Exhibit 10.2


 


 


 


MASTER SERVICES AGREEMENT


 


by
and between


 


GENERAL ELECTRIC COMPANY


 


And


 


GECIS INTERNATIONAL HOLDINGS, LUXEMBOURG, SWISS BRANCH ZUG


 


December 30,
2004


 


 






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TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS;
  INTERPRETATION

  	
  1

  
	
  1.1

  	
  Certain
  Defined Terms

  	
  1

  
	
  1.2

  	
  Other Terms

  	
  9

  
	
  1.3

  	
  Interpretation

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  SERVICES

  	
  11

  
	
  2.1

  	
  Services

  	
  11

  
	
  2.2

  	
  Future SOWs

  	
  12

  
	
  2.3

  	
  Order of
  Precedence

  	
  13

  
	
  2.4

  	
  Divestitures

  	
  14

  
	
  2.5

  	
  Independent
  Contractor

  	
  14

  
	
  2.6

  	
  Locations

  	
  15

  
	
  2.7

  	
  Materials

  	
  15

  
	
  2.8

  	
  Provider Not
  Precluded from Providing Services to Third Parties

  	
  15

  
	
  2.9

  	
  Assignment
  of Transferred SOWs

  	
  15

  
	
  2.10

  	
  GE ITS SOWs

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  TESTING AND
  ACCEPTANCE OF DELIVERABLES

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  CHANGE ORDER
  PROCEDURES

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  STEERING
  COMMITTEE; PERSONNEL

  	
  19

  
	
  5.1

  	
  Steering
  Committee

  	
  19

  
	
  5.2

  	
  Executives

  	
  20

  
	
  5.3

  	
  Service
  Delivery Leaders

  	
  20

  
	
  5.4

  	
  Personnel

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  BUSINESS
  VOLUME COMMITMENT

  	
  21

  
	
  6.1

  	
  Minimum
  Volume Commitment

  	
  21

  
	
  6.2

  	
  Ramp Down
  Volume

  	
  21

  
	
  6.3

  	
  Reduction of
  MVCs

  	
  21

  
	
  6.4

  	
  Determining
  Actual Purchase Dollar Volumes

  	
  22

  
	
  6.5

  	
  MVC
  Shortfall and Excess Adjustments

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  PRODUCTIVITY

  	
  25

  
	
  7.1

  	
  Transferred
  SOWs

  	
  25

  
	
  7.2

  	
  Future SOWs

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  RIGHT OF
  FIRST OPPORTUNITY

  	
  26

  



 






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  ARTICLE IX

  	
  PAYMENT

  	
  27

  
	
  9.1

  	
  Fees

  	
  27

  
	
  9.2

  	
  Payment

  	
  28

  
	
  9.3

  	
  Invoices/Intercompany
  Billing System

  	
  28

  
	
  9.4

  	
  Payment
  Terms

  	
  29

  
	
  9.5

  	
  Taxes

  	
  29

  
	
  9.6

  	
  Universal
  Standard Product and Service Codes

  	
  29

  
	
  9.7

  	
  Electronic
  Funds Transfer

  	
  29

  
	
  9.8

  	
  Electronic
  Invoicing

  	
  30

  
	
  9.9

  	
  Credit Card
  Payment

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  BOOKS,
  RECORDS, AUDITS AND REPORTING

  	
  30

  
	
  10.1

  	
  Books and
  Records

  	
  30

  
	
  10.2

  	
  Audits.

  	
  30

  
	
  10.3

  	
  Customer
  Group Approvals

  	
  31

  
	
  10.4

  	
  Reporting

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  TERM AND
  TERMINATION

  	
  32

  
	
  11.1

  	
  Agreement
  Term

  	
  32

  
	
  11.2

  	
  Customer SOW
  Term

  	
  32

  
	
  11.3

  	
  Termination
  of Customer SOWs with Cause by Customer Group

  	
  32

  
	
  11.4

  	
  Termination
  upon a Provider Change of Control by the Customer Group

  	
  34

  
	
  11.5

  	
  Termination
  of Customer SOWs with Cause by Provider

  	
  34

  
	
  11.6

  	
  Notification
  of Termination for Convenience for Transferred SOWs

  	
  35

  
	
  11.7

  	
  Termination
  for Convenience of Future SOWs

  	
  35

  
	
  11.8

  	
  Pulled Back
  Termination

  	
  36

  
	
  11.9

  	
  Volume
  Fluctuations

  	
  37

  
	
  11.10

  	
  Productivity
  Reductions

  	
  37

  
	
  11.11

  	
  Termination
  by Either Party

  	
  37

  
	
  11.12

  	
  Survival

  	
  37

  
	
  11.13

  	
  Return of
  Materials

  	
  37

  
	
  11.14

  	
  Termination
  Services

  	
  38

  
	
  11.15

  	
  Evidentiary
  Admissions

  	
  39

  
	
  11.16

  	
  Enumerated
  Breaches

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  PERFORMANCE
  STANDARDS AND SERVICE WARRANTIES

  	
  39

  
	
  12.1

  	
  General

  	
  39

  
	
  12.2

  	
  Transferred
  SOWs

  	
  39

  
	
  12.3

  	
  Deliverables
  Warranty

  	
  40

  



 






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  ARTICLE XIII

  	
  DATA;
  BUSINESS CONTINUITY PLAN; POLICIES

  	
  40

  
	
  13.1

  	
  Data

  	
  40

  
	
  13.2

  	
  Data Feeds

  	
  41

  
	
  13.3

  	
  Data Backup
  and Storage

  	
  41

  
	
  13.4

  	
  Business
  Continuity Plan

  	
  41

  
	
  13.5

  	
  Customer
  Group Policies

  	
  41

  
	
  13.6

  	
  Security Standards

  	
  42

  
	
  13.7

  	
  Changes to
  Policies and Security Standards

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  COOPERATION;
  TRAINING AND SUPPORT

  	
  43

  
	
  14.1

  	
  Cooperation
  by Parties

  	
  43

  
	
  14.2

  	
  Cooperation
  Regarding Service Mix

  	
  43

  
	
  14.3

  	
  Training and
  Support Obligations

  	
  44

  
	
  14.4

  	
  Customer
  Support

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV

  	
  COMPLIANCE
  WITH LAWS

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVI

  	
  PERSONAL
  DATA PROCESSING

  	
  45

  
	
  16.1

  	
  Personal
  Data

  	
  45

  
	
  16.2

  	
  Data
  Protection

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVII

  	
  OWNERSHIP;
  INTELLECTUAL PROPERTY

  	
  48

  
	
  17.1

  	
  Independently
  Developed Technology and Intellectual Property

  	
  48

  
	
  17.2

  	
  Ownership of
  Technology and Intellectual Property Developed under Customer SOWs

  	
  48

  
	
  17.3

  	
  License to
  the Customer Group

  	
  49

  
	
  17.4

  	
  License to
  Provider

  	
  49

  
	
  17.5

  	
  Residuals

  	
  50

  
	
  17.6

  	
  Customer
  Third Party Resources

  	
  50

  
	
  17.7

  	
  Authorization,
  Representations and Warranties

  	
  51

  
	
  17.8

  	
  Additional
  Acts

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XVIII

  	
  INDEMNITY

  	
  52

  
	
  18.1

  	
  Provider
  Indemnity

  	
  52

  
	
  18.2

  	
  Customer
  Indemnity

  	
  52

  
	
  18.3

  	
  Mutual
  Indemnity

  	
  52

  
	
  18.4

  	
  Infringement
  Indemnity

  	
  53

  
	
  18.5

  	
  Limitation
  on Indemnity Obligation

  	
  54

  
	
  18.6

  	
  Indemnification
  Obligations Net of Insurance Proceeds and on an After-Tax Basis

  	
  55

  



 






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  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIX

  	
  INSURANCE

  	
  56

  
	
  19.1

  	
  Required
  Policies

  	
  56

  
	
  19.2

  	
  Other
  Requirements

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE XX

  	
  LIMITATIONS
  OF LIABILITY

  	
  57

  
	
  20.1

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  57

  
	
  20.2

  	
  LIABILITY
  CAP

  	
  57

  
	
  20.3

  	
  EXCLUSION OF
  INDIRECT DAMAGES

  	
  58

  
	
  20.4

  	
  EXCEPTIONS

  	
  58

  
	
  20.5

  	
  FURTHER
  LIMITATIONS

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXI

  	
  CONFIDENTIALITY

  	
  58

  
	
  21.1

  	
  Confidential
  Information

  	
  58

  
	
  21.2

  	
  Exclusions

  	
  59

  
	
  21.3

  	
  Confidentiality
  Obligations

  	
  60

  
	
  21.4

  	
  Additional
  Obligations

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXII

  	
  MISCELLANEOUS
  PROVISIONS

  	
  61

  
	
  22.1

  	
  Governing
  Law

  	
  61

  
	
  22.2

  	
  Assignment;
  Binding Effect

  	
  61

  
	
  22.3

  	
  Entire
  Agreement

  	
  62

  
	
  22.4

  	
  Non-Competition

  	
  62

  
	
  22.5

  	
  Dispute
  Resolution

  	
  62

  
	
  22.6

  	
  Jurisdiction
  and Venue

  	
  64

  
	
  22.7

  	
  Notices

  	
  64

  
	
  22.8

  	
  Force
  Majeure

  	
  65

  
	
  22.9

  	
  Cooperation
  by Parties

  	
  65

  
	
  22.10

  	
  Rights of
  Entry

  	
  65

  
	
  22.11

  	
  No Third
  Party Beneficiaries

  	
  65

  
	
  22.12

  	
  Severability

  	
  66

  
	
  22.13

  	
  Amendments

  	
  66

  
	
  22.14

  	
  Publicity

  	
  66

  
	
  22.15

  	
  Non-Waiver

  	
  66

  
	
  22.16

  	
  Counterparts

  	
  66

  
	
  22.17

  	
  Non-Solicitation

  	
  66

  
	
  22.18

  	
  Remedies
  Cumulative

  	
  67

  



 






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Exhibits


	
  Exhibit A –

  	
   

  	
  List of Provider Affiliates

  
	
  Exhibit B –

  	
   

  	
  Sample Statement of Work for Future SOWs

  
	
  Exhibit C –

  	
   

  	
  Business Volume Commitment MVC Assumptions and Methodology

  
	
  Exhibit D –

  	
   

  	
  Intentionally Omitted

  
	
  Exhibit E –

  	
   

  	
  Intentionally Omitted

  
	
  Exhibit F –

  	
   

  	
  Transaction Productivity

  
	
  Exhibit G –

  	
   

  	
  Information Technology and Software Services Included in Additional
  Services

  
	
  Exhibit H –

  	
   

  	
  Transferred SOWs Having Less Than a Five Year Term

  
	
  Exhibit I –

  	
   

  	
  Business Continuity Plan Requirements

  
	
  Exhibit J –

  	
   

  	
  “Integrity, The Spirit and the Letter of our Commitment” –July 2003

  
	
  Exhibit K –

  	
   

  	
  Employment Data Protection Standards

  
	
  Exhibit L –

  	
   

  	
  GE Background Checking Requirements

  
	
  Exhibit M –

  	
   

  	
  Business Associate Agreement

  
	
  Exhibit N –

  	
   

  	
  Standard Contractual Clauses to be Incorporated when Adherence to Article
  26(2) of the European Commission Directive 95/46/EC is Required

  
	
  Exhibit O –

  	
   

  	
  “Integrity, The Spirit and the Letter of Our Commitment” –October
  2000

  
	
  Exhibit P –

  	
   

  	
  GE ITS SOWs

  
	
  Exhibit Q –

  	
   

  	
  Form of
  Transferred SOW Subcontract Agreement

  



 






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MASTER
SERVICES AGREEMENT


 


THIS MASTER SERVICES AGREEMENT (this “Agreement”)
is entered into as of the 30th day of December, 2004 (the “Effective
Date”) by and between GENERAL ELECTRIC COMPANY, a New York corporation with
a principal place of business at 3135 Easton Turnpike, Fairfield, Connecticut
06431 (“GE”),and GECIS INTERNATIONAL HOLDINGS, LUXEMBOURG, SWISS BRANCH
ZUG with a principal place of business at Baarerstrasse 21, 6304 Zug,
Switzerland (“Company”).


 


W I T N E S S E T H:


 


WHEREAS, GE and its Affiliates may require
certain services, deliverables and work product as more particularly described
herein for their business operations; and


 


WHEREAS, Company and its Subsidiaries desire
to provide such services, deliverables and work product in accordance with the
provisions of this Agreement and the statements of work hereunder.


 


NOW, THEREFORE, in consideration of the above
premises and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:


 


ARTICLE I

DEFINITIONS; INTERPRETATION


 


1.1           Certain Defined Terms.  For the purposes of this Agreement, the
following terms will have the meanings specified in this Section 1.1
(Definitions; Interpretation):


 


“2005 Pricing Reduction” means the
pricing reduction of [[[***]]] previously applied to Transferred SOWs.


 


“Additional Services” means business
process services that (i) are similar to any of the Services provided under a
Customer SOW in effect as of the date of the request for proposal for such
services as described in Article VIII (Right of First Opportunity), (ii)
are performed or could reasonably be performed in facilities located in India,
China, Hungary or Mexico, and (iii) are anticipated to involve an annual
purchase dollar volume in excess of $200,000; provided, however,
that “Additional Services” does not include: (i) any services that are
provided by the GE Medical Systems Information Technologies Business or the IT
Services Business Component, (ii) any information technology-related or
software-related services other than such services listed on Exhibit G
and (iii) any services that are not Applicable Services.


 


“Affiliate” means, with respect to any
Person, any other Person that directly or indirectly through one or more
intermediaries controls, is controlled by, or is under common control with,
such Person, and each Person who is the beneficial owner of twenty percent
(20%)


 






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or more of the equity interests
entitled to vote in the election of the board of directors, managers, trustees
or other controlling Persons of such Person.


 


“Affiliated Providers” means such
Affiliates or subsidiaries of Company that are providing Services to the
Customer Group pursuant to a permitted subcontract to this Agreement.


 


“Applicable Services” means business
process outsourcing services of the type provided by the Transferred BPO
Business as of the date hereof.


 


“Agreement” means this Agreement
together with all Exhibits and attachments hereto.


 


“Business Components” means any
component within a Business (including, for example, GE Transportation -Lynn).


 


“Business Day” means any day that is
not a Saturday, a Sunday or other day on which banks are required or authorized
by Law to be closed in the City of New York.


 


“Businesses” means the businesses (or
any portions thereof) of one or more members of the Customer Group organized
around key product lines (including, for example, GE Healthcare and GE Consumer
and Industrial), which may be comprised of one or more Business Components.


 


“Business Productivity” means any
Transaction Productivity or Cost Productivity achieved by a Customer Party as a
direct consequence of an efficiency initiative by Provider (including the
Affiliated Providers) and/or a Customer Party.


 


“Category of Service” means the
following categories into which Provider divides its Service offerings (which
categories may be amended from time to time by the Provider): collections,
corporate services, customer care, finance, human resources, information
technology, learning services, risk management, sales and marketing, and supply
chain management.


 


“Cause” means a basis for termination of
a Customer SOW set forth in Section 11.3 (Termination of Customer
SOWs with Cause by Customer Group).


 


“Change of Control” means, with
respect to Provider, (i) any Transfer (as defined in the Stockholders
Agreement) of Company Equity Securities (as defined in the Stockholders
Agreement) by a Stockholder (as defined in the Stockholders Agreement)
resulting in any Person or “group” (as such term would be interpreted under
Section 13(d) of the Exchange Act) of Persons not Stockholders (or Affiliates
of Stockholders) prior thereto owning, directly or indirectly, Company Equity
Securities which comprise or are convertible into more than fifty percent (50%)
of the outstanding Common Shares (as defined in the Stockholders Agreement) on
a Fully Diluted (as defined in the Stockholders Agreement) basis, (ii) the
Transfer of all or


 






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substantially all of the assets
of the Company (determined on a consolidated basis) to any Specified Person or “group”
of Specified Persons of more than fifty percent (50%) of the outstanding Common
Shares on a Fully Diluted basis or (iii) the issuance or sale by the Company of
Company Equity Securities, or any merger, consolidation, combination,
reorganization, recapitalization or other transaction or series of related
transactions that results in the ownership by any Specified Person or “group”
of Specified Persons of more than fifty percent (50%) of the outstanding Common
Shares on a Fully Diluted basis.  With
respect to Subsidiaries of Company or Affiliated Providers, Change of Control
means a person or entity not previously having such control acquiring fifty
percent (50%) or more of the voting control of the relevant entity.


 


“Confidential Information” means
Information, documents and materials relating to the businesses currently or
formerly conducted by Provider (including, in respect of Provider, the business
conducted by the Transferred BPO Business immediately prior to the Effective
Date) or the Customer Group or suppliers or customers of the Provider or
Customer Group, irrespective of the form of communication (along with all
notes, analyses, compilations, forecasts, data, translations, studies,
memoranda, copies, extracts, reproductions or other documents that contain or
otherwise reflect such Information, documents and materials).  Confidential Information shall include
Information, documents and materials related to pricing, rates, productivity,
Fees or other similar information, Personal Data, training methods, business
practices, plans, projections, trade secrets, this Agreement, customer lists, customer
contracts, customer information, information with respect to competitors,
account information, research information, accounting information, human
resources and personnel information, marketing/sales information, third party
contracts, licenses, audits, regulatory compliance information, Customer
Solutions and Provider Solutions.


 


“Contract” means any written contract,
agreement, instrument, undertaking, arrangement, lease, commitment or other
legally binding obligation and any written modification, amendment, alteration,
supplement or waiver with respect thereto.


 


“Controlled Affiliate” means, with
respect to any Person, any Affiliate of such Person that directly or indirectly
through one or more intermediaries controls, is controlled by, or is under
common control with, such Person.


 


“Cost Productivity” means, for any
year, the sum of the reductions in each of the following as compared to the
prior year: (i) direct and indirect material prices, (ii) overhead costs, (iii)
the number of management working hours per Service and (iv) direct labor rates.


 


“Critical Performance Standards” means
the Performance Standards that are identified as “critical performance
standards” in any Customer SOW (including any identification performed during
the review process for the Transferred SOWs set forth in Section 12.2
(Transferred SOWs)).


 






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“Cross License Agreement” means that
certain Intellectual Property Cross License Agreement between Provider and GE,
as the same may be amended, modified or supplemented from time to time in
accordance with its provisions dated as of December 30, 2004.


 


“Cross License Customer IP” means
Intellectual Property that is licensed to Provider by the Customer Group under
the Cross License Agreement.


 


“Customer Group” means GE and its
Affiliates other than Genworth Financial, Inc. and its Subsidiaries.


 


“Customer Party” means the member of
the Customer Group that is a party to a Customer SOW or, where appropriate in
the context of this Agreement, the Customer SOW to which the relevant provision
of this Agreement relates.


 


“Customer Personal Data” means, as it
relates to the Services, (i) Personal Data obtained by Provider or any of
its permitted subcontractors from any Customer Party, (ii) Personal Data
(from whatever source) being Processed by Provider or any of its permitted
subcontractors on behalf of any Customer Party, and (iii) Personal Data
(from whatever source) pertaining to the personnel of Customer Group or its
Representatives.


 


“Customer Solutions” means all
Technology and Intellectual Property owned by a Customer Party pursuant to a
Customer SOW.


 


“Customer SOWs” means collectively the
Transferred SOWs and the Future SOWs.


 


“Data Subject” means (i) a
natural person with whom certain Personal Data is identified or identifiable
and (ii) for any Personal Data Processed in Luxembourg, Switzerland,
Italy, and Austria, a Person with whom certain such Personal Data is identified
or identifiable.


 


“Deliverables” means any Project
Deliverables or Other Deliverables.


 


“Designated Arbitrator” means an
arbitrator selected by the mutual written agreement of the Parties (it being
understood that the Parties will review such appointment annually and upon
mutual agreement may change such appointment).


 


“Exchange Act” means the Securities
Exchange Act of 1934, as amended.


 


“Financial Statements of the Transferred
BPO Business” means the audited financial statements of the Transferred BPO
Business as of March 31, 2004.


 


“Force Majeure Event” means, with
respect to a Person, an event beyond the reasonable control of such Person (or
any other Person acting on its behalf), which by its nature


 






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could not have been foreseen by
such Person (or such other Person), or, if it could have been foreseen, was
unavoidable after using commercially reasonable efforts, and includes acts of
God, strikes and labor unrest (other than those against the Person affected),
storms, floods, riots, fires, sabotage, civil commotion or civil unrest,
actions of a Governmental Entity limiting in a material fashion or prohibiting
the provision of the Services, interference by civil or military authorities,
acts of war (declared or undeclared), armed hostilities, other national or
international calamity, one or more acts of terrorism, or failure of energy
sources.


 


“FTE” means the all-time equivalent of
the output of a natural person engaged by Provider or any of its permitted
subcontractors who is dedicated to performing Services or any portion thereof.


 


“FTE Cost” means, with respect to an
FTE during any time period, (i) the salary of such FTE during such time period,
(ii) payroll taxes, applicable withholding, and other similar costs for such
FTE during such time period, (iii) benefits provided to such FTE during such
time period, and (iv) bonuses and deferred compensation for such FTE during
such time period.


 


“GAAP” means United States generally
accepted accounting principles and practices.


 


“GE ITS SOWs” means the statements of
work set forth on Exhibit P.


 


“Governmental Entity” means any
domestic or foreign federal, state, provincial, local, county or municipal
government or supra-national, governmental, judicial, regulatory or
administrative agency, department, commission board, bureau, court or other
authority or instrumentality or any arbitrator or arbitral panel.


 


“Governmental Order” means any order,
writ, judgment, injunction, decree, stipulation, determination or award entered
by or with any Governmental Entity.


 


“Inflation Factor” means, with respect
to each Transferred SOW during any year of the Term, an amount equal to [[[***]]].


