
authorizations and requirements under the Laws applicable to visas, immigration,
naturalization and other similar authorizations.  Wachovia shall cooperate as requested by
Genpact to the extent necessary for Genpact to obtain such authorizations and
to meet such requirements.


 






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18.10      Other
Warranties by Genpact.


 


Genpact
warrants to and covenants with Wachovia that during the Term and any Termination Assistance Period:


 


(a)           the execution, delivery and performance of this Agreement and any Statement
of Work by Genpact, and the consummation by Genpact of the transactions
contemplated by this Agreement and each Statement of Work:


 


(i)            will be duly authorized by Genpact; and


 


(ii)           will not conflict with, result in a breach of
or constitute a default under any other agreement to which Genpact is a party
or by which Genpact is bound; and


 


(b)           except as otherwise provided in this Agreement or in the applicable
Statement of Work, Genpact shall obtain all applicable permits and licenses,
including the Genpact Consents, required of Wachovia in connection with the
performance of its obligations under this Agreement and each Statement of Work
and the consummation by Wachovia of the transactions contemplated by this
Agreement and each Statement of Work;


 


(c)           Genpact shall not give commissions, payments, kickbacks, lavish or
extensive entertainment, or other inducements of more than minimal value to any
employee or agent of Wachovia in connection with this Agreement or any
Statement of Work; and


 


(d)           as necessary from time to time and upon request by Wachovia, Genpact shall
promptly take, as its expense, all necessary and appropriate actions to police
compliance with and enforce its agreement with Genpact Personnel,
Subcontractors and other third parties to the extent necessary to prevent or
remedy breaches or potential breaches of Genpact’s obligations under this Agreement
or any Statement of Work.


 


18.11      Other
Warranties by Wachovia.


 


Wachovia
warrants to and covenants with Genpact that during the Term and any Termination Assistance Period:


 


(a)           Wachovia shall either be the owner of, or authorized to use, all Software
provided by Wachovia in connection with the Services;


 


(b)           the execution, delivery and performance of this Agreement and any Statement
of Work by Wachovia, and the consummation by Wachovia of the transactions
contemplated by this Agreement and each Statement of Work:


 


(i)            will be duly authorized by Wachovia; and


 


(ii)           will not conflict with, result in a breach of
or constitute a default under any other agreement to which Wachovia is a party
or by which Wachovia is bound; and


 


(c)           except as otherwise provided in this Agreement or in the applicable
Statement of Work, Wachovia shall obtain all applicable permits and licenses,
including the Wachovia Consents, required of Wachovia in connection with the
performance of its obligations under this Agreement and each Statement of Work
and the consummation by Wachovia of the transactions contemplated by this
Agreement and each Statement of Work.


 






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19.          COMPLIANCE WITH LAW


 


19.1        Compliance by Wachovia.


 


Subject
to Sections 19.3, 19.4, and 19.5, with respect to the performance
by Wachovia of Wachovia’s legal and contractual obligations under this
Agreement and each Statement of Work, Wachovia shall comply in all material
respects with all Laws applicable to (i) Wachovia’s receipt and use of the
Services hereunder (other than Genpact Laws) and (ii) Wachovia’s business
(collectively, “Wachovia Laws”) during the Term
and any Termination Assistance Period.


 


19.2        Compliance by Genpact.


 


Subject
to Sections 19.3, 19.4 and 19.5,
with respect to the provision of the Services and the performance of any of its
other legal and contractual obligations under this Agreement and each Statement
of Work, Genpact shall comply in all material respects with all Laws applicable
to (a) Genpact as a provider of in-scope business process services
generally, (ii) Genpact’s performance of the Services hereunder, including
the provision of Services from jurisdictions in which Genpact Facilities are
located, and (iii) the employment of Genpact Personnel (collectively, “Genpact Laws”) during the Term and any Termination Assistance Period.  If Genpact is notified by any Governmental
Entity of non-compliance by Genpact with any Genpact Laws, Genpact shall
promptly notify Wachovia of such charge.


 


19.3        Notice of Laws.


 


(a)           Genpact shall notify Wachovia of any change in Genpact Laws that would be
reasonably likely to (i) negatively impact Genpact’s ability to perform
the Services or (ii) have any other material adverse impact on Genpact’s
ability to perform the Services.


 


(b)           Wachovia shall notify Genpact of any Laws and any changes in Wachovia Laws
that would be reasonably likely to (i) negatively impact Genpact’s ability
to perform the Services or (ii) have any other material adverse impact on
Genpact’s ability to perform the Services.


 


(c)           Genpact shall, through the Executive Management Team generally and other
Key Employees designated in a Statement of Work in respect of the Services
provided under such Statement of Work, maintain general familiarity with
Wachovia Laws, and will use commercially reasonable efforts to bring additional
or changed requirements of which they become aware to Wachovia’s attention.


 


(d)           Each Party will use commercially reasonable efforts to advise the other of
Laws and changes in Laws about which such Party becomes aware in the other
Party’s area of responsibility, but without assuming an affirmative obligation
of inquiry, except as otherwise provided herein, and without relieving the
other Party of its obligations under this Agreement.


 


(e)           At Wachovia’s request, Genpact Personnel will participate in
Wachovia-provided compliance training programs.


 


19.4        Interpretation of Laws or Changes in Laws.


 


(a)           Wachovia shall be responsible, with Genpact’s cooperation and assistance,
for interpreting Wachovia Laws or changes in Wachovia Laws and for identifying
the impact of Wachovia Laws or changes in Wachovia Laws on Wachovia’s receipt
and use of the Services.


 


(b)           Genpact shall be responsible, with Wachovia’s cooperation and assistance,
for interpreting Genpact Laws or changes in Genpact Laws and for identifying
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or changes in Genpact Laws on Genpact’s
performance and Wachovia’s receipt and use of the Services.


 


(c)           To the extent the impact of any Genpact Law or change in Genpact Law cannot
be readily identified by Genpact, the Parties will cooperate in interpreting
such Law or change in Law and will seek in good faith to identify and agree
upon the impact on Genpact’s performance and Wachovia’s receipt and use of the
Services.  If either Party reasonably
concludes, after due inquiry, that the compliance obligations associated with
any Genpact Law or change in Genpact Law are unclear or that there is more than
one reasonable approach to achieving compliance, such Party may escalate the
issue to Wachovia for a final decision in accordance with Schedule K.


 


19.5        Implementation of Changes in Laws.


 


In
the event of any change in Law (including Wachovia Laws to the extent Genpact
receives notice of such Wachovia Laws from Wachovia or as otherwise provided in
Section 19.3) and
subject to Section 19.4(c),
Genpact shall implement any necessary modifications to the Services prior to
the deadline imposed by the Governmental Entity having jurisdiction for such
requirement or change.  Genpact shall
bear the costs associated with compliance with any change in Genpact Laws
applicable to the Services.  Wachovia
shall bear the costs associated with compliance with any change in Wachovia
Laws applicable to the Services.


 


20.          DISCLAIMER


 


EXCEPT AS EXPRESSLY SPECIFIED
IN THIS AGREEMENT OR A STATEMENT OF WORK:


 


(a)           WACHOVIA AND ITS AFFILIATES MAKE NO OTHER REPRESENTATIONS, COVENANTS OR
WARRANTIES WITH RESPECT TO THE WACHOVIA DATA, THE WACHOVIA PROVIDED EQUIPMENT,
THE WACHOVIA OWNED MATERIALS, THE WACHOVIA OWNED SOFTWARE OR THE WACHOVIA THIRD
PARTY MATERIALS, ANY WACHOVIA SYSTEM OR ANY OTHER MATTER RELATED TO THE SUBJECT
MATTER OF THIS AGREEMENT AND EXPLICITLY DISCLAIMS ALL OTHER REPRESENTATIONS,
COVENANTS OR WARRANTIES, EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF
LAW), INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
SPECIFIC PURPOSE, TITLE AND NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE
OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.


 


(b)           GENPACT AND ITS AFFILIATES MAKE NO OTHER REPRESENTATIONS, COVENANTS OR
WARRANTIES WITH RESPECT TO THE SERVICES, THE GENPACT OWNED MATERIALS, THE
GENPACT OWNED SOFTWARE, THE GENPACT THIRD PARTY MATERIALS, ANY GENPACT SYSTEM
OR ANY OTHER MATTER RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT AND
EXPLICITLY DISCLAIMS ALL OTHER REPRESENTATIONS, COVENANTS OR WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A SPECIFIC PURPOSE, TITLE AND NON-INFRINGEMENT OR ANY WARRANTY
ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.


 


21.          INDEMNITIES


 


21.1        Indemnities by Genpact.


 


Genpact
agrees to indemnify, defend, and hold harmless Wachovia and its Affiliates and
their respective officers, directors, employees, agents, representatives,
successors, and assigns from any and all Losses 


 






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(subject
to Article 22) due to
third-party claims asserted against Wachovia and its Affiliates and to the
extent arising from or in connection with any of the following:


 


(a)           Representations, Warranties and Covenants.  Breach
of any of the representations, warranties and covenants set forth in Section 17.2(c)(ii), 18.4(c) or 18.10(a)(ii);


 


(b)           Assumed Contracts.  Genpact’s termination of, or breach of any duties or obligations to be
performed on or after the SOW Commencement Date by Genpact under, any of the
Third Party Software licenses or Third Party Contracts assigned to Genpact or
for which Genpact has assumed financial or operational responsibility pursuant
to the applicable Statement of Work;


 


(c)           Licenses, Leases and Contracts.  Breach by Genpact, Genpact
Affiliates or its Subcontractors of any duties or obligations to be performed
on or after the SOW Commencement Date by Genpact under Third Party Software
licenses, Equipment leases or Third Party Contracts used by Genpact to provide
the Services;


 


(d)           Wachovia Data or Proprietary Information.  Breach
of Genpact’s obligations with respect to Wachovia Data or Wachovia Proprietary
Information;


 


(e)           Infringement.  Infringement or misappropriation of a patent,
trade secret, copyright or other proprietary rights in contravention of Genpact’s
warranties and covenants in Sections 18.3(a) or
18.4(a);


 


(f)            Compliance with Laws.  Breach
of Genpact’s obligations under Section 19.2
(other than claims by a Governmental Agency, which shall be covered under Section 21.1(g));


 


(g)           Government Claims.  Fines, penalties, sanctions, interest or
other monetary remedies imposed by any Governmental Entity resulting from
Genpact’s failure to perform its responsibilities under this Agreement,
including Section 19.2,
or any Statement of Work;


 


(h)           Taxes.  Taxes, together with interest and penalties,
that are the responsibility of Genpact under Section 12.3;


 


(i)            Claims Arising From Shared
Facility Services.  Damage, interruption, delay or loss of
service (not constituting Services provided pursuant to this Agreement or any
Statement of Work) by a third party (other than an Eligible Recipient or a
Wachovia Third Party Contractor, in its capacity as such) receiving services
from a shared Genpact facility or using shared Genpact resources;


 


(j)            Affiliate, Subcontractor or
Assignee Claims.  Initiated by (i) a Genpact Affiliate or
Subcontractor asserting rights under this Agreement (other than an
indemnification claim under this Agreement), or (ii) any person or Entity
that is a party to a financial securitization or transaction described in Section 27.15.


 


(k)           Employment Claims.


 


(i)            violation by Genpact, Genpact Affiliates or
Subcontractors, or their respective officers, directors, employees,
representatives or agents, of any Laws or any common law protecting persons or
members of protected classes or categories, including Laws prohibiting
discrimination or harassment on the basis of a protected characteristic;


 


(ii)           liability arising or resulting from the
employment of Genpact Personnel by Genpact, Genpact Affiliates or
Subcontractors (including liability for any social security or other 


 






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employment taxes, workers’ compensation claims
and premium payments, and contributions applicable to the wages and salaries of
such Genpact Personnel);


 


(iii)          payment or failure to pay any salary, wages or
other cash compensation due and owing to any Genpact Personnel;


 


(iv)          employee pension or other benefits of any
Genpact Personnel; or


 


(v)           other aspects of the employment relationship of Genpact Personnel with
Genpact, Genpact Affiliates or Subcontractors or the termination of such
relationship, including claims for wrongful discharge, claims for breach of
express or implied employment contract and claims of joint employment;


 


(l)            Personnel Injury Claims.  The death or bodily injury of any
agent, employee, customer, business invitee, business visitor or other person
caused by (i) the negligence or other tortious conduct of Genpact, Genpact
Affiliates or Subcontractors or (ii) the failure of Genpact, Genpact
Affiliates or Subcontractors to comply with its obligations under this
Agreement or any Statement of Work; and


 


(m)          Property Damage.  The damage, loss or destruction of any real
or tangible personal property caused
by the negligence or other tortious conduct of Genpact, Genpact Affiliates or
Subcontractors or the failure of Genpact, Genpact Affiliates or Subcontractors
to comply with its obligations under this Agreement or any Statement of Work.


 


Genpact
will pay or reimburse Wachovia for any costs and expenses (including interest,
court costs, reasonable fees and expenses of attorneys, accountants and other
experts or other reasonable fees and expenses of litigation or other
proceedings) incurred by Wachovia (i) as a result of any third party claim
for which Wachovia is indemnified by Genpact under this Section 21.1 except as set forth
otherwise in Section 21.4
or 21.5, or (ii) in
connection with the enforcement of this Section 21.1
against Genpact.


 


21.2        Indemnity by Wachovia.


 


Wachovia
agrees to indemnify, defend, and hold harmless Genpact and its Affiliates, and
its or their officers, directors, employees, agents, representatives,
successors, and assigns, from any Losses (subject to Article 22) due to third-party
claims asserted against Genpact and its Affiliates and to the extent arising
from or in connection with any of the following:


 


(a)           Representations, Warranties and Covenants.  Breach
of any of the representations, warranties and covenants set forth in Section 17.1(c)(ii), 18.11(a) or (b)(ii);


 


(b)           Pre-Assignment Date Matters.  Wachovia’s breach of any duties or
obligations to be performed prior to the SOW Commencement Date by Wachovia
under any of the Third Party Software licenses or Third Party Contracts
assigned to Genpact by Wachovia pursuant to this Agreement or any Statement of
Work;


 


(c)           Licenses, Leases or Contracts.  Breach by Wachovia or the Eligible
Recipients of any duties or obligations to be performed by Wachovia under any
of the applicable Third Party Software licenses, Equipment leases or Third
Party Contracts to the extent Wachovia is financially or operationally
responsible under this Agreement or any Statement of Work;


 


(d)           Genpact’s Proprietary Information.  Breach of Wachovia’s obligations
with respect to Genpact’s Proprietary Information;


 






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(e)           Infringement.  Infringement or misappropriation of a patent,
trade secret, copyright or other proprietary right of a third party in
contravention of Wachovia’s warranties and covenants in Section 18.4(b):


 


(f)            Compliance with Laws.  Breach
of Wachovia’s obligations under Section 19.1
(other than claims by a Governmental Agency, which shall be covered under Section 21.2(g));


 


(g)           Government Claims.  Fines, penalties, monetary sanctions,
interest or other monetary remedies imposed by any Governmental Entity on
account of Wachovia’s failure to perform its responsibilities under this
Agreement, including Section 19.1,
or any Statement of Work;


 


(h)           Taxes.  Taxes, together with interest and penalties,
that are the responsibility of Wachovia under Section 12.3;


 


(i)            Wachovia Affiliate, Eligible Recipient or Third Party Contractor Claims. 
Initiated by a Wachovia Affiliate, an Eligible Recipient or a Wachovia
Third Party Contractor asserting rights under this Agreement or any Statement
of Work (other than an indemnification claim or insurance claim under this Agreement);
and


 


(j)            Employment Claims.


 


(i)            violation by Wachovia, Wachovia Affiliates or
their respective officers, directors, employees, representatives or agents, of
any Laws or any common law protecting persons or members of protected classes
or categories, including Laws prohibiting discrimination or harassment on the
basis of a protected characteristic;


 


(ii)           liability arising or resulting from the
employment of employees of Wachovia or Wachovia Affiliates (including liability
for any social security or other employment taxes, workers’ compensation claims
and premium payments, and contributions applicable to the wages and salaries of
such employees);


 


(iii)          payment or failure to pay any salary, wages or
other cash compensation of employees of Wachovia or Wachovia Affiliates;


 


(iv)          employee pension or other benefits compensation
of employees of Wachovia or Wachovia Affiliates; or


 


(v)           other aspects of the employment relationship of employees of Wachovia or
Wachovia Affiliates with Wachovia or Wachovia Affiliates or the termination of
such relationship, including claims for wrongful discharge, claims for breach
of express or implied employment contract and claims of joint employment;


 


(k)           Personnel Injury Claims.  The death or bodily injury of any
agent, employee, customer, business invitee, business visitor or other person
caused by (i) the negligence or other tortious conduct of Wachovia or
Wachovia Affiliates or (ii) the failure of Wachovia or Wachovia Affiliates
to comply with its obligations under this Agreement or any Statement of Work;
and


 


(l)            Property Damage.  The damage, loss or destruction of any real
or tangible personal property caused by the negligence or other tortious
conduct of Wachovia, the Eligible Recipients or Wachovia Third Party Contractors
or the failure of Wachovia to comply with its obligations under this Agreement
or any Statement of Work.


