CDI-2012 12 31-EX10.34


Technical Services Agreement
Agreement # 4998CC0044-003


Exhibit 10.34
    
    
        
        


This Base Agreement ("Base Agreement") between International Business Machines Corporation ("Buyer") and CDI Corporation ("Supplier"), establishes the basis for a multinational procurement relationship under which Supplier will provide Buyer the Deliverables and Services described in SOWs and/or was issued under this Base Agreement. This Base Agreement is effective from July 24, 2009 ("Effective Date") and will remain in effect until terminated.


1.0   Definitions
"Affiliates" means entities that control, are controlled by, or are under common control with, a party to this Agreement.
"Agreement" means this Base Agreement and any relevant Statements of Work ("SOW"), Work Authorizations ("WA"),
and other attachments or appendices specifically referenced in this Agreement.
"Appearance Design" means the appearance presented by an object, formed in hardware or by software that creates a visual impression on an observer. Appearance Design refers to the ornamental and not the functional aspects of an object.
"Business Partner Agreement" means an agreement executed between Buyer and Supplier to promote, market, and support certain products and services.
"Customer" means Buyer's customer.
"Deliverables" means items that Supplier prepares for or provides to Buyer or Customer as described in a SOW and/or WA.
Deliverables include Developed Works, Preexisting Materials, and Tools.
"Developed Works" means all work product (including software and its Externals) developed in the performance of this Agreement as described in a SOW and/or WA. Developed Works do not include Preexisting Materials, Tools, or items specifically excluded in a SOW and/or WA.
"Electronic Self-Help" means a process where Supplier electronically disables, removes, or otherwise prevents the use of its
software product without the Buyer's or Buyer's Customer's cooperation or consent. Electronic Self-Help could be done through electronic or other means (for example: remotely through "back doors" or hidden entrances in the software or through hidden shut-down commands in the software that can be activated by phone or in other ways).
"Externals" means any pictorial, graphic, audiovisual works, reports or data generated by execution of code and any
programming interfaces, languages or protocols implemented in the code to enable interaction with other computer programs or end users. Externals do not include the code that implements them.
"Inventions" means ideas, designs, concepts, techniques, inventions, discoveries or improvements, whether or not
patentable, conceived or reduced to practice by Supplier Personnel in performance of this Agreement.
"Joint Inventions" means Inventions made by Supplier Personnel jointly with Buyer Personnel.
"Participation Agreement" or "PA" means an agreement signed by one or more Affiliates which incorporates by reference the terms and conditions in this Base Agreement, any relevant SOWs, and other attachments or appendices specifically referenced in the PA.
"Personal Data" means any information that may identify an individual.
"Personnel" means agents, employees or subcontractors engaged or appointed by Buyer, Customer or Supplier. "Preexisting Materials" means items including their Externals, contained within a Deliverable, in which the copyrights are owned by a third party or that Supplier prepared or had prepared outside the scope of this Agreement. Preexisting Materials exclude Tools, but may include material that is created by the use of Tools.
"Prices" means the agreed upon payment and currency for Deliverables and Services, exclusive of Taxes but including all
applicable fees and payments, as specified in the relevant SOW and/or WA.
"Services" means work that Supplier performs for Buyer or Customer as described in a SOW and/or WA.
"Statement of Work" or "SOW" means any document that:
1. identifies itself as a statement of work;
2. is signed by both parties;
3. incorporates by reference the terms and conditions of this Base Agreement; and
4. describes the Deliverables and Services, including any requirements, specifications or schedules.
"Taxes" means any and all applicable taxes, charges, fees, levies or other assessments imposed or collected by any governmental entity worldwide or any political subdivision thereof and however designated or levied on sales of Deliverables or Services, or sales, use, transfer, goods and services or value added tax or any other duties or fees related to any payment made by Buyer to Supplier for Deliverables and/or Services provided by Supplier to Buyer under or pursuant to this Agreement; exclusive, however, of any taxes imposed upon the net income or capital of Supplier, any taxes in lieu of such
net income taxes and any other taxes which are to be borne by Supplier under law.
"Tools" means software that is not commercially available, and its Externals, required for the development, maintenance or implementation of a software Deliverable.