 


“Information” means information,
whether or not patentable or copyrightable, in written, oral, electronic or
other tangible or intangible forms, stored in any medium, including studies,
reports, records, books, contracts, instruments, surveys, discoveries, ideas,
concepts, know-how, techniques, designs, specifications, drawings, blueprints,
diagrams, models, prototypes, samples, flow charts, data, computer data, disks,
diskettes, tapes, Software, marketing plans, customer names, communications by
or to attorneys (including attorney-client privileged communications), memos
and other materials prepared by attorneys or under their direction (including
attorney work product), and other technical, financial, employee or business
information or data.


 






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“Insurance Proceeds” means monies:  (i) received by an Indemnified Party as a result
of an insurance policy taken out by the Indemnifying Party; (ii) paid by an
insurance carrier to the Indemnified Party on behalf of the Indemnifying Party;
or (iii) received (including by way of set-off) by an Indemnifying Party on
behalf of the Indemnified Party; and in the case of each of the foregoing
(i)-(iii), received or paid (x) from or by any third party in the nature of
insurance, contribution or indemnification in respect of any liability and (y)
net of any applicable premium adjustments (including reserves and
retrospectively rated premium adjustments), and costs or expenses incurred in
the collection thereof.


 


“Intellectual Property” means all of
the following, whether protected, created or arising under the Laws of the
United States, India, China, Hungary, Mexico or any other foreign jurisdiction:
 (i) patents, patent applications (along
with all patents issuing thereon), statutory invention registrations, and
divisions, continuations, continuations-in-part, and substitute applications of
the foregoing, and any extensions, reissues, restorations and reexaminations of
the foregoing, and all rights therein provided by international treaties or
conventions, (ii) copyrights, mask work rights, database rights and design
rights, whether or not registered, published or unpublished, and registrations
and applications for registration thereof, and all rights therein whether
provided by international treaties or conventions or otherwise, (iii) trade
secrets, (iv) trademarks, service marks, trade names, service names, trade
dress, logos and other identifiers of source, including all goodwill associated
therewith and all common law rights, registrations and applications for
registration thereof, and all rights therein provided by international treaties
or conventions, and all reissues, extensions and renewals of any of the
foregoing, (v) all rights arising from or in respect of domain names and domain
name registrations and reservations, and (vi) all other applications and
registrations related to any of the rights set forth in the foregoing clauses
(i)-(v) above.


 


“Law” means any domestic or foreign
federal, state, provincial or local statute, law (including common law),
ordinance, regulation, rule, code or Governmental Order, or any other
requirement or rule of law.


 


“Other Deliverable” means any
deliverable or other work product that is not a Project Deliverable and is
provided to any Customer Party as part of the Services.


 


“Party” means GE and Provider
individually, and “Parties” means GE and Provider collectively.


 


“Performance Standards” means the
performance standards critical to quality standards, service level
requirements, specifications and acceptance criteria of the Services set forth
in this Agreement and the Customer SOWs.


 


“Person” means any individual,
partnership, corporation, trust, limited liability company, unincorporated
organization, Governmental Entity and any other entity.


 






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“Personal Data” means (i) any
information that is identified or identifiable with a natural person, including
employees, directors, shareholders, customers, prospects, contacts and
suppliers of the Customer Group, and (ii) for any information Processed in
Luxembourg, Switzerland, Italy, and Austria, any information that is identified
or identifiable with any Person.


 


“Processing” of Personal Data means
and includes any operation or set of operations which is performed upon
Personal Data, whether or not by automatic means, such as collection;
recording; organization; storage; adaptation or alteration; retrieval;
accessing; consultation; use; disclosure by transmission, dissemination or
otherwise making available; alignment or combination; blocking; erasure or
destruction; and the terms “Process”, “Processes”, “Processor”
and “Processed” have correlative meanings.


 


“Productivity” means Transaction
Productivity, Cost Productivity, and Business Productivity.


 


“Project” means a project anticipated
to have a finite (rather than indefinite or year-to-year) life span.


 


“Project Deliverable” means any
deliverable or other work product that is developed as part of a Project, and
delivered to any Customer Party as part of the Services.  Project Deliverables may include e-learning
products, analytics or Software, but exclude process-related deliverables.


 


“Provider” means Company and the
entities set forth on Exhibit A, as such Exhibit may be amended from
time to time.


 


“Provider Solutions” means all
Technology and Intellectual Property owned by Provider (or an applicable
Affiliated Provider) pursuant to a Customer SOW.


 


“Representatives” means, with respect
to a Person, the Affiliates of such Person (or in the case of Provider, its
Subsidiaries and the Affiliated Providers) and the directors, officers,
partners, employees, agents, consultants, contractors, advisors, legal counsel,
accountants and other representatives of such Person and its Affiliates (or in
the case of Provider, its Subsidiaries and the Affiliated Providers).


 


“Services” means all services and
Deliverables provided to the Customer Group under this Agreement and all
Customer SOWs.


 


“Software” means the object and source
code versions of computer programs and sufficient associated documentation,
training materials and configurations to use and modify such programs,
including programmer, administrator, end user and other documentation.


 


“Specified BPO Services” shall mean
the business process outsourcing services provided pursuant to the Transferred
SOWs.


 






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“Specified Person” means, as of a time
of determination, any Person that was not a Stockholder (or Affiliate of a
Stockholder) immediately prior to such time.


 


“Stranded Costs” means any costs and
expenses of Provider (including the applicable Affiliated Providers calculated
so as not to include any cost or expense twice and without any markup between
Affiliated Providers and Provider) directly resulting from termination of a
Transferred SOW pursuant to Section 11.6 (Termination for Convenience),
including (i) any costs and expenses with respect to re-employment or
termination of any employee directly engaged in rendering the terminated
Services and (ii) any facility, hardware or equipment-related costs.


 


“Subsidiary” of any Person shall mean
any corporation, general or limited partnership, joint venture, limited
liability company, limited liability partnership or other Person that is a
legal entity, trust or estate of which (or in which) (a) the issued and
outstanding capital stock having ordinary voting power to elect a majority of
the board of directors (or a majority of another body performing similar
functions) of such corporation or other Person (irrespective of whether at the
time the capital stock of any other class or classes of such corporation or
other Person shall or might have voting power upon the occurrence of any
contingency), (b) more than 50% of the interest in the capital or profits of
such partnership, joint venture or limited liability company or (c) more than
50% of the beneficial interest in such trust or estate, is at the time of
determination directly or indirectly owned or controlled by such Person; provided,
however, that for purposes of this Agreement, Genworth Financial, Inc. shall
not be deemed a Subsidiary of GE.


 


“Sweet Spot Services” means business
process services that any member of the Customer Group requests that Provider
provide that (i) are similar to any of the Services provided under a Customer
SOW in effect as of the date of such request or are otherwise within Provider’s
(including Affiliated Providers) then-current capabilities (including language
capabilities), taking into account the location of Provider’s (including
Affiliated Providers) then-current facilities and the then-current skill set of
Provider’s (including Affiliated Providers) personnel, and (ii) are to be or
could reasonably be performed in facilities located in India, China, Hungary or
Mexico or any other of Provider’s platforms in existence as of the date of such
request.


 


“Technology” means, collectively, all
designs, formulas, algorithms, procedures, techniques, know-how, Software,
programs, models, routines, databases, tools, inventions, creations,
improvements, works of authorship, recordings, graphs, drawings, reports,
analyses, and other writings, and any other embodiment of the above, in any
form, whether or not specifically listed herein.


 


“Transaction Productivity” means,
during any month, (i) the increase in the volume of Services performed per FTE
as compared to the prior month and (ii) the performance of a fixed amount of
Services utilizing fewer FTEs as compared to the prior month.


 






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“Transition Services” means all
Services performed in the migration of a process or function from the Customer
Group to the Provider upon the initial commencement of such Service or for
additions to such Services.


 


“Transferred BPO Business” means the
primarily English-language based remote business processing and offshore
support business that provides the Specified BPO Services and that operates on
a stand-alone basis from facilities located in India, China, Hungary and Mexico
conducted by and through the following: the GE BPO assets in Hungary; GE Global
Process Solutions LLC, GE Capital Global Process Solutions UK Ltd.; GE (Dalian)
Administrative Management Technology Consulting Co., Ltd.; the BPO assets of
GECIS Americas; and the BPO assets of EDM del Norte, EDM Monterrey and EDM del
Noroeste; and GE Capital International Services other than certain BPO assets
of GE Consumer Finance and certain treasury and tax accounting assets of GE;


 


“Transferred SOWs” means (i) all
statements of work in effect immediately prior to the Effective Date between
the Transferred BPO Business and any Customer Party (other than such statements
of work that relate to GE’s business process outsourcing business (other than
the Transferred BPO Business)), or similar documents specifying work to be
performed and amounts to be paid), (ii) the GE ITS SOWs (at such time as, with
respect to each GE ITS SOW, that the assignment of such GE ITS SOW to Company
is effective), and (iii) those services provided immediately prior to the
Effective Date by the Transferred BPO Business to a member of the Customer
Group (other than such services that relate to GE’s business process
outsourcing business (other than the Transferred BPO Business)) without a
statement of work.  To the extent
necessary for its construction, each Transferred SOW will be deemed to
incorporate by reference any definitions of terms used therein that were
contained in the agreement to which it related.


 


“Transition Services Agreement” means
the Transition Services Agreement between GE and Provider as the same may be
amended, modified or supplemented from time to time in accordance with its
provisions dated as of December 30, 2004.


 


1.2           Other Terms.  For purposes of this Agreement, the following
terms will have the meanings set forth in the Sections indicated:


 


	
  Term

  	
   

  	
  Section

  
	
  AAA

  	
   

  	
  Section 22.5

  
	
  Accessing
  Party

  	
   

  	
  Section 21.1

  
	
  After-Tax
  Basis

  	
   

  	
  Section 18.6

  
	
  Agreement

  	
   

  	
  Preamble

  
	
  BCP

  	
   

  	
  Section 13.4

  
	
  Benchmark
  Rates

  	
   

  	
  Section 6.3

  
	
  Change Order

  	
   

  	
  Section 4.1

  
	
  Change Order
  Procedures

  	
   

  	
  Section 4.3

  
	
  Company

  	
   

  	
  Preamble

  



 






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  Term

  	
   

  	
  Section

  
	
  Contract
  Information

  	
   

  	
  Section
  16.2(i)

  
	
  Covered
  Personnel

  	
   

  	
  Section
  22.17

  
	
  Cross
  License Improvements

  	
   

  	
  Section 17.2

  
	
  Customer
  Group Policies

  	
   

  	
  Section 13.5

  
	
  Customer
  Information

  	
   

  	
  Section 16.2

  
	
  Customer
  Indemnified Parties

  	
   

  	
  Section 18.1

  
	
  Customer
  Information Privacy Laws

  	
   

  	
  Section 16.2

  
	
  Customer
  Third Party Resources

  	
   

  	
  Section 17.6

  
	
  Dispute

  	
   

  	
  Section 22.5

  
	
  Due Date

  	
   

  	
  Section 9.3

  
	
  Effective
  Date

  	
   

  	
  Preamble

  
	
  EU

  	
   

  	
  Section 16.2

  
	
  Exclusive
  Tender Period

  	
   

  	
  Section 8.2

  
	
  Executive

  	
   

  	
  Section 5.2

  
	
  Fees

  	
   

  	
  Section 9.1

  
	
  FM Shortfall
  Amount

  	
   

  	
  Section 6.5

  
	
  Future SOWs

  	
   

  	
  Section 2.1

  
	
  GLB

  	
   

  	
  Section 16.2

  
	
  GE

  	
   

  	
  Preamble

  
	
  HIPAA

  	
   

  	
  Section 16.2

  
	
  Improvements

  	
   

  	
  Section 17.4

  
	
  Indemnified
  Party

  	
   

  	
  Section 18.4

  
	
  Indemnifying
  Party

  	
   

  	
  Section 18.4

  
	
  Indemnity
  Payment

  	
   

  	
  Section 18.6

  
	
  Information
  Owner

  	
   

  	
  Section 21.1

  
	
  Initial Term

  	
   

  	
  Section 11.1

  
	
  Integrity
  Policy

  	
   

  	
  Section 13.5

  
	
  Liability

  	
   

  	
  Section 18.6

  
	
  Losses

  	
   

  	
  Section 18.1

  
	
  Material

  	
   

  	
  Section 18.4

  
	
  Minimum
  Volume Commitment

  	
   

  	
  Section 6.1

  
	
  Minimum
  Volume Commitment Term

  	
   

  	
  Section 6.1

  
	
  Moral Rights

  	
   

  	
  Section 17.2

  
	
  MVCs

  	
   

  	
  Section 6.2

  
	
  MVC Term

  	
   

  	
  Section 6.2

  
	
  Provider
  Indemnified Parties

  	
   

  	
  Section 18.2

  
	
  Purchase
  Orders

  	
   

  	
  Section 2.1

  
	
  Ramp Down
  MVC

  	
   

  	
  Section 6.2

  
	
  Ramp Down
  Term

  	
   

  	
  Section 6.2

  
	
  Renewal Term

  	
   

  	
  Section 11.1

  
	
  Required
  Consent

  	
   

  	
  Section 17.6

  



 






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  Term

  	
   

  	
  Section

  
	
  Service
  Delivery Leader

  	
   

  	
  Section 5.3

  
	
  Statements
  of Work

  	
   

  	
  Section 2.1

  
	
  Steering
  Committee

  	
   

  	
  Section 5.1

  
	
  Term

  	
   

  	
  Section 11.1

  
	
  Tested
  Deliverables

  	
   

  	
  Section 3.1

  
	
  Warranty
  Period

  	
   

  	
  Section 12.3

  



 


1.3           Interpretation.  Interpretation of this Agreement will be
governed by the following rules of construction, unless the context requires
otherwise: (i) words in the singular will be deemed to include words in the
plural and vice versa and, in particular (but without limiting the generality
of the foregoing), any word or expression defined in the singular has the
corresponding meaning when used in the plural and vice versa; (ii) words of one
gender will be deemed to include words of other genders; (iii) any reference to
an Article, Section, Appendix, Exhibit, Annex, clause, subclause, paragraph,
subparagraph, Schedule, Recital or Preamble is a reference to an Article,
Section, Appendix, Exhibit, Annex, clause, subclause, paragraph, subparagraph,
Schedule, Recital or Preamble of this Agreement; (iv) any reference to any
statute will be construed as including all statutory provisions consolidating,
amending or replacing such statute; (v) the terms “hereof,” “hereby,” “hereto,”
“hereunder” and similar terms will refer to this Agreement as a whole; (vi) the
word “including” and words of similar import will mean “including, without
limitation” and “including, but not limited to”; (vii) provisions will apply,
when appropriate, to successive events and transactions; (viii) the headings
contained herein are for reference purposes only and will not affect in any way
the meaning or interpretation of this Agreement; (ix) this Agreement will be construed
without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing any instrument to be
drafted; and (x) all references to “dollars” or “$” shall be to United States
dollars.


 


ARTICLE II

SERVICES


 


2.1           Services.


 


(a)           Provider
agrees to provide Services to the Customer Group during the Term in accordance
with the terms and conditions of this Agreement, all Transferred SOWs and all
statements of work (“Statements of Work”) and purchase orders (“Purchase
Orders” and, collectively with the Statements of Work, the “Future SOWs”)
entered into between Provider and a member of the Customer Group in accordance
with Section 2.2 (Future SOWs).


 


(b)           Each
Customer SOW will be deemed a separate contract between Provider and the
Customer Party that are signatories to it, and will be an independent
contractual obligation from any other Customer SOW.


 






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2.2           Future SOWs.


 


(a)           All
Future SOWs will be in writing and signed by a duly authorized representative
of each of Provider and the Customer Party prior to the commencement of any
Services under such Future SOW.


 


(b)           Each
Statement of Work executed after the Effective Date will be numbered
consecutively and dated.  Purchase Orders
issued after the Effective Date may or may not be numbered consecutively with
Statements of Work executed after the Effective Date.  All Statements of Work will be substantially
in the form set forth in Exhibit B, and may contain the following
elements:


 


(i)            a detailed
description of the Services to be performed;


 


(ii)           Critical
Performance Standards and other Performance Standards for the Services;


 


(iii)          penalties and
incentives in respect of nonperformance and performance of the Critical
Performance Standards;


 


(iv)          acceptance criteria
for any Deliverables to be provided;


 


(v)           the amount, schedule
and method of compensation, including monthly or annual minimum payments, if
any, to be paid by the Customer Party to Provider;


 


(vi)          a description of the
Six Sigma methodology to be established for particular Services described in
such Statement of Work, if any;


 


(vii)         the Customer Group’s
standard operating procedures relating to Provider’s or its Representatives’
performance of the Services, including operations and compliance requirements,
training schedules and updates;


 


(viii)        the term of such
Statement of Work, including any renewal options;


 


(ix)           the information
technology support requirements of the Customer Party;


 


(x)            the currency in
which payments will be calculated and made;


 


(xi)           training and
support commitments;


 


(xii)          if appropriate
given the pricing methodology for the Statement of Work, the estimated number
of FTEs required; and


 


(xiii)         the services that
the Customer Party will provide to enable or support the Services and any other
obligations of the Customer Party; and


 






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(xiv)        the entities that
will be providing Services.


 


(c)           The
parties to each Statement of Work will modify any provisions of this Agreement
to the extent necessary to comply with the local Laws of the country in which
such Statement of Work is executed or the local Laws of the country or
countries where the Services are rendered while reflecting, to the maximum
extent possible, the intent of the Parties reflected herein.


 


2.3           Order of Precedence.


 


(a)           In
the event of any conflict or inconsistency between the terms and conditions of
this Agreement and the terms and conditions of a Future SOW, the terms and
conditions of such Future SOW will prevail if the Future SOW specifically
references the provisions of this Agreement that are inconsistent therewith.  Each Future SOW will be deemed to incorporate
by reference the terms and conditions of this Agreement unless the applicable
Future SOW expressly states otherwise.


 


(b)           In
the event of any conflict or inconsistency between the terms and conditions of
this Agreement and the terms and conditions of a Transferred SOW, the terms and
conditions of this Agreement will prevail and the terms of any Change Order
shall prevail over both the Transferred SOW and this Agreement.  Each Transferred SOW will be deemed to
incorporate by reference the terms and conditions of this Agreement.


 


(c)           All
master services agreements between the Transferred BPO Business and members of
the Customer Group shall terminate as of the Effective Date.  However, notwithstanding the foregoing or
anything else in this Agreement or in any other agreement, no agreement between
the Transferred BPO Business and any member of the Customer Group or any
Transferred SOW thereunder shall be modified or terminated before receiving all
required approvals from Governmental Entities and other entities having
contractual consent rights.  The Customer
Group and Provider shall use reasonable efforts to obtain any such required
government approvals and, pending such approvals, the parties shall continue to
operate under such existing agreements without amendment.  Any amounts paid under any existing
agreements will be counted toward the MVC and Provider and the Customer Group
shall make a financial adjustment so that Provider receives the benefit of its
bargain as reflected in this Agreement and the Transferred SOW without taking
into account this Section 2.3(c).


 


(d)           For
Transferred SOWs, to the extent (i) Provider’s obligations to comply with the
provisions and requirements of Section 9.7 (Electronic Invoicing); 10.1
(Books and Records), 10.4 (Reporting), 13.1 (Data), 13.5(b)
(Customer Group Policies), 13.6 (Security Standards), 14.1 (Cooperation
by Parties) and 17.8 (Additional Acts) (as those provisions and
requirements exist as of the Effective Date) or (ii) Provider and the Customer
Party agree to implement improved practices in respect of Section 15.2
(Compliance with Laws) and Section 16.2 (Data Protection) are materially
in excess (on a Transferred SOW-by-Transferred SOW


 






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basis) of the practice of the Transferred BPO Business prior to the Effective
Date and the cost of such obligations as reflected in the Financial Statements
of the Transferred BPO Business, and the excess is identified during the period
between the Effective Date and June 30, 2006, the parties to the Transferred
SOW will discuss the potential increased costs and methods for reducing those
costs and either, at the sole discretion of GE or the Customer Party, (A) GE or
the Customer Party will agree to amend the Transferred SOW (for the remainder
of its term) to require payment of additional compensation in an amount equal
to the reasonable increased cost of complying with each such obligation after
the Effective Date as compared to the associated costs reflected in the
Financial Statements of the Transferred BPO Business; or (B) GE and the
Customer Party will agree to amend the Transferred SOW (for the remainder of
its term) (which may involve a change in level or method of providing Services)
so those obligations are not materially in excess of the practice of the
Transferred BPO Business prior to the Effective Date and the cost of such
obligations as reflected in the Financial Statements of the Transferred BPO
Business.  This provision will not apply
to any excess that was not either discussed between Provider and the Customer Group
or notified by Provider to GE and the Customer Party on or prior to June 30,
2006.


 


(e)           Notwithstanding
anything else in this Agreement or a Customer SOW to the contrary, the order of
precedence set forth in this Section 2.3 shall control.


 


2.4           Divestitures.  In the event that any member of the Customer
Group directly or indirectly divests more than fifty percent (50%) of its
equity interest in a Customer Party or sells all or substantially all of the
assets of such Customer Party, such Customer Party may assign, upon notice, its
rights under the Customer SOW to the acquirer or divested entity, as may be
appropriate, in which case Provider will continue to provide services in
accordance with the applicable Customer SOW to the acquirer or divested entity,
as may be appropriate, and the acquirer or divested entity will assume the
responsibilities and obligations of the Customer Party under the applicable
Customer SOW.  If appropriate, Provider
and the acquirer will negotiate any modifications (including to reflect
increased or decreased fees resulting from increased or decreased costs to
Provider (including the costs of the Affiliated Providers calculated so as not
to include any cost twice and without any markup between Affiliated Providers
and Provider) reasonably necessary to account for the fact that the acquirer
may not be an Affiliate of GE and thus certain provisions of this Agreement may
not be appropriate.