 






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Wachovia
will pay or reimburse Genpact for any costs and expenses (including interest,
court costs, reasonable fees and expenses of attorneys, accountants and other
experts or other reasonable fees and expenses of litigation or other
proceedings) incurred by Genpact (i) as a result of any third party claim
for which Genpact is indemnified by Wachovia under this Section 21.2 except as set forth
otherwise in Section 21.4
or 21.5, or (ii) in
connection with the enforcement of this Section 21.2
against Wachovia.


 


21.3        Infringement.


 


In
the event that (a) any Software, Equipment, Materials or Services provided
by Genpact or its Affiliates or Subcontractors pursuant to this Agreement or
any Statement of Work are found, or are reasonably likely to be found, to
infringe upon the patent, copyright, trademark, trade secrets, intellectual
property or proprietary rights of any third party in any country in which
Services are to be performed or received under this Agreement or any Statement
of Work, or (b) the continued use of such Software, Equipment, Materials
or Services is enjoined, Genpact shall, in addition to defending, indemnifying
and holding harmless Wachovia as provided in Section 21.1(e) and
to the other rights Wachovia may have under this Agreement or such Statement of
Work, promptly and at its own cost and expense and in such a manner as to
minimize the disturbance to Wachovia’s and Wachovia Affiliates’ business activities
do one of the following:


 


(i)            Obtain Rights.  Obtain for Wachovia and Wachovia Affiliates
the right to continue using such Software, Equipment or Materials;


 


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


 


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


 


21.4        Indemnification Procedures.


 


With
respect to third-party claims which are subject to indemnification under this
Agreement (other than as provided in Section 21.5
with respect to claims covered by Section 21.1(g) or
21.2(g)), the following procedures
will apply:


 


(a)           Notice.  Promptly after receipt by any entity entitled
to indemnification under this Agreement of notice of the commencement or
threatened commencement of any civil, criminal, administrative, or
investigative action or proceeding involving a claim in respect of which the
indemnitee will seek indemnification hereunder, the indemnitee will notify the
indemnitor of such claim setting forth in reasonable detail the facts and
circumstances pertaining thereto.  No
delay or failure to so notify an indemnitor will relieve it of its obligations
under this Agreement except to the extent that such indemnitor has suffered
actual prejudice by such delay or failure. 
Within fifteen (15) days following receipt of notice from the
indemnitee relating to any claim, but no later than five (5) days before
the date on which any response to a complaint or summons is due, the indemnitor
will notify the indemnitee that the indemnitor elects to assume control of the
defense and settlement of that claim (a “Notice of Election”).


 


(b)           Procedure Following Notice of Election.  If the
indemnitor delivers a Notice of Election within the required notice period, the
indemnitor will assume sole control over the defense and settlement of the
claim; provided, however, that (i) the indemnitor will keep the indemnitee
fully apprised at all times as to the status of the defense, and (ii) the
indemnitor will obtain the prior approval of the indemnitee before entering
into any settlement of such claim imposing any liability for which the
indemnitee will be financially responsible or imposing any obligations or
restrictions on the 


 






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indemnitee or ceasing to defend against such
claim.  The indemnitor will not be liable
for any legal fees or expenses incurred by the indemnitee following the
delivery of a Notice of Election; provided, however, that (i) the
indemnitee will be entitled to employ counsel at its own expense to participate
in the handling of the claim, and (ii) the indemnitor will pay the fees
and expenses associated with such counsel if (A) there is a conflict of
interest with respect to such claim which is not otherwise resolved, (B) the
indemnitor has requested the assistance of the indemnitee in the defense of the
claim or (C) the indemnitor has failed to defend the claim diligently and
the indemnitee is prejudiced or likely to be prejudiced by such failure.  The indemnitor will not be obligated to
indemnify the indemnitee for any amount paid or payable by such indemnitee in
the settlement of any claim if (i) the indemnitor has delivered a timely
Notice of Election and such amount was agreed to without the consent of the
indemnitor, (ii) the indemnitee has not provided the indemnitor with
notice of such claim and a reasonable opportunity to respond thereto, or (iii) the
time period within which to deliver a Notice of Election has not yet expired.


 


(c)           Procedure Where No Notice of Election Is Delivered.  If the
indemnitor does not deliver a Notice of Election relating to any claim within
the required notice period, the indemnitee will have the right to defend the
claim in such manner as it may reasonably deem appropriate.  The indemnitor will promptly reimburse the
indemnitee for all such reasonable costs and expenses incurred by the
indemnitee, including reasonable attorneys’ fees.


 


(d)           Claim Information.  In the
event of a claim for indemnity under this Article 21,
the indemnitee shall grant the indemnitor reasonable access to documents and
other information in connection with the matters for which indemnification is
sought to the extent such indemnitor reasonably deems necessary in connection
with determining its rights and obligations under this Article 21.


 


21.5        Indemnification Procedures — Governmental
Claims.


 


With
respect to claims covered by Section 21.1(g) or
21.2(g)), the following procedures
will apply:


 


(a)           Notice.  Promptly after receipt by a Party of notice
of the commencement or threatened commencement of any action or proceeding
involving a claim in respect of which such Party, the indemnitee, will seek
indemnification pursuant to Section 21.1(g) or
21.2(g), the indemnitee will notify
the indemnitor of such claim setting forth in reasonable detail the facts and
circumstances pertaining thereto.  No
delay or failure to so notify the indemnitor will relieve the indemnitee of its
obligations under this Agreement except to the extent that the indemnitor has
suffered actual prejudice by such delay or failure.


 


(b)           Procedure for Defense.  The indemnitee will be entitled, at its
option, to have the claim handled pursuant to this Section 21.5
or to retain control over the defense and settlement of such claim; provided
that, in the latter case, the indemnitee will:


 


(i)            consult with the indemnitor and reasonably
consider the indemnitor’s views on the selection of counsel;


 


(ii)           consult with the indemnitor on a regular basis
regarding claim processing (including actual and anticipated costs and
expenses) and litigation strategy;


 


(iii)          reasonably consider any indemnitor settlement
proposals or suggestions;


 


(iv)          consult with the indemnitor and reasonably
consider the indemnitor’s views with respect to any settlement for which the
indemnitor would be financially responsible; and


 






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(v)           use commercially reasonable efforts to minimize any amounts payable or
reimbursable by the indemnitor.


 


21.6        Subrogation.


 


Except
as otherwise provided in Section 21.1
or 21.2, in the event that an
indemnitor will be obligated to indemnify an indemnitee pursuant to any
provision of this Agreement, the indemnitor will, upon payment of such
indemnity in full, be subrogated to all rights of the indemnitee with respect
to the claims to which such indemnification relates.


 


22.          DAMAGES


 


22.1        General Intent.


 


Subject
to the specific provisions and limitations of this Article 22, it is the intent of
the Parties that each Party will be liable to the other Party for any actual
damages incurred by the other Party as a result of the first Party’s failure to
perform its obligations in the manner required by this Agreement or any
Statement of Work.


 


22.2        Direct Damages.


 


Except
as otherwise provided in this Article 22,
the aggregate liability of Genpact and Wachovia to each other for any and all
cause(s) of action, regardless of the form of action (including contract, tort,
negligence or any other), arising out of or resulting from the performance or
breach of this Agreement or any Statement of Work in a Contract Year, including
for any Operational Losses incurred in such Contract Year (but subject to Section 22.3(a)(i) in respect
of Operational Losses under a Statement of Work specifying a Historic Level of
Operational Losses), (a “Direct Damage Claim”)
shall in no event exceed in the aggregate:


 


(a)           in respect of [[[***]]] or


 


(b)           in respect of [[[***]]].


 


In
addition, in no event shall Genpact be liable to Wachovia in the aggregate in
any Contract Year in respect of any and all Direct Damage Claims for more than [[[***]]].


 


22.3        Operational Losses.


 


(a)           Liability for Operational
Losses.


 


(i)            To the extent agreed upon in a Statement of
Work, Genpact shall, subject to the limitations set forth in this Section 22.3(a), be responsible
for Operational Losses incurred by Wachovia or an Eligible Recipient as a
direct result of a breach by Genpact of its obligations under such Statement of
Work in excess of the historic level of Operational Losses experienced by
Wachovia set forth in the applicable Statement of Work and as adjusted pursuant
to Section 22.3(b) (the
“Historic Level”) in any Contract
Year; provided, however, that Genpact’s responsibility for Operational Losses
under such Statement of Work in any Contract Year shall not exceed an amount
equal to [[[***]]] the Historic Level.


 






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(ii)           The Historic Level specified in the applicable
Statement of Work shall be equal to the historic level of Operational Losses
experienced by Wachovia for the process that is the subject of such Statement
of Work during the thirty-six (36) months preceding the SOW Commencement Date
and shall be net of any Operational Losses experienced as a result of the
fraudulent activities of Wachovia personnel. 
The applicable Statement of Work shall also specify the relevant
transaction volumes of the applicable process during such thirty-six (36) month
period.  If there is not a historic level
of Operational Losses for the full thirty-six (36) month period, the Parties
shall establish in the applicable Statement of Work a presumptive level based
on the historic level available, a baseline during which the Parties shall
measure such Operational Losses and the allocation of responsibility for
Operational Losses during such baseline measurement period.


 


(iii)          Notwithstanding the foregoing, in a specific
Statement of Work in respect of a particular settlement process with irregular
Operational Losses the Parties may agree to a different allocation of
responsibility for Operational Losses if such different allocation has been
approved by each of (A) the CFO of the affected Wachovia business line and
(B) the Wachovia Outsourcing Governance Director.


 


(iv)          Genpact’s liability in any Contract Year for
Operational Losses under all Statements of Work specifying a Historic Level
shall be counted toward the cap for such Contract Year under Section 22.2.


 


(v)           Any claim by Wachovia for Operational Losses
under a Statement of Work that does not specify a Historic Level shall be a
Direct Damage Claim subject to the applicable cap under Section 22.2 and shall not include
damages that are excluded pursuant to Section 22.4
except as provided in Section 22.5 or 22.6.


 


(vi)          Genpact’s liability in any Contract Year for all
Operational Losses under all Statements of Work, whether or not specifying a
Historic Level, shall not exceed, the cap for such Contract Year under Section 22.2.


 


(b)           Adjustments in Historic
Levels.


 


(i)            If at any time during the first Contract Year
of a Statement of Work for which a Historic Level is specified the Parties
discover that the Historic Level was based upon inaccurate information, then
the Parties shall adjust the Historic Level appropriately.


 


(ii)           At the end of each Contract Year under a
Statement of Work for which a Historic Level is specified:


 


(A)         the Parties shall compare the actual transaction volumes under such
Statement of Work to the relevant transaction volumes specified in such
Statement of Work for the twelve (12) months preceding the SOW Commencement
Date.  If the actual transaction volumes
during such Contract Year is more than ten percent (10%) higher than or lower
than such transaction volumes specified in the Statement of Work, then the
Historic Level applicable to the next Contract Year shall be increased or
decreased, as the case may be, by the same percentage; and


 


(B)          if changes in technology implemented by Wachovia or the Eligible Recipients
during such Contract Year (or during the previous Contract Year) have resulted
in a reduction over a consecutive six (6) month period of more than ten
percent (10%) from the Historic Level applicable to such Contract Year, then
the 


 






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Historic Level applicable to the next Contract
Year shall be reduced by the same percentage.


 


22.4        Consequential Damages.


 


Except
as provided in Section 22.5 or 22.6,
neither Party will be liable to the other Party for indirect, incidental or
consequential damages, regardless of the form of the action or the theory of
recovery, even if such Party has been advised of the possibility of such
damages.


 


22.5        Exclusions.


 


The
limitations or exculpations of liability set forth in Sections 22.2,
22.3 and 22.4 will not apply to:


 


(a)           Losses occasioned by the fraud, knowing or willful misconduct or gross
negligence of a Party;


 


(b)           Losses that are the subject or indemnification under Section 21.1(d), (e), (f), (g),
(h), (j), (l), (m)
or Section 21.2(d), (e), (f), (g),
(h), (i), (k) or (l);


 


(c)           Losses occasioned by breaches of Article 15 (except for Section 15.5); and


 


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


 


22.6        Items Not Considered Damages.


 


The
following amounts will not be considered damages subject to, and will not be
counted toward the liability exclusion or cap specified in, Section 22.2, 22.3 or 22.4;


 


(a)           Service Level Credits or Deliverable Credits assessed against Genpact;


 


(b)           amounts withheld by Wachovia in accordance with this Agreement or the
applicable Statement of Work;


 


(c)           amounts paid by Wachovia but subsequently recovered from Genpact; and


 


(d)           invoiced Charges and other amounts that are due and owing to Genpact for
Services under this Agreement or any Statement of Work.


 


22.7        Mitigation Efforts.


 


Genpact
and Wachovia each agree to use reasonable efforts to mitigate their own, as
well as each other’s, liability, damages, and other losses suffered in
connection with this Agreement or any Statement of Work.  Where damages or losses can be mitigated by
lawfully pursuing recovery from other third parties, Genpact and Wachovia shall
conduct or permit diligent efforts to so recover, with the associated expense
to be borne by each Party in proportion to each such Party’s responsibility for
such losses, if any.  Notwithstanding the
foregoing, in respect of Operational Losses, Wachovia reserves the right,
consistent with its practices during the measurement period of the applicable
Historical Level, to determine the strategy and approach to be employed in
pursuing recovery from its customers and to elect not to pursue recovery from
some or all its customers in certain circumstances.  In such circumstances, Genpact’s financial
responsibility will be equitably reduced, taking into account the extent to
which claims would otherwise have been brought, the 


 






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likelihood
of recovery, the costs that would have been incurred in pursuing recovery, and
other relevant factors.


 


23.          INSURANCE AND RISK OF LOSS


 


23.1        Insurance.


 


Genpact
agrees to keep in full force and effect and maintain at its sole cost and
expense the following policies of insurance with the specified minimum limits
of liability during the Term and any Termination
Assistance Period:


 


(a)           Workers’ Compensation and Employer’s Liability Insurance with an alternate
employers endorsement in favor of Wachovia Corporation (or equivalent coverage
outside of the United States) in full compliance with the applicable Laws of
the state and country in which the work is to be performed or the country of
hire (whichever is applicable).  Each
such policy will contain a waiver of subrogation endorsement against Wachovia
and Wachovia Affiliates and their respective officers, directors, employees,
agents, subsidiaries and successors.


 


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


 


(ii)           The limits of liability of Employer’s Liability
Insurance with minimum limits of $1,000,000 per employee by accident/$1,000,000
per employee by disease/$1,000,000 policy limit by disease (as per the policy
limits required by applicable Law).


 


(b)           Commercial General Liability Insurance (including coverage for Contractual
Liability, Premises-Operations and Independent Contractors), providing coverage
for bodily injury (including death), and property damage with combined single
limits of not less than $1,000,000 per occurrence, subject to a $2,000,000
annual aggregate.


 


(c)           Commercial Business Automobile Liability Insurance including coverage for
all owned, non-owned, leased, and hired vehicles providing coverage for bodily
injury and property damage liability, with combined single limits of not less
than $1,000,000 per occurrence or equivalent coverage outside of the United
States).


 


(d)           Umbrella Liability Insurance with respect to Sections 23.1(a),
(b) and (c) in
an amount not less than $20,000,000 per occurrence and annual aggregate.


 


(e)           Professional Liability (also known as Errors and Omissions
Liability) Insurance covering acts, errors and omissions, including
personal injury, arising out of Genpact’s operations or Services in an amount
not less than $10,000,000 per occurrence and annual aggregate.


 


(f)            Comprehensive Crime Insurance or Blanket
Fidelity Bond, including Employee Dishonesty and Computer Fraud Insurance,
covering losses arising out of or in connection with any fraudulent or
dishonest acts committed by employees of Genpact or Affiliate Subcontractors
performing under this Agreement, acting alone or with others, in an amount not
less than $5,000,000 per occurrence and annual aggregate.  On the first renewal of such policy that is
effective after the Effective Date, Genpact shall obtain and maintain
thereafter an amount not less than $10,000,000 per occurrence and annual
aggregate.  This policy shall be endorsed
to include loss to or loss of the property of Wachovia or Wachovia Affiliates.