"Work Authorization" or "WA" means Buyer's authorization in either electronic or tangible form for Supplier to conduct
transactions under this Agreement in accordance with the applicable SOW (i.e., a purchase order, bill of lading, or other
Buyer designated document). A SOW is a WA only if designated as such in writing by Buyer.

Form Title" Technical Services Agreement (TSA)        Revision: 11/08


Technical Services Agreement
Agreement # 4998CC0044-003


2.0   Statement of Work
Supplier will provide Deliverables and Services as specified in the relevant SOW and/or WA. Supplier will begin work only after receiving a WA from Buyer. Buyer may request changes to a SOW and/or WA and Supplier will submit to Buyer the impact of such changes. Changes accepted by Buyer will be specified in an amended SOW and/or WA or change order signed by both
 parties. Supplier agrees to accept all WA's that conform with the terms and conditions of this Agreement.


3.0   Pricing
Supplier will provide Deliverables and Services to Buyer for the Prices. The Prices for Deliverables and Services specified in
a SOW and/or WA and accepted by Buyer plus the payment of applicable Taxes will be the only amount due to Supplier from Buyer. The relevant SOW or WA shall contain Prices for each country receiving Deliverables and Services under this Agreement. Supplier is not entitled to payment under this Agreement for activities also covered by a Business Partner Agreement with Buyer.


4.0   Taxes
Supplier's invoices shall state all applicable Taxes, if any, by tax jurisdiction and with a proper breakdown between taxable  and non-taxable Deliverables and Services. Supplier assumes responsibility to timely remit all Tax payments to the appropriate governmental authority in each respective jurisdiction. Supplier and Buyer agree to cooperate to minimize, wherever possible and appropriate, any applicable Taxes and provide reasonable notice and cooperation in connection with any audit. Supplier shall also bear sole responsibility for all taxes, assessments, or other levies on its own income, leased or purchased property, equipment or software. If Buyer provides a direct pay certificate, certification of an exemption from Tax or reduced rate of Tax imposed by an applicable taxing authority, then Supplier agrees not to invoice or pay any such Tax unless and until the applicable taxing authority assesses such Tax, at which time Supplier shall invoice and Buyer agrees to pay any such Tax that is legally owed.


Buyer shall withhold taxes as required under applicable law on payments made to Supplier hereunder and shall be required to remit to Supplier only the net proceeds thereof. Buyer agrees to remit in a timely manner all taxes withheld to the appropriate government authority in each respective jurisdiction.


Supplier will reimburse Buyer for any claims by any jurisdiction relating to Taxes paid by Buyer to Supplier; and for any penalties, fines, additions to Tax or interest thereon imposed as a result of Supplier's failure to timely remit the Tax payment to the appropriate governmental authority in each respective jurisdiction. Supplier shall also reimburse Buyer for any claims made by a taxing jurisdiction for penalties, fines, additions to Tax and the amount of interest thereon imposed with respect to Supplier's failure to invoice Buyer for the correct amount of Tax.


5.0   Payments and Acceptance
Terms for payment will be specified in the relevant SOW and/or WA. Payment of invoices will not be deemed acceptance of Deliverables or Services, but rather such Deliverables or Services will be subject to inspection, test, acceptance or rejection in accordance with the acceptance or completion criteria as specified in the relevant SOW and/or WA. Buyer or Customer may, at its option, either reject Deliverables or Services that do not comply with the acceptance or completion criteria for a refund, or require Supplier, upon Buyer's written instruction, to repair or replace such Deliverables or re-perform such Service, without charge and in a timely manner.


Unless otherwise provided by local law without the possibility of contractual waiver or limitation, Supplier will submit invoices, corrected invoices, or other such claims for reimbursement, to Buyer within (1) year from the date of acceptance of Deliverables or the satisfactory completion of Services. Exceptions must be specifically authorized by Buyer.


6.0   Electronic Commerce
To the extent permitted by local law, the parties will conduct transactions using an electronic commerce approach under which the parties will electronically transmit and receive legally binding purchase and sale obligations ("Documents"), including electronic credit entries transmitted by Buyer to the Supplier account specified in the relevant SOW and/or WA. The parties will enter into a separate agreement governing the transmission of such electronic transactions and associated responsibilities of the parties.