 


2.5           Independent Contractor.  Provider will remain for all purposes an
independent contractor under this Agreement and the Customer SOWs.  The Customer Group or Provider (as the case
may be) will have no power (and will not represent that it has any power) under
this Agreement or the Customer SOWs to bind the other party or to assume or
create any obligations, express or implied, on behalf of the other party.  Nothing in this Agreement will be deemed to
constitute or will be construed as constituting a partnership, joint venture or
principal-agency relationship between the Customer Group and Provider.  All Provider personnel, including any
subcontractors permitted hereunder, will be considered solely Provider’s
employees or agents, and Provider will be responsible for (i) compliance with
all Laws relating


 






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to such personnel and (ii) payment of all wages, Taxes and other costs
and expenses relating to such personnel (including unemployment, social
security and other payroll taxes) and compliance with all withholding
requirements as required by Law.  No
Provider personnel will have any right to payment of wages, Taxes or any other
costs or expenses directly from any member of the Customer Group.


 


2.6           Locations.  All Services will be provided from (i)
Provider’s or the Affiliated Providers’ facilities located in India, China,
Hungary or Mexico, (ii) such other facilities of Provider or the Affiliated
Providers that the Parties agree upon in writing, including in any Customer
SOW, or (iii) if required by a Customer SOW, the Customer Group’s facilities.


 


2.7           Materials.  Unless otherwise set forth in any Customer
SOW, Provider will provide or arrange for all of its telecommunications
services, data services, facilities, materials, hardware, Software and other
requirements in order to perform the Services.


 


2.8           Provider Not Precluded from Providing Services to
Third Parties.  Subject to
Articles XVII (Ownership; Intellectual Property) and Article XXI
(Confidentiality), nothing in this Agreement will preclude or otherwise limit
in any way Provider’s right to provide services of any kind or nature
whatsoever to any third party.


 


2.9           Assignment of Transferred SOWs.  Provider will use commercially reasonable
efforts to document the assignment of the Transferred SOWs from the Transferred
BPO Business to Provider promptly after the Effective Date on terms such that
Provider and the Customer Party receive the benefit of their bargain as
reflected in this Agreement and the Transferred SOWs.


 


2.10         GE ITS SOWs.  In the event that any GE ITS SOW is not
assigned to Company within three (3) months after the Effective Date, the
Customer Group may, upon written notice to Provider, enter into a Statement of
Work with Provider that has substantially similar Services and is on
substantially the same terms as such GE ITS SOW.  Provider and the notifying Customer Group
member agree to accept such Statement of Work, and such Statement of Work will
be deemed a Transferred SOW for all purposes under this Agreement.


 


ARTICLE III

TESTING AND ACCEPTANCE OF DELIVERABLES


 


3.1           Sections
3.1 through 3.5 will apply only to Project Deliverables generally
and to those Project Deliverables in particular for which testing and review is
appropriate and Deliverables under Future SOWs under which testing and review
of Deliverables is appropriate (collectively, “Tested Deliverables”).  In addition, Sections 3.1 through 3.5
will be superseded for any Project or non-Project Transferred SOW by any
provisions regarding testing and review contained in that Transferred SOW.  At the request of any Customer Party,
Provider will provide such Customer Party with testing results or other data
sufficient to verify that each Tested


 






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Deliverable conforms to the applicable Performance Standards set forth
in the applicable Customer SOW.  Provider
will promptly provide written notice to the Customer Party upon the completion
of a Tested Deliverable under a Customer SOW (or, if such Customer SOW requires
that the Tested Deliverable be installed at such Customer Party’s site, upon
the successful installation of such Tested Deliverable), and will promptly
deliver such Tested Deliverable to such Customer Party (unless such Tested
Deliverable has already been installed at such Customer Party’s site).  To the extent possible, Provider will deliver
electronic versions of Tested Deliverables to the Customer Party.


 


3.2           Each
Customer Party will also have the right to conduct its own testing and review
of each Tested Deliverable upon receipt of such written notice.  Provider agrees to assist such Customer Party
as reasonably requested by such Customer Party in the performance of such
testing and review, and to cooperate with other vendors and suppliers of the
Customer Group in the conduct of such testing and review.  Such testing and review conditions will
reasonably reflect the actual environments in which such Tested Deliverable is
likely to be used, and will include testing and review of such Tested
Deliverable with networks, hardware and Software with which such Tested
Deliverable is designed to operate.


 


3.3           Such
Customer Party may, in its sole discretion, (i) elect to accept such Tested
Deliverable, (ii) reject it due to a failure of such Tested Deliverable to
comply with the applicable specifications and acceptance criteria specified in
the applicable Customer SOW in any material respect, or (iii) reasonably
request additional Information, documents or materials from Provider should
further testing and review be required in order to determine whether such
Tested Deliverable complies with the applicable specifications and acceptance
criteria specified in the applicable Customer SOW in all material respects.  If such Customer Party rejects such Tested
Deliverable, it will provide a written notice of rejection to Provider or its
designee specifying in reasonable detail the reasons for such failure.  Provider will correct any such failure and
provide such Customer Party with a revised Tested Deliverable as soon as
practicable but, unless otherwise agreed in writing, no later than thirty (30)
days after its receipt of the notice of rejection from such Customer Party.  Such Customer Party will have the right to
accept or reject the corrected Tested Deliverable in accordance with this Article
III (Testing and Acceptance of Deliverables).  If such Customer Party determines that
Provider has not corrected any such failure, such Customer Party may elect to (a)
terminate the applicable Customer SOW or (b) hire a third party to correct such
failure under reasonable terms and conditions, at Provider’s expense; provided,
however, that such Customer Party, to the extent practical, shall give
due consideration to using a third party proposed by Provider.  Notwithstanding the foregoing, such Customer
Party’s and Provider’s compliance with this Article III (Testing and
Acceptance of Deliverables) will not relieve Provider of any of its
representations, warranties and obligations contained herein or in any Customer
SOW.  If Provider or its designee
receives a request for further Information, documents or materials from such
Customer Party, Provider will evaluate such request and determine the best
approach for providing the requested Information, documents and materials, and
produce the requested Information, documents and materials within a reasonable


 






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time period agreed upon between Provider and such Customer Party (which
will in no event exceed fifteen (15) Business Days).


 


3.4           If,
within ninety (90) days (or such longer period as may be agreed upon in a
Customer SOW) of receipt by such Customer Party of the written notice described
under Section 3.1, such Customer Party has not (i) provided written
notice to Provider or Provider’s designee of the Customer Party’s acceptance of
such Tested Deliverable, (ii) provided written notice of rejection to Provider
in accordance with the foregoing, or (iii) requested additional Information,
documents or materials from Provider or its designee in accordance with the
foregoing, then such Tested Deliverable will be deemed to have been accepted by
such Customer Party.


 


3.5           In
the event that one or more Tested Deliverables are to be used together by such
Customer Party, after such Customer Party’s acceptance of such Tested
Deliverables individually, such Customer Party will have the right to perform
an integrated acceptance test of all such Tested Deliverables together in
accordance with Sections 3.2, 3.3 and 3.4.


 


3.6           For
non-Project Transferred SOWs that have not reached all production and non-Project
Future SOWs, unless otherwise agreed upon by the Parties as of the Effective
Date, Provider will utilize the migration/transition toolkit used by the
Transferred BPO Business prior to the Effective Date, agree with the Customer
Party on performance standards, baseline those performance standards and,
unless otherwise agreed with the Customer Party, conduct a pilot program as a “tollgate”
before the process moves to production, all consistent with the conduct of the
Transferred BPO Business prior to the Effective Date.


 


ARTICLE IV

CHANGE ORDER PROCEDURES


 


4.1           From
time to time, the parties that are signatories to a Customer SOW may mutually
change, amend, alter or otherwise modify such Customer SOW, including the
nature and scope of the Services provided thereunder, the number of FTEs
required to be dedicated to such Services, Performance Standards or Fees for
such Services.  Subject to Section 11.9
(Volume Fluctuations), the Customer Party may increase or decrease the number
of FTEs used in providing Services (with a corresponding Fee adjustment) on
reasonable advance written notice to Provider, consistent with the practices of
the Transferred BPO Business prior to the Effective Date.  Without the consent of Provider, no changes
may be made to the Performance Standards or price per FTE under the Transferred
SOWs, except as provided in Article VII. 
No such proposed amendment, alteration or other modification will be
effective or binding upon such parties until an addendum to such Customer SOW (“Change
Order”) has been executed by such parties.


 


4.2           Each
Change Order will contain: (i) the identity of the requesting party and the
date of the request for the change; (ii) the reason for the change; (iii) the
requested


 






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changes (including associated changes, if any, in Fees and Performance
Standards); and (iv) a timetable for implementation of the changes.  Change Orders may also contain provisions
relating to the specifications and acceptance criteria of the requested
changes.


 


4.3           With
respect to any such change, amendment, alteration or other modification to a
Customer SOW, the following procedures will apply (the “Change Order
Procedures”):


 


(a)           a
party to such Customer SOW will notify the other party thereto that it desires
to make a change, amendment, alteration or other modification to such Customer
SOW;


 


(b)           such
parties will discuss such change, amendment, alteration or other modification
within ten (10) Business Days after such request;


 


(c)           within
ten (10) Business Days after such discussion, (i) if such requesting party is a
Customer Party, such Customer Party will make a written request to Provider for
such a change, amendment, alteration or other modification, and Provider will,
unless otherwise agreed upon, submit a proposed Change Order to such Customer
Party within ten (10) Business Days after such written request; or (ii) if
Provider is such requesting party, Provider will provide a proposed Change
Order to the Customer Party.  Each such
proposed Change Order will be signed by Provider and will constitute a firm offer
by Provider until the date that Provider specifies as the expiration of
validity of the proposed Change Order (which will not be fewer than ten (10)
Business Days); and


 


(d)           within
such period of validity of such proposed Change Order, the Customer Party will
evaluate such proposed Change Order and, as appropriate, either request further
information, approve the Change Order, or notify Provider of the rejection of
the Change Order.  The signing of the
Change Order by such Customer Party will signify acceptance of a change by the
parties to the Customer SOW.  If such
change is rejected, such parties will enter further discussions and adhere to
the dispute resolution procedures described in Section 22.5 (Dispute
Resolution).


 


4.4           Temporary Emergency Changes.  Notwithstanding the foregoing, Provider may
make temporary changes to the Services required by an emergency if Provider has
been unable to contact the appropriate representative under the applicable
Customer SOW to obtain approval after making reasonable efforts.  Provider shall document and report such
emergency changes to such representative no later than the next Business Day
after the changes are made.  Such changes
shall not be implemented on a permanent basis unless and until approved via the
Change Order Procedures.  A Customer
Party shall not be obligated to pay any amounts with respect to such changes
without its approval or its determination, not to be unreasonably withheld,
that such changes were reasonably required. 
In addition, any Customer Party may, if it is subject to an emergency
warranting on a temporary basis Services additional to those provided under the
applicable Customer SOW, acquire such Services and Provider will use


 






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best efforts to the extent of a similarly situated provider of services
to accommodate any such emergency request for additional Services and charge
the Customer Party at a rate not to exceed the amounts specified in the
Customer SOW plus an additional amount not to exceed Provider’s incremental
cost (including the Affiliated Providers’ incremental cost, calculated so as
not to include any incremental cost twice and without any markup between
Affiliated Providers and Provider) incremental cost associated with the
emergency nature of the assignment; provided that no such Customer-initiated emergency
arrangement shall be effective for more than ten (10) Business Days without
approval through the Change Order Procedures.


 


ARTICLE V

STEERING COMMITTEE; PERSONNEL


 


5.1           Steering Committee.


 


(a)           GE
and Provider will each appoint an equal number of representatives to comprise a
steering committee (the “Steering Committee”) to perform the functions
set forth in this Agreement.  The
Steering Committee will meet either in person or via teleconference at a
regularly scheduled time at least once per month.


 


(b)           The
Steering Committee will:


 


(i)    review and approve project milestones,
objectives and other procedures and the performance of all obligations under
this Agreement and the Customer SOWs;


 


(ii)   discuss any significant business or
operational issues raised by either Provider or the Customer Group under this
Agreement or any Customer SOW in accordance with Section 22.5 (Dispute
Resolution);


 


(iii)  evaluate the Services for competitiveness;


 


(iv)  at least once each year assess GE’s compliance
with the MVCs and Provider’s compliance with the Transaction Productivity
commitments in this Agreement and the Customer SOWs, including by reviewing
Provider’s business plans related to the Customer Group, Provider’s audited
financial statements prepared in accordance with GAAP, the Transaction
Productivity gains in Provider’s performance of the Services, the actual
purchase dollar volumes of the Customer Group under this Agreement, the
Services being provided to the Customer Group under all Customer SOWs, the
Critical Performance Standards under all Customer SOWs, and Provider’s
compliance with such Critical Performance Standards;


 


(v)   facilitate the Customer Group’s support of
the Services in accordance with the terms and conditions of this Agreement and
the Customer SOWs; and


 






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(vi)  perform such other duties and responsibilities
as the Steering Committee deems necessary or appropriate.


 


(c)           Notwithstanding
anything to the contrary in this Agreement or a Customer SOW, the Steering
Committee will have no authority to amend or modify this Agreement or any
Customer SOW.


 


5.2           Executives.  Each Party will appoint a senior executive (“Executive”)
to serve as the primary overall contact under this Agreement between the
Parties.  Each Party’s Executive will
perform the functions specified in this Agreement and any additional functions
specified in any Customer SOW, and will have the authority to act for and bind
such Party.


 


5.3           Service Delivery Leaders.  For certain mutually agreed upon Businesses
and certain mutually agreed upon Categories of Service, the Customer Group and
Provider will designate an individual (each a “Service Delivery Leader”)
to serve on its behalf as a primary contact between the Customer Group and
Provider.  Each Service Delivery Leader
will be responsible for the administration of such Business or Category of
Service, coordinating the resolution of any operational issues and working with
the counterpart Service Delivery Leader to plan, staff and supervise such
Business or Category of Service.  Provider
acknowledges and understands that the Customer Group deems it essential to the
successful relationship of the Parties that the Customer Group be reasonably
satisfied with the performance of Provider’s Service Delivery Leaders.  In the event that Provider proposes to
replace any of its Service Delivery Leaders, Provider will provide the
counterpart Service Delivery Leader of the Customer Group prior written notice
of the name and summary of qualifications of such proposed replacement, and the
Customer Group may request an opportunity to meet with such proposed
replacement.  The Customer Group and
Provider will agree to replacement of Provider’s Service Delivery Leader in a
manner consistent with the practices of the Transferred BPO Business prior to
the Effective Date.  The Customer Group
may change its Service Delivery Leaders from time to time upon prior written
notice to Provider.


 


5.4           Personnel.  Provider will provide sufficient personnel of
suitable training and skills to perform the Services.  For each Customer SOW:  (i) Provider will assign competent personnel
to provide the applicable Services under such Customer SOW, (ii) all such
personnel will have the qualifications and training as Provider reasonably
determines are necessary to satisfactorily discharge their obligations in
connection with such Services, and (iii) such personnel shall have the
experience reasonably necessary to satisfactorily discharge their obligations
in connection with such Services.  In the
event that any Customer Party notifies Provider that any of Provider’s
individual personnel is deemed to be, in the sole opinion of the Customer
Group, unsatisfactory, Provider will promptly, where not prohibited by Law,
replace such personnel and not reassign such personnel to any Services without
the prior written consent of such Customer Party.


 






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ARTICLE VI

BUSINESS VOLUME COMMITMENT


 


6.1           Minimum Volume Commitment.  For the five (5)-calendar year period
beginning on January 1, 2005 (the “Minimum Volume Commitment Term”), the
Customer Group will purchase from Provider Services that would result in an
aggregate minimum annual purchase dollar volume to Provider under all Customer
SOWs of $360 million (“Minimum Volume Commitment”).


 


6.2           Ramp Down Volume.  For the three (3)-year period following the
Minimum Volume Commitment Term (the “Ramp Down Term” and collectively
with the Minimum Volume Commitment Term, the “MVC Term”), the Customer
Group will purchase Services from Provider that would result in a minimum
annual purchase dollar volume to Provider of: (a) $270 million in the sixth
year of the Term, (b) $180 million in the seventh year of the Term, and (c) $90
million in the eighth year of the Term (“Ramp Down MVC” and collectively
with the Minimum Volume Commitment, the “MVCs”).


 


6.3           Reduction of MVCs.


 


(a)           The
MVCs will only be:


 


(i)    reduced by the purchase dollar volume of any
Customer SOW or Services terminated by the Customer Group with Cause (subject
to Section 11.3 (h)) for each year of the remaining term (excluding any
renewal period) of such Customer SOW or Services (or one (1) year if no term is
set forth in the applicable Customer SOW);


 


(ii)   reduced by the revenues attributable to any
Sweet Spot Services that the Customer Group offers to Provider from and after
the date that Customer Group actually acquires such Sweet Spot Services from a
third party and that Provider either (i) declines or (ii) offers to perform at
rates exceeding the Benchmark Rates; provided, however, that
after January 1, 2006, in the event the annual revenue run rate (on a trailing
twelve (12) month basis) for all Customer SOWs is one hundred fifteen percent
(115%) or more than the MVC, this Section 6.3(a)(ii) shall not be
applied to reduce the MVC.  For purposes
of this provision, “Benchmark Rates” means, (1) for Services already
offered under a Transferred SOW on terms (including subcontracting
relationships) comparable to those offered to Provider, the rates set forth in
the most comparable Transferred SOW (as may be reasonably determined by
Provider and GE); and (2)for services not already offered under a Transferred
SOW on terms (including subcontracting relationships) comparable to those
offered to Provider, market rates for such services of similar quality under
similar terms offered by a similarly situated supplier established pursuant to
neutral benchmarking procedures to be agreed to by Provider and the Customer
Party.  Disputes over the Benchmark Rates
shall be resolved through the dispute resolution procedures described in Section
22.5 (Dispute Resolution);


 






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(iii)  reduced by the purchase dollar volumes of any
Customer SOW or Services that Provider has been unable to perform pursuant to,
or unable to provide for more than one hundred eighty (180) days as the result
of, a Force Majeure Event of Provider or an Affiliated Provider for each year
that the term (without any renewal period) of such Customer SOW or Services (or
the Term, if no term is set forth in the applicable Customer SOW) would have
extended had such Customer SOW or Services not been terminated; and


 


(iv)  reduced by the purchase dollar volume of any
Customer SOW or Services terminated by the Customer Group for a Change of
Control as provided in Section 11.5 (Termination upon a Provider Change
of Control by the Customer Group) for each year of the remaining term
(excluding any renewal period) of such Customer SOW or Services (or one year if
no term is set forth in the applicable Customer SOW).


 


(b)           For
the purposes of this Section 6.3 (Reduction of MVCs), purchase dollar
volumes for any terminated or suspended Services will be determined (i) based
on any actual purchase dollar volumes set forth in the applicable Customer SOW
less any amounts already paid thereunder, or (ii) if no purchase dollar volumes
are set forth in the applicable Customer SOW, projected for the remaining term
based on the Fees due to the Provider during the prior twelve (12) month period
for such Services or such lesser period as is available if a twelve (12) month
period is not available (pro-rated as applicable).


 


(c)           Unless
expressly stated otherwise in this Agreement, references to the Minimum Volume
Commitment, Ramp Down MVC, and MVCs will mean such terms as adjusted in
accordance with this Section 6.3 (Reduction of MVCs).


 


6.4           Determining Actual Purchase Dollar Volumes.


 


(a)           During
the MVC Term, the Parties will determine the actual purchase dollar volume of
the Customer Group on an annual calendar-year basis in accordance with the
methodology set forth on Exhibit C and other methodologies agreed upon
by the Parties in writing.


 


(b)           For
purposes of the MVCs:


 


(i)    any Transaction Productivity payments or
adjustments provided to the Customer Group will be deducted from the
calculation of the purchase dollar volume;


 


(ii)   purchasing of services by any member of the
Customer Group (a) from Provider, whether under this Agreement or another
agreement, and (b) under any GE ITS SOW that is not assigned to Provider shall
be included on a dollar-for-dollar basis (notwithstanding any provision to the
contrary in any Customer SOW) in the calculation of the MVC; provided, however,
that the purchase dollar volume from an entity that


 






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becomes a
member of the Customer Group after the Effective Date that was not previously a
member of the Customer Group shall only apply to the extent purchasing (on an
annual basis) is at a level exceeding the level (on a trailing twelve (12)
month basis) existing immediately prior to its becoming a member of the
Customer Group;


 


(iii)  the purchase dollar volume to Provider from
any statements of work entered into with a divested business pursuant to
Section 2.4 (Divestitures) (or any renewal or extension thereof) will be
included in the calculation of the amount of the purchase dollar volume of the
Customer Group;


 


(iv)  any Transition Services, termination services
and capital expenditures that are billed to the Customer Group at the actual
costs incurred by Provider (including the Affiliated Providers calculated so as
not to include any costs twice and without any markup between Affiliated
Providers and Provider; and not including any mark-ups or margins on such costs
or any mark-ups or margins which may be included in the price per FTE specified
in the applicable Customer SOW), will not be counted towards the annual
purchase dollar volume; and


 


(v)   amounts invoiced in currencies other than
dollars will be converted to dollars on a quarterly basis at the prevailing
exchange rate on the last day of each calendar quarter as reported in The Wall Street Journal for all Services performed during
such quarter.