 


(g)           Commercial Property Insurance that insures loss or damage to Genpact’s
owned or leased Equipment and other assets in an amount not less than the full
replacement cost of such 


 






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Equipment and assets.  The commercial property insurance policy
will, at a minimum, insure against perils included in an “all risk” policy,
including loss or damage due to fire, flood, windstorm, earthquake and
terrorism.


 


In
the event that any of Genpact’s obligations under this Agreement are to be
rendered by persons other than employees of Genpact or Affiliate
Subcontractors, Supplier shall require such persons or third parties to
maintain insurance in accordance with the terms and conditions required under Article 23, and, prior to
commencement of any work and annually thereafter, submit a Certificate of
Insurance evidencing such terms and conditions. 
If the other party’s insurance coverages and/or limits are less than
those required under this Section 23.1,
in connection with requesting Wachovia’s approval of such other party as a
Non-affiliate Subcontractor under Section 9.8(a) Genpact
shall obtain Wachovia approval for any exceptions or reductions to such
requirements.


 


23.2        Approved Companies.


 


All
of the insurance policies required under Section 23.1
shall be issued by insurance companies having an “A minus” rating or better by A.M.
Best Company or Standard & Poor’s.


 


23.3        Location of Insurers.


 


The
policies identified in Section 23.1
shall be issued in the United States of America, except the Professional
Liability policy, which may be placed in London, Bermuda or other European
markets.  The Professional Liability,
Comprehensive Crime and Umbrella policies shall have worldwide territorial
provisions.  Each of the policies
required under Sections 23.1(a),
(b), (c) and (d) shall respond excess and
difference-in-conditions of the underlying country policies and shall provide
world-wide coverage for any policies issued outside of the United States of
America.  In addition to the insurance
required in this Section, if any of the Services are performed outside of the
United States of America, policies will be issued in accordance with any
regulatory requirements for admitted insurance, and local policies will contain
any additional coverage that is customarily insured for a location or operation
that is similar to the Supplier in that country.


 


23.4        Endorsements.


 


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


 


(a)           Genpact’s insurance policies as required herein under Sections 23.1(b) and
(d) will name Wachovia and
Wachovia Affiliates, and their respective officers, directors, employees,
agents and successors, as Additional Insureds for any and all liability arising
at any time in connection with the performance of Genpact or Genpact Personnel
under this Agreement.  If such policies
do not contain a standard Insurance Services Office separation of insureds
provision, they will be endorsed to provide cross-liability coverage.  These policies will have no cross suits
exclusion, or any similar exclusion that excludes coverage for claims brought
by one insured under the policy against another insured under the policy.


 


(b)           Genpact shall promptly pay over to Wachovia any amounts paid under the
Genpact insurance policies required under Section 23.1(f) in
respect of any loss borne by Wachovia.


 


(c)           Each policy will provide that it will not be canceled except after thirty
(30) days’ advance written notice to Wachovia.


 


(d)           All insurance required under this Article 23
will be primary insurance and any other valid insurance existing for Wachovia’s
benefit will be excess of such primary insurance.


 






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23.5        Other Requirements.


 


These
insurance provisions set forth the minimum amounts and scopes of coverage to be
maintained by Genpact.  Genpact shall not
self-insure any of its obligations under this Agreement without full disclosure
to Wachovia of its intention to self-insure. 
Any and all deductibles in and self-insurance for the above-referenced
insurance policies will be assumed by, for the account of, and at the sole risk
of Genpact.


 


23.6        Certificates.


 


Genpact
shall provide Wachovia with certificates of insurance evidencing compliance
with this Article 23 (including
evidence of renewal of insurance) signed by authorized representatives of
the respective carriers for each year that this Agreement is in effect.  Each certificate of insurance will provide
that the issuing company will not cancel the insurance afforded under the above
policies unless notice of such cancellation has been provided at least thirty
(30) days in advance to:


 


Wachovia Corporation

One Wachovia Center

301 South College Street

Charlotte, NC  28288-0013

Attention: General Counsel


 


23.7        No Implied Limitation.


 


The
obligation of Genpact and its Affiliates to provide the insurance specified
herein will not limit or expand in any way any obligation or liability of
Genpact provided elsewhere in this Agreement.   
The rights of Wachovia and Wachovia Affiliates to insurance coverage
under policies issued to or for the benefit of one or more of them are
independent of this Agreement will not be limited by this Agreement or any
Statement of Work.


 


23.8        Waiver of Subrogation.


 


With
respect to insurance coverage to be provided by Genpact pursuant to Sections 23.1(a), (b), (c), (d) and
(g), the insurance policies
will provide that the insurance companies waive all rights of subrogation
against Genpact, Wachovia, and their respective Affiliates, officers, directors
and employees.  Genpact waives its rights
to recover against Wachovia and Wachovia Affiliates, and their respective
officers, directors, employees, successors and agents, in subrogation or as
subrogee for another party.


 


23.9        Risk of Loss.


 


(a)           General.  Except as otherwise provided in Sections 21.1(l) and (m) and Sections 21.2(k) and (l), Genpact and Wachovia each will be responsible for any
damage, destruction, loss, theft or governmental taking of their respective tangible
property or real property (whether owned or leased) and each Party agrees to
look only to its own insuring arrangements (if any) with respect to such
damage, destruction, loss, theft, or governmental taking.  Each Party will promptly notify the other
Party of any damage (except normal wear and tear), destruction, loss, theft, or
governmental taking of such other Party’s tangible property or real property
(whether owned or leased).


 


(b)           Waiver of Subrogation.  Genpact and Wachovia shall cause their respective
insurers to issue appropriate waivers of subrogation rights endorsements to all
property insurance policies maintained by each Party.


 






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24.          DISPUTE RESOLUTION


 


24.1        Informal Dispute Resolution.


 


Prior
to the initiation of formal dispute resolution procedures with respect to any
dispute, other than as provided in Section 24.1(f),
the Parties shall first attempt to resolve such dispute informally, as follows:


 


(a)           Initial Effort.  The Parties agree that the Wachovia Project
Executive and the Global Operations Leader shall attempt in good faith to
resolve all disputes (other than those described in Section 24.1(f)).  In the event the Wachovia Project Executive
and the Global Operations Leader are unable to resolve a dispute in an amount
of time that either Party deems reasonable under the circumstances, such Party
may refer the dispute for resolution to the senior corporate executives as
specified in Section 24.1(b) upon
notice to the other Party.


 


(b)           Senior Corporate Executives.  Within five (5) business days
after a notice under Section 24.1(a) referring
a dispute for resolution by the Wachovia Project Executive and the Global
Operations Leader, Wachovia’s designated senior corporate executive and Genpact’s
Chief Financial Officer will discuss the problem and negotiate in good faith in
an effort to resolve the dispute.  In the
event such senior corporate executives are unable to resolve a dispute in an
amount of time that either Party deems reasonable under the circumstances, such
Party may refer the dispute for resolution to the President of each Party as
specified in Section 24.1(c) upon
notice to the other Party.


 


(c)           Presidents.  Within five (5) business days after a
notice under Section 24.1(b) referring
a dispute for resolution by the President of each Party, the Presidents will
discuss the problem and negotiate in good faith in an effort to resolve the
dispute without the necessity of any formal proceeding.  The specific format for the discussions will
be left to the discretion of the Presidents, but may include the preparation of
agreed-upon statements of fact or written statements of position.


 


(d)           Provision of Information.  During the course of negotiations
under Sections 24.1(a), (b) or (c),
all requests made by one Party to another for non-privileged information, reasonably related to the dispute,
will be honored in order that each of the Parties may be fully advised of the
other’s position.  All negotiation shall
be strictly confidential and used solely for the purposes of settlement.  Any materials prepared by one Party for these
proceedings shall not be used as evidence by the other Party in any subsequent
arbitration or litigation; provided, however, the underlying facts supporting
such materials may be subject to discovery.


 


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


 


(i)            the Presidents under Section 24.1(c) concluding
in good faith that amicable resolution through continued negotiation of the
matter does not appear likely; or


 


(ii)           thirty (30) days after the notice under Section 24.1(b) referring
the dispute to the Presidents of the Parties.


 


(f)            Exclusions From Dispute
Resolution.


 


(i)            The provisions and time periods specified in
this Section 24.1 shall not be
construed to prevent a Party from instituting, and a Party is authorized to
institute, formal proceedings earlier to (A) avoid the expiration of any
applicable limitations period, (B) preserve a superior position with
respect to other creditors, (C) address a claim arising out of the breach
of a Party’s obligations under Article 15,
or (D) address a claim arising out of the


 






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breach or attempted or threatened breach of the
obligations described in the next paragraph.


 


(ii)           Genpact acknowledges that, in the event it
breaches its obligation to provide Termination Assistance Services in
accordance with this Agreement, its obligation respecting continued performance
in accordance with Section 24.3,
or its obligation to provide Wachovia with access to Wachovia Data in
accordance with Section 15.1,
Wachovia and/or the Eligible Recipients may be irreparably harmed.  In such a circumstance, Wachovia may proceed
directly to court.  If a court of
competent jurisdiction finds that Genpact has breached (or attempted or
threatened to breach) any such obligations, Genpact agrees that without any
additional findings of irreparable injury or other conditions to injunctive
relief it shall not oppose the entry of an appropriate order compelling
performance by Genpact and restraining it from any further breaches (or
attempted or threatened breaches).


 


24.2        Arbitration.


 


Any
controversy, claim or dispute arising out of or relating to this Agreement or
the breach, termination or validity thereof (a “Dispute”)
will be resolved exclusively by final and binding arbitration in accordance
with the Dispute Resolution Procedures of the American Arbitration Association’s
International Centre for Dispute Resolution then in effect (the “Rules”).  The
arbitration hearing will be held in New York, New York.  All proceedings of such arbitration will be
in the English language.


 


(a)           Arbitration Panel.  The arbitration panel will consist of a sole
arbitrator appointed in accordance with the Rules.


 


(b)           Expenses.  All reasonable out-of-pocket expenses
(including reasonable attorneys’ fees) incurred by any Party in connection
with any Dispute will be paid by the non-prevailing Party in accordance with
the direction of the arbitrator.


 


(c)           Equitable Remedies.  Nothing in this Agreement will be deemed to
limit a Party’s rights to seek injunctive relief or specific performance.


 


24.3        Continued Performance.


 


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


 


(b)           Non-Interruption of Services.  Genpact
acknowledges and agrees that any interruption to the Service may cause
irreparable harm to Wachovia or the Eligible Recipients, in which case an
adequate remedy at law would not be available. 
Genpact expressly acknowledges and agrees that, pending resolution of
any dispute or controversy, it shall not deny, withdraw, or restrict Genpact’s
provision of the Services to either Wachovia or the Eligible Recipients under
this Agreement, except as specifically and expressly agreed by Wachovia and
Genpact.


 


24.4        Governing Law.


 


This
Agreement and performance under it shall be governed by and construed in accordance
with the applicable Laws of the State of New York, without giving effect to the
principles thereof relating to 


 






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conflicts
of laws. The application of the United Nations Convention on Contracts for the
International Sale of Goods is expressly excluded. In the event New York adopts
any form of UCITA after the Effective Date, the Parties hereby agree UCITA
shall not apply to this Agreement or any of the transactions contemplated
hereunder, to the extent such exclusion is legally permissible under such
adopted form of UCITA.


 


25.          TERMINATION


 


25.1        Termination of Agreement for Cause.


 


(a)           By Wachovia.


 


(i)            If Genpact:


 


(A)         commits a material breach of this Agreement (or commits numerous breaches
of its duties or obligations which collectively constitute a material breach of
this Agreement), which breach is not cured within thirty (30) days after notice
of the breach from Wachovia;


 


(B)          commits a material breach of this Agreement which is not capable of being
cured within the period specified in, and pursuant to, Section 25.1(a)(i)(A);


 


(C)          fails to perform in accordance with more than twenty-five percent (25%) of
the Critical Service Levels
under all Statements of Work in any rolling twelve (12) month period.  For the avoidance of doubt, the calculation
of the percentage for each month shall include all Statements of Work in effect
during such month;


 


(D)          fails to report, or take reasonable measures to resolve, an Electronic
Incident, as provided in  Section 15.2(g); or


 


(E)          fails to take reasonable measures to remedy a risk identified in an
information security review, as
provided in  Section 15.2(h);
or


 


(ii)           pursuant to Section 25.2(a)(i), Wachovia terminates Statements of
Work representing forty percent (40%) or more of the total number of FTEs
providing Services under all Statements of Work.  The percentage shall be equal to the quotient
of (A) the sum of the FTE counts specified for the month in which the Full
Production Date falls in each Statement of Work that has been terminated by
Wachovia pursuant to Section 25.2(a)(i) since
the Effective Date, divided by (B) the sum of the FTE counts specified for
the month in which the Full Production Date falls in each Statement of Work that
has been executed since the Effective Date, multiplied by one hundred percent
(100%).


 


then
Wachovia may, by giving notice to Genpact, terminate this Agreement and all
Statements of Work then in effect as of a date specified in the notice of
termination.  Genpact shall not be
entitled to recover any Stranded Costs or Termination Charge in connection with
such a termination for cause.


 


(b)           By Genpact.


 


(i)            If Wachovia:


 


(A)         commits a material breach of Article 15
in respect of the Proprietary Information of Genpact, which breach (1) is
not capable of being cured or (2) if 


 






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curable, is not cured within thirty (30) days
after notice from Genpact of such default; or


 


(B)          misappropriates Genpact’s intellectual property
in violation of its obligations under this Agreement which is not capable of
being cured within the period specified in, and pursuant to, Section 25.1(b)(i)(A)(2); or


 


(ii)           If, pursuant to Section 25.2(b), Genpact terminates Statements of
Work representing forty percent (40%) or more of the total number of FTEs
providing Services under all Statements of Work.  The percentage shall be equal to the quotient
of (A) the sum of the FTE counts specified for the month in which the Full
Production Date falls in each Statement of Work that has been terminated by
Genpact pursuant to Section 25.2(b)(i) since
the Effective Date, divided by (B) the sum of the FTE counts specified for
the month in which the Full Production Date falls in each Statement of Work that
has been executed since the Effective Date, multiplied by one hundred percent
(100%);


 


then
Genpact may terminate this Agreement and all Statements of Work then in effect
upon notice to Wachovia.


 


25.2        Termination of Statement of Work for Cause.


 


(a)           By Wachovia.  If:


 


(i)            Genpact commits a material breach of its
obligations with respect to Transition Services, including providing any
Deliverables, and fails to cure such breach within thirty (30) days (or such
longer cure period set forth in the applicable Statement of Work) after its
receipt of notice;


 


(ii)           Genpact fails to obtain any Genpact Consent
within sixty (60) days after the SOW Commencement Date and such failure
has a material adverse impact on the use of the Services by Wachovia or the
Eligible Recipients, and no reasonable workaround is available and Wachovia
exercises such right as provided in Section 5.3(d);


 


(iii)          if any event described in Section 10.2(c) substantially
prevents, hinders or delays the performance by Genpact, its Subcontractors or
an alternate source paid by Genpact of Services necessary for the performance
of critical Wachovia or Eligible Recipient functions for more than fifteen (15)
days;


 


(iv)          unless the Parties are complying with the plan
agreed pursuant to Section 10.5(d) or
the Parties otherwise agreed, Wachovia’s control over the Services under a
Statement of Work providing for step-in rights persists as provided in Section 10.5(e) with respect
to any Wachovia or Eligible Recipient functions identified in such Statement of
Work as critical;


 


(v)           Genpact commits a material breach of a Statement of Work (or commits
numerous breaches of its duties or obligations which collectively constitute a
material breach of such Statement of Work), which breach is not cured within
thirty (30) days (or such other cure period set forth in the applicable
Statement of Work) after notice of the breach from Wachovia;


 


(vi)          Genpact commits a material breach of a
Statement of Work which is not capable of being cured within the period
specified in, and pursuant to, Section 25.2(a)(v);


 






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(vii)         Genpact fails to perform in accordance with any
Expected Service Level under a
Statement of Work in six (6) months in any rolling twelve (12)
month period;


 


(viii)        Genpact fails to meet a Transition Milestone
and such failure constitutes a material breach under the applicable Statement
of Work and Genpact fails to cure such breach within thirty (30) days (or such
longer cure period set forth in such Statement of Work) after its receipt of
notice;


 


(ix)           unless otherwise agreed in the applicable
Statement of Work, Genpact fails to meet the Transition Milestone for the
completion of the transition of all the applicable Services under a Statement
of Work to Genpact by more than forty-five (45) days, which failure is not
excused as described in Section 7.1(e)(ii),
without requirement of notice or opportunity to cure; or


 


(x)            Operational Losses under any Statement of Work
specifying a Historic Level of Operational Losses exceeds four (4) times
the Historic Level in any Contract Year;


 


then
Wachovia may, by giving notice to Genpact, terminate the applicable Statement
of Work with respect to all or any part of the Services under such Statement of
Work as of a date specified in the notice of termination.  Genpact shall not be entitled to recover any
Stranded Costs or Termination Charge in connection with such a termination for
cause.  If Wachovia chooses to terminate
a Statement of Work in part, the Charges payable under this Agreement and/or
the applicable Statement of Work will be equitably adjusted in accordance with
the pricing methodology set forth in Schedule O
and such Statement of Work, to reflect such partial termination.