7.0   Warranties


7.1    Ongoing Warranties
Supplier makes the following ongoing representations and warranties:
1. it has the right to enter into this Agreement and its performance of this Agreement will comply, at its own expense, with
the terms of any contract, obligation, including any between Supplier and its end-users; or any law, regulation or ordinance to which it is or becomes subject;
2. it is incorporated or organized as a partnership;
3. no claim, lien, or action exists or is threatened against Supplier that would interfere with Buyer's rights under this
Agreement;
4. it has disclosed to Buyer in writing the existence of any third party code, including without limitation open source code,

Form Title" Technical Services Agreement (TSA)        Revision: 11/08


Technical Services Agreement
Agreement # 4998CC0044-003


that is included in or is provided in connection with the Deliverables  and that Supplier and the Deliverables  are in compliance with all licensing agreements applicable to such third party code;
5. Deliverables and Services do not infringe any privacy, publicity, reputation or intellectual property right of a third party;
6. all authors have agreed not to assert their moral rights (personal rights associated with authorship of a work under applicable law) in the Deliverables, to the extent permitted by law;
7. Deliverables are safe for use consistent with and will comply with the warranties, specifications and requirements in this
Agreement;
8. Deliverables do not contain harmful code;
9. Services will be performed using reasonable care and skill and in accordance with the relevant SOW and/or WA;
10. it will not engage in Electronic Self-Help;
11. Deliverables and Services which interact in any capacity with monetary data are euro ready such that when used in accordance with their associated documentation they are capable of correctly processing monetary data in the euro denomination and respecting the euro currency formatting conventions (including the euro sign);
12. it is knowledgeable  with, and is and will remain in full compliance with all applicable export and import laws, regulations, orders, and policies (including, but not limited to, securing all necessary clearance requirements, export and import licenses and exemptions from. and making all proper filings with appropriate governmental bodies and/or disclosures relating to the release or transfer of technology and software to non U.S. nationals in the U.S., or outside the U.S., release or transfer of technology and software having U.S. content or derived from U.S.-origin software or technology); it is knowledgeable  with applicable supply chain security recommendations  issued by applicable governments and industry standards organizations and will make best efforts to comply with such recommendations;
13. unless authorized by applicable government license or regulation, including but not limited to any U.S. authorization, Supplier will not directly or indirectly export or reexport, at any time, any technical information, technology, software, or other commodity furnished or developed under this, or any other, agreement between the parties, or any other product that is developed or produced from or using Buyer's technical information, technology, software, or other commodity provided under this Agreement to any prohibited country (including release of such technical information, technology, software, or other commodity to nationals, wherever they may be located, of any prohibited country) as specified in applicable export, embargo, and sanctions regulations;
14. it will not use, disclose, or transfer across borders any Personal Data that is processed for Buyer, except to the extent necessary to perform under this Agreement; and
15. it will comply with all applicable data privacy laws and regulations, will implement and maintain appropriate technical and organizational measures and other protections for the Personal Data, (including, without limitation, not loading any Personal Data provided to Supplier on (a) any laptop computers or (b) any portable storage media that can be removed from Supplier's premises unless, in each case, (i) such data has been encrypted and (ii) such data is loaded onto portable storage media solely for the purpose of moving such data to off-site storage).  Further, it will report to Buyer any breaches of security of Personal Data immediately  after discovery thereof if the Personal Data was, or could be, accessed, used or acquired by an unauthorized person or compromised in any way  and will cooperate fully with Buyer in investigating any such breaches or compromises, will cooperate fully with Buyer's  requests for access to, correction of, and destruction of Personal Data in Supplier's possession, and will comply with all instructions or other requirements provided or issued by Buyer from time to time relating to Personal Data.


THEWARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THOSE WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.


7.2     Warranty Redemption
Subject to the Section titled Supplier Liability for Third Party Claims, if Deliverables or Services do not comply with the
warranties in this Agreement, Supplier will repair or replace Deliverables or re-perform Services, without charge and in a timely manner. If Supplier fails to do so, Buyer or Customer may repair or replace Deliverables or re-perform Services and Supplier will reimburse Buyer for actual and reasonable expenses.