 


6.5           MVC Shortfall and Excess Adjustments.


 


(a)           Subject
to Sections 6.5(c) and (d) (MVC Shortfall and Excess Adjustments),
in the event Provider’s actual purchase dollar volume from the Customer Group
for any calendar year during the MVC Term is below the applicable MVC for such
year, GE will pay to Provider (within ninety (90) days of the end of such
calendar year) a pricing adjustment for the Services provided to the Customer
Group in such year in an amount equal to (i) (a) the amount of such shortfall multiplied
by [[[***]]].  Provider shall use
reasonable good faith efforts to mitigate any Stranded Costs including efforts
to redeploy any effected employees, facility, hardware or equipment in
connection with Provider’s and the Affiliated Providers’ then-current business.  GE acknowledges that it is Provider’s
expectation that GE actually purchase the minimum level of Services rather than
pay such shortfall amount, while Provider acknowledges that GE’s only binding
commitment is either to purchase the MVC level of Services or to pay the amount
detailed in clauses (i) and (ii).  GE
will make efforts in good faith to reach the MVCs through requests for actual
service, rather than pay such shortfall amount.


 


(b)           In
the event Provider’s actual purchase dollar volume from the Customer Group for
any calendar year during the MVC Term exceeds the applicable MVCs, the amount
of such excess, up to 5% of the then-applicable MVC, will be credited against
any shortfalls in the MVCs in each of the following two (2) years or up to 10%
of the then-applicable MVC will be


 






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credited against any shortfalls in the MVCs in the following year, with
the choice being in the sole discretion of GE.


 


(c)           In
the event Provider’s actual purchase dollar volume at any point during the MVC
Term from the Customer Group is below the applicable MVC for such year in whole
or in part because of services suspended or terminated by reason of a Force
Majeure Event (i) of Provider (or an Affiliated Provider) that prevented such
entity from providing Services for one hundred eighty (180) days or less or
(ii) of the Customer Group that entitled the Customer Group to suspend receipt
of Services, the Customer Group shall not be liable for any MVC shortfall (or
obligated to make any payment under Section 6.5(a)) resulting in whole
or in part from the reduction in purchase dollar volume for a period of up to
one (1) year from the date such entity becomes able to resume the suspended or
terminated Services or the Customer Group has resumed operations that were the
subject of the suspended or terminated Services, but the Customer Group shall
replace any difference between the amounts that would have been required to be
purchased under the applicable MVC and the actual amounts purchased (the “FM
Shortfall Amount”).  The FM Shortfall
Amount will be calculated in total dollars, not dollars per year, and will
represent any amount of revenue that Provider would have been entitled to
receive because of the applicable MVC, but did not receive, by reason of the
Force Majeure Event.  All FM Shortfall
Amounts accruing from Force Majeure Events taking place within one year shall
be aggregated together into a single FM Shortfall Amount.  The Customer Group shall purchase from
Provider Services under all Customer SOWs that would result in aggregate dollar
volume equal to the FM Shortfall Amount in addition to its obligation regarding
the applicable MVC beginning in the second calendar year following the Force
Majeure Event according to the following schedule, there being no penalty for
early purchasing of the required amounts:


 


(i)    [[[***]]]


 


If the periods over which the FM Shortfall Amount is to be purchased
would extend beyond the Term, the portion of the FM Shortfall Amount that would
extend beyond the end of the Term will instead be purchased in the last
calendar year of the Term.  If a Force
Majeure Event occurs mid-year, the foregoing amounts shall be pro-rated so that
the multi-year periods specified above beginning at the time of the Force
Majeure Event are allocated across the calendar years to which the MVCs apply.  The remedy for failure to purchase any FM
Shortfall Amount will be the same as the remedy applying to an MVC shortfall
under Section 6.5(a).


 


(d)           In
the event a Force Majeure Event of the Customer Group for which purchasing of
Services was suspended or terminated does not prevent Customer Group from
fulfilling the applicable MVC, the Customer Party shall use good faith efforts
to recommence its purchasing of Services under the applicable Customer SOW to
the extent that after the remediation of such Force Majeure Event the Customer
Party requires such Services or substantially similar services.


 






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ARTICLE VII

PRODUCTIVITY


 


7.1           Transferred SOWs.


 


(a)           Existing
Commitments.


 


(i)    There shall be no adjustments during the
Term to Transferred SOWs for fixed-price Project work with respect to price or
Transaction Productivity.


 


(ii)   Subject to the 2005 Pricing Adjustment, for
work other than fixed-price Project work, Provider will provide the Customer
Group all Transaction Productivity payments or Fee adjustments agreed upon with
respect to the Transferred SOWs.


 


(iii)  Except as set forth in Section 9.1(a)(ii)
(Fees) and this Section 7.1(a), pricing for the Transferred SOWs at the
time of Effective Date shall be fixed at the prices in effect after application
of the 2005 Pricing Reduction and shall not change during the MVC Term for
those Transferred SOWs with a five (5) year term.


 


(b)           Transaction
Productivity Sharing.


 


(i)    Notwithstanding Section 7.1(a),
Provider and the Customer Group will share all Transaction Productivity gains
with respect to Transferred SOWs on terms no less favorable to the Customer
Group than those set forth in this Section 7.1(b).  Beginning in the second year of the Term and
thereafter:


 


(A)        For any Transaction Productivity gains
achieved under a Transferred SOW in any month of the Term that are of the type
listed under clause (i) of the definition of Transaction Productivity, the
Customer Party will pay Provider for such Transaction Productivity:


 


(1)           [[[***]]]


 


(2)           [[[***]]]


 


(B)         For any Transaction Productivity gains
achieved under a Transferred SOW in any month of the Term that are of the type
listed under clause (ii) of the definition of Transaction Productivity,
Provider will provide to the Customer Party for such Transaction Productivity:


 


(1)           [[[***]]]


 


(2)           [[[***]]]


 






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(ii)   All Transaction Productivity payments and Fee
adjustments will be cumulative, calculated monthly and paid no less than
annually or, at the Customer Party’s request, up to a quarterly basis.


 


(iii)  For the avoidance of doubt, in the event that
the Transaction Productivity is negative in any month, the Customer Group will
not share in such Transaction Productivity pursuant to this Section 7.1(b).


 


(iv)  Assumptions, methodology and examples (for
illustrative purposes only) of the calculation of Transaction Productivity are
provided in Exhibit F.


 


(c)           Annual
Review.  On an annual basis, the
Customer Group will have the right to discuss and negotiate with Provider more
favorable Transaction Productivity for any Transferred SOW, subject to the
agreement of the Parties.


 


(d)           Affiliated
Providers.  Provider shall cause the
Affiliated Providers to provide Transaction Productivity to the extent required
under this Agreement.  For Transferred
SOWs, Provider shall ensure that one hundred percent (100%) of the Transaction
Productivity gains that would be retained by Provider under this Agreement are
passed on to the Affiliated Provider.


 


7.2           Future SOWs.  The Productivity for each Future SOW will be
as agreed upon by the Parties in such Future SOW.  The Customer Group and Provider may (i) work
together to develop a business plan for each Business to determine future
opportunities, growth potential and additional Productivity for such Business
and (ii) share, to the extent agreed upon by the parties, the achieved Business
Productivity gains for Future SOWs.


 


ARTICLE VIII

RIGHT OF FIRST OPPORTUNITY


 


8.1           If,
during the Term, GE or any of its Controlled Affiliates proposes to outsource
to a third party (i.e., other
than a GE Affiliate) any Additional Service (other than an Additional Service
originally acquired from Provider but terminated for Cause), then GE or such
Controlled Affiliate will first issue to Provider a request for proposal with
respect to such Additional Service.  Notwithstanding
the foregoing, in no event shall GE or any of its Controlled Affiliates have
any obligation to make any offer with respect to its actual or proposed
acquisition of services substantially similar to those provided to the Customer
Group by any third party suppliers or vendors of the Customer Group prior to
the Effective Date, from the supplier or vendor that supplied such services prior
to the Effective Date.


 


8.2           Provider
will have a period of ten (10) days following Provider’s receipt of such
request for proposal (the “Exclusive Tender Period”) to deliver to, as
applicable, GE or


 






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such Controlled Affiliate a proposed Statement of Work (which complies
with the requirements of this Agreement and such request for proposal).


 


8.3           GE
or such Controlled Affiliate will not solicit proposals from, or negotiate
with, any third party with respect to the provision of the Additional Service
prior to or during the Exclusive Tender Period.


 


8.4           If
Provider delivers a proposed Statement of Work to, as applicable, GE or such
Controlled Affiliate within the Exclusive Tender Period, then GE or such
Controlled Affiliate will consider such proposed Statement of Work in good faith;
provided, however, that this Article VIII will not operate so as
to prevent GE or such Controlled Affiliate from soliciting proposals from, or
negotiating with, third parties concerning the provision of any Additional
Service after the Exclusive Tender Period.


 


8.5           If,
at the end of the Exclusive Tender Period, GE or such Controlled Affiliate and
Provider have not agreed on terms of Provider’s Statement of Work for the
Additional Services, GE or such Controlled Affiliate may solicit bids from
other third party providers.  GE or such
Controlled Affiliate will not supply any information provided by Provider
pursuant to its bid for Additional Services to any third party provider, and
such information shall be Confidential Information of Provider.


 


ARTICLE IX

PAYMENT


 


9.1           Fees. 
For each Customer SOW, the Customer Group will pay the fees, costs and
expenses to Provider (“Fees”) set forth in this Section 9.1.


 


(a)           Transferred
SOWs.


 


(i)    For each Transferred SOW, the Customer Group
will pay the Fees set forth in such Transferred SOW.  Transferred SOWs for fixed-price Project work
are not subject to any of the price reductions described in this Agreement.


 


(ii)   During the third year of the Initial Term and
each year of the Initial Term thereafter, the prices in Transferred SOWs other
than those for fixed-price Project work shall be adjusted by multiplying the
prices by the Inflation Factor for the previous year.  For example, if the Inflation Factor
calculated as the change between 2006 and 2005 is an increase of two percent
(2%), prices for 2007 shall be adjusted upward by two percent (2%).


 


(iii)  Such adjustment shall take place within sixty
(60) days after January 1 of each year, but shall be retroactive to January 1
with an adjustment payment or invoice made at the time of the adjustment to
reflect any difference between any amounts actually


 






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paid or
invoiced and those that should have been paid or invoiced at the retroactively
adjusted rates.


 


(iv)  To the extent not otherwise expressly set
forth in a Transferred SOW or otherwise agreed upon by the parties that are
signatories to a Transferred SOW, the Fees under a Transferred SOW will be
reduced or increased on a pro rata basis
for any reductions or increases in the volume of Services provided under such
Transferred SOW.


 


(v)   One hundred percent (100%) of the fees paid
by the Customer Party under this Agreement with respect to each Transferred SOW
shall be paid by Provider to the Affiliated Provider performing services under
that Transferred SOW.


 


(b)           Future
SOWs.  For each Future SOW, the
Customer Party will pay Fees to Provider for the Services rendered by Provider
under such Future SOW in accordance with such Future SOW.


 


(c)           For
the avoidance of doubt, no Customer Party shall be obligated to pay any Fees
for Services not provided by reason of a Force Majeure Event.


 


9.2           Payment.  All invoices will reference the applicable
purchase order number generated by the Customer Party.  Provider will invoice the Customer Party
under each Customer SOW on a monthly basis in respect of Fees for the Services.  All payments under this Agreement and the
Customer SOWs will be made to Company by electronic funds transfer to an
account established in accordance with Section 9.7 (Electronic Funds
Transfer) or, if such account has not been established, at the address for
Company set forth in Section 22.7.


 


9.3           Invoices/Intercompany Billing System.  For Transferred SOWs invoiced by the
Transferred BPO Business under GE’s Intercompany Billing System (“IBS”) prior
to the Effective Date, invoicing (and payments) will continue to be processed
through IBS consistent with the practices of the Transferred BPO Business prior
to the Effective Date.  For other
Transferred SOWs, unless invoices are sent electronically in accordance with Section
9.8 (Electronic Invoicing), all invoices will be sent to the following
address (or to such other address specified in a Customer SOW or agreed by the
parties to a Customer SOW):


 


General Electric Company

4211 Metro Parkway

Ft.  Myers, FL 33916-9406

Attention:  Financial Services Leader


 


Unless otherwise agreed in the applicable
Customer SOW, all payments under Customer SOWs shall be in U.S. dollars.


 






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9.4           Payment Terms.  For invoices processed through IBS as of the
Effective Date, the Customer Party will pay all undisputed fees to Provider in
fill within [[[***]]] from the date (a) of receipt of the invoice or (b), with
respect to any disputed fees, such dispute is resolved (the “Due Date”).  For all other invoices, the Customer Party
will pay all undisputed Fees to Provider in full within [[[***]]] from the date
(a) of receipt of an invoice or (b), with respect to any disputed fees, such
dispute is resolved (also, the “Due Date”).  A Customer Party may dispute any invoiced
amount in good faith in accordance with Section 22.5 (Dispute
Resolution).  Any such dispute shall not
relieve the Customer Party from paying undisputed amounts on such invoice in
accordance with the terms of this Section 9.3.  No Customer Party will be responsible for any
costs or expenses incurred by Provider (including Affiliated Providers) for
changes to Services or new Services performed without the authorization of such
Customer Party in accordance with the terms of this Agreement.  Payments made after the Due Date will accrue
interest at a rate of [[[***]]] per annum.


 


9.5           Taxes.  The charges for Services do not include
applicable taxes.  If Provider is
required to pay any federal, state, county or local service or value added tax
(VAT); or sales, use, gross receipts, excise, withholding, consumption, or any
other Governmental Entity taxes assessed on the Services provided, such taxes
(along with any applicable surcharge and education cess thereon), including any
gross-up on withholding tax, will be billed to and paid by the Customer Party
upon presentation of billing details that substantiate the amount of the taxes.  Provider will be responsible for collecting
and remitting all such value added taxes on behalf of the Customer Group.  Provider will retain the right to collect any
tax from the Customer Group if Provider fails to charge the correct withholding
tax; or sales, use, gross receipts, excise, consumption or services tax in the
initial invoice.  Property taxes for all
assets will be the responsibility of the party owning or leasing the assets.  Each of Provider and the Customer Group (a)
will bear sole responsibility for taxes based on its own net income (including
surcharge and education cess thereon); employment taxes of its own employees,
agents or subcontractors; and for any taxes on any property it owns or acquires
for the purpose of rendering the Services, (b) will undertake reasonable
efforts in good faith to minimize taxes to the extent legally permissible, (c)
shall cooperate in good faith to enable the other to accurately determine its
own tax liability, and (d) shall provide and make available to the other any
resale certificates; information regarding out-of-state or out-of-country sales
or use of equipment, materials or services; and other exemption certificates or
information reasonably requested by the other.


 


9.6           Universal Standard Product and Service Codes.  The Customer Group will provide Provider with
certain Universal Standard Product and Service Codes.  Provider will use such Universal Standard
Product and Service Codes to identify products and services rendered on all
invoices and reports and other documentation.


 


9.7           Electronic Funds Transfer.  Provider will complete the online
registration form on the Global Supplier Network (GSN) for receipt of
electronic funds from the Customer Group. 
The preferred method of electronic funds receipt is Electronic Funds
Transfer


 






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(EFT) if Provider has a U.S.-based bank.  Wire transfer is the alternate method if
Provider has a non-U.S. based bank.


 


9.8           Electronic Invoicing.  The Customer Group’s process for receipt of
non- IBS invoices may become electronic during the term of this Agreement.  Subject to Article IV, upon notice to
Provider of institution by the Customer Group of the electronic process, and
within thirty (30) days of such notice, Provider will begin submitting invoices
through the Customer Group’s electronic processing system.


 


9.9           Credit Card Payment.  Whenever Provider implements a credit card
billing system, the Customer Group may decide to settle invoices not in excess
of $2,500 with Provider using a Mastercard procurement credit card.  Should the Customer Group choose to settle
payments with this method, Provider agrees to provide the Customer Group with
level 3 billing details as defined by Mastercard standards.


 


ARTICLE X

BOOKS, RECORDS, AUDITS AND REPORTING


 


10.1         Books and Records.  Provider will maintain in a central location
(to the extent practicable) complete and accurate books and records, supporting
data and other evidence relating to the provision of Services (including
records that are received, generated or held by Provider or any Affiliated
Provider in the course of providing the Services), in accordance with and for
such period as is required by GAAP or applicable Law or the Customer Group’s
document retention policies, unless otherwise specified in a Customer SOW.  Such books and records will include
sufficient detail to verify (i) the Services provided to each Business, (ii)
the costs and expenses included in the Inflation Factor and any MVC reduction
pursuant to Section 6.3(b) (Reduction of MVCs) to Provider for providing
each Service, (iii) the Fees for each Service, (iv) the annual purchase dollar
volumes of the Customer Group, separately reflecting annual purchase dollar
volumes for each Service and for each Business, (v) the Transaction
Productivity achieved in connection with the provision of the Services,
separately reflecting the Transaction Productivity provided under each Customer
SOW and to each Business, (vi) compliance with the Performance Standards
(including the Critical Performance Standards) for each Service and (vii)
compliance with Provider’s obligations under Articles XV and XVI.


 


10.2         Audits.


 


(a)           At
the Customer Group’s sole expense, GE, its Representatives and Governmental
Entities will have the right at any time during normal business hours, and upon
at least seventy-two (72) hours’ prior written notice, to inspect and audit the
books and records maintained in accordance with Section 10.1 (Books and
Records) (excluding any information solely related to Provider’s business with
third party customers) to investigate and assess compliance with any of
Provider’s representations, warranties or covenants under this


 






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Agreement and the Customer SOWs and, upon notice, will provide
reasonable access to all those facilities, equipment and records in order to
conduct such verification.  Each Customer
Party will have the foregoing right to audit and inspect, but only with respect
to compliance with the provisions of the Customer SOW(s) to which such Customer
Party is a party.  At Provider’s
election, Provider may require that GE, any Customer Party or its
Representatives having access to such books and records sign reasonable
non-disclosure agreements to protect the Confidential Information of Provider
and its third party customers prior to such access; provided, however,
that Provider will provide such access in accordance with the foregoing time
period if GE, such Customer Party or such Representatives, as applicable, sign
such agreements.


 


(b)           Provider
will cooperate fully with GE, the Customer Group, its Representatives and
Governmental Entities in connection with such audit.  GE and each Customer Party will use
reasonable efforts to conduct such inspections in a manner that will minimize
the disruption to Provider’s business operations and the Services.  Provider will be excused for its failure to
comply with the terms of any Customer SOW, including any performance
requirements and Performance Standards, for the period and to the extent such
failure is caused by GE or the Customer Party’s failure to use such reasonable
efforts; provided, however, that Provider will continue to use
reasonable efforts to comply with all such performance requirements.


 


(c)           In
the event that such audit reveals an underpayment of Fees by any Customer Party
(or an underpayment of Transaction Productivity by Provider) under any Customer
SOW or this Agreement, such Customer Party (or Provider) will promptly pay the
amount of such underpayment to the applicable party under the Customer SOW or
the Customer Party that should have received such Transaction Productivity.  In the event that such audit reveals an
overpayment of Fees by any Customer Party (or an overpayment of Transaction
Productivity by Provider) under any Customer SOW or this Agreement, the
applicable party under such Customer SOW or the applicable member receiving the
Transaction Productivity will promptly return the amount of such overpayment to
such Customer Party (or Provider).


 


10.3         Customer Group Approvals.  The conduct of inspections and audits by
Customer Group in accordance with Section 10.2 (Audits) will not operate
to relieve Provider from its obligations and commitments under this Agreement
or any Customer SOW, except as provided in Section 10.2(b) (Audits) or
as expressly stated otherwise in writing by the Customer Group.  In addition, the conducting of tests by, or
the receipt of approvals or consents from, the Customer Group will not operate
to relieve Provider from its obligations and commitments under this Agreement
or any Customer SOW, except as not reasonably avoidable by Provider or its
Affiliated Providers and where Provider has notified the Customer Party that
the conducting of tests or receipt of approvals or consents will necessarily
limit performance by Provider.


 


10.4         Reporting.  At no additional cost, Provider will prepare
and provide all data and reports reasonably required by the Customer Group at
the frequency and in the format required by the Customer Group.


 






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ARTICLE XI

TERM AND TERMINATION


 


11.1         Agreement
Term.


 


(a)           The
initial term (the “Initial Term”) of this Agreement will commence on the
Effective Date and continue until December 31, 2012, unless earlier terminated
in accordance with this Agreement.


 


(b)           The
Agreement may be renewed for a single three (3) year term (the “Renewal Term”)
upon the mutual written agreement of the Parties at least twelve (12) months
prior to the expiration of the Initial Term. 
The Initial Term and the Renewal Term, if any, will be collectively
referred to herein as the “Term”.


 


11.2         Customer
SOW Term.


 


(a)           Except
for the Transferred SOWs set forth in Exhibit H that are identified as “Project
Based”, the initial term of each Transferred SOW will begin on the Effective
Date and end on December 31, 2009.  During
the Term, the Customer Party will have the right to extend the term of
Transferred SOWs to which it is a party, with identical terms and conditions as
such Transferred SOW had prior to such extensions, except with respect to
pricing (which shall be subject to the agreement of the Parties), after the
expiration of the initial term of such Transferred SOW for successive one (1)
year renewal terms upon providing written notice thereof to Provider at least
thirty (30) days prior to the expiration of the then-current term.


 


(b)           The
term of each Future SOW will be as set forth in such Future SOW.