 


(b)           By Genpact.  If Wachovia (i) fails to pay Genpact
undisputed Charges under a Statement of Work, subject to Section 13.3,
after the due date and (ii) fails to cure such default within thirty
(30) days after notice from Genpact of such default (or such other cure period
set forth in the applicable Statement of Work), then Genpact may terminate such
Statement of Work upon notice to Wachovia upon the expiration of the thirty
(30) day cure period (or such other cure period set forth in the applicable
Statement of Work) if Wachovia has not cured such default.


 


25.3        Termination for Convenience.


 


Wachovia
may terminate this Agreement and all Statements of Work, or all or any portion
of the Services under one or more Statements of Work, for convenience and
without cause at any time and from time to time by giving Genpact at least one
hundred eighty (180) days’ prior notice (if at the time of the notice the
Genpact Personnel constitute less than 1,000 FTEs, as calculated below) or two
hundred seventy (270) days’ prior notice (if at the time of the notice the
Genpact Personnel constitute 1,000 or more FTEs, as calculated below)
designating the termination date.  If
Wachovia chooses to terminate any Statement of Work in part, the Charges
payable under the applicable Statement of Work will be equitably adjusted in
accordance with the pricing methodology set forth in Schedule O and such Statement of Work, to
reflect such partial termination.  Except
as set forth in the next sentence, if Wachovia terminates this Agreement and
all Statements of Work, or all or any portion of the Services under one or more
Statements of Work (including by insourcing or resourcing), under this Section 25.3, Wachovia shall
pay Genpact its Stranded Costs,
subject to the caps specified in Schedule I
and the terminated Statement(s) of Work, in connection with such a termination
for convenience, plus a Termination Charge equal to [[[***]]].  During any Contract Year, Wachovia may
terminate one or more Statements of Work representing up to:


 


(a)           [[[***]]];


 


(b)           [[[***]]]; or


 






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(c)           [[[***]]];


 


and,
in such event, Wachovia shall only be obligated to pay Genpact its Stranded Costs, in accordance with the
Stranded Cost calculation methodology set forth in Schedule I and subject to the cap
set forth in the terminated Statement(s) of Work, in connection with such
termination for convenience, but Genpact shall not be entitled to any
Termination Charge in respect of such termination(s).


 


25.4        Termination Upon Genpact Change of Control.


 


In
the event of a change in Control of Genpact or the Entity that Controls
Genpact, where such Control is acquired, directly or indirectly, in a single
transaction or series of related transactions, or if (a) all or
substantially all of the assets of Genpact are acquired by any entity or (b) Genpact
is merged with or into another entity to form a new entity, provided that such
merger results in a change of Control of Genpact or the Entity that Controls
Genpact, or in the event of a change in the executive management of Genpact or
the Entity that Controls Genpact, then at any time within six (6) months
after the date Genpact’s notice to Wachovia of Genpact’s intent to enter into
such a transaction, Wachovia may at its option terminate the Agreement by
giving Genpact at least six (6) months prior notice and designating a date
upon which such termination shall be effective. 
Notwithstanding the foregoing sentence, Wachovia shall not have any
termination right under this Section 25.4
in the event of a change in Control of the Entity that Controls Genpact as a
result of an initial public offering by such Entity or a successor to such
Entity or the introduction of another financial investor (such as a private
equity firm or other non-operating entity) in such Entity.  If Wachovia terminates this Agreement under
this Section 25.4, Wachovia shall
pay Genpact its Stranded Costs, in
accordance with the Stranded Cost calculation methodology set forth in Schedule I and subject to the cap
set forth in the terminated Statement(s) of Work, in connection with such a
termination for convenience, plus a Termination Charge equal to the product of
(x) twenty percent (20%) of the Contracted Work in respect of the
terminated Statement(s) of Work, multiplied by (y) .17.


 


25.5        Termination for Insolvency.


 


In
the event that either Party (a) files for bankruptcy, (b) becomes or
is declared insolvent, or is the subject of any bona fide proceedings related
to its liquidation, administration, provisional liquidation, insolvency or the
appointment of a receiver or similar officer for it, (c) passes a
resolution for its voluntary liquidation, (d) has a receiver appointed
over all or substantially all of its assets, (e) makes an assignment for
the benefit of all or substantially all of its creditors  or (f) experiences an event analogous
to any of the foregoing in any jurisdiction in which any material portion of
its assets are situated, then the other Party may terminate this Agreement as
of a date specified in a termination notice; provided, however, that Genpact
shall not have the right to exercise such termination under this Section 25.5 so long as
Wachovia pays for the Services to be received hereunder in advance on a
month-to-month basis.  If a Party elects
to terminate this Agreement due to the insolvency of the other Party, such
termination will be deemed to be a termination for cause hereunder and Genpact
shall not be entitled to recover any Stranded
Costs or Termination Charge in connection with such a termination for
the insolvency of Genpact.


 


25.6        Wachovia Rights Upon Genpact’s Bankruptcy.


 


(a)           General Rights.  In the event of Genpact’s bankruptcy or other
formal procedure referenced in Section 25.5
or of the filing of any involuntary petition against Genpact under bankruptcy
laws affecting the rights of Genpact which is not stayed or dismissed within
thirty (30) days after filing, in addition to the other rights and
remedies set forth herein, to the maximum extent permitted by Law, Wachovia
shall have the immediate right to retain and take possession for safekeeping of
all Wachovia Data, Wachovia Proprietary Information, Wachovia licensed Third
Party Software, Wachovia owned Equipment, Wachovia owned Materials, Wachovia
owned Developed Materials, and all other Software, Equipment, Systems or
Materials to which Wachovia and/or the Eligible Recipients are or would be
entitled during the Term or upon the expiration or termination of this 


 






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Agreement. 
Genpact shall cooperate with Wachovia and the Eligible Recipients and
assist Wachovia and the Eligible Recipients in identifying and taking
possession of the items listed in the preceding sentence.  Wachovia shall have the right to hold such
Wachovia Data, Proprietary Information, Software, Equipment, Systems and
Materials until such time as the trustee or receiver in bankruptcy or other
appropriate insolvency office holder can provide adequate assurances and
evidence to Wachovia that they will be protected from sale, release,
inspection, publication, or inclusion in any publicly accessible record,
document, material or filing.  Genpact
and Wachovia agree that without this material provision, Wachovia would not
have entered into this Agreement or provided any right to the possession or use
of Wachovia Data, Wachovia Proprietary Information, or Wachovia Software
covered by this Agreement.


 


(b)           Wachovia Rights in Event of Bankruptcy Rejection. 
Notwithstanding any other provision of this Agreement to the contrary,
in the event that Genpact becomes a debtor under the United States Bankruptcy
Code (11 U.S.C. §101 et. seq. or any similar Law in any other country (the “Bankruptcy Code”)) and rejects this Agreement pursuant to Section 365
of the Bankruptcy Code (a “Bankruptcy Rejection”)
or other similar provision, (i) any and all of the licensee and sublicense
rights of Wachovia and the Eligible Recipients arising under or otherwise set
forth in this Agreement, including without limitation the rights of Wachovia
and/or the Eligible Recipients referred to in Section 26.2,
shall be deemed fully retained by and vested in Wachovia and/or the Eligible
Recipients as protected intellectual property rights under Section 365(n)(1)(B) of
the Bankruptcy Code and further shall be deemed to exist immediately before the
commencement of the bankruptcy case in which Genpact is the debtor; (ii) Wachovia
shall have all of the rights afforded to non-debtor licensees and sublicenses
under Section 365(n) of the Bankruptcy Code; and (iii) to the
extent any rights of Wachovia and/or the Eligible Recipients under this
Agreement which arise after the termination or expiration of this Agreement are
determined by a bankruptcy court not to be “intellectual property rights” for
purposes of Section 365(n), all of such rights shall remain vested in and
fully retained by Wachovia and/or the Eligible Recipients according to its
terms after any Bankruptcy Rejection as though this Agreement were terminated
or expired according to its terms.  To
the extent that Section 365(n) of the Bankruptcy Code is applicable,
Wachovia shall under no circumstances be required to terminate this Agreement
after a Bankruptcy Rejection in order to enjoy or acquire any of its rights
under this Agreement, including without limitation any of the rights of
Wachovia referred to in Section 26.2.


 


25.7        Termination for Genpact Degraded Financial
Condition.


 


If
Genpact or other obligor is notified in writing by its bank group of a default
under one or more of the covenants of its senior loan agreement, then Genpact
shall promptly notify Wachovia.  If
Wachovia determines in its sole discretion that, as a consequence of Genpact’s
financial condition and prospects and in light of the nature and extent of any
changes in the terms and conditions that would be necessary in order to enable
Genpact to continue to perform the Services in accordance with the Service
Levels and other provisions of this Agreement, continuation of this Agreement
may have an adverse impact on Wachovia’s business or in-scope business
processes, Wachovia may terminate this Agreement by giving Genpact at least
sixty (60) days’ prior notice of such termination.  If Wachovia terminates this Agreement under
this Section 25.7, Wachovia shall
pay Genpact its Stranded Costs, in
accordance with the Stranded Cost calculation methodology set forth in Schedule I and subject to the cap
set forth in the terminated Statement(s) of Work, in connection with such a
termination for convenience, but Genpact shall not be entitled to any
Termination Charge in respect of such a termination.


 


25.8        Termination by Wachovia by Based on Regulatory
Action.


 


This
Agreement and all Statements of Work, or any applicable portions of the
Services under one or more Statements of Work, may be terminated (a) by a
Governmental Entity with jurisdiction over Wachovia or an Eligible Recipient or
(b) by Wachovia at the direction of a Governmental Entity having jurisdiction
over 


 






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Wachovia
or an Eligible Recipient, by giving Genpact thirty (30) days’ prior notice
of such termination.  If legally
permissible, Wachovia shall give Genpact prompt notice of any inquiry or
objection raised by such Governmental Entity and shall use commercially
reasonable efforts to allow Genpact to participate in any discussions with such
Governmental Entity regarding such inquiry or objection.  If Wachovia terminates under this Section 25.8, this Agreement
and all Statements of Work, or all or any portion of the Services under one or
more Statements of Work,  Wachovia shall
pay Genpact its Stranded Costs, in
accordance with the Stranded Cost calculation methodology set forth in Schedule I and subject to the cap
set forth in the terminated Statement(s) of Work, in connection with such a
termination for convenience, plus a Termination Charge equal to [[[***]]].


 


26.          TERMINATION ASSISTANCE
SERVICES AND EXIT RIGHTS


 


26.1        Termination Assistance Services.


 


(a)           Availability.  As part of the Services, and for the Charges
set forth in Section 26.1(d), Schedule O and the applicable
Statement(s) of Work, as applicable, Genpact shall provide to Wachovia, the
Eligible Recipients and/or Wachovia Third Party Contractors the Termination
Assistance Services described in Section 26.1(b).


 


(i)            Period of Provision.  Genpact shall provide such Termination
Assistance Services to Wachovia, any Eligible Recipient and/or Wachovia Third
Party Contractors (A) commencing upon notice from Wachovia up to six (6) months
prior to the expiration of any Statement of Work or on such earlier date as
Wachovia may reasonably request and continuing for up to twelve
(12) months following the effective date of the expiration of the
Statement of Work, (B) commencing upon any notice of termination (including
notice based upon breach or default by Wachovia, breach or default by Genpact
or termination for convenience by Wachovia) with respect to all or any part of
the Services under the applicable Statement of Work, and continuing for up to
twelve (12) months following the effective date of such termination of all
or part of the Services under the applicable Statement of Work, or (C) commencing
upon notice of termination of all or part of the Services under one or more
Statements of Work to an Eligible Recipient no longer Controlled by Wachovia
and continuing for up to twelve (12) months following the effective date
of such termination.


 


(ii)           Extension of Services. 
Wachovia may elect once during any Termination Assistance Period, upon
thirty (30) days’ prior notice, to extend the period following the
effective date of any expiration or termination for the performance of
Termination Assistance Services, provided that the period between the effective
date and the completion of all Termination Assistance Services is not greater
than eighteen (18) months following the effective date of the expiration
of the applicable Statement of Work.


 


(iii)          Firm Commitment. 
Genpact shall provide Termination Assistance Services to Wachovia, any
Eligible Recipient or Wachovia Third Party Contractors regardless of the reason
for the expiration or termination of this Agreement or any Statement of Work;
provided, if this Agreement and all Statements of Work are terminated by
Genpact under Section 25.1(b)(ii) or
a Statement of Work is terminated by Genpact under Section 25.2(b) for Wachovia’s
failure to pay undisputed amounts, Genpact may require Wachovia to pay in
advance for Termination Assistance Services provided or performed under this Section 26.1.


 


(iv)          Performance.  To the
extent Wachovia requests Termination Assistance Services, such Services shall
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this Agreement. 
Genpact shall perform the Termination Assistance Services with at least
the same degree of accuracy, quality, completeness, timeliness, responsiveness
and resource efficiency as it provided and was required to provide the same or
similar Services during the applicable SOW Term.  Except as set forth in the last sentence of
this Section 26.1(a)(iv) or
in Section 26.1(c),
the quality and level of performance of the Services provided by Genpact
following the expiration or termination as to all or part of the Services or
Genpact’s receipt of a notice of termination or non-renewal shall continue to
meet the Service Levels and not be degraded or deficient in any respect and
Service Level Credits shall be assessed for any failure to meet Service Levels
during the period Termination Assistance Services are provided.  In case of a termination for failure to meet
Services Levels, then during the Termination Assistance Period (A) the
related Expected Service Levels shall not apply, (B) Genpact shall meet
the related Minimum Service Levels except as set forth in Section 26.1(c) and (C) no
Service Level Credits shall be assessed for any failure to meet the related
Services Levels.


 


(b)           Scope of Termination Assistance Services.  As
part of the Termination Assistance Services for each Statement of Work, Genpact
shall timely transfer the control and responsibility for all business process
and related functions and Services previously performed by or for Genpact to
Wachovia under such Statement of Work, the Eligible Recipients and/or Wachovia
Third Party Contractors.  Additionally,
Genpact shall provide any and all reasonable assistance requested by Wachovia
to allow:


 


(i)            the Systems and processes associated with the
Services to operate efficiently;


 


(ii)           the Services to continue without unnecessary
interruption or adverse effect; and


 


(iii)          the orderly transfer of the Services to
Wachovia, the Eligible Recipients and/or Wachovia Third Party Contractors.


 


In
addition to any specific Termination Assistance Services set forth in a
Statement of Work, in connection with such termination or expiration, Genpact
shall, at Wachovia’s request and direction:


 


(iv)          assist Wachovia or an Eligible Recipient in
developing a written transition plan for the transition of the Services to
Wachovia, such Eligible Recipient, and/or Wachovia Third Party Contractors,
which plan shall include capacity planning, business process planning,
facilities planning, human resources planning, technology planning,
telecommunications planning and other planning necessary to effect the
transition;


 


(v)           perform project and consulting services as requested to assist in
implementing the transition plan;


 


(vi)          provide knowledge transfer to personnel
designated by Wachovia, an Eligible Recipient and/or Wachovia Third Party
Contractors regarding the Services, including the use of any business processes
or associated Equipment, Software, Systems, Materials or tools used in
connection with the provision of the Services;


 


(vii)         provide sufficient information regarding
applicable Software, Wachovia Data, Equipment, Materials, Third Party Contracts
and tools used to provide the Services to permit the transition of such
Services to Wachovia, an Eligible Recipient and/or Wachovia Third Party
Contractors;


 






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(viii)        provide machine readable and printed listings
and associated documentation for Source Code for Software owned by Wachovia and
Source Code to which Wachovia is entitled under this Agreement or a Statement
of Work and assist in its re-configuration;


 


(ix)           provide technical documentation for Software
used by Genpact to provide the Services;


 


(x)            analyze and report on the space required for the
Wachovia Data and the Software needed to provide the Services;


 


(xi)           assist in the execution of a parallel
operation, data migration and testing process until the successful completion
of the transition to Wachovia, an Eligible Recipient and/or Wachovia Third
Party Contractors;


 


(xii)          create and provide copies of the Wachovia Data
in the format and on the media reasonably requested by Wachovia;


 


(xiii)         provide the latest version, in electronic copy,
of each Policy and Procedures Manual in the format and on the media reasonably
requested by Wachovia; and


 


(xiv)        provide other technical assistance as requested
by Wachovia, an Eligible Recipient and/or Wachovia Third Party Contractors.