8.0   Delivery
Deliverables and Services will be delivered as specified in the relevant SOW and/or WA. If Supplier cannot comply with a
delivery commitment, Supplier will promptly notify Buyer of a revised delivery date and Buyer may:
1. cancel without charge Deliverables  or Services not yet delivered; and
2. exercise all other remedies provided at law, in equity and in this Agreement.


9.0   Intellectual Property
9.1    Works Made for Hire
All Developed Works belong exclusively to Buyer (or Customer if specified in the relevant SOW and/or WA) and are works
made for hire. If any Developed Works are not considered works made for hire owned by operation of law, Supplier assigns the ownership of copyrights in such works to Buyer or Customer.





Form Title" Technical Services Agreement (TSA)        Revision: 11/08


Technical Services Agreement
Agreement # 4998CC0044-003


9.2     Preexisting Materials
Supplier will not include any Preexisting Materials in any Deliverable unless they are listed in the relevant SOW and/or WA.
If Supplier includes any Preexisting Materials in a Deliverable whether or not listed in the relevant SOW and/or WA, Supplier grants or will obtain for Buyer and Customer the following rights: a nonexclusive, worldwide, perpetual, irrevocable, paid-up, license to prepare and have prepared derivative works of such Preexisting Materials and to use, have used, execute, reproduce, transmit, display, perform, transfer, distribute, and sublicense such Preexisting Materials or their derivative works, and to grant others the rights granted in this Subsection.


9.3     Tools
Supplier will not include Tools in Deliverables unless they are listed in the relevant SOW and/or WA. If Supplier includes
any Tools in a Deliverable whether or not listed in the relevant SOW and/or WA, Supplier grants or will obtain for Buyer and Customer the following rights: a nonexclusive, worldwide, perpetual, irrevocable, paid-up, license to prepare and have prepared derivative works of such Tools, and to use, have used, execute, reproduce, transmit, display and perform such Tools or their derivative works and to grant others the rights granted in this Subsection.


9.4     Invention Rights
Supplier will promptly provide to Buyer and Customer a complete written disclosure for each Invention which identifies the
features or concepts which Supplier believes to be new or different. Supplier assigns all of its right, title and interest in
Inventions (including any patent applications filed on or patents issues claiming Inventions) to Buyer.


9.5     Joint Invention Rights
Supplier assigns all of its right, title and interest in Joint Inventions (including any patent applications filed on or patents issued claiming Joint Inventions) to Buyer.


9.6    Perfection of Copyrights
Upon request, Supplier will provide to Buyer a "Certificate of Originality" or equivalent documentation to verify authorship of Developed Works. Supplier will confirm assignment of copyright for Developed Works using the "Confirmation of Assignment of Copyright" form and will assist Buyer in perfecting such copyrights.


9. 7     Perfection of Invention Rights
Supplier will identify all countries in which it will seek patent protection for each Invention. Supplier authorizes Buyer to act as its agent in obtaining patent protection for the Inventions in countries where Supplier does not seek patent protection. Supplier will, at Buyer's expense, assist in the filing of patent applications on Inventions and have required documents signed.


9.8     Trademarks
This Agreement does not grant either party the right to use the other party's or their Affiliates trademarks, trade names or service marks.


9.9     Patents
For the purpose of supporting the Customer as specified in the relevant SOW and/or WA, Supplier grants to Buyer a nonexclusive, worldwide, perpetual, irrevocable, and paid-up license under any patents and patent applications licensable by Supplier to make, have made, use, have used, import, export, sell, and otherwise transfer the Deliverables and use the Services to the extent authorized in this Base Agreement and any relevant Statements of Work and Work Authorizations.


10.0 Supplier Liability for Third Party Claims
10.1    General Indemnification
Supplier will defend, hold harmless and indemnify, including legal fees, Buyer and Buyer Personnel, Buyer's landlord (if
there is one), and Customer and Customer Personnel against third party claims that arise or are alleged to have arisen as a result of negligent or intentional acts or omissions of Supplier or Supplier Personnel or breach by Supplier of any term of this Agreement.