 


11.3         Termination of Customer SOWs with Cause by Customer
Group.  A Customer Party
will have the right at any time to terminate the applicable Customer SOW in
whole or in relevant part with respect to any portion of the Services provided
under such Customer SOW:


 


(a)           if
Provider or any of its Affiliated Providers becomes subject to any voluntary or
involuntary order of any Governmental Entity for reasons within Provider’s or
the Affiliated Provider’s control prohibiting or materially impairing the
performance of Services under such Transferred SOW and Provider or its designee
does not develop a work-around for such prohibition or impairment within thirty
(30) days from receiving notice of such order from such Governmental Entity;


 


(b)           if
(i) Provider breaches in any material respect any of the covenants under such
Customer SOW, or if any of Provider’s representations or warranties under such
Customer SOW are materially inaccurate, (ii) such breach or inaccuracy
prohibits or materially impairs the performance of the Services or prohibits or
materially impairs the reasonably intended benefits


 






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the Customer Party is to receive from the Services based on the terms
of this Agreement and (iii) upon receipt of written notice thereof from the
Customer Party, Provider does not cure such breach or inaccuracy, in either
case, within thirty (30) days of such notice;


 


(c)           if
Provider breaches its compliance obligations under Section 15.2 in a
manner relating to the Services and does not cure, upon receipt of written
notice from the Customer Group, such breach within thirty (30) days;


 


(d)           if
(i) Provider fails to meet any Critical Performance Standard for any three (3)
consecutive months or four (4) nonconsecutive months in a rolling twelve (12)
month period, and (ii) upon receipt of written notice of such failure from the
Customer Party, Provider (A) does not provide the Customer Party a preliminary
analysis of the root cause of such failure and an initial plan, which plan will
cure such failure within ten (10) business days of such notice, (B) has not
agreed with the Customer Party on a definitive plan acceptable to the Customer
Party to cure such failure within thirty (30) days of such notice (which cure
period may be extended by the parties to such Customer SOW in such definitive
plan based on the complexity of the Services and the actions needed to cure
such failure), (C) does not promptly undertake action to cure such failure, or
(D) does not implement and satisfy such definitive plan.  Notwithstanding the foregoing, the Customer
Party shall not be entitled to terminate an applicable Customer SOW for Cause
if the failure to meet the applicable Critical Performance Standard(s) is
caused by the wrongful acts or omissions of any member of Customer Group or its
agents, or the failure of the Customer Party to comply with its obligations
under the applicable Customer SOW;


 


(e)           if
Provider or any Affiliated Provider or the Customer Party, due to the actions
of Provider or any Affiliated Provider, is administratively cited by any
Governmental Entity for materially violating, or is judicially found to have
materially violated, any Law governing the performance of the Services;


 


(f)            if
a trustee or receiver or similar officer of any court is appointed for Provider
or for a substantial part of the property of Provider, whether with or without
consent; or bankruptcy, composition, reorganization, insolvency or liquidation
proceedings are instituted by or against Provider without such proceedings
being dismissed within ninety (90) days from the date of the institution thereof
and


 


(g)           as
set forth in Sections 3.3 and 18.4(d).


 


(h)           Notwithstanding
the foregoing, no Customer Party may commence termination of any Transferred
SOW under Section 11.3(b), (d),or (g) until the earlier of
(i) twelve (12) months after agreement on the Critical Performance
Standards for that Transferred SOW under Section 12.2 (Transferred SOWs)
or (ii) June 30, 2006; in each case where performance is consistent with the
conduct of the Transferred BPO Business immediately prior to the Effective Date.  This limitation will not affect the ability
of any Customer Party to terminate a Transferred SOW under any other provision
of this Agreement.


 






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If such Customer Party fails to give notice
of its intent to terminate such Customer SOW in accordance with Section 11.3
within [[[***]]] of the date that such Customer Party first becomes aware of
the breach giving rise to such right to terminate, such Customer Party will be
deemed to have waived its right to terminate for such breach (but not deemed to
have waived any claims it may have arising from such breach or any right to
terminate for any similar breach in the future).


 


11.4         Termination
upon a Provider Change of Control by the Customer Group.


 


(a)           Within
sixty (60) days after a Change of Control of Provider, the Customer Group may
terminate this Agreement or any or all Customer SOWs in whole or in part by
sending written notice to Provider.  Within
sixty (60) days after a Change of Control of any Subsidiary of Company or an
Affiliated Provider, the Customer Group may terminate any or all Customer SOWs
with such Subsidiary or under which such Affiliated Provider was providing
Services by sending written notice to Provider. 
If the Customer Group fails to notify Provider within such sixty (60)
day written notice period, then the Customer Group waives its right to
terminate under this Section 11.4. 
Customer Group and Provider must provide a minimum transition period of
at a minimum ninety (90) days in connection with any terminated Services.  To enable Customer Group’s rights under this Section
11.4(a), Provider shall notify GE upon the signing of a definitive
agreement that, if consummated, would result in such a Change of Control.


 


(b)           The
rights of Customer Group to terminate this Agreement in the event of a Change
of Control of Provider under this Section 11.4 shall no longer apply
upon an initial public offering of Provider.


 


(c)           A
Change of Control pursuant to a transaction (or series of related transactions)
whereby GE has compelled the Change of Control through exercise of its
compulsory sale right pursuant to Section 3.06 of the Stockholders Agreement
shall not constitute a Change of Control of Provider for the purposes of this Section
11.4.


 


11.5         Termination of Customer SOWs with Cause by Provider.  Provider may terminate a Customer SOW upon thirty
(30) days’ prior written notice if:


 


(a)           the
Customer Party fails to make any payment under such Customer SOW of an
undisputed amount when due, and such failure continues uncured for a period of
ninety (90) days from notice by Provider to such Customer Party of such
failure;


 


(b)           the
Customer Party becomes subject to any voluntary or involuntary order of any
Governmental Entity for reasons within such Customer Party’s control
prohibiting or materially impairing the performance of any of the Services;


 






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(c)           Provider,
due to the actions of the Customer Party, is administratively cited by any
Governmental Entity for materially violating, or is judicially found to have
materially violated, any Law governing the performance of the Services;


 


(d)           a
trustee or receiver or similar officer of any court is appointed for the
Customer Party or for a substantial part of the property of the Customer Party,
whether with or without consent; or bankruptcy, composition, reorganization,
insolvency or liquidation proceedings are instituted by or against the Customer
Party without such proceedings being dismissed within ninety (90) days from the
date of the institution thereof;


 


provided, however,
that if Provider fails to give notice of its intent to terminate such Customer
SOW in accordance with the foregoing clauses (a) through (d) within [[[***]]]
from the date that Provider first becomes aware of the breach giving rise to
such right to terminate, Provider will be deemed to have waived its right to
terminate for such breach (but not be deemed to have waived any claims it may
have arising from such breach or any right to terminate for any similar breach
in the future).


 


11.6         Notification of Termination for Convenience for
Transferred SOWs.  In
addition to as provided in Section 11.4 (Termination upon a Provider Change of
Control by the Customer Group), the Customer Party may terminate without cause
any Transferred SOW in whole or in part at any time, but only (i) upon [[[***]]]
prior written notice to Provider (or, for any Services being provided by
Provider under any Transferred SOW to any third party customer of the Customer
Group on behalf of the Customer Group, any shorter notice period required by
such third party customer) and (ii) in accordance with and subject to one of Section
11.8 (Pulled Back Termination), Section 11.9 (Volume Fluctuation),
or Section 11.10 (Transaction Productivity).  For the avoidance of doubt, any Customer
Party providing written notice of its intent to terminate any Transferred SOW
in whole or in part under this Section 11.6 will continue to pay Fees
for the terminated Services in accordance with such Transferred SOW and this
Agreement for such [[[***]]] (or such shorter period as specified above), and
to the extent, if any, that such Services are provided upon agreement of the
parties after the termination of such Transferred SOW.


 


11.7         Termination for Convenience of Future SOWs.  The Customer Party may terminate without
cause any Future SOW in whole or in part at any time upon two hundred and
seventy (270) days’ prior written notice to Provider (or, for any Services
being provided by Provider under any Future SOW to any third party customer of
the Customer Group on behalf of the Customer Group, any shorter notice period
required by such third party customer).  For
the avoidance of doubt, any Customer Party providing written notice of its
intent to terminate any Future SOW in whole or in part under this Section 11.7
will continue to pay Fees for the terminated Services in accordance with such
Future SOW and this Agreement for such two hundred and seventy (270) day period
(or such shorter period as specified above), and to the extent, if any, that
such Services are provided upon agreement of the parties after the termination
of such Future SOW.


 






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11.8         Pulled
Back Termination.


 


(a)          
“Pulled Back Termination” will mean any termination of a Transferred SOW where
the Services performed under that Transferred SOW either (i) are subsequently
performed by a Customer Party or (ii) are awarded to a third party.  During any year of the Minimum Volume
Commitment Term, if the annual purchase dollar volume of Pulled Back
Terminations in that year in aggregate exceeds the following amounts (the
amount of such excess being the “Annual Excess”): [[[***]]]; then the Customer
Group will purchase additional Services of like price per FTE and for a period
of time that reflects a duration on a weighted average equivalent to all Pulled
Back Terminations terminated in that year with annual purchase dollar volume in
aggregate no less than the Annual Excess.


 


(b)           Section
11.8(a) shall not apply to any terminations resulting from, in whole or in
part:


 


(i)    a termination of a Transferred SOW in
accordance with Section 11.3 (Termination of Customer SOWS for Cause by
Customer Group);


 


(ii)   Provider or any Affiliated Provider becoming
subject to any voluntary or involuntary order of any Governmental Entity, for
reasons other than those within Provider’s control, prohibiting or materially
impairing the performance of Services under such Transferred SOW, for which
Provider does not develop a work-around within thirty (30) days;


 


(iii)  a termination of a Transferred SOW in
accordance with Section 11.4 (Termination upon a Provider Change of
Control by the Customer Group).


 


(iv)  a termination of a Transferred SOW in
accordance with Section 22.8 (Force Majeure);


 


(v)   a termination of a Transferred SOW with the
IT Services Business Component in connection with reacquisition of
substantially similar services on substantially the same terms from Provider;


 


(vi)  a termination of a Transferred SOW due to
changes in applicable Law; or


 


(vii) a termination directly resulting from a
material change in the requirements of any of the Services being provided by
Provider under any Transferred SOW to any third party customers of the Customer
Group.


 


(c)           GE
shall, upon request, provide Provider with reasonable information related to
the disposition of Services terminated pursuant to Pulled Back Terminations.


 






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11.9         Volume
Fluctuations.


 


(a)           If,
in any year of the Minimum Volume Commitment Term, the aggregate purchasing
under Transferred SOWs ((netting volume ramp-ups against volume ramp-downs)
other than Pulled Back Terminations but excluding reductions resulting
from one of the reasons set forth in Section 11.8(b) and reductions
resulting from the expiration of Project Transferred SOWs) declines from the
purchase dollar volume of the prior year by more than the Volume Trigger, GE
shall meet with Provider to work together in good faith to consider new
business opportunities to put Provider in a position similar to that it would
have been in had the Volume Trigger not been exceeded.


 


(b)           The
“Volume Trigger” will mean annual purchase dollar volume declines in aggregate
exceeding the sum of (i): [[[***]]] and (ii) [[[***]]].


 


11.10       Productivity Reductions.  Sections 11.8 (Pulled Back Termination) and
Section 11.9 (Volume Fluctuations) will not apply to any reduction in required
FTEs under a Transferred SOW due to Transaction Productivity gains.


 


11.11       Termination by Either Party.  This Agreement may be terminated by either
Party upon thirty (30) days’ prior written notice to the other Party if there
are no outstanding Customer SOWs or other Services being provided pursuant to
this Agreement.  Provider will have no
obligation to accept any Future SOW after the date of such termination.


 


11.12       Survival.  Articles VI (Business Volume
Commitment) (as the MVCs may be adjusted as provided hereunder), IX (Payment)
with respect to amounts accrued prior to expiration or termination, XV
(Compliance with Laws), XVI (Personal Data Processing), XVII
(Ownership; Intellectual Property), XX (Limitations of Liability), XXI
(Confidentiality) and XXII (Miscellaneous Provisions), and Section 11.12,
(Survival), 11.13 (Return of Materials) and 11.14 (Termination
Services) will survive the expiration or other termination of this Agreement
and remain in full force and effect.  The
following Articles and Sections will survive the expiration or other
termination of this Agreement and remain in full force and effect during the
following periods:  (i) Article 10
(Books, Records, Audits and Reporting) will survive for three (3) years (or
such longer period as may be required by Law) and (ii) Articles XVIII
(Indemnity) and XIX (Insurance) will survive for three (3) years.


 


11.13       Return of Materials.  Upon termination or expiration of this
Agreement, a Customer SOW or any Services for whatever reason, Provider and the
Customer Group will each return (or, at the election of the other, destroy) all
Information, materials and documents of the other (including full documentation
for all Services) relating to the terminated Services promptly upon such
termination or expiration (but in any event within ninety (90) days from such
termination or expiration).  Such return
will be for no additional charge if such Information, materials and documents
are provided (subject to Section 13.2 (Data Feeds)) in their
then-current


 






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format, and at the Customer Group’s expense for any other format
requested by the Customer Group.


 


11.14       Termination Services.  Upon termination or expiration of this
Agreement, a Customer SOW or any Services for whatever reason, each Customer
Party may elect to purchase termination services from Provider to assist the
Customer Party in the orderly transition of the terminated Services from
Provider to the Customer Party or the Customer Party’s designee.  The Customer Party may elect to purchase, and
Provider will provide to the Customer Party if so purchased, termination
services for up to two hundred seventy (270) days (unless otherwise agreed to
in writing by the parties) from such date of termination or expiration.


 


(a)           Each
Customer Party electing to purchase termination services and Provider will
agree on the terms of a ramp-down plan governing such termination (which may
also establish Performance Standards applicable to the Services during the
ramp-down).  In the event either party
breaches such plan and such breach causes damage to the other, the breaching
party will compensate the other party.


 


(b)           During
the provision of termination services under a Customer SOW terminated for
Cause, (i) the Customer Party shall not again terminate that Customer SOW for
the same Cause so as to reduce the period over which termination services will
be provided, and (ii) Productivity not previously applied to the Fees under
such Customer SOW will not be applied.  The
underlying Services under the Customer SOW being continued as part of the
termination services shall continue to be provided under the Customer SOW at
the rates specified in the Customer SOW with adjustments as specified in the
ramp-down plan and adjustments in Fees downward as appropriate for ramp-down in
volume.


 


(c)           The
Customer Group will pay Fees for such termination services equal to Provider’s
actual cost (including the Affiliated Providers’ actual cost calculated so as
not to include any cost twice and without any markup between Affiliated
Providers and Provider) incurred of providing such termination services (for
clarification, not including any mark-ups or margins on such cost or any
mark-ups or margins which may be included in the price per FTE specified in the
applicable Customer SOW).  If termination
services are being provided as a result of a breach of Section 9.3
(Payment Terms) by a Customer Party, such Customer Party shall, upon request by
Provider, pay the Fees for such termination services in advance.


 


(d)           All
termination services provided hereunder will be deemed included in the
definition of “Services,” and all representations, warranties and
covenants relating to the Services will survive such expiration or termination
with respect to such termination services, to the extent such Services are not
affected by the process of their termination, except that any standards in the
ramp-down plan will supersede the Performance Standards in the Customer SOW.  If the Customer Group elects not to purchase
termination services, Provider will not, through any acts or omissions, in any
manner knowingly impede the transition process.


 






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(e)           In
the event of a bona fide dispute between the Customer Group and Provider
regarding the provision of any such termination services, and provided that the
Customer Group continues to pay Provider Fees in accordance with the foregoing
for such termination services, Provider will provide termination services in
accordance with the foregoing during the pendency of such dispute, and the
Customer Group and Provider will resolve such dispute in accordance with Section
22.5 (Dispute Resolution).


 


11.15       Evidentiary Admissions.  The undertaking of any mitigation by a party
to this Agreement in respect of an alleged breach of this Agreement or a
Customer SOW shall not be construed against such party in any Dispute.


 


11.16       Enumerated Breaches.  The enumeration of any particular defaults
under this Agreement or a Customer SOW as giving rise to a material breach of
this Agreement or the Customer SOW shall not be an indication that any other
breaches are not material (i.e., the
principle of ejusdem generis
shall not apply with respect to the identification of acts or omissions giving rise
to material breach).


 


ARTICLE XII

PERFORMANCE STANDARDS AND SERVICE WARRANTIES


 


12.1         General.  Subject to Section 12.2 (Transferred
SOWs), Provider will deliver to the Customer Group all Services set forth in a
Customer SOW in accordance with the applicable Performance Standards set forth
therein with promptness and diligence and in a professional and workmanlike
manner by qualified personnel in accordance with the generally accepted
practices and professional standards used by internationally recognized
organizations performing services similar to the Services.  Notwithstanding the foregoing, Provider shall
not be liable for any failure to meet or exceed any Performance Standards if
such failure is due to the wrongful acts or omissions of the Customer Party or
its agents or the failure of the Customer Party to comply with its obligations
under the applicable Customer SOW.


 


12.2         Transferred SOWs.  During the six (6) month period beginning on
the Effective Date, Provider and the Customer Party will review each
Transferred SOW to identify Performance Standards and associated metrics that
will be considered “critical” which will then become the Critical Performance
Standards for that Transferred SOW.  If
Provider and the Customer Party fail to agree on Critical Performance
Standards, Customer Group may choose at its reasonable discretion up to six (6)
metrics of those processes being measured immediately before the Effective
Date, unless the complexity of the process or the regulatory requirements
associated with such process reasonably requires establishing a greater number
of metrics, and the Critical Performance Standards will be set at the average
of Provider’s performance of such metrics during the twelve (12) months prior
to the Effective Date (which average will exclude the two (2) highest and two
(2) lowest monthly measures); provided, however, that for any
such process (i) that has not existed for at least twelve (12) months prior to
the Effective Date or (ii) for which performance data is not available as
of the Effective Date, the Critical Performance


 






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Standards will be established as the Performance Standards actually
being achieved in respect of such process as of the Effective Date.


 


12.3         Deliverables Warranty.


 


(a)           Subject
to Section 12.2 (Transferred SOWS) with respect to any Deliverable
provided hereunder, Provider warrants the following until [[[***]]] following
the date such Deliverable is accepted by the Customer Party (the “Warranty
Period”):


 


(i)    such Deliverable will conform to any
applicable requirements set forth in the applicable Customer SOW; and


 


(ii)   such Deliverable at the time of delivery will
contain no elements which are designed to, capable of, or permit (A)
unauthorized access to or intrusion upon, (B) disabling of, (C) erasure
of, or (D) interference with, any hardware, Software, data or peripheral
equipment, including any “computer viruses,” “worms” or “time bombs” as those
terms are commonly understood within the technology industry.


 


(b)           In
the event that any Deliverable fails to conform to the warranties set forth in
this Section 12.3 in any material respect, Provider will have the right
and obligation to cure or correct such failure as soon as reasonably practical
at Provider’s expense.  If Provider is
unable to cure or correct such failure within a commercially reasonable period
of time of no less than ninety (90) days, then the Customer Group may pursue
its remedies at law to recover direct damages resulting from the breach of such
warranties.  The foregoing provisions are
expressly conditioned upon the Customer Group providing Provider with prompt
written notice of any claim thereunder prior to the expiration thereof, which
notice must identify with particularity the non-conformity.  The foregoing warranties will not apply if
the alleged breach of warranty has not been caused by Provider’s breach of its
obligations herein or is due to instructions or specifications of the Customer
Group or services or goods supplied by the Customer Group or its agents not
conforming to their respective technical, functional and performance
specifications and criteria, and Provider will have no liability or obligation
as a result thereof.


 


ARTICLE XIII

DATA; BUSINESS CONTINUITY PLAN; POLICIES


 


13.1         Data. 
All Customer Group data received or produced during the performance of
the Services hereunder will be contained in a database and will, upon the
Customer Group’s request and in accordance with the applicable Customer SOW, be
delivered to the Customer Party within a reasonable period of time in either
the format in which it was kept by Provider or an Affiliated Provider or a
commercially standard format specified by such Customer Party.


 






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13.2         Data Feeds.  The Customer Group and Provider will, at
their own expense and at their respective locations, maintain equipment and
supplies necessary for the transfer of data, both by computer tape and via an
electronic communication line.  The
Parties have jointly reviewed all of the procedures necessary for the daily
processing flow of data, records, forms and media.  The Customer Group and Provider agree to
provide and accept data feeds in a format that is mutually agreed upon by the
Customer Group and Provider.


 


13.3         Data Backup and Storage.  In the event any or all of the Customer Group
data is destroyed or damaged in any way, Provider will, at its cost, use
commercially reasonable efforts and such additional efforts specified in the
BCP described in Section 13.4 (Business Continuity Plan), to restore
such Customer Group data.  If the cost of
Provider’s efforts (including the Affiliated Providers’ efforts calculated so
as not to include any cost twice and without any markup between Affiliated
Providers and Provider) to restore such destroyed or damaged data exceeds [[[***]]],
and if the destruction or damage to the data was due to a Customer Party, the Customer
Party shall bear all of the cost above [[[***]]].  If the destruction or damage to the data was
due to Provider, Provider shall bear all of the cost above [[[***]]] (it being
understood that for purposes of this Section 13.3, all hardware owned by
and software licensed to a party (except from the other party) shall be that
party’s responsibility, as are that party’s facilities).  Provider will take reasonable precautions to
prevent the loss of or alteration of the Customer Group data in Provider’s possession.  Provider will perform regular backups of the
Customer Group data.


 


13.4         Business Continuity Plan.  At no additional cost to the Customer Group,
Provider will (i) for each Transferred SOW, maintain and comply with the
disaster recovery, crisis management and business continuity plans and
procedures (a “BCP”), if any, in existence under such Transferred SOW as
of the Effective Date and (ii) for Future SOWs, prepare, maintain and comply
with a reasonable BCP designed to help ensure that it can continue to provide
the Services in accordance with this Agreement and the applicable Customer SOWs
in the event of a disaster or other BCP-triggering event (as such events are
defined in the applicable BCP).  Provider’s
BCPs for Future SOWs will include, at a minimum, those items contained in Exhibit
I.  Such BCPs will also address all
operations identified by the Customer Group as “mission critical,” will meet
the substantive requirements specified by the Customer Group, and will be
agreed upon by the Customer Group and Provider. 
Provider will regularly update, and, when necessary in accordance with
the terms of the BCPs, activate, the BCPs. 
The BCPs and all updates thereto will be approved by GE.  Provider will provide a copy of the BCPs to
the Customer Group within thirty (30) days after the Effective Date.  Provider will permit the Customer Group to
participate in testing and assessment of the BCPs.