 


(c)           Extension of Services. 
Wachovia may, upon sixty (60) days prior notice to Genpact, extend the
period for the provision of Termination Assistance Services under a Statement
of Work for up to six (6) additional months.  If Wachovia elects to do so, Genpact shall be
entitled to a premium over the rates and charges specified in Schedule O equal to ten percent
(10%) and if and to the extent that Genpact is unable to meet or exceed the
Service Levels under Section 26.1(a)(iv) Genpact
shall be excused from its obligation to do so during such extension.


 


(d)           Rates and Charges.  During any Termination Assistance Period, to
the extent that Genpact is continuing to provide the Services under the
applicable Statement of Work, Wachovia shall pay the Charges in accordance with
such Statement of Work.  Wachovia shall
pay Genpact the rates and charges specified in Schedule O and such Statement of Work in respect of
any Termination Assistance Services.  To
the extent rates and charges for such Genpact Personnel or resources are not
specified in Schedule O,
Wachovia shall pay Genpact the rates agreed upon by the Parties, provided that
the rates proposed by Genpact shall not exceed Genpact’s actual costs plus ten
percent (10%).  Notwithstanding the
foregoing, in the event of a termination by Wachovia pursuant to Section 25.1(a) or 25.2(a), Termination Assistance
Services shall be provided by Genpact at its cost except in respect of such a
termination pursuant to Section 25.1(a)(i)(C) or
Section 25.2(a)(vii).


 


(e)           Proprietary Communications Network.  If Genpact uses a proprietary
communications network to provide any of the Services to Wachovia or the
Eligible Recipients, then for a period of no more than eighteen (18) months
following the expiration or termination of this Agreement or any applicable
Statement of Work or the completion of any Termination Assistance Services,
Wachovia may request that Genpact continue to provide such proprietary
communications network and other network services at reasonable commercial
rates, and subject to other reasonable terms and conditions.


 


(f)            Requests for Proposal. 
Genpact shall provide (i) Wachovia with information related to the
Services that Wachovia reasonably requests to enable Wachovia to draft requests
for proposal relating to the Services, and (ii) at Wachovia’s request, due
diligence information to recipients of 


 






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such requests for proposal.  Genpact may or may not be a recipient of any
such requests for proposal.


 


(g)           Ramp-Down Plan.  Upon notice to Genpact of a termination of
the Agreement other than a termination for cause, Wachovia and Genpact shall
work together to create a mutually agreeable ramp-down plan governing Genpact’s
provision of the Termination Assistance Services.


 


26.2        Exit Rights.


 


(a)           Wachovia Facilities, Equipment and Software.  Upon
Wachovia’s request pursuant to Section 26.1,
and as of the expiration or termination date or the completion of any
Termination Assistance Services, Genpact shall vacate the Wachovia Facilities
and return to Wachovia, if not previously returned, all Wachovia owned
Equipment (including the Wachovia Provided Equipment), Wachovia leased
Equipment, Wachovia Owned Materials (including Software) and Wachovia
licensed Materials (including Software), in condition at least as good as the
condition thereof on the date Genpact first began using the same, ordinary wear
and tear excepted.


 


(b)           Wachovia Owned Materials.  With respect to Wachovia Owned
Materials, Genpact shall, at no cost to Wachovia:


 


(i)            deliver to Wachovia all Wachovia Owned
Materials and all copies thereof in the format and medium in use by Genpact in
connection with the Services under the applicable Statement of Work as of the
date of such expiration or termination of such Statement of Work; and


 


(ii)           following confirmation by Wachovia that the
copies of the Wachovia Owned Materials delivered by Genpact are acceptable and
the completion by Genpact of any Termination Assistance Services for which such
Materials are required, destroy or securely erase all other copies of such
Materials then in Genpact’s possession and cease using such Materials and any
information contained therein for any purpose; provided, however, that Genpact
may retain one copy of the Wachovia Owned Materials for the sole purpose of
defending itself or its Affiliates in any legal proceedings that may be brought
against Genpact or its Affiliates.


 


(c)           Genpact Owned Materials.  With respect to those Materials
owned by Genpact, Genpact Affiliates or Subcontractors and used by them to
provide the Services (and any modifications, enhancements, Upgrades,
methodologies, tools, documentation, materials and media related thereto used
to provide the Services):


 


(i)            Genpact hereby grants to Wachovia and its
successors and Permitted Assigns a worldwide, perpetual, irrevocable,
non-exclusive, fully paid-up, royalty-free license, with the right to grant
sublicenses, to use, execute, reproduce, display, perform, distribute, modify,
enhance and create Derivative Works and to permit a third party to use,
execute, reproduce, display, perform, distribute, modify, enhance and create
Derivative Works of such Genpact Owned Materials (including all modifications,
replacements, Upgrades, enhancements, methodologies, tools, documentation,
materials and media related thereto related thereto) solely (A) to the
extent such Genpact Owned Materials or Derivative Works of such Genpact Owned
Materials remain embedded or incorporated in the Developed Materials and are
not separately commercially exploited by Wachovia, Wachovia Affiliates and the
Eligible Recipients and (B) for the benefit or use of Wachovia, Wachovia
Affiliates and the Eligible Recipients to which Wachovia has granted
sublicenses to such Genpact Owned Materials upon the expiration or termination of the Term and each SOW Term;


 






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(ii)           Genpact shall deliver to Wachovia (A) a
copy of such Genpact Owned Materials and related documentation, (B) the
Source Code and Object Code for such Genpact Owned Materials to the extent such
code is reasonably necessary to permit them to use such Genpact Owned
Materials, (C) the Source Code and Object Code for such Genpact Owned
Materials that are not commercial off-the-shelf products, and (D) the
Source Code and Object Code for such Genpact Owned Materials that are
commercial off-the-shelf products if Genpact does not offer or provide
Upgrades, maintenance, support and other services for such Materials as provided
in Section 26.2(c)(iii); and


 


(iii)          Genpact shall offer to provide to Wachovia, and
to the Eligible Recipients to which Wachovia has granted sublicenses to such
Genpact Owned Materials identified by Wachovia from time to time, Upgrades,
maintenance, support and other services for such Genpact Owned Materials that
are commercial off-the-shelf products on Genpact’s then-current standard terms
and conditions for such services.


 


Unless
Wachovia has otherwise agreed in advance, Wachovia and the Eligible Recipients
to which Wachovia has granted sublicenses shall not be obligated to pay any
license or transfer fees to Genpact in connection with its receipt of the
licenses, sublicenses and other rights specified in this Section 26.2(c).  Genpact shall not use any Genpact Owned
Materials for which it is unable to offer such license or other rights without
Wachovia’s prior approval (and absent such approval, Genpact’s use of any such
Genpact Owned Materials shall obligate Genpact to provide, at no additional
cost to Wachovia, such license, sublicense and other rights described in this Section 26.2(c)).


 


(d)           Genpact Third Party Materials.  With respect to Third Party
Materials licensed by Genpact or Genpact Affiliates or Subcontractors or owned
by Subcontractors and used by them to provide the Services, but only to the
extent such Third Party Materials remain embedded or incorporated in the
Developed Materials and are not separately commercially exploited by Wachovia,
Wachovia Affiliates and the Eligible Recipients, Genpact hereby grants to
Wachovia and its successors and assigns a sublicense, with the right to grant
further sublicenses, offering the same rights and warranties with respect to
such Third Party Materials available to Genpact (or Genpact Affiliates or Subcontractors),
on the same terms and conditions, for the benefit and use of Wachovia, Wachovia
Affiliates and the Eligible Recipients upon the expiration or termination of
this Agreement and each Statement of Work with respect to the Services for
which such Third Party Materials were used under this Agreement as a whole or
the applicable Statement of Work; provided that, during the Termination
Assistance Period, Genpact may, with Wachovia’s approval, substitute one of the
following for such sublicense:


 


(i)            the assignment to Wachovia of the underlying
license for such Third Party Materials;


 


(ii)           the procurement for Wachovia of a new license
(with terms at least as favorable as those in the license held by Genpact or
its Affiliates or Subcontractors and with the right to grant sublicenses) to
such Third Party Materials for the benefit or use of Wachovia, Wachovia
Affiliates and the Eligible Recipients; or


 


(iii)          the procurement for Wachovia of a substitute
license for Third Party Materials sufficient to perform, without additional
cost, support or resources and at the levels of performance and efficiency
required by this Agreement, the functions of the Third Party Materials
necessary to enable Wachovia to provide the Services after the expiration or
termination of the Term or the applicable SOW Term.


 


In
addition, Genpact shall deliver to Wachovia a copy of such Third Party
Materials (including Source Code, to the extent it has been available to
Genpact) and related documentation and shall 


 






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cause
maintenance, support and other services to continue to be available to Wachovia
and the Eligible Recipients to which Wachovia has granted sublicenses to such
Third Party Materials identified by Wachovia from time to time to the extent it
has been available to Genpact.  Unless
Wachovia has otherwise agreed in advance, Wachovia and the Eligible Recipients
to which Wachovia has granted sublicenses shall not be obligated to any
one-time license or transfer fees in connection with its receipt of the
licenses, sublicenses and other rights specified in this Section 26.2(d).  Genpact shall not use any Third Party
Materials for which it is unable to offer such license, sublicense or other
rights without Wachovia’s prior approval (and absent such approval, Genpact’s
use of any such Third Party Materials shall obligate Genpact to provide, at no
additional cost to Wachovia, such licenses, sublicenses and other rights).  Wachovia, however, shall be obligated to make
monthly or annual payments attributable to periods after the expiration or
termination of this Agreement or the applicable Statement of Work with respect
to the Services for which such Third Party Materials were used under this
Agreement as a whole or the applicable Statement of Work, respectively, for the
right to use and receive maintenance or support related thereto, but only to
the extent Genpact would have been obligated to make such payments if it had
continued to hold the licenses in question or Wachovia has agreed in advance to
make such payments.


 


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


 


(e)           Hiring.


 


(i)            Upon the expiration, or termination pursuant to
Section 25.1(a), 25.2(a), 25.7 or 25.8 of
this Agreement or any Statement of Work, Wachovia and Wachovia Affiliates shall
be permitted to undertake, without interference from Genpact or Genpact
Affiliates (including counter-offers), to hire, effective after the later of
the expiration or termination of the applicable Statement of Work under or
completion of any Termination Assistance Services by Wachovia for such
Statement of Work, any employees of Genpact and Genpact Affiliates primarily
assigned to the performance of Services as of the expiration date  or the date of notice of such a termination.  Genpact and Genpact Affiliates shall waive
their rights, if any, under contracts with such personnel restricting the
ability of such personnel to be recruited or hired by Wachovia or a Wachovia
Affiliate.  Genpact shall in the event of
(A) a termination pursuant to Section 25.1(a), 25.2(a), 25.7 or 25.8,
(1) give Wachovia and the Wachovia Affiliates reasonable access to such employees
of Genpact and Genpact Affiliates for interviews, evaluations and recruitment
and (2) provide Wachovia and the Wachovia Affiliates with reasonable
assistance in their efforts to hire such employees of Genpact and Genpact
Affiliates, and (B) the expiration or termination of this Agreement or any
Statement of Work, not impede the efforts of Wachovia and the Wachovia
Affiliates by implementing any form of new incentives designed to dissuade such
employees from accepting an offer from Wachovia or any Wachovia Affiliate.  Wachovia and Wachovia Affiliates shall
endeavor to conduct the above-described hiring activity in a manner that is not
unnecessarily disruptive of the performance by Genpact of its obligations under
this Agreement.


 






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(ii)           Promptly upon sending or receiving a notice of
termination pursuant to Section 25.1(a),
25.2(a), 25.7 or 25.8
of the applicable Statement of Work, Genpact shall provide to Wachovia a list,
organized by location, of the employees of Genpact and Genpact Affiliates who
are eligible for solicitation for employment pursuant to this Section 26.2(e).  Subject to applicable Privacy Laws, such list
shall specify the job title and annual rate of pay of such employee of Genpact
and Genpact Affiliates.


 


(f)            Carve-Out Option.


 


(i)            Facilities.  Upon termination of this Agreement or any
Statement of Work pursuant to Section 25.1(a),
25.2(a) or 25.8, Wachovia or a Wachovia
Affiliates shall have the right (but not the obligation), upon reasonable
notice to Genpact, to purchase, or assume the lease for, any Genpact Facility owned or leased
by Genpact that is primarily used by Genpact
or Genpact Affiliates to perform the Services; provided, however, that
if the sale of any such Genpact Facility owned by Genpact would impair or
prevent Genpact from continuing to take advantage of favorable tax treatment or
government sponsored corporate subsidies of which Genpact is taking advantage
as of the date of such notice, then Genpact shall lease such Genpact Facility
to Wachovia or a Wachovia Affiliate on mutually agreeable terms, which shall no
be less favorable to Wachovia than prevailing market terms.  Each such Genpact Facility shall be transferred in good condition,
reasonable wear and tear excepted, as of the expiration or termination date or
the completion of any Services requiring such Genpact Facility requested by
Wachovia, whichever is later.  Genpact
shall, at no additional charge to Wachovia, maintain such Genpact Facility
through the date of transfer.  In the
case of such a Genpact Facility owned by Genpact, and to the extent customary
in the particular jurisdiction in which the Genpact Facility is located, Genpact shall grant to Wachovia or
the Wachovia Affiliate a warranty of title and a warranty that such Genpact
Facility is free and clear of all liens and encumbrances.  Such conveyance by Genpact to Wachovia or a
Wachovia Affiliate shall be at
replacement cost calculated in accordance with generally accepted
accounting principles.  Wachovia shall
pay Transfer Taxes on such transaction; provided that Genpact shall pay such
Transfer Taxes in the event of an undisputed termination pursuant to Section 25.1(a) or 25.2(a) or reimburse Wachovia for
such Transfer Taxes within thirty (30) days after the resolution of a disputed
termination pursuant to Section 25.1(a) or
25.2(a).  At
Wachovia’s request, the Parties shall negotiate in good faith and agree upon
the form and structure of the purchase. 
In the case of such Genpact Facilities that are leased by Genpact,
Genpact shall (A) represent and warrant that the lease is not in default, (B) represent
and warrant that all undisputed payments thereunder have been made through the
date of transfer, and (C notify Wachovia of any material lessor defaults
of which it is aware at the time.


 


(ii)           Equipment.  Upon
the termination pursuant to Section 25.1(a) or
25.8 of this Agreement or
any Statement of Work, Wachovia or a Wachovia Affiliate shall have the right
(but not the obligation) to purchase, or assume the lease for, any
Equipment owned or leased by Genpact that is primarily used by Genpact or
Genpact Affiliates to perform the Services. 
Such Equipment shall be transferred in good working condition,
reasonable wear and tear excepted, as of the expiration or termination date or
the completion of any Services requiring such Equipment requested by Wachovia,
whichever is later. Genpact shall, at no additional charge to Wachovia,
maintain such Equipment through the date of transfer so as to be eligible for
the applicable manufacturer’s maintenance program.  In the case of Genpact owned Equipment,
Genpact shall grant to Wachovia or such Wachovia Affiliate a warranty of title
and a warranty that such Equipment is free and clear of all liens and
encumbrances.  Such conveyance by Genpact
to Wachovia or a Wachovia Affiliate shall be at replacement cost calculated in
accordance with generally accepted 


 






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accounting principles.  Wachovia shall pay Transfer Taxes on such
transaction; provided that Genpact shall pay such Transfer Taxes in the event
of an undisputed termination pursuant to Section 25.1(a) or
25.2(a) or reimburse
Wachovia for such Transfer Taxes within thirty (30) days after the resolution
of a disputed termination pursuant to Section 25.1(a) or
25.2(a).  At
Wachovia’s request, the Parties shall negotiate in good faith and agree upon
the form and structure of the purchase. 
In the case of Genpact leased Equipment, Genpact shall (A) represent
and warrant that the lease is not in default, (B) represent and warrant
that all undisputed payments thereunder have been made through the date of
transfer, and (C) notify Wachovia of any material lessor defaults of which
it is aware at the time.