10.2     Intellectual Property Indemnification
Supplier will defend, or at Buyer's option cooperate in the defense of, hold harmless and indemnify, including legal fees, Buyer and Buyer Personnel and Customer and Customer Personnel from third party claims that Supplier's Deliverables or Services infringe the intellectual property rights of a third party. In addition, if such a claim is or is likely to be made, Supplier will, at its own expense, exercise the first of the following remedies that is practicable:
1. obtain for Buyer and Customer the right to continue to use, sell and license the Deliverables  and Services consistent with
this Agreement;
2. modify Deliverables and Services so they are non-infringing and in compliance with this Agreement;
3. replace the Deliverables and Services, or other affected Deliverables or Services, with non-infringing ones that comply with this Agreement; or
4. at Buyer's request, accept the cancellation of infringing Deliverables and Services without Buyer having any cancellation liability and the return of the infringing Deliverables at Supplier's expense and refund any amount paid.

Form Title" Technical Services Agreement (TSA)        Revision: 11/08


Technical Services Agreement
Agreement # 4998CC0044-003


Buyer will give Supplier prompt notice of third party claims against Buyer, and cooperate in the investigation, settlement and defense of such claims.


10.3    Exceptions to Indemnification
Supplier will have no obligation to indemnify Buyer or Buyer Personnel or Customer or Customer Personnel for claims that Supplier's Deliverables or Services infringe the intellectual property rights of a third party to the extent such claims arise as a result of:
1. Buyer's or Customer's combination of Deliverables or Services with other products or services not reasonably foreseeable by Supplier and such infringement or claim would have been avoided in the absence of such combination;
2. Supplier's implementation of a Buyer originated design and such infringement or claim would have been avoided in the absence of such implementation; or
3. Buyer's or Customer's modification of the Deliverables and such infringement or claim would have been avoided in the absence of such modification.


11.0 Limitation of Liability between Supplier and Buyer
In no event will either party be liable to the other for any lost revenues, lost profits, incidental, indirect, consequential, special or punitive damages. This mutual Limitation of Liability does not limit the obligations and liability of
Supplier provided in the Section titled Supplier Liability for Third Party Claims.


Supplier acknowledges and agrees that all WA's or PA's issued by Buyer's Affiliate(s) are independent agreements between Supplier or Supplier Affiliate and the Buyer Affiliate. Buyer shall not be liable to Supplier or Supplier Affiliate(s) for any actions or inactions of any Buyer Affiliate(s) under a WA or PA, nor shall any actions or inactions by Buyer's Affiliate(s) constitute a breach of the Agreement between Buyer and Supplier.


12.0  Supplier and Supplier Personnel
Supplier is an independent contractor and this Agreement does not create an agency, partnership, or joint venture relationship between Buyer and Supplier or Supplier Personnel.  Buyer assumes no liability or responsibility for Supplier Personnel. Supplier will:


1.  ensure it and Supplier Personnel are in compliance with all laws, regulations, ordinances, and licensing requirements;
2.  be responsible for the supervision, control, compensation, withholdings, health and safety of Supplier Personnel;
3.  inform Buyer if a former employee of Buyer will be assigned work under this Agreement, such assignment subject to
Buyer approval;
4.  upon request, provide Buyer, for export evaluation purposes, to the extent permitted by law, the country of citizenship and permanent residence and immigration status of those persons.  Buyer retains the right to refuse to accept persons made available by Supplier for export control reasons;  
5.  not discriminate against any employees, applicants for employment, or any entity engaged in its procurement practices because of race, color, religion, sex, age, national origin, or any other legally protected status; and
6.  (a) be solely responsible for, and fully and properly complete and submit to the relevant government immigration
authority, all required immigration forms and documents for all Supplier Personnel performing Services hereunder, maintain such forms and documents as required by law and, subject to applicable laws (in particular laws regarding data privacy), make such forms and documents available to Buyer upon request, and (b) ensure that Supplier Personnel who do not meet all immigration requirements do not perform Services under this Agreement.