 


13.5         Customer Group Policies.


 


(a)           Provider
acknowledges that it has received a copy of, and has caused its Executive and
Service Delivery Leaders (and will cause any replacements of such Executive and


 






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Service Delivery Leaders) to become familiar with, the following
Customer Group policies (“Customer Group Policies”):


 


(i)    the document “Integrity, The Spirit and the
Letter of our Commitment” attached hereto as Exhibit J (“Integrity
Policy”);


 


(ii)   the Employment Data Protection Standards
attached hereto as Exhibit K;


 


(iii)  the Background Checking Requirements contained
in Exhibit L; and


 


(iv)  any other policies of the Customer Group which
the Customer Group provides Provider notice.


 


(b)           Provider
agrees, and will cause any of its subcontractors permitted in accordance with Section
22.2 (Assignment; Binding Effect), to comply with the Customer Group
Policies to the extent applicable to the performance of its obligations under
this Agreement and the Customer SOWs, and to report to the Customer Group
violations of such policies.  Any changes
to the Customer Group Policies will be subject to Section 13.7 (Changes
to Policies and Security Standards).  Provider
further agrees that it will review the Customer Group Policies with its
personnel who will be providing Services to the Customer Group.  Upon execution of this Agreement, and
thereafter upon the Customer Group’s request with no less than thirty (30) days’
advance notice, Provider will require its Executive and each of its Service
Delivery Leaders to execute a statement acknowledging that he/she has read,
understands and will comply with the Customer Group Policies in connection with
his/her duties to be performed for the Customer Group.


 


13.6         Security Standards.  Provider will maintain the security standards
in accordance with the Customer Group’s security guidelines, as may be amended
from time to time, including:


 


(a)           Physical Security Standards. 
Provider will limit access to routers, servers, and network devices used
in providing the Services to the Customer Group.  Provider will provide for monitored
environments of such routers, servers, and network devices, such as air
conditioning, clean and uninterrupted power source, and fire suppression.


 


(b)           Access to Provider Network. 
Provider will have firewall technology in place to protect Provider from
unauthorized outside access to Provider’s network.  Dial-in access to Provider’s network must be
outside such firewall.  Provider’s
Internet web server(s) must be inside the firewall.  Provider’s server hosting non-confidential
Customer Group data may have Internet access with adequate security as defined
herein, but Provider’s server hosting Customer Confidential Information may not
have Internet access unless the member of the Customer Group that is the
Information Owner of such Customer Confidential Information consents.


 






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(c)           Internet Security.  Provider
will encrypt all data transmitted through the Internet.  Documents, business records and other data
made available via the Internet will be available only to authorized users and
will be protected by Provider from improper use in accordance with generally
accepted Internet security practices used in the information technology
industry.  Only authorized Provider
personnel will have access to access codes and electronic identification codes.


 


(d)           Personal Data Security. 
Provider will implement technical and organizational measures to ensure
the security and confidentiality of Personal Data in order to prevent, among
other things: (i) accidental, unauthorized or unlawful destruction, alteration,
modification or loss of Personal Data, (ii) accidental, unauthorized or
unlawful disclosure or access to Personal Data, and (iii) unlawful forms of
processing.  The security measures taken
will be in compliance with applicable data protection Laws and will be adapted
to the risks represented by the Processing and the nature of the Personal Data
to be processed.


 


(e)           Other Security Standards. 
Subject to Article 4 (Change Order Procedures) and Section
13.7 (Changes to Policies and Security Standards), the Customer Group and
Provider will jointly agree in good faith to other security requirements that
may be necessary to make the Customer Group and Provider network and Internet
environments secure.  Provider will
immediately, after discovering any material breach of the Customer Group’s
security guidelines, inform the Customer Group of such breach.


 


13.7         Changes to Policies and Security Standards.  Provider will implement all changes to the
Customer Group Policies and the Customer Group’s security guidelines requested
by the Customer Group.  If Provider’s
costs and expenses (including the Affiliated Providers’ costs and expenses calculated
so as not to include any cost or expense twice and without any markup between
Affiliated Providers and Provider) to implement any such change would exceed [[[***]]]
for any Customer SOW per year, Provider and GE will agree upon an allocation of
such costs and expenses.


 


ARTICLE XIV

COOPERATION; TRAINING AND SUPPORT


 


14.1         Cooperation by Parties.  Provider and the Customer Group will timely,
diligently and on a commercially reasonable basis cooperate, facilitate the
performance of their respective contractual duties and obligations, and reach
agreement with respect to matters left for future review, consideration and/or
negotiation and agreement by Provider and the Customer Group, as specifically
set forth in a Customer SOW.  Provider
and the Customer Group will deal and negotiate with each other in good faith in
the execution and implementation of their duties and obligations under this
Agreement and the Customer SOWs.


 


14.2         Cooperation Regarding Service Mix.  Each year of the Term, the Parties will
review the Provider’s business plans and the types of Services being provided.  If such


 






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Services substantially depart from the Services provided in the prior
year, the Parties will cooperate to identify future Service offerings within
the Sweet Spot Services that may be offered by the Customer Group to Provider.


 


14.3         Training and Support Obligations.  With respect to Transferred SOWs, the
training and support commitments of Provider and the Customer Group will
continue (i) as specified in the Transferred SOWs or (ii) if not specified in a
particular Transferred SOW, in a manner consistent with the practices of the
Transferred BPO Business and the Customer Group with respect to such
Transferred SOW prior to the Effective Date. 
With respect to Future SOWS, any training and support commitments will
be specified in such Future SOWs.


 


14.4         Customer Support.  The Customer Group will provide Provider (i)
access to complete and accurate information and data consistent with the past
practices of the Customer Group prior to the Effective Date as is necessary for
the performance by Provider of any Services and (ii) support and cooperation as
expressly set forth under this Agreement and the applicable Customer SOWs.  If any such access and support is not
provided, or provided in such a manner that Provider is unable to perform the
Services as required, then Provider will provide written notice thereof to the
Customer Group (which notice will include the relevant specifics and details of
such failure to perform such obligations) as soon as Provider is aware of such
failure to perform, and Provider will be excused for its failure to comply with
any performance requirements for the period and to the extent such failure is
caused by the Customer Group’s failure to perform such obligations; provided,
however, that Provider will continue to use commercially reasonable
efforts to comply with all such performance requirements.


 


ARTICLE XV

COMPLIANCE WITH LAWS


 


15.1         Provider
covenants, represents and warrants that (i) it has the legal right to provide the
Services from the jurisdictions from which the Services are provided and (ii)
it is in compliance with all applicable Laws in connection with its obligations
under this Agreement, including privacy and data protection Laws.


 


15.2         Provider
agrees that:


 


(a)           Provider
will, and will cause all of its subcontractors permitted in accordance with Section
22.2 (Assignment; Binding Effect) to:  (i) use no forced, indentured or prison labor,
or labor which violates any applicable minimum working age, working condition,
wage or overtime Laws in the performance of this Agreement and the Customer
SOWs; (ii) comply with the tax, immigration, and employment Laws of all
jurisdictions in which its employees perform work under this Agreement and the
Customer SOWs; (iii) comply with all Laws and regulations governing
environmental protection and the health and safety of its employees; and (iv)
comply with all applicable privacy or data protection Laws of any country where
work relating to this Agreement and the Customer SOWs is performed.


 






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(b)           Provider
will provide all data, documents and reports as reasonably requested by the
Customer Group from time to time upon reasonable notice, as evidence of the
Provider’s compliance with Law.


 


(c)           Provider
will be solely responsible for procuring and maintaining all necessary permits
and licenses of Governmental Entities required in connection with Provider’s
performance of the Services, including, where applicable, processing and
procuring all necessary visas, work permits, and passport documents for its employees
in advance of their assignment in connection with provision of any Services.  Provider will use commercially reasonable
efforts to obtain all such permits, licenses and visas in a timely manner to
avoid any unnecessary delay.  Provider
will ensure that all of its personnel providing Services are in compliance with
all visas, passports, and work permits being used by them.


 


(d)           At
the Customer Group’s reasonable request, but no more than once per calendar
year, Provider will furnish to the Customer Group SAS 70 (type I and II)
reports and evidence of compliance with ISO 17799.


 


(e)           Provider
will furnish to the Customer Group such reports or other data as will be
required of Provider under applicable Law. 
If Provider receives a request by any Governmental Entity to submit any
report or data related to the Services, Provider will, upon receipt of any such
request and prior to the submission of any such reports or data to such
Governmental Entity, notify the Customer Group’s designated Service Delivery Leader(s),
and provide such Service Delivery Leader(s) with copies of such submissions,
unless restricted by Law from doing so.


 


ARTICLE XVI

PERSONAL DATA PROCESSING


 


16.1         Personal Data.  In performance of this Agreement and the
Customer SOWs, Provider may have access to, or otherwise Process, Customer
Personal Data on the Customer Group’s behalf. 
Customer Personal Data will be accessed and otherwise Processed only to
the extent strictly necessary to perform this Agreement and the Customer SOWs,
or upon the Customer Group’s written instructions and in strict compliance
thereof.  Subject to Provider’s
compliance with Section 16.2 (Data Protection), the Customer Group
hereby represents and warrants that it is entitled under applicable Laws to
transfer the Customer Personal Data to Provider for the purposes of this
Agreement and the Customer SOWs.


 


16.2         Data
Protection.


 


(a)           Notwithstanding
anything in Article 21 (Confidentiality) to the contrary, Provider
agrees to keep the Customer Personal Data confidential, and agrees to not
disclose the Customer Personal Data to third parties without having first
received express written approval from the applicable Customer Party and, if
required by applicable Law, the applicable Data


 






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Subject.  Provider’s personnel
will Process Customer Personal Data only on a need-to-know basis in connection
with the performance of this Agreement and the Customer SOWs.


 


(b)           Provider
will implement the technical and organizational measures set forth in Section
13.6(d).


 


(c)           Provider
will, and will cause its subcontractors to, implement all reasonable measures
necessary to ensure compliance by its personnel with the obligations relating
to Customer Personal Data, and will require its personnel (and will cause its
subcontractors), as a condition of having access to Customer Personal Data, to
sign individual confidentiality agreements in which they each agree
individually to comply with the obligations of this Article XVI
(Personal Data Processing).  The Customer
Group may also require Provider’s personnel (and such subcontractors), as a
condition of participating in specific assignments, to sign individual
confidentiality agreements that are tailored for such specific assignments.  Provider will comply with all applicable Laws
pertaining to Personal Data protection, and will process “Employment Data”
consistent with the “GE Employment Data Protection Standards” attached hereto
as Exhibit K.  In particular,
where, in performing any Services, Personal Data is collected by Provider from
a Data Subject directly, Provider will, as required by applicable Laws or Exhibit
K:  (i) provide the Data Subject with
required notices; (ii) permit access by the Data Subject to the Personal
Data collected about him/her, and (iii) when necessary, obtain the consent
of Data Subjects.  Provider must,
however, seek and obtain prior written approval from the Customer Group
regarding the scope of Personal Data to be collected and the consent language
to be used.


 


(d)           Failure
by Provider to comply with the obligations set forth in this Agreement relating
to Personal Data will be considered a material breach of this Agreement.


 


(e)           Upon
the expiration or termination of this Agreement for whatever reason, Provider
will stop any Processing of Customer Personal Data and will return to the
Customer Group all copies of Customer Personal Data along with all notes,
analyses, compilations, forecasts, data, translations, studies, memoranda,
copies, extracts, reproductions or other documents that contain such Customer
Personal Data.


 


(f)            Health Information & HIPAA.  If Provider Processes any Customer Personal
Data that is “protected health information, including any medical, demographic,
visual or descriptive information that can be used to identify a particular
patient/individual” subject to the U.S.  “Health
Insurance Portability & Accountability Act of 1996” and regulations
promulgated under such Act (collectively “HIPAA”), Provider agrees to
the terms and conditions on the subcontractor Business Associates Agreement
(BAA) set forth on Exhibit M.


 


(g)           Gramm-Leach-Bliley Financial Services Modernization Act.  If Provider Processes any Customer Personal
Data or other information of the Customer Group’s customers (“Customer
Information”) that is subject to Title V of the Gramm-Leach-Bliley
Financial


 






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Services Modernization Act of 1999 and regulations promulgated under
that Act (collectively, the “GLB”) or other federal, state, and local
Laws governing the privacy and security of Customer Information (collectively “Customer
Information Privacy Laws”), Provider agrees to comply with the GLB and
other Customer Information Privacy Laws, and to protect and maintain the
privacy of such Customer Information accordingly.  Such compliance will include Provider (i) not
disclosing any Customer Information to any third party except as expressly provided
in this Agreement or otherwise directed or authorized in writing by the
Customer Group; (ii) ensuring that its employees and permitted subcontractors
who obtain or have access to Customer Information comply at all times with the
Customer Information Privacy Laws and the provisions of this Agreement
regarding the use and protection of Customer Information; and (iii) protecting
and maintaining the security of all Customer Information in Provider’s custody
or under Provider’s control.  Provider
will immediately report to the Customer Group any unauthorized disclosure or
use of or any unauthorized access to any Customer Information in Provider’s
custody or under Provider’s control.


 


(h)           European Union.  If,
in the course of Provider’s and the Customer Group’s performance of this
Agreement and the Customer SOWs, any Personal Data will be transferred from a
member state of the European Union (“EU”) to a jurisdiction outside the
EU that has not been declared “adequate” for personal data protection by the
European Commission, the party becoming aware of this situation will inform the
other, and the Customer Party and Provider (or other Processor, if approved by
the Customer Group) will enter into the Standard Contractual Clauses for
Controller-to-Processor Transfers set forth in Exhibit N or an alternate
agreement if mutually agreed upon by such parties.


 


(i)            Provider
understands and agrees that the Customer Group may use any “Contact
Information” (such as name, address, telephone number, e-mail address)
provided by Provider or any of its Representatives for purposes reasonably
related to the performance of this Agreement and the Customer SOWs, including
supplier administration and payment administration, and that such Contact
Information may be transferred to and stored in a global database located in
the United States of America and maintained by the Customer Group.  Provider agrees that it will comply with all
requirements of Law (such as obtaining consent of the Data Subject where
required) prior to the transfer of any Contact Information or other Personal
Data to the Customer Group.  The Contact
Information will not be shared beyond the Customer Group and its
Representatives, who will be contractually bound to use the information only as
reasonably necessary for purposes related to the Services.  The Customer Group will take appropriate
measures to ensure that Contact Information is stored securely and in
conformity with applicable data protection Laws.


 


(j)            Provider
will immediately inform the Customer Group of any material breach of Provider’s
obligations under this Article XVI.


 






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ARTICLE XVII

OWNERSHIP; INTELLECTUAL PROPERTY


 


17.1         Independently
Developed Technology and Intellectual Property.


 


(a)           As
between the Customer Group and Provider, Provider will retain all right, title
and interest in and to (i) all Technology and Intellectual Property transferred
to Provider and its Affiliates that constitutes a portion of the Transferred
BPO Business and (ii) all Technology and Intellectual Property owned, licensed
or otherwise procured by Provider and created or acquired independently of the
Services, other than the Cross License Customer IP.


 


(b)           As
between the Customer Group and Provider, the Customer Group will retain all
right, title and interest in and to all Technology and Intellectual Property
owned, licensed or otherwise procured by the Customer Group and existing prior
to the Effective Date or created or acquired independently of the Services,
other than such Technology or Intellectual Property that is transferred to
Provider and its Affiliates that constitutes a portion of the Transferred BPO
Business or licensed to the Customer Group by Gecis International Holdings
under the Cross License Agreement.


 


17.2         Ownership
of Technology and Intellectual Property Developed under Customer SOWs.


 


(a)           Subject
to Section 17.1, as between the Customer Group and Provider, the Customer Group
will own all Technology and Intellectual Property developed, licensed or
purchased by Provider (or by any third parties or Affiliated Providers on
behalf of Provider) pursuant to the Customer SOWs (other than improvements to
the Cross License Customer IP made by Provider independently of the Services (“Cross
License Improvements”), which shall be deemed Provider Solutions).  Except as provided in Section 17.2(b)(ii),
all such Technology and Intellectual Property developed, licensed or purchased
pursuant to the Customer SOWs other than the Cross License Improvements will be
deemed “Customer Solutions”.  To
the extent applicable, the Customer Solutions will be deemed a work made for
hire under the United States Copyright Law (17 U.S.C. § 101 et seq.) (or
any equivalent foreign Laws).  If any
Customer Solutions are not deemed to be works made for hire for any reason,
Provider hereby assigns and agrees to assign to the Customer Group without further
consideration all right, title and interest in and to the Customer Solutions.  Any and all such assignments include all
rights, however denominated, of paternity, integrity, disclosure, attribution
and withdrawal and any other rights, present or future, of any country,
including rights that may be known as or referred to as “moral rights” or “unfair
competition rights” (collectively, “Moral Rights”).  To the extent such Moral Rights cannot be
assigned under applicable law and to the extent allowed by the laws in the
various countries where Moral Rights exist, Provider hereby waives such Moral
Rights and consents to any action of the Customer Group and its licensees that
would violate such Moral Rights in the absence of such consent.


 






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(b)           Notwithstanding
the foregoing:


 


(i)    the Technology and Intellectual Property set
forth on the attachment to Paragraph 5 of Section 1.1 and Section 3.09(b) of
the Disclosure Schedule to the Securities Purchase Agreement will be deemed “Provider
Solutions,” not “Customer Solutions”, and


 


(ii)   the parties may agree in a particular Future
SOW that any Technology and Intellectual Property developed, licensed or
purchased by Provider (or by any third parties or Affiliated Providers on
behalf of Provider) under such Future SOW will be owned by Provider and
licensed to the Customer Group, in which case such Technology or Intellectual
Property will be deemed “Provider Solutions,” not “Customer Solutions”.


 


17.3         License
to the Customer Group.


 


(a)           If
any Technology or Intellectual Property owned, licensed or otherwise procured
by Provider or its designee is incorporated into any Deliverables provided by
Provider to the Customer Group under the Customer SOWs (whether such
Deliverables are owned by or licensed to the Customer Group), Provider hereby
grants to the Customer Group a perpetual, irrevocable, worldwide, royalty-free,
non-exclusive license, with the unrestricted right to sublicense to Affiliates,
customers, suppliers, distributors, contractors and consultants, to such Technology
and Intellectual Property to use, reproduce, access, practice, embody, enhance,
make and have made, sell, offer to sell and import such Deliverables and to
develop improvements, derivative works, compilations and modifications thereof.  No such Technology or Intellectual Property
of a third party will be incorporated into such Deliverables without the prior
written consent of the Customer Party unless such incorporated Technology or
Intellectual Property is de minimis and is licensed to the Customer Group on
the same terms as the license set forth in the foregoing sentence.


 


(b)           Provider
will deliver copies of all Provider Solutions (including source code and object
code versions of any Software contained therein) licensed under this Section 17.3
promptly upon the reasonable request of the Customer Group.


 


(c)           If
any Technology or Intellectual Property owned by Provider or its designee is
used in the provision of Services but not incorporated into any Deliverable, Provider
agrees upon the expiration or termination of this Agreement to grant the
Customer Group a license to such Technology and Intellectual Property on
reasonable and non-discriminatory terms.


 


17.4         License
to Provider.


 


(a)           The
Customer Group hereby grants to Provider a revocable, worldwide, royalty-free,
non-exclusive license to use, reproduce, access, practice, embody, enhance,
create


 






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derivative works, make and have made the Customer Solutions and any
other Technology or Intellectual Property provided to Provider by the Customer
Group, subject to the following:


 


(i)    Provider must use such Customer Solutions
and other Technology and Intellectual Property solely for the purpose of
providing Services to the Customer Group (or for any Cross License Customer IP
included in such Customer Solutions or other Technology or Intellectual
Property, as otherwise allowed pursuant to the terms and conditions of the
Cross License Agreement),


 


(ii)   Provider’s license to use any Customer
Solutions will expire automatically when such Customer Solutions are no longer
necessary for Provider’s use in connection with the Services; and


 


(iii)  such license granted to Provider pursuant to
this Section 17.4 will be limited to Provider and any subcontractors
permitted in accordance with Section 22.2.


 


(b)           At
the request of Provider, the parties to a Customer SOW may assess whether in a
particular Future SOW the Customer Group will grant to Provider a non-exclusive
license under any Customer Solutions for purposes other than providing Services
to the Customer Group.  If the parties
agree to grant such a license, such license will be set forth in the applicable
Future SOW along with such consideration as Customer and Provider may agree to
in writing.


 


(c)           All
right, title and interest in and to any improvements, modifications,
corrections, compilations, derivative works, derivations, or other revisions (“Improvements”)
of the Customer Solutions or any other Technology or Intellectual Property or
components thereof provided to Provider by a Customer Party developed by
Provider (or by any third parties or Affiliated Providers on behalf of
Provider), other than Cross License Improvements, and all Intellectual Property
therein will be owned by such Customer Party. 
All such Improvements will be deemed included in the definition of “Customer
Solutions” and subject to the work made for hire and assignment provisions
of Section 17.2(a).


 


17.5         Residuals.  During the course of performing or receiving
the Services, the Customer Group and Provider (including the Affiliated
Providers) may further develop their knowledge, skills, and experience.  The mere subsequent use by either the
Customer Group or Provider (including the Affiliated Providers) of such
knowledge, skills and experience will not constitute a breach of this Agreement
or any Customer SOW, so long as such use is consistent with the confidentiality
obligations under this Agreement and the applicable Customer SOWs.