 


(iii)          Genpact Subcontracts and Third
Party Contracts.  Genpact shall inform Wachovia of subcontracts
or Third Party Contracts primarily used by Genpact, Genpact Subcontractors or
Genpact Affiliates to perform the Services. 
Genpact shall, at Wachovia’s request, cause any such Subcontractors,
Genpact Affiliates, or third party contractors to permit Wachovia or a Wachovia
Affiliate to assume prospectively any or all such contracts or to enter into
new contracts with Wachovia or a Wachovia Affiliate on substantially the same
or more favorable terms and conditions, including price.  Genpact shall so assign the designated
subcontracts and Third Party Contracts to Wachovia or such Wachovia Affiliate
as of the expiration or termination date or the completion of any Termination
Assistance Services requiring such subcontracts or Third Party Contracts
requested by Wachovia under Section 26.1,
whichever is later.  Unless otherwise
agreed by Wachovia, there shall be no charge or fee imposed on Wachovia or a
Wachovia Affiliate by Genpact or its Subcontractors, Affiliates or third party
contractors for such assignment.  Genpact
shall (A) represent and warrant that, it is not in default under such
subcontracts and Third Party Contracts, (B) represent and warrant that all
undisputed payments thereunder through the date of assignment are current, and (C) notify
Wachovia of any material Subcontractor or third party contractors defaults with
respect to such subcontracts and Third Party Contracts of which it is aware at
the time.


 


(iv)          Multi-Client Subcontracts and
Third Party Contracts.  In addition to its obligations under Section 26.2(d)(iii), Genpact
shall use commercially reasonable efforts to make available to Wachovia, on
behalf of Wachovia and the Eligible Recipients and pursuant to reasonable terms
and conditions, any Subcontractor or third party services then being utilized
by Genpact in the performance of the Services. 
Genpact shall retain the right to utilize any such Subcontractor or
third party services in connection with the performance of services for any
other Genpact customer.  Wachovia and the
Eligible Recipients shall retain the right to contract directly with any
Subcontractor or third party previously utilized by Genpact to perform any
Services or to assume Genpact’s contract with such Subcontractor or third party
to the extent provided in Section 26.2(d)(iii).


 


(g)           Identification of
Sublicensees.  Prior to the end of the applicable
Termination Assistance Period, Wachovia shall notify Genpact of those Wachovia
Affiliates and other Eligible Recipients to which Wachovia has or will grant
sublicenses under Section 26.2(c)(i) or
(d) as of the end of
such Termination Assistance Period. 
Thereafter, Wachovia shall notify Genpact of other Wachovia Affiliates
or Eligible Recipients to which Wachovia grants sublicenses under Section 26.2(c)(i) or (d).


 


26.3        Stranded Costs.


 


Subject
to the description and the cap specified in the applicable Statement(s) of
Work, “Stranded Costs” shall be
calculated in accordance with Schedule I.


 






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27.          GENERAL


 


27.1        Binding Nature and Assignment.


 


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


 


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


 


(i)            Wachovia may assign its rights or obligations
under this Agreement, without the approval of Genpact, to an Affiliate which
expressly assumes Wachovia’s obligations and responsibilities hereunder,
provided Wachovia remains fully liable for and is not relieved from the full
performance of its obligations under this Agreement; and


 


(ii)           Either Party may assign its rights and
obligations under this Agreement, without the approval of the other Party, to
an Entity acquiring, directly or indirectly, Control of the assigning Party, an
Entity into which the assigning Party is merged, or an Entity acquiring all or
substantially all of the assigning Party’s assets, provided the acquirer or
surviving Entity agrees to be bound by the terms and conditions of this
Agreement.


 


(c)           Impermissible Assignment.  Any attempted assignment that does
not comply with the terms of this Section 27.1
shall be null and void.


 


27.2        Entire Agreement; Amendment.


 


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


 


27.3        Notices.


 


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


 


(i)            Section 4.6(a) (Use of Third Parties – Right of Use);


 


(ii)           Section 4.7 (Notice of Adverse Impact);


 


(iii)          Section 6.11 (Notice of Defaults);


 


(iv)          Section 10.2 (Force Majeure);


 


(v)           Section 12.4
(Extraordinary Events);


 


(vi)          Section 15.4(d) (Loss of Proprietary Information);


 






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(vii)         Section 21.4 (Indemnification Procedures);


 


(viii)        Section 21.5 (Indemnification Procedures – Government
Claims);


 


(ix)           Section 24.1 (Informal Dispute Resolution);


 


(x)            Article 25
(Termination);


 


(xi)           Article 26 (Termination Assistance Services and Exit
Rights); and


 


(xii)          Section 27.1 (Binding Nature and Assignment)


 


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


 


In the case of Wachovia:


 


Macro*World Research Corporation

201 S. College Street

Charlotte, North Carolina 28244-1116

Attention: Strategic Sourcing Group


 


with a copy to:


 


Wachovia Corporation

One Wachovia Center

301 South College Street

Charlotte, NC  28288-0013

Attention: General Counsel


 


and


 


In the case of Genpact:


 


Genpact International

65, Boulevard Grande Duchesse Charlotte

L-1331 Luxembourg

Attention: Board of Managers


 


with a copy to:


 


Genpact International

DFL City – Phase V

Sector 53, Gurgaon – 122002

Haryana State, India

Attention:  General Counsel


 


(b)           Other Notices.  All notices, notifications, requests, demands
or determinations required or provided pursuant to this Agreement, other than
those specified in Section 27.3(a),
may be sent in hard copy in the manner specified in Section 27.3(a),
or by e-mail transmission (where receipt is 


 






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acknowledged by the recipient) or
facsimile transmission (with acknowledgment of receipt from the recipient’s
facsimile machine) to the addresses set forth below:


 


In the case of Wachovia:


 


Macro*World Research Corporation

201 S. College Street

Charlotte, North Carolina 28244-1116

Attention: Strategic Sourcing Group

Facsimile No:  (704) 383-6293


 


with a copy to:


 


Wachovia Corporation

One Wachovia Center

301 South College Street

Charlotte, NC  28288-0013

Attention: General Counsel

Facsimile No.:  (704) 383-6293


 


and


 


In the case of Genpact:


 


Genpact International

65, Boulevard Grande Duchesse Charlotte

L-1331 Luxembourg

Attention: Board of Managers

Facsimile No:  +35 2 26 383 509


 


with a copy to:


 


Genpact International

DFL City – Phase V

Sector 53, Gurgaon – 122002

Haryana State, India

Attention:  General Counsel

Facsimile No:  +91 124 502 2205


 


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


 


27.4        Counterparts.


 


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


 


27.5        Headings.


 


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


 






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27.6        Relationship of Parties.


 


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


 


27.7        Severability.


 


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


 


27.8        Consents, Approvals and Requests.


 


Except
where expressly provided as being in the sole discretion of a Party, where
agreement, approval, acceptance, consent, confirmation, notice or similar
action by either Party is required under this Agreement, such action shall not
be unreasonably delayed or withheld.  An
approval or consent given by a Party under this Agreement shall not relieve the
other Party from responsibility for complying with the requirements of this
Agreement, nor shall it be construed as a waiver of any rights under this
Agreement, except as and to the extent otherwise expressly provided in such
approval or consent.  Each Party shall
make only reasonable requests under this Agreement, except to the extent that a
request by Wachovia is being made at the request of a Governmental Entity
having jurisdiction over Wachovia.


 


27.9        Waiver of Default; Cumulative Remedies.


 


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


 


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


 


27.10      Survival.


 


The
terms of Section 2, Section 3.4, Section 7.2,  Section 8.8(b), Article 12,
Article 13 (to the
extent that Charges are unpaid), Article 14,
Article 15, Article 16,
Section 18.3, Section 18.4,
Section 18.5, Section 18.6, Section 18.10, Section 18.11,
Article 20, Article 21,
Article 22, Section 23.6, Section 23.7, Section 23.9(a), Article 24, Article 25, Article 26, Section 27.1, Section 27.2, Section 27.3, Section 27.5, Section 27.7, Section 27.9, this Section 27.10, Section 27.11, Section 27.12, Section 27.13, Section 27.14, Section 27.15, Section 27.16, Section 27.17, Section 27.18, Section 27.20 and Section 27.21 and the 


 






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guarantee
by Wachovia Corporation on the signature page hereof shall survive the
expiration or termination of this Agreement.


 


27.11      Publicity.


 


Neither
Party shall use the other Party’s name or mark or refer to the other Party
directly or indirectly in any media release, public announcement, or public
disclosure relating to this Agreement, including in any promotional or
marketing materials, customer lists or business presentations without the prior
consent of the other Party prior to each such use or release. Genpact shall not
make any public statements about this Agreement, the Services or its
relationship with Wachovia and/or the Eligible Recipients without Wachovia’s
prior approval.


 


27.12      Service
Marks.


 


Each
Party agrees that it shall not, without the other Party’s prior consent, use
any of the names, service marks or trademarks of that Party in any of its
advertising or marketing materials.


 


27.13      Export.


 


The
Parties acknowledge that certain Software and technical data to be provided
hereunder and certain transactions hereunder may be subject to export controls
under the laws and regulations of the United States, the European Union, the
United Nations and other jurisdictions. 
No Party shall export or re-export any such items or any direct product
thereof or undertake any transaction or service in violation of any such laws
or regulations.  To the extent within
Genpact’s control, Genpact shall be responsible for, and shall coordinate and
oversee, compliance with such export laws in respect of such items exported or
imported hereunder.


 


27.14      Third Party
Beneficiaries.


 


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


 


27.15      Covenant
Against Pledging.


 


Genpact
agrees that, without the prior consent of Wachovia, it shall not include this
Agreement or future revenues under this Agreement as part of any financial
securitization.  To the extent Wachovia
permits Genpact to do so, Genpact shall continue to be Wachovia’s sole point of
contact with respect to this Agreement, including with respect to payment.  Any person or Entity that is a party to such
financial securitization shall not be considered a third party beneficiary
under this Agreement and shall not have any rights or causes of action against
Wachovia.


 


27.16      Order of
Precedence.


 


In
the event of a conflict between the terms in the body of this Agreement and any
of the Schedules and Exhibits or Statements of Work (or any documents referred
to therein), then the terms in the body of this Agreement shall prevail, unless
the Statement of Work expressly states that a provision is intended to
supersede a term of this Agreement.


 






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27.17      Hiring of
Employees.


 


(a)           Solicitation and Hiring.  Except as expressly set forth
herein, during the Term and for a period of [[[***]]] thereafter, Genpact will
not solicit for employment directly or indirectly, nor employ, any employees of
Wachovia or an Eligible Recipient or individual Wachovia Third Party
Contractors without the prior approval of Wachovia.  Except as expressly set forth herein in
connection with the expiration or termination of this Agreement, during the
Term and for a period of [[[***]]], Wachovia will not solicit for employment
directly or indirectly, nor employ, any employee of Genpact involved in the
performance of Genpact’s obligations under this Agreement without the prior
consent of Genpact.  This provision shall
not operate or be construed to prevent or limit any employee’s right to
practice his or her profession or to utilize his or her skills for another
employer or to restrict any employee’s freedom of movement or association.


 


(b)           Publications.  Neither the publication of classified
advertisements in newspapers, periodicals, Internet bulletin boards, or other
publications of general availability or circulation nor the consideration and
hiring of persons responding to such advertisements shall be deemed a breach of
this Section 27.17,
unless the advertisement and solicitation is undertaken as a means to
fraudulently circumvent or conceal a violation of this provision and/or the
hiring party acts with knowledge of this hiring prohibition.


 


27.18      Further
Assurances.


 


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


 


27.19      Liens.


 


Genpact
shall not file, or by its action or inaction permit, any liens to be filed on
or against property or realty of Wachovia or any Eligible Recipient of which
Genpact has actual knowledge.  In the event that any such liens arise as a
result of Genpact’s action or inaction, Genpact will obtain a bond to fully
satisfy such liens or otherwise remove such liens at its sole cost and expense
within ten (10) business days.  If
Genpact fails to do so, Wachovia may, in its sole discretion, pay the amount of
such lien, and/or  deduct such amounts
from payments due to Genpact.


 


27.20      Covenant of
Good Faith.


 


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


 


27.21      Remarketing.


 


Wachovia
may not remarket all or any portion of the Services provided under this
Agreement or any Statement of Work, or make all or any portion of the Services
available to any party, other than Wachovia and the Eligible Recipients,
without the prior consent of Genpact.


 


27.22      Acknowledgment.


 


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


 






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


 


	
  Macro*World Research Corp

  	
   

  	
  Genpact International

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  Date: November 30, 2005

  	
   

  	
  Date: November 30, 2005

  
									



 


 


Wachovia
Corporation hereby guarantees the performance and payment obligations of
Macro*World Research Corporation under this Agreement.


 


 


	
  Wachovia Corporation

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  November 30, 2005

  	
   

  



 






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Schedule A


 


Definitions


 


The
following terms, when used in the Agreement or any Schedule to the
Agreement, shall have the meanings specified below.


 


(1)           “Acceptance”
means the determination, in Wachovia’s reasonable discretion, and in accordance
with the criteria agreed to by the Parties, following implementation,
installation, testing and execution in the production environment for an agreed
upon number of business cycles, if applicable, that Software, Equipment,
Systems and/or other contract deliverables are in compliance in all material
respects with the Specifications.


 


(2)           “Acquired Assets”
means the Equipment, Software and other assets owned or controlled by Wachovia
or the Eligible Recipients and listed in a Statement of Work that Genpact shall
acquire as of the SOW Commencement Date.


 


(3)           “Additional Resource Charge”
or “ARC” is the charge per Resource Unit
that is applicable whenever the actual consumption of a defined Resource Unit
by Wachovia and the Eligible Recipients exceeds the Resource Baseline for such
Resource Unit set forth in the applicable Statement of Work.  The total additional charges will be
calculated by multiplying the Additional Resource Charge by the number of
Resource Units in excess of the Resource Baseline actually consumed by Wachovia
and the Eligible Recipients.


 


(4)           “Affiliate”
means, with respect to any Entity, any other Entity Controlling, Controlled by
or under common Control with such Entity at the time in question.


 


(5)           “Affiliate
Subcontractor” has the meaning given in Section 9.8(a).


 


(6)           “Agreement” has
the meaning given in the preamble to this Agreement.


 


(7)           “Allocation
of Pool Percentage” means the portion of the Pool Percentage
Available for Allocation that is specified for a Performance Category. The
total of all Allocation of Pool Percentages shall not exceed the Pool
Percentage Available for Allocation.


 


(8)           “Applications Software” or “Applications”  means those software application programs and programming
(and all modifications, replacements, Upgrades, enhancements, documentation,
materials and media related thereto) used to support day-to-day business
operations and accomplish specific business objectives to the extent a Party
has financial or operational responsibility for such programs or programming
under a Statement of Work.  Applications
Software includes all such programs or programming that are identified in
Statements of Work.  Applications
Software also shall include all such programs or programming developed and/or
introduced by or for Wachovia on or after the SOW Commencement Date, which
shall be added to the applicable Statement of Work pursuant to amendment(s) to
such Statement of Work, to the extent a Party has financial or operational
responsibility for such programs or programming under such Statement of Work.


 


(9)           “At Risk
Amount” has the meaning given in Section 7.1(c)(ii).


 


(10)         “Audit Period”
has the meaning given in Section 14.1.


 


(11)         “Bankruptcy
Code” has the meaning given in Section 25.6(b).


 






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(12)         “Bankruptcy
Rejection” has the meaning given in Section 25.6(b).


 


(13)         “Benchmark
Standard” has the meaning given in Section 12.8(c)(i).


 


(14)         “Benchmarker”
has the meaning given in Section 12.8(a).


 


(15)         “Benchmarking”
has the meaning given in Section 12.8(a).


 


(16)         “Change
Control Procedures” has the meaning given in Section 9.6.


 


(17)         “Charges” means
the amounts set forth in this Agreement, including in Article 12,
Schedule O and/or the
applicable Statement of Work, as charges for the Services.


 


(18)         “Consents” means
the Wachovia Consents and the Genpact Consents, collectively.