13.0  On Premises Guidelines
Supplier will ensure that Supplier Personnel assigned to work on Buyer's or Customer's premises will comply with this
Section.


13.1     Access to Premises
Supplier will:
1. to the extent permitted by local law, ensure that prior to Supplier Personnel being assigned to work on Buyer's or Customer's premises, Supplier Personnel will participate in a criminal background check covering the places in which the person was employed or resided for the past seven years or longer to the extent required by local legislation, and inform Buyer of any negative findings;
2. obtain for each person a valid identification  badge from Buyer and ensure that it is displayed to gain access to and while on
Buyer's or Customer's premises (it is Buyer's policy to deactivate any such badge if not used in ninety days);
3. maintain a signed acknowledgment  that each person will comply with Buyer's Safety & Security Guidelines;
4. ensure that each person with regular access to Buyer's and Customer's premises complies with all parking restrictions and with vehicle registration requirements if any;
5. at Buyer's request, remove a person from Buyer's or Customer's premises and not reassign such person to work on Buyer's or Customer's premises (Buyer is not required to provide a reason for such request);
6. notify Buyer immediately  upon completion or termination of any assignment and return Buyer's  identification badge;
7. coordinate with Buyer or Customer access to Buyer's or Customer's premises during non-regular working hours; and

Form Title" Technical Services Agreement (TSA)        Revision: 11/08


Technical Services Agreement
Agreement # 4998CC0044-003


8. upon Buyer's  request, provide documentation  to verify compliance with this Subsection.


13.2     General Business Activity Restrictions
Supplier will ensure that Supplier Personnel assigned to work on Buyer's or Customer's premises will not:
1. conduct any non-Buyer related business activities (such as interviews, hirings, dismissals or personal solicitations) on
Buyer's or Customer's premises;
2. conduct Supplier's Personnel training on Buyer's  or Customer's premises, except for on-the-job training;
3. attempt to participate in Buyer or Customer benefit plans or activities;
4. send or receive non-Buyer related mail through Buyer's or Customer's mail systems; and
5. sell, advertise or market any products or distribute printed, written or graphic materials on Buyer's or Customer's premises without Buyer's written permission.


13.3     Buyer's Safety and Security Guidelines
Supplier will ensure that Supplier Personnel assigned to work on Buyer's or Customer's premises:
1. do not bring weapons of any kind onto Buyer's or Customer's premises;
2. do not manufacture, sell, distribute, possess, use or be under the influence of controlled substances (for non-medical reasons) or alcoholic beverages while on Buyer's or Customer's premises;
3. do not have in their possession hazardous materials of any kind on Buyer's or Customer's premises without Buyer's authorization;
4. acknowledge that all persons, property, and vehicles entering or leaving Buyer's or Customer's premises are subject to search; and
5. remain in authorized areas only (limited to the work locations, cafeterias, rest rooms and, in the event of a medical emergency, Buyer's or Customer's medical facilities).
Supplier will promptly notify Buyer of any accident or security incidents involving loss of or misuse or damage to Buyer's intellectual or physical assets; physical altercations; assaults; or harassment and provide Buyer with a copy of any accident or
incident report involving the above.


13.4     Asset Control
In the event Supplier Personnel has access to information, information assets, supplies or other property, including property
owned by third parties but provided to Supplier Personnel by Buyer ("Buyer Assets"), Supplier Personnel will:
1. not remove Buyer Assets from Buyer's or Customer's premises without Buyer's authorization;
2. use Buyer Assets only for purposes of this Agreement and reimburse Buyer for any unauthorized  use;
3. only connect with, interact with or use programs, tools or routines that Buyer agrees are needed to provide Services;
4. not share or disclose user identifiers, passwords, cipher keys or computer dial port telephone numbers; and
5. not copy, disclose or leave such assets unsecured or unattended, in the event the Buyer Assets are confidential,; and
6. immediately notify Buyer of any security incidents involving Buyer Assets and provide Buyer with a copy of any accident or incident report involving the above.
Buyer may periodically audit Supplier's data residing on Buyer Assets.