 


17.6         Customer
Third Party Resources.


 


(a)           Subject
to the terms and conditions of the Transition Services Agreement, to the extent
that any Technology or Intellectual Property provided to Provider by the
Customer


 






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Group is licensed or procured from third parties (“Customer Third
Party Resources”), the Customer Group and Provider will cooperate to obtain
any consents (each a “Required Consent”) from the applicable third
parties permitting the use of such Customer Third Party Resources by Provider
as required under this Agreement.  Subject
to the terms and conditions of the Transition Services Agreement, any cost,
charges or fees that must be paid to any such third party in respect of a
Required Consent shall be paid by the Customer Group.  Provider will not charge Fees to the Customer
Group for the services of its or its designees’ personnel associated with
obtaining such Required Consents.  Subject
to the foregoing sentence, the Customer Group will reimburse Provider for its
reasonable, pre-approved, documented costs and expenses associated with
assisting the Customer Group in obtaining the Required Consents.


 


(b)           Provider
agrees to comply with such terms and conditions of all licenses and other
agreements relating to the Customer Third Party Resources to the extent and as
of the date that Customer Group conveys such terms and conditions to Provider
or Provider otherwise obtains knowledge of such terms and conditions.


 


(c)           In
the event that Customer Group and Provider are unable to obtain any Required
Consent, (i) Customer Group and Provider will work together to develop a
suitable workaround, and (ii) Provider will not be liable to Customer Group for
Provider’s failure to perform any Services to the extent such failure results
from such inability to obtain such Required Consent, and the Customer Group
shall not be obligated to pay for such Services.


 


17.7         Authorization, Representations and Warranties.  The Customer Group represents and warrants to
Provider that, subject to obtaining the Required Consents pursuant to Section
17.6 above, the Customer Group has the authority and rights necessary to
grant to Provider the licenses contemplated by this Article 17
(Ownership; Intellectual Property).  Provider
represents and warrants to the Customer Group that Provider has the authority
and rights necessary to grant to the Customer Group the licenses granted by
Provider contemplated by this Article 17 (Ownership; Intellectual Property).  Notwithstanding the foregoing, this Section
17.7 will not apply to any Intellectual Property subject to the Cross
License Agreement.


 


17.8         Additional Acts.  Provider agrees to execute, and cause its
employees, agents and subcontractors permitted in accordance with Section
22.2 (Assignment; Binding Effect) to execute, any documents at no
additional cost, or take any other actions as may be reasonably necessary or as
requested by the Customer Group, to perfect the Customer Group’s respective
ownership rights as set forth above and to register, maintain and enforce the
Customer Solutions.  The Customer Group
will reimburse Provider for its reasonable, documented costs and expenses
associated with the foregoing actions.


 






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ARTICLE XVIII

INDEMNITY


 


18.1         Provider Indemnity.  Provider will indemnify, defend and hold each
Customer Party and its Representatives (collectively, the “Customer
Indemnified Parties”) harmless against any losses, damages, liabilities,
costs (including reasonable attorneys’ fees and expenses) relating to a
Customer SOW (collectively, “Losses”) resulting from or arising out of
any third party claims or actions resulting from or arising out of:


 


(a)           failure
by Provider to comply with its obligations with respect to compliance with Laws
in Article XV (Compliance with Laws) and data processing in Article XVI
(Personal Data Processing) in the applicable Customer SOW, [[[***]]]


 


(b)           subject
to Section 20.2 (Liability Cap), material breach of the applicable
Customer SOW, [[[***]]]


 


18.2         Customer Indemnity.  Subject to Provider’s obligations under Articles
XV (Compliance with Laws) and XVI (Personal Data Processing), each Customer
Party individually (and not jointly) indemnify, defend and hold Provider and
its Representatives (collectively, the “Provider Indemnified Parties”)
harmless against any Losses resulting from or arising out of any third party
claims or actions resulting from or arising out of (i) the failure of such
Customer Party to comply with any applicable Law, or (ii) subject to Section
20.2 (Liability Cap), the third party’s receipt or use of Services not in
contravention of the Customer Group’s instructions, but only to the extent the
member itself would have been liable if it had itself performed the acts giving
rise to liability and the liability does not arise from a breach by Provider of
the applicable Customer SOW.


 


18.3         Mutual Indemnity.


 


(a)           Provider
agrees to indemnify, defend and hold harmless the Customer Indemnified Parties
from and against Losses resulting from or arising out of any third party claims
or actions resulting from or arising out of: 
(i) death or bodily injury to a third party (or its legal
representatives or successors) or physical damage to real or tangible personal
property of such third party to the extent caused directly and proximately by
the negligent misconduct of Provider, (ii) fraudulent, criminal, or dishonest
acts or fraudulent, criminal or dishonest omissions of Provider, and (iii) any
breach by Provider of the confidentiality provisions in Article XXI
(Confidentiality).


 






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(b)           Each
Customer Party will individually (and not jointly) indemnify, defend and hold
harmless the Provider Indemnified Parties from and against Losses resulting
from or arising out of any third party claims or actions resulting from or
arising out of (i) death or bodily injury to a third party (or its legal
representatives or successors) or physical damage to real or tangible personal
property of such third party to the extent caused directly and proximately by
the negligent misconduct of such Customer Party, (ii) fraudulent, criminal, or
dishonest acts or fraudulent, criminal or dishonest omissions of such Customer
Party, and (iii) any breach by such Customer Party of the confidentiality
provisions in Article XXI (Confidentiality).


 


18.4         Infringement Indemnity.


 


(a)           Provider
will indemnify, defend and hold each applicable member of the Customer
Indemnified Parties harmless from and against Losses incurred as a result of
any claim of, or action for, infringement, violation or misappropriation of any
Intellectual Property right related to such Customer Indemnified Party’s
possession or anticipated use of any Software, documentation, information, data
or other property (“Material”) furnished by Provider or its designee
(including the Provider Solutions, but not including any such infringements,
violations or misappropriations existing prior to the Effective Date) for use
by such Customer Indemnified Party in connection with the Services; provided,
however, that the Customer Solutions and Deliverables will be deemed
property furnished by Provider or its designee for the purposes of the
foregoing.


 


(b)           Each
Customer Party will individually (and not jointly) indemnify, defend and hold
each applicable Provider Indemnified Party harmless from and against Losses
incurred as a result of any claim of, or action for, infringement, violation or
misappropriation of any Intellectual Property right related to such Provider
Indemnified Party’s possession or anticipated use of any Materials furnished by
such Customer Party (except for Customer Third Party Resources and any
infringements, violations or misappropriations existing prior to the Effective
Date).  With respect to any Customer
Third Party Resources that a Customer Party furnishes to a Provider Indemnified
Party, such Customer Party will individually (and not jointly) provide to such
Provider Indemnified Party any indemnification, defense, and hold harmless
benefits that such Customer Party receives from the applicable third party with
respect to such Customer Third Party Resources.


 


(c)           No
party providing indemnification under this Section 18.4 (“Indemnifying
Party”) will have any obligation under this Section 18.4 or other
liability to any party being indemnified under this Section 18.4 (“Indemnified
Party”) for any infringement or misappropriation claim or action resulting
or alleged to result from:  (i) use of
the allegedly infringing Material or any part thereof in (A) combination with any
equipment, Software or data with which such Material was not intended to be
combined and not otherwise approved by the Indemnifying Party, (B) use in any
manner for which such Material was not intended, or (C) modification or
alteration of such Material by a Person other than the Indemnifying Party in
any manner for which such Material was not intended; (ii) any claim or action
arising from any


 






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instruction, information, design or other materials furnished by the
Indemnified Party to the Indemnifying Party hereunder; or (iii) the Indemnified
Party’s continuing the allegedly infringing activity after being informed and
provided for no additional charge with modifications that would have avoided
the alleged infringement.


 


(d)           In
the event that some or all of the Material furnished by Provider or the
Customer Group is held or is in the reasonable opinion of the other likely to infringe,
violate or misappropriate any Intellectual Property right of a third party, the
furnishing party will have the option, at its expense, (i) to modify the
Material to remedy such infringement, violation or misappropriation while
maintaining the same quality and function; (ii) to replace the Material with
other Material that does not infringe, violate or misappropriate any
Intellectual Property right while maintaining the same quality and function in
all material respects; (iii) to obtain a license to allow the other and its
Affiliates (or, in the case of Provider, the Affiliated Providers) to continue
using the Material without any additional cost to the other or its Affiliates
(or in the case of Provider, the Affiliated Providers); (iv) to require return
of the Material and all rights thereto from the other, or (v) if the furnishing
party is a Customer Party, to renegotiate the applicable Customer SOW(s) to
eliminate any obligation by such Customer Party to furnish such Material.  If any such return materially affects
Provider’s ability to meet its obligations under this Agreement or any Customer
SOW, then the Customer Group may, at its sole option, terminate any affected
Customer SOW in accordance with Section 11.3 (Termination of Customer
SOWs with Cause by Customer Group) without prejudice to the Customer Group’s
right to recover any permitted damages under this Agreement and such Customer
SOW.


 


18.5         Limitation on Indemnity Obligation.  The obligations to indemnify, defend and hold
harmless set forth above in this Article XVIII (Indemnity) will not
apply, to the extent the Indemnified Party was responsible for giving rise to
the matter upon which the claim or action for indemnification is based and will
not apply to the extent to which the Indemnified Party fails to (i) promptly
notify the Indemnifying Party of any matters in respect of which the indemnity
may apply and of which the Indemnified Party has knowledge; provided, however,
that any delay in providing such notice will not relieve the Indemnifying Party
of its obligations under this Article XVIII to the extent such delay
does not materially prejudice the Indemnifying Party’s defense of any such
claim or action; (ii) gives the Indemnifying Party the full opportunity to
control the response thereto and the defense thereof, including any agreement
relating to the settlement thereof; provided, however, that the
Indemnifying Party will not settle any such claim or action without the prior
written consent of the Indemnified Party (which will not be unreasonably
withheld or delayed); and (iii) cooperates with the Indemnifying Party, at the
Indemnifying Party’s cost and expense, in the defense or settlement thereof.  The Indemnified Party may participate, at its
own expense, in such defense and in any settlement discussions directly or
through counsel of its choice on a monitoring, non-controlling basis.


 






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18.6         Indemnification
Obligations Net of Insurance Proceeds and on an After-Tax Basis.


 


(a)           Any
liability subject to indemnification under this Agreement (hereinafter referred
to as “Liability” for the purposes of this Section 18.6) will be
net of Insurance Proceeds that actually reduce the amount of the Liability and
will be determined on an After-Tax Basis. 
Accordingly, the amount which any Indemnifying Party is required to pay
to the Indemnified Party will be reduced by any Insurance Proceeds theretofore
actually recovered by or on behalf of the Indemnified Party in respect of the
related Liability.  If an Indemnified
Party receives a payment (“Indemnity Payment”) required by this
Agreement from an Indemnifying Party in respect of any Liability and
subsequently receives Insurance Proceeds, then the Indemnified Party will pay
to the Indemnifying Party an amount equal to the excess of the Indemnity
Payment received over the amount of the Indemnity Payment that would have been
due if the Insurance Proceeds had been received, realized or recovered before
the Indemnity Payment was made.


 


(b)           An
insurer who would otherwise be obligated to pay any claim will not be relieved
of the responsibility with respect thereto or, solely by virtue of the
indemnification provisions hereof, have any subrogation rights with respect
thereto.  The Indemnified Party will use
its commercially reasonable efforts to seek to collect or recover any third-party
(which will not include any captive insurance subsidiary) Insurance Proceeds
(other than Insurance Proceeds under an arrangement where future premiums are
adjusted to reflect prior claims in excess of prior premiums) to which the
Indemnified Party is entitled in connection with any Liability for which the
Indemnified Party seeks indemnification pursuant to this Article XVIII
(Indemnity); provided that the Indemnified Party’s inability to collect or
recover any such Insurance Proceeds will not limit the Indemnifying Party’s
obligations hereunder.


 


(c)           The
term “After-Tax Basis” as used in this Section 18.6 requires
that, in determining the amount of any indemnification payment hereunder, the
amount of the payment shall be (i) increased to take into account any
additional Tax cost incurred by the Indemnified Party arising from the receipt
of indemnification payments hereunder (“Tax Costs”) and (ii) decreased
to take into account any deduction, credit or other tax benefit actually
realized by the Indemnified Party with respect to such Liabilities (“Tax
Benefits”).  In computing the amount
of any such Tax Cost or Tax Benefit, the Indemnified Party shall be deemed to
recognize all other items of income, gain, loss, deduction or credit before
recognizing any item arising from the receipt of any indemnification payment
hereunder or the incurrence or payment of any indemnified Liabilities; provided,
however, that if a Tax Cost or Tax Benefit is not realized in the
taxable period during which an Indemnifying Party makes an indemnification
payment or the Indemnified Party incurs or pays the amounts giving rise to
indemnification, the parties hereto shall thereafter make payments to one
another at the end of each subsequent taxable period to reflect the net Tax
Costs and Tax Benefits realized by the parties hereto in each such subsequent
taxable period.


 






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ARTICLE XIX

INSURANCE


 


19.1         Required Policies.  During the Term (and as otherwise noted),
Provider (including the Affiliated Providers) will maintain all insurance
and/or bonds required by Law or as may be reasonably required by the Customer
Group including, in the aggregate, the following (or any local equivalents of
the following) except that Provider (including the Affiliated Providers) shall
not be obligated to provide coverage for any pre-existing claims or
occurrences, wrongly acts or errors or omissions that arose before the
Effective Date:


 


(a)           Workers’
Compensation and Employers Liability Insurance as required by the jurisdiction
in which the Services are to be performed;


 


(b)           (i)
Commercial General Liability Insurance, on an occurrence basis (including
premises-operations, broad form property damage, contractual liability, and
independent contractors) and (ii) Automobile Liability Insurance covering
bodily injury and property damage to third parties, with limits of at least $20
million per occurrence and in aggregate;


 


(c)           Professional
and Technology Errors and Omissions Liability Insurance and Internet and
Network Liability Insurance providing protection against liability for (i)
systems attacks, (ii) denial of service, (iii) introduction, implementation, or
spread of malicious software code, (iv) unauthorized access and use, with
combined limits of $20 million per occurrence and in annual aggregate.  Such policy or policies shall be maintained
during the Term and for two (2) years following the expiration of the Term;


 


(d)           Comprehensive
Crime Policy on an occurrence basis, with limits of at least $5 million per
occurrence;


 


(e)           Directors
and Officer Liability insurance with a limit of not less than $3 million
per claim; and


 


(f)            All-Risk
Property and Business Interruption Insurance covering the replacement cost of
Provider’s property and extra expense coverage for reasonable extra expense
costs to continue operations after a loss.


 


19.2         Other Requirements.  All insurance policies required to be carried
by Provider hereunder will (i) be placed with insurance companies holding a
General Policyholders rating of “A—” and a Financial Rating of “VII” or better,
as set forth in the most current issue of Best’s Insurance Guide; (ii) be
licensed to provide insurance in the jurisdiction where the Services are
provided or approved by the Customer Group; and (iii) contain a provision that
the insurance provided hereunder will be primary and non-contributing with any
other insurance.  The Customer Group will
be named as an additional insured on the Commercial General


 






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Liability Insurance required under this Agreement.  The Professional Technology Errors and
Omissions and Internet Network Liability policy or policies will waive the
Insured v Insured exclusion for the Customer Group.  Each such insurance policy carried by
Provider will grant waiver of subrogation on all policies referenced above,
except for the Professional and Technology Errors and Omissions Liability, the
Internet and Network Liability and the Comprehensive Crime Policy.  Provider will, within ten (10) days after the
Effective Date, furnish certificates or adequate proof of the foregoing
insurance to the Customer Group.  Provider
will also require any subcontractors permitted in accordance with Section
22.2 (Assignment; Binding Effect) to maintain appropriate insurance and to
agree to furnish the Customer Group, if required, certificates or adequate
proof of such insurance.  Certificates of
insurance furnished by Provider or its subcontractors will contain a clause
stating that “General Electric Company is to be notified in writing at least
thirty (30) days prior to cancellation of, or any material change in, the
Policy.”


 


ARTICLE XX

LIMITATIONS OF LIABILITY


 


20.1         REPRESENTATIONS AND WARRANTIES.  EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN ANY
CUSTOMER SOW, NEITHER PROVIDER NOR THE CUSTOMER GROUP MAKES ANY REPRESENTATION
OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ANY
WARRANTY FROM COURSE OF DEALING OR USAGE OF TRADE.


 


20.2         LIABILITY CAP.  THE LIABILITY OF PROVIDER AND THE CUSTOMER
PARTY 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 CUSTOMER
SOW WILL IN NO EVENT EXCEED IN THE AGGREGATE (I) [[[***]]] OF FEES DUE TO
PROVIDER DURING THE [[[***]]] PRIOR TO THE DATE SUCH CAUSE OF ACTION AROSE, OR
(II) IF THE RELEVANT SERVICES HAVE BEEN PROVIDED TO THE CUSTOMER GROUP FOR LESS
THAN [[[***]]], THEN THE [[[***]]] FEES DUE TO PROVIDER FOR SUCH SERVICES
CONVERTED TO [[[***]]] BASIS.  IN
ADDITION, IN NO EVENT SHALL PROVIDER BE LIABLE TO THE CUSTOMER GROUP IN THE
AGGREGATE IN ANY YEAR IN RESPECT OF ANY AND ALL CUSTOMER SOWS FOR MORE THAN [[[***]]]
IF A TRANSFERRED SOW DOES NOT SPECIFY A LIMITATION ON LIABILITY OR IF A
TRANSFERRED SOW INCLUDES A LIMITATION ON LIABILITY THAT IS GREATER THAN THE
LIMITATION PROVIDED IN THIS SECTION 20.2, THEN THE LIMITATION PROVIDED
IN THIS SECTION 20.2 WILL APPLY IN LIEU OF THAT IN THE TRANSFERRED SOW.  THE LIABILITY CAPS SET FORTH IN THIS


 






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SECTION 20.2 WILL APPLY TO ANY AMOUNTS
PAID OR OWED PURSUANT TO SECTION 18.1(b) OR 18.2(ii).


 


20.3         EXCLUSION OF INDIRECT DAMAGES.  NEITHER PROVIDER NOR THE CUSTOMER GROUP WILL
BE LIABLE TO THE OTHER OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT,
INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND
ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY CUSTOMER SOW, EVEN
IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES
OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY SUCH PARTY.


 


20.4         EXCEPTIONS.  NOTWITHSTANDING THE FOREGOING, SECTION 20.2
(LIABILITY CAP) AND SECTION 20.3 (EXCLUSION OF INDIRECT DAMAGES) WILL
NOT APPLY TO (I) CLAIMS FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, OR
CRIMINAL ACTS OR OMISSIONS, (II) BREACH OF CONFIDENTIALITY, (III) ANY THIRD PARTY
CLAIMS SUBJECT TO THE INDEMNIFICATION PROVISIONS OF THIS AGREEMENT (OTHER THAN
THOSE UNDER SECTIONS 18.1(B) OR 18.2(II), WHICH WILL BE SUBJECT
TO THE CAP), AND (IV) FEES PAYABLE BY THE CUSTOMER GROUP UNDER THE APPLICABLE
CUSTOMER SOW AND THIS AGREEMENT (INCLUDING THE MVCs).


 


20.5         FURTHER LIMITATIONS.  GE’S SOLE OBLIGATIONS UNDER THIS AGREEMENT
AND THE CUSTOMER SOWS WILL BE THOSE OBLIGATIONS EXPRESSLY SET FORTH AS
OBLIGATIONS OF GE IN THIS AGREEMENT OR ANY CUSTOMER SOW TO WHICH GE IS A PARTY.  THE PARTIES SPECIFICALLY AGREE THAT (I) NO
MEMBER OF THE CUSTOMER GROUP WILL BE LIABLE FOR (NOR INCUR ANY OBLIGATION OR
RESPONSIBILITY FOR) ANY ACTIONS OR OMISSIONS OF ANY OTHER MEMBER OF THE
CUSTOMER GROUP UNDER THIS AGREEMENT OR ANY CUSTOMER SOW (INCLUDING WITH RESPECT
TO PAYMENT OF FEES OR INDEMNIFICATION) AND (II) PROVIDER (INCLUDING THE
AFFILIATED PROVIDERS) WILL NOT BE LIABLE TO ANY MEMBER OF CUSTOMER GROUP FOR
(NOR INCUR ANY OBLIGATION OR RESPONSIBILITY FOR) ANY ACTIONS OR OMISSIONS OF
PROVIDER WITH RESPECT TO ANY CUSTOMER SOW TO WHICH SUCH MEMBER OF THE CUSTOMER
GROUP IS NOT A SIGNATORY (INCLUDING WITH RESPECT TO INDEMNIFICATION).


 


ARTICLE XXI

CONFIDENTIALITY


 


21.1         Confidential Information.  In connection with this Agreement and the
Customer SOWs, the Customer Group and Provider will each have access to certain
Confidential Information belonging to, or in which the supplier of the
information has any rights or interest


 






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(the “Information Owner”). 
The term “Information Owner” includes the directors, officers,
employees, and agents of the Information Owner. 
In this Article XXI, the term “Accessing Party” will mean
the party gaining access to the Confidential Information of the Information
Owner hereunder or under the Customer SOWs.