 


(19)         “Contract Records”
has the meaning given in Section 14.1.


 


(20)         “Contract Year”
means a period during the Term or applicable Termination Assistance Period commencing
on the Effective Date or an anniversary thereof and ending on the date one (1) year
thereafter (or, if earlier, on the last day of the Term).  With respect to any Statement of Work, a
Contract Year shall mean a period, including any Termination Assistance Period
under such Statement of Work, commencing on the SOW Commencement Date or an
anniversary thereof and ending on the date one (1) year thereafter (or, if
earlier, on the last day of the SOW Term). 
If any Contract Year for this Agreement or for any Statement of Work is
less than twelve (12) months, the rights and obligations under this Agreement
that are calculated on a Contract Year basis will be proportionately adjusted
for such shorter period.


 


(21)         “Contracted
Work” in respect of a Statement of Work means the (a) product
of (i) the average monthly Charges under the applicable Statement of Work
during the twelve (12) full calendar months prior to the date of notice of
termination in respect of such Statement of Work, multiplied by (ii) the
whole number of calendar months between the Effective Date of Termination of
such Statement of Work and the end of the SOW Term if such Statement of Work
had not been terminated (but not including any SOW Renewal Period that has not
been exercised), minus (b) Charges in respect of the Termination
Assistance Period.


 


(22)         “Control” and
its derivatives means: (a) the legal, beneficial, or equitable ownership,
directly or indirectly, of at least 50% of the aggregate of all voting equity
interests in an Entity; (b) the right to appoint, directly or indirectly,
a majority of the board of directors; (c) the right to control, directly
or indirectly, the management or direction of the Entity by contract or
corporate governance document; or (d) in the case of a partnership, the
holding by an Entity (or one of its Affiliates) of the position of sole general
partner.


 


(23)        “Corporate Readiness
Assessment Program” means Wachovia’s then-current Corporate
Readiness Assessment Program.


 


(24)         “Critical
Deliverables” means any deliverable under a Statement of Work for
which a Deliverable Credit is specified.


 


(25)         “Critical
Service Level” has the meaning given in Section 7.1(b).


 


(26)         “Deliverable
Credits” has the meaning given in Section 7.2(e).


 






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(27)         “Deliverables”
has the meaning given in Section 16.5(c).


 


(28)         “Derivative Work”
means a work based on one or more preexisting works, including a condensation, transformation,
translation, modification, expansion, or adaptation, that, if prepared without
authorization of the owner of the copyright of such preexisting work, would
constitute a copyright infringement under applicable Law, but excluding the
preexisting work.


 


(29)         “Developed Materials”  means any Software or Materials, or any modifications,
enhancements or Derivative Works thereof, developed by or on behalf of Genpact
for Wachovia or the Eligible Recipients in connection with or as part of the
Services.


 


(30)         “Development Tools”
means all software programs and programming (and all modifications,
replacements, Upgrades, enhancements, documentation, materials and media
related thereto) that are used in the development, testing, deployment and
maintenance of Applications to the extent a Party has financial or operational
responsibility for such programs or programming under a Statement of Work.  Development Tools shall include all such
products in use or required to be used as of the SOW Commencement Date, including
those set forth in the applicable Statement of Work, those as to which the
license, maintenance or support costs are included in the Wachovia Base Case,
and those as to which Genpact received reasonable notice and/or access prior to
the SOW Commencement Date.  Development
Tools also shall include all such products selected and/or developed by or for
Wachovia or the Eligible Recipients on or after the SOW Commencement Date to
the extent a Party has financial or operational responsibility for such programs
or programming under a Statement of Work.


 


(31)         “Direct
Benefit” has the meaning given in Section 12.9(a).


 


(32)         “Direct
Damages Claim” has the meaning given in Section 22.2.


 


(33)         “Disaster
Recovery Plan” has the meaning given in Section 10.1(b).


 


(34)         “Dispute”
has the meaning given in Section 24.2.


 


(35)         “Earnback”
means the potential return of Service Level Credits as described in Section 7.2(b).


 


(36)         “Earnback Credit”  has
the meaning given in Section 7.2(b)(ii).


 


(37)         “Effective Date”
has the meaning given in the preamble to this Agreement.


 


(38)         “Electronic
Incident” has the meaning given in Section 15.2(g).


 


(39)         “Eligible Recipients”
means, collectively, and to the extent such individual or Entity is receiving
Services under this Agreement, the following:


 


(a)           any Entity that is an Affiliate of Wachovia
Corporation on the Effective Date, or thereafter becomes an Affiliate of
Wachovia Corporation;


 


(b)           any Entity that purchases, after the Effective
Date, all or substantially all of the assets of Wachovia Corporation, provided
that such Entity agrees in writing to be bound by the terms and conditions of
this Agreement;


 






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(c)           any Entity into which Wachovia merges or
consolidates, provided that such Entity has assumed Wachovia’s obligations
under this Agreement and agrees in writing to be bound by the terms and
conditions of this Agreement;


 


(d)           any Entity in which, on or after the Effective
Date, Wachovia or any Affiliate of Wachovia has a significant ownership
interest (at least thirty-three percent (33%)) and as to which Wachovia or such
Affiliate has management or operational responsibility;


 


(e)           any individual or Entity engaged in the
provision of products or services to Wachovia or an Eligible Recipient
identified in clauses  (a) through
(d) (e.g., contract personnel
working at a Wachovia Site or an outsourcer to Wachovia and/or one or more
Eligible Recipients), but only to the extent the receipt of Services under this
Agreement is necessary to enable such individual or Entity to provide such
products or services to Wachovia or such Eligible Recipient;


 


(f)            any customer of an Eligible Recipient
identified in clauses (a) through
(d), but only to the extent the
receipt of Services under this Agreement is necessary to enable such customer
to obtain the benefit of the product or services from such Eligible Recipient;
and


 


(g)           other Entities to which the Parties agree.


 


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


 


(41)         “Equipment”
means all computing, networking, telecommunications and other equipment
(hardware and firmware) procured, provided, operated, supported, or used by
Wachovia, Genpact or Eligible Recipients in connection with the Services,
including (A) mainframe, midrange, server and distributed computing
equipment and associated attachments, features, accessories, peripheral
devices, and cabling, (B) personal computers, laptop computers, terminals,
workstations and personal data devices and associated attachments, features,
accessories, printers, multi-functional printers, peripheral or network
devices, and cabling, and (C) voice, data, video and wireless
telecommunications and network and monitoring equipment and associated
attachments, features, accessories, cell phones, peripheral devices, and
cabling.


 


(42)         “Executive
Committee” has the meaning given in Schedule K.


 


(43)         “Executive
Management Team” has the meaning given in Section 8.3(a).


 


(44)         “Expected
Service Level” has the meaning given in Section 7.1(b).


 


(45)         “Expected
Service Level Default” means [[[***]]].


 


(46)         “Extraordinary
Event” has the meaning given in Section 12.4(a).


 


(47)         “Full
Production Date” has the meaning given in Schedule B.


 


(48)         “Full Time Equivalent”
or “FTE” means a level of effort (whether
by one person or more than one person), excluding vacation, holidays, training,
administrative and other non-productive time, equivalent to that which would be
provided by one person working full time for one year.


 


(49)         “Genpact” has
the meaning given in the preamble to this Agreement.


 






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(50)         “Genpact
Competitor” means each of the following entities:  (a) Accenture, (b) IBM, (c) TCS,
(d) Infosys, (e) EXL, (d) Wipro, (e) EDS and (f) WNS.


 


(51)         “Genpact Consents”
means the consents (if any) required to be obtained:  (a) to grant Wachovia and the Eligible
Recipients the right to use and/or access the Genpact Owned Materials, Third
Party Software and Equipment acquired, operated, supported or used by Genpact
in connection with providing the Services; (b) to assign or transfer to
Wachovia, the Eligible Recipients or their designee(s) any Developed Materials;
(c) to assign or transfer to Wachovia, the Eligible Recipients or their
designee(s) Genpact Owned Materials, Third Party Software, Third Party
Contracts, Equipment leases or other rights following the applicable SOW Term
to the extent provided in the applicable Statement of Work; and (d) all
other consents (other than Wachovia Consents) required from third parties in
connection with Genpact’s provision of the Services or performance of its
obligations hereunder.


 


(52)         “Genpact Facilities”
means, individually and collectively, the facilities owned or leased by Genpact
or its Affiliates or Subcontractors from which Genpact or its Affiliates or Subcontractors
provide any Services.


 


(53)         “Genpact
Internal Enabling Functions Plan” has the meaning given in Section 10.1(a).


 


(54)         “Genpact Laws”
has the meaning given in Section 19.2.


 


(55)         “Genpact
Owned Materials” has the meaning given in Section 16.3(a).


 


(56)         “Genpact Owned Software”
means any Software owned by Genpact or its Affiliates and used to provide the
Services.


 


(57)         “Genpact Personnel”
means those employees, representatives, contractors, subcontractors and agents
of Genpact or Subcontractors who perform any Services under this Agreement.


 


(58)         “Genpact
Relationship Manager” has the meaning given in Schedule K.


 


(59)         “Genpact’s
systems or networks” has the meaning given in Section 15.2(g).


 


(60)         “Genpact
Third Party Materials” has the meaning given in Section 16.5(f).


 


(61)         “Global
Operations Leader” shall have the meaning given in Section 8.2.


 


(62)         “Governmental Entity”  means any court, tribunal, arbiter, authority, agency,
commission, official or other instrumentality of the United States, any foreign
country or any domestic or foreign state, country, city or other political
subdivision.


 


(63)         “Historic
Level” has the meaning given in Section 22.3(a).


 


(64)         “Income Taxes”
means any tax on or measured by the net income of a Party (including taxes on
capital or net worth that are imposed as an alternative to a tax based on net
or gross income), or taxes which are of the nature of excess profits tax,
minimum tax on tax preferences, alternative minimum tax, accumulated earnings
tax, personal holding company tax, capital gains tax or franchise tax for the
privilege of doing business.


 


(65)         “Initial Term”
has the meaning given in Section 3.1.


 






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(66)         “Key Employees”
means the Executive Management Team and such additional Genpact Personnel as
may be designated a “Key Employee” in accordance with Article 8.


 


(67)         “Key
Measurement” has the meaning set forth in Section 7.1(b).


 


(68)         “Key Wachovia Competitors”
means [[[***]]].


 


(69)         “Laws” means all
national, intergovernmental, common law, federal, state, provincial, regional,
territorial and local laws, statutes, ordinances, regulations, rules, executive
orders, supervisory requirements, directives, circulars, opinions, interpretive
letters and other official releases of or by any government, or any authority,
department or agency thereof, including Privacy Laws.  Laws shall include the Gramm-Leach-Bliley Act
of 1999, generally accepted accounting principles (GAAP), applied in accordance with SAS-69, and
generally accepted auditing standards (GAAS), as such principles and standards
may be modified during the Term by the Public Company Accounting Oversight
Board or other applicable authorities.


 


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


 


(71)         “Major Release”
means a new version of Software that includes changes to the architecture
and/or adds new features and functionality in addition to the original
functional characteristics of the preceding software release. These releases
are usually identified by full integer changes in the numbering, such as from “7.0”
to “8.0,” but may be identified by the industry as a major release without the
accompanying integer change.


 


(72)         “Malicious Code”
means (a) any code, program, or sub-program whose knowing or intended
purpose is to (i) damage or interfere with the operation of the computer
system containing the code, program or sub-program, (ii) halt, disable or
interfere with the operation of the Software, code, program, or sub-program or
any other Software, Equipment, Materials or Systems, or (iii) reveal any
Wachovia Data or other information accessed through, or processed by the
applicable Software to anyone outside of Wachovia without Wachovia’s explicit
knowledge and prior approval, or (b) any device, method, or token that
permits any person to circumvent the normal security of the Software or the
system containing the code without Wachovia’s explicit knowledge.


 


(73)         “Managed Third Parties”
means the Wachovia Third Party Contractors listed in a Statement of Work as “Managed
Third Parties” and any substitute or replacement third party contractors
reasonably designated by Wachovia.


 


(74)         “Management
Fee” has the meaning given in Schedule O.


 


(75)         “Management Tools”
means all software programs and programming (and all modifications,
replacements, Upgrades, enhancements, documentation, materials and media
related thereto) that are used by Genpact to deliver and manage the
Services.  Management Tools shall include
all such products in use or required to be used as of the SOW Commencement
Date, including those set forth in the applicable Statement of Work, those as to
which the license, maintenance or support costs are included in the Wachovia
Base Case, and those as to which Genpact received reasonable notice and/or
access prior to the SOW Commencement Date. 
Management Tools also shall include all such products selected and/or
developed by or for Wachovia, the Eligible Recipients or Genpact on or after
the SOW Commencement Date to the extent a Party has financial or operational
responsibility for such programs or programming under the applicable Statement
of Work.


 






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(76)         “Management Procedures
Manual” means a document setting forth non-Statement of Work
specific procedures for the interaction of the Parties, including (i) the
procedures for interaction and communication of the Executive Management Team
with the Wachovia team managing the overall relationship with Genpact and (ii) the
processes, methodologies and controls to be implemented and use by Genpact to
ensure overall compliance with Genpact Laws and, subject to Article 19, Wachovia Laws.


 


(77)         “Materials”
means, collectively, Software, literary works, other works of authorship,
specifications, designs, analyses, processes, methodologies, concepts,
inventions, know-how, programs, program listings, programming tools,
documentation, user manuals, reports, drawings, databases, spreadsheets,
financial models, machine readable text and files and work product, whether
tangible or intangible.


 


(78)         “Minimum
Service Level” has the meaning given in Section 7.1(b).


 


(79)         “Minimum
Service Level Default” means Genpact’s level of performance for a
particular Service Level fails to meet the applicable Minimum Service Level at
any time.


 


(80)         “Minor Release”
means a scheduled Software release containing small functionality updates
and/or accumulated resolutions to Software defects or non-conformances made
available since the immediately preceding release (whether Major Release or
Minor Release).  Minor Releases shall
include “Maintenance Releases” which are supplemental to and made available
between Major Releases and other Minor Releases, issued and provided under
specific vendor service level or maintenance obligations and contain only
accumulated resolutions or mandated changes. 
These releases are usually identified by a change in the decimal
numbering of a release, such as “7.12” to “7.13.”


 


(81)         “New Advances”
has the meaning given in Section 9.9(b).


 


(82)         “Non-affiliate
Subcontractor” has the meaning given in Section 9.8(a).


 


(83)         “Notice of
Election” has the meaning given in Section 21.4(a).


 


(84)         “Object Code”
means, with respect to Software, all machine-readable instructions for the
Software.


 


(85)         “Operating
Council” has the meaning given in Schedule K.


 


(86)         “Operational
Losses” means financial losses (including direct expenses,
write-downs, restitution, quantifiable loss of income, settlements, judgments,
fines or penalties) from failed transaction processing or process management
(including transaction capture, execution and maintenance; monitoring and
reporting; customer intake and documentation; and customer/client account
management) or from relations with trade counter parties and vendors and
suppliers.  Losses under a Statement of
Work specifying a Historic Level of Operational Losses that are of the type or
types included in the Historic Level shall be deemed to be direct damages and
not indirect, incidental or consequential damages.  Otherwise, Operational Losses shall not
include damages that are excluded pursuant to Section 22.4.


 


(87)         “Out-of-Pocket Expenses”
means reasonable, demonstrable and actual out-of-pocket expenses due and
payable to a third party by Genpact for which Genpact is entitled to be
reimbursed by Wachovia under this Agreement. 
Out-of-Pocket Expenses shall not include Genpact’s overhead costs (or
allocations thereof), general and/or administrative expenses or other mark-ups,
Out-of-


 






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Pocket Expenses shall be calculated at Genpact’s
actual incremental expense and shall be net of all rebates and allowances.


 


(88)         “Parties” and “Party” have the meaning given in the preamble to this
Agreement.


 


(89)         “Pass-Through Expenses”
means the expenses, if any, listed in the applicable Statement of Work, for
which Wachovia has agreed in advance to be financially responsible, in
accordance with Article 12
of this Agreement, following processing and review of the third party invoice
by Genpact for accuracy.


 


(90)         “Performance
Category” means a grouping of Critical Service Levels as set forth
in a Statement of Work.


 


(91)         “Permitted
Assigns” means assignees that would be permissible assignees under Section 27.1(b)(i) or (ii).


 


(92)         “Pool
Percentage Available for Allocation” has the meaning given in Section 7.1(c)(i).


 


(93)         “Policy and
Procedures Manual” has the meaning given in Section 9.1(b).