13.5     Supervision of Supplier's Personnel
Supplier will:
1. provide consistent and effective supervision of its Personnel provided under this Agreement, at no additional cost to Buyer. Consistent and effective supervision shall include regular interaction and communication with Supplier's Personnel either in person or through other effective means;
2. conduct orientation sessions with its Personnel before placement on an assignment with Buyer, during which orientation
such Personnel will be told who their supervisor is and how that supervisor can be contacted;
3. from time to time, ensure that all of its Personnel working under this Agreement continue to be aware of this information;
and
4. be responsible for training its Personnel that any employment related issues should be brought forward in the first instance to Supplier and not Buyer. Where such issues relate to actions which are alleged to have been taken by Buyer or Buyer's Personnel, Supplier will notify Buyer immediately in order that appropriate investigative action can be taken.


Supplier's supervisor shall:
1.  be responsible for exercising full supervisory authority over all day-to-day employment relationship decisions relating to Supplier's Personnel, including those decisions relating to: wages, hours, terms and conditions of employment,  hiring, discipline, performance evaluations, termination, counseling and scheduling; and
2.  be responsible to know each work location's planned holiday (and other closing) schedules and the impacts all such
schedules have on Supplier's Personnel.


13.6     Time sheets
Notwithstanding any other language or agreement to the contrary, Buyer will not, and Supplier agrees that Buyer has no
responsibility to approve any Supplier Personnel's time sheets. If Buyer should review, sign and/or submit Supplier Personnel's timesheets, whether manually or electronically, as part of Buyer's billing verification processes, the parties 

Form Title" Technical Services Agreement (TSA)        Revision: 11/08


Technical Services Agreement
Agreement # 4998CC0044-003


acknowledge and agree that such review, signature and/or submittal shall in no way constitute concurrence or approval of such timesheets, nor create any other commitment or obligation on the part of Buyer to Supplier or Supplier Personnel.




14.0     Insurance
Supplier will maintain at its expense:


1. commercial general or public liability insurance including products liability and completed operations with a minimum limit per occurrence or accident of 5,000,000 USD (or local currency equivalent);
2. workers' compensation and employer's liability insurance as required by local law, such policies waiving any subrogation rights against Buyer; and
3. automobile liability insurance as required by local statute but not less than 5,000,000 USD (or local currency equivalent) if a vehicle will be used in the performance of this Agreement.


Insurance required under clauses (1) and (3) above must:
(a)  name Buyer as an additional insured with respect to Buyer's insurable interest; (b) be primary or non-contributory  regarding insured damages or expenses; and
(c) be purchased either; (i) from insurers domiciled in the US with an AM Best Rating of A- or better and a financial class rating of 7 or better or (ii) from non US carriers with a Standard & Poor's  rating of BBB or greater and $50M in policy
holder's surplus.


Upon Buyer's request, Supplier will provide to Buyer certificate(s) of insurance to verify compliance with the terms and conditions above.


15.0  Termination
15.1    Termination of this Base Agreement
Either party may terminate this Base Agreement, without any cancellation charge, for a material breach of this Agreement by the other party or if the other party becomes insolvent or files or has filed against it a petition in bankruptcy ("Cause"), to the extent permitted by law. Such termination will be effective at the end of a thirty (30) day written notice period if the Cause remains uncured. Either party may terminate this Base Agreement without Cause when there are no outstanding SOWs or WAs.


15.2     Termination of a SOW or WA
Buyer may, upon written notice to Supplier, terminate a SOW or WA:
1. with Cause effective immediately; or
2. without Cause effective immediately or as otherwise specified in such notice.
Upon termination, in accordance with Buyer's written direction, Supplier will immediately:
1. cease work;
2. prepare and submit to Buyer an itemization of all completed and partially completed Deliverables and Services;
3. deliver to Buyer Deliverables satisfactorily completed up to the date of termination at the agreed upon Prices in the relevant SOW and/or WA; and
4. deliver upon request any work in process.
In the event Buyer terminates without Cause, Buyer will compensate Supplier for the actual and reasonable expenses incurred by Supplier for work in process up to and including the date of termination, provided such expenses do not exceed the Prices.