 


21.2         Exclusions.  The confidentiality obligations in this Article
XXI will not apply to any Confidential Information which:


 


(a)           is
or becomes generally available to and known by the public (other than as a
result of a non-permitted disclosure or other wrongful act directly or
indirectly by the Accessing Party or its Representatives);


 


(b)           is
or becomes available to the Accessing Party on a non-confidential basis from a
source other than the Information Owner or its Representatives; provided,
however, that the Accessing Party has no knowledge that such source was
at the time of disclosure to Accessing Party bound by a confidentiality
agreement with or other obligation of secrecy which was breached by the
disclosure; and provided, further, that if the Accessing Party
later becomes aware that the source did not have the right to disclose such
information, it will use commercially reasonable efforts to restrict its future
use and disclosure of the Confidential Information to be consistent with this Article
XXI;


 


(c)           has
been or is hereafter independently acquired or developed by the Accessing Party
or its Representatives without reference to such Confidential Information and
without otherwise violating any confidentiality agreement with, or other
obligation of secrecy to, the Information Owner;


 


(d)           was
in the possession of the Accessing Party or its Affiliates at the time of
disclosure by the Information Owner without restriction as to confidentiality;
or


 


(e)           is
required (by oral question, interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process) to be
disclosed by any Governmental Entity or pursuant to applicable Law; provided,
however, that the Accessing Party (i) uses all reasonable efforts to
provide the Information Owner with written notice of such request or demand as
promptly as practicable under the circumstances so that the Information Owner
will have an opportunity to seek an appropriate protective order or other
appropriate remedy, or waive compliance with the provisions of this Agreement,
(ii) furnishes only that portion of the Confidential Information which is, in
the opinion of Accessing Party’s counsel, legally required and (iii) takes, and
causes its Representatives to take, all other reasonable steps necessary to
obtain confidential treatment for any such Confidential Information required to
be furnished.


 






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21.3         Confidentiality Obligations.


 


(a)           The
Accessing Party will use the Confidential Information of the Information Owner
solely for the purpose of performing its obligations or enforcing its rights
under this Agreement or the Customer SOWs, and not for any other purpose,
including the purpose of competing with the Information Owner.  The Accessing Party will keep such
Confidential Information confidential and will not disclose any Confidential
Information to any third party without the prior written consent of the
Information Owner.  The Accessing Party
will exercise at least the same degree of care to safeguard the confidentiality
of such Confidential Information as it does to safeguard its own proprietary
confidential information of equal importance, but not less than a reasonable
degree of care.


 


(b)           The
Accessing Party will disclose such Confidential Information only to such of the
Accessing Party’s Representatives who have a need to know the Confidential
Information for the purpose of performing its obligations or enforcing its
rights under this Agreement or the Customer SOWs.  The Accessing Party will ensure, by
instruction, Contract, or otherwise with its Representatives that such
Representatives comply with the provisions of this Article XXI.  The Accessing Party will be responsible in
the event of any breach of the Accessing Party’s Representatives of such
agreements.  The Accessing Party will
promptly notify the Information Owner in the event that the Accessing Party or
its Representatives learn of any unauthorized use or disclosure of such
Confidential Information, and will promptly take all reasonable actions
necessary to correct and prevent such use or disclosure.  The Accessing Party will, if required, establish
“Chinese walls” to ensure that individuals working on other matters do not have
access to the Information Owner’s Confidential Information.


 


(c)           Upon
the request of Information Owner at any time during the Term or within ninety
(90) days after the expiration or termination of this Agreement (or such longer
period during which termination services are being provided), the Accessing
Party for no additional charge will return to the Information Owner all of the
Information Owner’s Confidential Information in the format in which it was
provided by the Information Owner or in its then-current format, at the
discretion of the Information Owner; or with the written permission of the
Information Owner, destroy such Confidential Information, with such destruction
to be certified in writing to the Information Owner by an authorized officer
supervising such destruction, and not retained by the Accessing Party or the
Accessing Party’s Representatives in any form or for any reason.


 


21.4         Additional Obligations.  The Customer Group from time to time may
acquire Confidential Information from third parties under obligations of
confidentiality more restrictive than those provided hereunder.  If a Customer Party acquires such
Confidential Information and provides it to Provider or any Affiliated Provider
under this Agreement, it may notify Provider and any relevant Affiliated
Provider of the obligations of confidentiality, in which case Provider and each
relevant Affiliated Provider as a condition of receiving such Confidential
Information agrees to comply with those obligations of confidentiality in
addition to the other obligations of this Article XXI.


 






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ARTICLE XXII

MISCELLANEOUS PROVISIONS


 


22.1         Governing Law.  This Agreement will be governed by and
construed and enforced in accordance with, the Laws of the State of New York,
without regard to conflict of laws principles thereof; provided, however,
that Provider and a Customer Party may expressly agree in a Customer SOW that
other Law will apply to the governance, construction and enforcement of such
Customer SOW.  Transferred SOWs will be
governed by and construed in accordance with the Laws under which they would
have been governed and construed immediately prior to the Effective Date.


 


22.2         Assignment;
Binding Effect.


 


(a)           Neither
Party may assign, delegate or subcontract any or all of its rights or
responsibilities under this Agreement, in whole or in part, to any third party
or entity (including its Affiliates), and this Agreement may not be
involuntarily assigned or assigned by operation of law, without the express
written consent of the other Party, which consent will not be unreasonably
withheld.  Any attempted assignment in
contravention of the foregoing will be void. 
Notwithstanding the foregoing:


 


(i)    Provider may, without notice to the Customer
Group, (a) subcontract certain ministerial and non-core responsibilities,
including mailing and copying, and (b) subcontract its responsibilities to
any subcontractors in use by the Provider prior to the Effective Date; provided,
however, that Provider in each case remains fully responsible under this
Agreement for the performance of the subcontractor as if Provider had itself
performed the subcontracted services;


 


(ii)   Provider shall, with respect to each
Transferred SOW, subcontract all of its responsibilities regarding performance
of Services under such Transferred SOW to the entity within the Transferred BPO
Business that was a party to such Transferred SOW immediately prior to the date
hereof pursuant to an agreement substantially in the form set forth in Exhibit
Q, shall maintain such agreement in all force and effect with respect to
that Transferred SOW until expiration or termination of that Transferred SOW,
and shall exercise its rights of direction and election under the agreement and
provide information to the subcontractor (including, but not limited to, those
specified in Sections 2.6(ii), 3.1 (third sentence), 4.1(b), 5 (last sentence),
9.5, 10.2(a) (first sentence), 10.3, 11.6(a) (last sentence), 11.6(b), 13.1,
13.2 (last sentence), 13.3 (first sentence), 14.1, 15.2(b), 15.2(d), 15.2(e)
(first sentence), 16.2(c) (second sentence), 17.1 (regarding Provider’s
designation of an entity to own resulting Technology and Intellectual
Property), 22.1 (regarding designation of Law governing a Transferred SOW)
thereof) to the extent required to satisfy Provider’s obligations under this
Agreement.  In any such arrangement, (x)
where elements of this Agreement are measured by the cost of Provider, those
elements shall mean the cost of the subcontractor instead of Provider; and (y)


 






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Provider in
each case shall remain fully responsible under this Agreement for the
performance of the subcontractor as if Provider had itself performed the
subcontracted services;


 


(iii)  Any Customer Party may, upon notice, assign or
delegate any or all of its rights or responsibilities under any Customer SOW to
its Affiliates; provided, however, that (A) Provider will be
entitled to conduct a creditworthiness check of any such Affiliate, and (B) the
Customer Party bears any and all reasonable pre-approved incremental costs of
any such assignment or delegation that are incurred by Provider (including the
Affiliated Providers).


 


(b)           The
covenants and agreements contained in this Agreement will be binding on the
Parties hereto and their respective successors and permitted assigns.


 


(c)           In
the event of a claim by a Customer Party relating to a breach of the obligation
of Provider that has been subcontracted to an Affiliated Provider, Provider
shall enforce such obligation under the subcontract with the applicable
Affiliated Provider, including commencing and prosecuting legal proceedings
against the Affiliated Provider so as to cure any default as expeditiously as
possible.


 


22.3         Entire Agreement.  This Agreement and the Exhibits attached
hereto represent the entire and integrated agreement of the Parties and
supersede prior negotiations, representations and agreements, either written or
oral, between the parties hereto with respect to the subject matter hereto, and
there are no oral or other agreements or understandings between the parties
affecting this Agreement or related to the Services to be provided by Provider
or duties undertaken by Provider hereunder.


 


22.4         Non-Competition.  Nothing in Article XVII (Ownership;
Intellectual Property) will in any way limit the parties’ obligations regarding
non-competition agreed upon by GE and Provider with regard to the Transferred
BPO Business.


 


22.5         Dispute
Resolution.


 


(a)           Any
dispute, claim or controversy between the Provider and any Customer Party
arising out of or relating to (including any breach of) this Agreement or any
Customer SOW (“Dispute”) will be resolved in accordance with the dispute
resolution procedures set forth in this Section 22.5, except where
another dispute resolution process is required by a Governmental Entity as a
condition of allowing such Customer Party to acquire Services.


 


(b)           In
the event of a Dispute relating to a Customer SOW, any party to the Dispute may
provide written notice to the other party thereto that it desires to submit
such Dispute to the applicable Service Delivery Leader for resolution, which
notice will set forth the subject of the Dispute and the relief requested.  Within a reasonable period (but in no event
more


 






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than thirty (30) days from the date such notice is received by the other
party), the Service Delivery Leaders will meet and negotiate in good faith to
resolve the Dispute.  If the Service
Delivery Leaders are unable to resolve such Dispute within such period, the
dispute shall be submitted to the Executives.


 


(c)           In
the event of any other Dispute relating to this Agreement or any Dispute that
the Service Delivery Leaders are unable to resolve within such thirty (30) day
period, any party to the Dispute may provide written notice to the other party
thereto that it desires to submit such Dispute to the Executives for
resolution, which notice will set forth the subject of the Dispute and the
relief requested.  Within a reasonable
period (but in no event more than thirty (30) days from the date such notice is
received by the other party), the Executives will meet and negotiate in good
faith to resolve the Dispute.  If the
Executives are unable to resolve such Dispute within such period, they may
agree to submit a Dispute to non-binding arbitration.


 


(d)           If
the Executives are unable to resolve such Dispute within the thirty (30) day
period, or upon the conclusion of any non-binding arbitration, either party may
within ten (10) days of such meeting submit such Dispute to the American
Arbitration Association (“AAA”) for binding arbitration in accordance
with its Commercial Arbitration Rules and Mediation Procedures (Including
Procedures for Large, Complex Disputes) then in effect.  The arbitration will be conducted by the
Designated Arbitrator.  The parties will
cooperate in good faith with the AAA and with one another in selecting the
Designated Arbitrator, and in scheduling the arbitration.  The Designated Arbitrator shall render a
decision within ninety (90) days of the matter being submitted to arbitration
in accordance with this paragraph.  The
parties further agree that they will participate in the arbitration in good
faith, and that they will share equally in the costs of utilizing the AAA and
the Designated Arbitrator, but bear their own costs (including attorney’s fees).  The arbitration will be governed by the
United States Arbitration Act, 9 U.S.C. Sections 1-16, final and binding, and
judgment upon the award rendered by the Designated Arbitrator may be entered by
any court having jurisdiction thereof.  The
place of arbitration will be New York, New York.  Unless otherwise agreed to by the parties,
the mediator will be disqualified from serving as the Designated Arbitrator in
the Dispute.


 


(e)           Notwithstanding
any other provision of this Agreement or a Customer SOW, during the resolution
of any commercial Dispute arising under this Agreement or any Customer SOW, and
until such time, if any, as a final arbitral decision is rendered giving such
right, Provider will not terminate, diminish, or in any way impair or erode the
Services it is obligated to provide and the Customer Group will continue to pay
any and all undisputed invoices and otherwise meet its obligations as required
under this Agreement.  In the event of a
breach or threatened breach of this provision by the Provider or the Customer
Group, the other will be entitled to specific performance or a temporary or
permanent injunction prohibiting and enjoining such breach.


 


(f)            All
communications, correspondence, proposals and recommendations exchanged between
the parties to a Dispute are confidential, privileged and inadmissible for any


 






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purpose, including impeachment, in any arbitration or other proceeding
involving such parties; provided, however, that evidence that is
otherwise admissible or discoverable will not be rendered inadmissible or
non-discoverable as a result of its use in such Dispute.


 


(g)           With
respect to a dispute, claim or controversy between Provider and any Customer
Party relating to Intellectual Property or Confidential Information under this
Agreement or a Customer SOW, either party may elect to seek injunctive relief
from the courts as an alternative to the procedures set forth in this Section
22.5.


 


22.6         Jurisdiction and Venue.  Any action or proceeding between Provider and
the Customer Group to enforce any award of the Designated Arbitrator pursuant
to, or the provisions set forth in, Section 22.5 (Dispute Resolution),
and any action for injunctive relief, will be brought exclusively in any state
or federal court having subject matter jurisdiction in the County of New York,
State of New York.  Provider and the
Customer Group consent specifically to the personal jurisdiction of such courts
and irrevocably waive their right to contest venue in any such courts.  The party seeking enforcement will be
entitled to an award of all costs, fees and expenses, including reasonable
attorneys’ fees, to be paid by the party against whom an order of enforcement
is obtained.


 


22.7         Notices.  All notices, requests, claims, demands and
other communications required or permitted under this Agreement will be in
writing and (i) if delivered personally or by internationally-recognized
overnight courier, be deemed given upon delivery; (ii) if delivered by
confirmed facsimile transmission, be deemed given when electronically
confirmed; and (iii) if sent by registered or certified mail, be deemed given
when received.  Such notices, requests,
claims, demands and other communications will be sent to the Parties at the
following addresses:


 


If to Provider, to:


 


GECIS
International Holdings, Luxembourg, Swiss Branch Zug

Baarerstrasse 21

6304 Zug 

Switzerland

Facsimile Number:  0041 41 760 61 30

Attention:  Dr. Peter Rüfenacht


 


If to Customer or any Customer Party, to:


 


General
Electric Company 

3135 Easton Turnpike

Fairfield, CT 06431

Facsimile Number:  [·]

Attention:  Manager, Corporate Sourcing


 






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Any Party from time to time may change its
address for the purpose of notices to that Party by giving a similar notice
specifying a new address, but no such notice will be deemed to have been given
until it is actually received by the Party sought to be charged with the
contents thereof.


 


22.8         Force Majeure.  Neither Provider nor the Customer Group (or
any Person acting on their behalf) will have any liability or responsibility
for failure to fulfill any obligation (other than a payment obligation) under
this Agreement or any Customer SOW so long as and to the extent to which the
fulfillment of such obligation is prevented, frustrated, hindered or delayed as
a consequence of circumstances of a Force Majeure Event, and if a Customer
Party (or its customer on behalf of which Services are provided) becomes
subject to a Force Majeure event rendering its receipt of Services impractical,
the Customer Party may suspend purchasing of such Services, subject to Section
6.5 (MVC Shortfall and Excess Adjustment). 
If either Provider or the Customer Group claims the benefit of this Section
22.8, such party will, promptly after such party’s first knowledge of a
Force Majeure Event: (i) notify the other of the nature and extent of such
Force Majeure Event and (ii) use commercially reasonable efforts to remove any
such causes and resume performance under this Agreement or the Customer SOW, as
applicable, as soon as feasible.  If
Provider’s or, except as provided for in Sections 6.5(c) and (d),
the Customer Group’s performance continues to be interrupted for a period
greater than ten (10) days or such longer period as the parties may agree upon
in writing (including in the relevant BCP), the other will be entitled to
terminate the affected Customer SOW(s), as applicable, in whole or in part by
giving seven (7) days’ prior written notice to the other before performance has
resumed.  Nothing in this Section 22.8
excuses any obligation Provider has to maintain and implement the BCP or GE
from fulfilling its obligations with respect to the applicable MVCs as set
forth in Article VI (Business Volume Commitment).


 


22.9         Cooperation by Parties.  Provider and the Customer Group will fully
cooperate and assist the other in the initiation or defense of any third party
litigation arising out of or in connection with this Agreement and the
Services, including any litigation in which Provider and a Customer Party are
co-parties, and until such time as Provider or such Customer Party determines
in good faith that their interests appear to be divergent.


 


22.10       Rights of Entry.  If Provider or its permitted subcontractors
are required to enter any of the Customer Group premises in connection with
activities related to this Agreement or the Customer SOWS, their rights of
entry will be subject to prior approval of the Customer Group and applicable
security Laws and the Customer Group’s safety and security standards and
procedures.  Provider further agrees that
it will use commercially reasonable efforts to ensure that such activities by
Provider or its permitted subcontractors will be performed in such manner that
they will have minimal interference with the normal business operations of the
Customer Group.


 


22.11       No Third Party Beneficiaries.  Nothing expressed by or mentioned in this
Agreement is intended or will be construed to give any Person other than the
Parties hereto and their Affiliates and their respective permitted successors
and permitted assigns any legal or


 






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equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of the Parties hereto and their Affiliates and their respective
permitted successors and permitted assigns and for the benefit of no other
Person.


 


22.12       Severability.  If any provision of this Agreement is or
becomes invalid or unenforceable in whole or in part because the provision is
contrary to Law or against public policy or for any other reason, then such
provision will be enforced to the extent valid and enforceable, and the
validity and enforceability of the remaining provisions of this Agreement will
be unaffected.


 


22.13       Amendments.  This Agreement will not be amended, altered
or modified except by an instrument in writing expressly referring to this
Agreement and signed by the authorized agents of the Parties.


 


22.14       Publicity.  Except as may be agreed upon in advance in
writing by the parties or as required by Law or the rules of any securities
exchange or self-regulatory organization, neither party will advertise, market
or, except as required by Law, otherwise disclose to others any information
relating to the making of this Agreement. 
Neither party will use any of the other party’s names, photographs,
logos, trademarks, service marks, or other identifying characteristics in
commerce (including in marketing brochures or press releases) without prior
written consent.


 


22.15       Non-Waiver.  The Parties’ failure at any time to enforce
any of the provisions of this Agreement or any right or remedy available
hereunder or at law or in equity, or to exercise any option herein provided,
will in no way be construed to be a waiver of such provisions, rights, remedies
or options or any other term, condition or covenant of this Agreement, or in
any way to affect the validity of this Agreement, except where such party
consents to such waiver in writing.  The
exercise by the Customer Group or Provider of any rights, remedies or options
provided hereunder or at law or equity will not preclude or prejudice the
exercising hereunder of the same or any other rights, remedies or options.


 


22.16       Counterparts.  This Agreement may be executed in any number
of counterparts, all of which taken together will constitute one and the same
instrument, and each fully executed counterpart will be deemed an original.


 


22.17       Non-Solicitation.


 


(a)           For
the duration of this Agreement, (i) no business function of a Customer Party
may solicit the employment of the chief executive officer of the Provider and
his direct reports, and any direct reports thereto, i.e., any employee of the
Provider in a Reporting Level 3 position or higher (excluding current or future
employees in the GE Energy India Management Center or currently training at the
Welch Center for placement in such Center) who is providing


 






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Services directly to and is in direct contact with such business
function (collectively, “Covered Personnel”) while such employee is providing such
Services and for a six (6) month period thereafter, and (ii) Provider may not
solicit the employment of any employee of the Customer Group at the senior
professional band level or higher with which Provider interacts in the course
of providing Services (also “Covered Personnel”) for the period of time that
such interaction continues and for a six (6) month period thereafter.  For purposes hereof, the term “solicit the
employment” shall not be deemed to include generalized solicitation or
advertising, including the use of an independent employment agency or search
firm whose efforts are not specifically directed at such Covered Personnel.  Notwithstanding the foregoing, the term “Covered
Personnel” shall not include any individual (i) whose employment with the
relevant party has been involuntarily terminated or (ii) whose employment or
solicitation therefor has been previously agreed to in writing or email by the
Senior Vice President-Human Resources of the Company (or the equivalent) and
the Human Resources Director of GE Finance, in accordance with such polices as
they may establish from time to time.


 


(b)           In
the event there is any limitation or restriction on the Customer Group or the
Provider with respect to the solicitation for employment of, inducement to
terminate employment by or hiring of employees of the other, in addition to the
limitations and restrictions set forth in this Agreement, the limitations or
restrictions which provide the current employer with the greatest protection
under the circumstances shall be controlling in case of any conflict and the
limitations or restrictions that are not controlling under such circumstances
shall nonetheless continue in effect in accordance with their terms.


 


22.18       Remedies Cumulative.  Except as set forth herein, no right or
remedy herein conferred upon or reserved to either Party is intended to be exclusive
of any other right or remedy, and each and every right and remedy shall be
cumulative and in addition to any other right or remedy under this Agreement,
or under applicable Law, whether now or hereafter existing.


 






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IN WITNESS
WHEREOF, the Parties hereto have set and subscribed
their hands through their respective duly authorized representatives as of the
date first above written.


 


GENERAL ELECTRIC COMPANY


 


 


	
  By:

  	
  /s/ Robert
  J. Duffy

  	
   

  
	
  Name:

  	
  Robert J.
  Duffy

  	
   

  
	
  Title:

  	
  Authorized
  Representative

  	
   

  



 






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IN WITNESS WHEREOF, the Parties hereto have
set and subscribed their hands through their respective duly authorized
representatives as of the date first above written.


 


	
   

  	
  GECIS INTERNATIONAL HOLDINGS

  LUXEMBOURG, SWISS BRANCH ZUG

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Peter Rüfenacht

  
	
   

  	
   

  	
    Name:

  	
  Peter
  Rüfenacht

  
	
   

  	
   

  	
    Title:

  	
  Branch Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
    Name:
  

  	
  Vivek Gour

  
	
   

  	
   

  	
    Title:

  	
  Chief
  Financial Officer, Gecis

  International Holdings

  



 






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69

















 


Signature
Page to the MSA


 


 






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IN WITNESS WHEREOF,
the Parties hereto have set and subscribed their hands through their respective
duly authorized representatives as of the date first above written.


 


	
   

  	
  GECIS INTERNATIONAL HOLDINGS

  LUXEMBOURG, SWISS BRANCH ZUG

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter
  Rüfenacht

  
	
   

  	
   

  	
    Name:

  	
  Peter
  Rüfenacht

  
	
   

  	
   

  	
    Title:

  	
  Branch
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Vivek
  Gour

  
	
   

  	
   

  	
    Name:
  

  	
  Vivek Gour

  
	
   

  	
   

  	
    Title:

  	
  Chief
  Financial Officer, Gecis

  International Holdings

  



 






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Signature
Page to the MSA


 


 






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72