 


(94)         “Presumptive
Service Levels” means those Service Levels identified in Exhibit F to a Statement of Work
as a Presumptive Service Level.


 


(95)         “Privacy Laws”
means the Laws relating to data privacy, trans-border data flow or data
protection (e.g., the implementing legislation and regulations of the European
Union member states under the European Union Directive 95/46/EC), including any
rules, regulations, directives, principles and policies of Wachovia or an
Eligible Recipient or any self-regulatory organizations to which Wachovia or an
Eligible Recipient belongs.


 


(96)         “Proprietary
Information” has the meaning given in Section 15.4(a).


 


(97)         “Quality
Assurance” means the actions, planned and performed, to provide
confidence that all business processes, Systems, Equipment, Software and
components of such Systems, Equipment and Software that influence the quality
of the Services are working as expected, both individually and collectively.


 


(98)         “Recoverable Taxes”
means any tax on goods or services where the payer of the tax is able to claim
a credit for that tax from a Tax Authority, and includes goods and services
taxes, harmonized sales taxes, value added taxes and other similar taxes.


 


(99)         “Reduced Resource Credit”
or “RRC” means the credit per Resource Unit
that is applicable whenever the actual consumption of a defined Resource Unit
by the Eligible Recipients falls below the Resource Baseline for utilization of
such Resource Unit set forth in the applicable Statement of Work.  The total credit will be calculated by
multiplying the Reduced Resource Credit by the number of Resource Units below
the Resource Baseline actually consumed by the Eligible Recipients.


 


(100)       “Renewal  Term” has the meaning set forth in Section 3.2.


 


(101)       “Reports” has
the meaning set forth in Section 9.2(a).


 






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(102)       “Resource Baselines”
means the estimated number of Resource Units to be required and/or consumed by
Wachovia and the Eligible Recipients during a defined period of time and
included in any periodic Charges specified in a Statement of Work.


 


(103)       “Resource Unit”
or “RU” means a measurable device, unit of
consumption, staffing level, or other resource that is associated with the
Services, as described in Schedule O,
that is measured to determine Wachovia’s and the Eligible Recipients’ actual
utilization of such resource compared to the applicable Resource Baseline for
purposes of calculating Additional Resource Charges and Reduced Resource
Credits as described in Schedule O
or the applicable Statement of Work.


 


(104)       “Retained Systems and
Business Processes” means those systems and business processes of
Wachovia or an Eligible Recipient for which Genpact has not assumed
responsibility under this Agreement (including those provided, managed,
operated, supported and/or used on their behalf by Wachovia Third Party
Contractors).  Retained Systems and
Business Processes include equipment and software associated with such systems
and business processes.


 


(105)       “Reviews” has
the meaning given in Section 15.2(h).


 


(106)       “Root Cause Analysis”
means the formal process to be used by Genpact to diagnose the underlying cause
of problems at the lowest reasonable level so that corrective action can be
taken that will eliminate repeat failures.


 


(107)       “Rules”
has the meaning given in Section 24.2.


 


(108)       “SAS” has the
meaning given in Section 14.9(a).


 


(109)       “SEI CMM Level 5”
means Level 5 of the Capability Maturity
Model Integration developed by the Carnegie Mellon Software Engineering
Institute or any equivalent successor thereof developed by the Carnegie
Mellon Software Engineering Institute.


 


(110)       “Service
Level Credit Allocation Percentage” means the percentage of the
Allocation of Pool Percentage allocated to a Critical Service Level within a
Performance Category.


 


(111)       “Service
Level Credits” has the meaning given in Section 7.2(a).


 


(112)       “Service
Level Default” means a Minimum Service Level Default or an Expected
Service Level Default


 


(113)       “Service Levels”
means, individually and collectively, the performance standards for the
Services set forth in the applicable Statement of Work.


 


(114)       “Service Taxes”
means all sales, service, value-added, use, excise, consumption and other
similar taxes that are assessed against either Party on the provision of the
Services as a whole, or on any particular Service received by Wachovia or the
Eligible Recipients from Genpact, including US Service Taxes but excluding
Recoverable Taxes and Income Taxes.


 


(115)       “Services” has
the meaning given in Section 4.1(a).


 


(116)       “Software” means
all software programs and programming (and all modifications, replacements,
Upgrades, enhancements, documentation, materials and media related thereto),
including Applications, Development Tools, Management Tools, and Systems
Software.


 






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(117)       “Source Code”
means, with respect to Software, all human-readable computer programming
statements, instructions and commands and all associated programmer notes, comments,
technical language specifications, design specifications, interface
specifications, program specifications, maintenance utilities, listings of
proprietary or third-party system utilities (including compiler, interpreter
and/or assembler descriptions), development programs, descriptions of
system/program generation, and descriptions of programs not owned by the
developer or present owner but required for use and/or support; all sufficient
to enable any reasonably competent programmer trained in the applicable
programming language to create, maintain and/or enhance the Software without
reference to any other materials or assistance.


 


(118)       “SOW Commencement Date”
means, with respect to a Statement of Work, the date set forth in the
applicable Statement of Work as the date on which Genpact will commence
provision of the Services under such Statement of Work.


 


(119)       “SOW Initial
Term” has the meaning given in Section 3.3(a).


 


(120)       “SOW Renewal
Term” has the meaning given in Section 3.3(b).


 


(121)       “SOW Term” has
the meaning given in Section 3.3(b).


 


(122)       “Specifications”
means, with respect to Software, Equipment, Systems or other contract
deliverables to be designed, developed, maintained, modified, enhanced,
delivered, integrated, installed and/or tested by Genpact, the technical,
design and/or functional specifications set forth in third party vendor
standard documentation, in a Statement of Work or otherwise agreed upon by the
Parties.


 


(123)       “Statement of Work”
means each document in the format set forth in Schedule B
that is executed by the Parties pursuant to Section 4.2
and that details the work effort and further describes the Services to be
performed by Genpact.


 


(124)       “Step-In Events”
has the meaning given in Section 10.5(a).


 


(125)       “Stranded
Costs” has the meaning given in Schedule I.


 


(126)       “Strategic Plan”
means the plans that may be periodically developed by Wachovia that set forth
Wachovia’s key business objectives and requirements and outline its strategies
for achieving such objectives and requirements. 
Wachovia may revise the Strategic Plan from time to time.  The Strategic Plan is likely to include both
annual and multi-year strategies, objectives and requirements.


 


(127)       “Subcontractors”
means Affiliate Subcontractors and Non-affiliate Subcontractors of Genpact,
collectively.


 


(128)       “System” means
an interconnected grouping of manual or electronic processes, including
Equipment, Software and associated attachments, features, accessories,
peripherals and cabling, and all additions, modifications, substitutions,
Upgrades or enhancements to such System, to the extent a Party has financial or
operational responsibility under a Statement of Work for such System or System
components.  System shall include all
Systems in use or required to be used as of the SOW Commencement Date, all
additions, modifications, substitutions, Upgrades or enhancements to such
Systems and all Systems installed or developed by or for Wachovia, the Eligible
Recipients or Genpact following the SOW Commencement Date.


 






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(129)       “Tax Authority”
means any federal, state, provincial, regional, territorial, local or other
fiscal, revenue, customs or excise authority, body or official competent to
impose, collect or asses tax.


 


(130)       “Technology and Business Process
Evolution” means any improvement,
upgrade, addition, modification, replacement, or enhancement to the standards,
policies, practices, processes, procedures, methods, controls, scripts, product
information, technologies, architectures, standards, Applications, Equipment,
Software, Systems, tools, products, transport systems, interfaces and personnel
skills associated with the performance of the in-scope business process
products and services in line with the best practices of leading providers of
such products and services.  Genpact’s
obligations with respect to Technology and Business Process Evolution apply not
only to the Services performed by Genpact, but also to its support of the
related business processes and functions performed by or for Wachovia and the
Eligible Recipients.  Technology and
Business Process Evolution includes (a) higher capacity, further scaling
and commercializing of business processes, more efficient and scalable business
processes, new versions and types of applications and systems/network software,
new business or IT processes, and new types of hardware and communications
equipment that will enable Genpact to perform the Services more efficiently and
effectively as well as enable Wachovia and the Eligible Recipients to meet and
support their business requirements and strategies and (b) any change to
the Equipment, Software or methodologies used to provide the Services that is
necessary to bring that function, Equipment or Software or those methodologies
into line with the Wachovia Standards and/or current industry standards.


 


(131)       “Technology
and Business Process Plan” has the meaning given in Section 9.10(a).


 


(132)       “Term”  has the meaning given in Section 3.2.


 


(133)       “Termination
Assistance Period” means, in respect of a Statement of Work, the
applicable period requested by Wachovia pursuant to Section 26.1(a)(i), as such period
may be extended pursuant to Section 26.1(a)(ii) or
26.1(c).


 


(134)       “Termination Assistance
Services” means the termination and expiration assistance requested
by Wachovia to effect and facilitate the orderly transfer of the Services to
Wachovia, the Eligible Recipients or Wachovia Third Party Contractors, as such
assistance is further described in Section 26.1
and the applicable Statement of Work.


 


(135)       “Termination Charge”
shall mean an amount payable by Wachovia upon termination of a Statement of
Work or the Agreement subject to and in accordance with Section 12.4(c), 25.3, 25.4 or 25.8.


 


(136)       “Third Party Contracts”
means all agreements (including Equipment leases) between third parties and
Wachovia or Genpact that have been or will be used to provide the Services to
the extent a Party has financial or operational responsibility for such
contracts under a Statement of Work. 
Third Party Contracts shall include all such agreements in effect as of
the SOW Commencement Date, including those contracts identified in the
applicable Statement of Work, those as to which the costs are included in the
Wachovia Base Case, and those as to which Genpact received reasonable notice
and/or reasonable access prior to the SOW Commencement Date.  Third Party Contracts also shall include
those third party agreements entered into by or for Wachovia, an Eligible
Recipient or Genpact (or Genpact’s Subcontractors or Affiliates) after the SOW
Commencement Date to the extent a Party has financial or operational
responsibility for such Third Party Contracts under the applicable Statement of
Work.


 


(137)       “Third Party Materials”
means intellectual property, Third Party Software, or other Materials that are
owned by third parties and provided under license to Genpact (or Genpact
Affiliates or 


 






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Subcontractors) or Wachovia (or Eligible
Recipients) and that have been or will be used to provide or receive the
Services.  Third Party Materials include
Materials owned by Subcontractors and used in the performance of the Services.


 


(138)       “Third Party Software”
means all Software products (and all modifications, replacements, Upgrades,
enhancements, documentation, materials and media related thereto) that are
provided under license or lease to Genpact or Wachovia or an Eligible Recipient
to the extent a Party has financial or operational responsibility for such
Software products under a Statement of Work. 
Third Party Software shall include all such programs or programming in
use or required to be used as of the SOW Commencement Date, including those set
forth in the applicable Statement of Work, those as to which the license,
maintenance or support costs are included in the Wachovia Base Case, and those
as to which Genpact received reasonable notice and/or access prior to the SOW
Commencement Date.  Third Party Software
also shall include all such programs or programming licensed and/or leased
after the SOW Commencement Date to the extent a Party has financial or
operational responsibility for such Third Party Software under the applicable
Statement of Work.


 


(139)       “Transfer
Taxes” means stamp, transfer, excise, documentary, sale, use,
registration and other taxes and fees levied by a Tax Authority or Governmental
Entity in connection with the transfer of assets.


 


(140)       “Transition Milestone”
means each date identified on a Transition Plan as a milestone by which Genpact
shall have completed a certain task or set of tasks in the Transition Plan in a
manner acceptable to Wachovia.


 


(141)       “Transition Period”
means, with respect to a Statement of Work that includes Transition Services,
the period that commences on the date the Statement of Work is signed by the
Parties and expires on the date specified for the completion of the Transition
Services as specified in the Transition Plan for the Statement of Work, unless
expressly extended in writing by Wachovia.


 


(142)       “Transition Plan”
means, with respect to a Statement of Work that includes Transition Services,
the plan set forth in the Statement of Work  and developed
pursuant to Section 4.4, which
identifies (a) all material transition tasks and deliverables to be
undertaken by Genpact in connection with the transition of all Services under
the Statement of Work to Genpact, any applicable acceptance criteria, all
enhancement projects to be
completed during the Transition Period for such Statement of Work, and (b) the
dates by which each will be completed by Genpact as set forth in the Statement
of Work.


 


(143)       “Transition Services”
means the services, functions and responsibilities described in Section 4.4 and the applicable
Statement of Work to be performed by Genpact during the Transition Period for a
Statement of Work.


 


(144)       “UCITA” means
the Uniform Computer Information Transactions Act or any version or portion of
the same implemented into Law.


 


(145)       “Unanticipated
Change” has the meaning given in Section 12.5.


 


(146)       “Upgrade” and
its derivatives mean updates, renovations, enhancements, additions and/or new
versions or releases of Software or Equipment. 
Unless otherwise agreed, financial responsibility for the costs, fees
and expenses associated with an Upgrade of Software or Equipment shall be
allocated between the Parties in accordance with Section 6.6
and Exhibit C to Schedule D.


 






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(147)       “US Service
Taxes” has the meaning given in Section 12.3(e)(i).


 


(148)       “Wachovia” has
the meaning given in the preamble to this Agreement.


 


(149)       “Wachovia
Auditor” has the meaning given in Section 14.2.


 


(150)       “Wachovia Base Case”
means the summary financial base case attached to a Statement of Work, as well
as the detailed financial and budget information underlying such summary base
case.


 


(151)       “Wachovia Consents”
means the consents (if any) required to be obtained:  (a) to assign or transfer to Genpact, or
obtain for Genpact the right to use and/or access, any Wachovia licensed Third
Party Software, Third Party Contracts or Equipment leases or Acquired Assets
and (b) to grant Genpact the right to use and/or access the Wachovia
licensed Third Party Software in connection with providing the Services.


 


(152)       “Wachovia Data”
means any data or information of Wachovia or an Eligible Recipient that is
provided to or obtained by Genpact in connection with the negotiation and
execution of this Agreement or the performance of its obligations under this
Agreement, including data and information with respect to the businesses,
customer, operations, facilities, products, rates, regulatory compliance,
competitors, consumer markets, assets, expenditures, mergers, acquisitions,
divestitures, billings, collections, revenues and finances of Wachovia or an
Eligible Recipient.  Wachovia Data also
means any data or information relating to Wachovia or any Eligible Recipient,
their vendors (other than Genpact), customers or products (a) created,
generated, collected or processed by Genpact in the performance of its
obligations under this Agreement, including data processing input and output,
service level measurements, asset information, Reports, third party service and
product agreements, contract charges, retained expenses and Pass-Through
Expenses or (b) that resides in or is accessed through Software, Equipment
or Systems provided, operated, supported, or used by Genpact in connection with
the Services, as well as information derived from this data and information.


 


(153)       “Wachovia Facilities”
means the facilities specified in one or more Statement of Works to be provided
by Wachovia or the Eligible Recipient for the use of Genpact to the extent
necessary to provide the Services under such Statement of Work(s).


 


(154)       “Wachovia Laws”
has the meaning given in Section 19.1.


 


(155)       “Wachovia
Owned Materials” has the meaning given in Section 16.1(a).


 


(156)       “Wachovia Owned Software”
means Software owned by Wachovia or an Eligible Recipient and used, operated,
maintained or supported by or on behalf of Genpact under or in connection with
this Agreement.


 


(157)       “Wachovia Personal Data”  means that portion of Wachovia Data that is subject to any
Privacy Laws.


 


(158)       “Wachovia
Privacy Policy” means Wachovia’s then-current corporate privacy
policy.


 


(159)       “Wachovia
Project Executive” has the meaning given in Section 11.1(a).


 


(160)       “Wachovia
Provided Equipment” has the meaning given in Section 6.4(e).


 


(161)       “Wachovia Rules”
has the meaning given in Section 6.9.


 






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(162)       “Wachovia Sites”
or “Sites” means the offices or other
facilities at or to which Genpact is to provide the Services.


 


(163)       “Wachovia Standards”
has the meaning set forth in Section 9.5(a).


 


(164)       “Wachovia
Third Party Contractors” has the meaning given in Section 4.6(a)(ii).


 


(165)       “Wachovia
Third Party Materials” has the meaning given in Section 16.5(b).


 


(166)       “Warranty
Period” has the meaning given in Section 18.3(c).


 


(167)       “Yearly
Performance Average”  means
the average of Genpact’s performance in a Performance Category over a twelve
(12) month period, calculated using the same methodology as is used to
calculate potential Service Level Credits for such Performance Category.


 






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