16.0  General
16.1    Amendments
This Agreement may only be amended by a writing specifically referencing this Agreement which has been signed by authorized representatives of the parties.


16.2    Assignment
Neither party will assign their rights or delegate or subcontract their duties under this Agreement to third parties or Affiliates without the prior written consent of the other party, such consent not to be withheld unreasonably, except that either party may assign this Agreement in conjunction with the sale of a substantial part of its business utilizing this Agreement or any intellectual property assigned or licensed under this Agreement. Any unauthorized assignment of this Agreement is void.


16.3    Choice of Law; Waiver of Jury Trial; Limitation of Action
This Agreement and the performance of transactions under this Agreement will be governed by the laws of the country where the Buyer entering into the Agreement is located, except:

Form Title" Technical Services Agreement (TSA)        Revision: 11/08


Technical Services Agreement
Agreement # 4998CC0044-003


1. in Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Former Yugoslav Republic of Macedonia, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Montenegro, Romania, Russia, Serbia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan, this Agreement will be governed by the laws of Austria,;
2. in Australia, this Agreement will be governed by the laws of the State or Territory in which the transaction occurs;
3. in Canada, this Agreement will be governed by the laws of the Province of Ontario;
4. in Estonia, Latvia, and Lithuania, this Agreement will be governed by the laws of Finland;
5. in the People's Republic of China, Puerto Rico and in the United States (including if any part of the transaction occurs within the United States) this Agreement and any dispute or controversy arising from or relating to this Agreement will be governed by the laws of the State of New York applicable to contracts executed in and performed entirely within that State;
6. in the United Kingdom, this Agreement will be governed by the laws of England.


The United Nations Convention on Contracts for the International Sale of Goods does not apply.  The parties expressly waive any right to a jury trial regarding disputes related to this Agreement. Any legal or other action related to a breach of this Agreement must be commenced no later than two (2) years from the date on which the cause of action arose, unless
otherwise provided by local law without the possibility of contractual waiver or limitation.


16.4    Communications
All communications between the parties regarding this Agreement will be conducted through the parties' representatives as specified in the relevant SOW and/or WA. All notices required in writing under this Agreement will be made to the appropriate contact(s) listed in the relevant SOW and/or WA and will be effective upon actual receipt. Notices may be transmitted electronically, by registered or certified mail, or courier. All notices, with the exception of legal notices, may also be provided by facsimile.


16.5    Counterparts
This Agreement may be signed in one or more counterparts, each of which will be deemed to be an original and all of which
when taken together will constitute the same Agreement. Any copy of this Agreement made by reliable means (for example, photocopy or facsimile) is considered an original.


16.6    Ethical Dealings
Supplier will be familiar and will strictly comply with all laws and regulations on bribery, corruption, and prohibited business
practices.  Supplier and its Affiliates have not and will not offer, promise or make or agree to make, directly or indirectly, (a) any political contributions  of any kind or any payment to or for the benefit of any public official, whether elected or appointed, (b) any payments for gifts, meals, travel or other value for a government employee or his/her family members or (c) any payments or gifts (of money or anything of value) to anyone for the purpose of influencing, or inducing anyone to influence decisions in favor of, Buyer or any of its Affiliates.  Buyer shall not reimburse Supplier for any such political contributions, payments or gifts.


16. 7     Exchange of Information
All information exchanged is non confidential unless it will be made under a separate signed confidentiality agreement between the parties.  The parties will not publicize the terms of this Agreement, or the relationship, in any advertising, marketing or promotional materials without prior written consent of the other party except as may be required by law, provided the party publicizing gives the other party reasonable prior notice to allow the other party a reasonable opportunity to obtain a protective order.  Supplier will use information regarding this Agreement only in the performance of this Agreement. Any contacts with government employees by Supplier on Buyer's behalf may only be for the purpose of providing Services under this Agreement.
For any Personal Data relating to Supplier Personnel that Supplier provides to Buyer, Supplier has obtained the agreement of
the Supplier Personnel to release the information to Buyer and to allow Buyer to use, disclose and transmit such information in connection with this Agreement.


16.8     Freedom of Action
This Agreement is nonexclusive and either party may design, develop, manufacture, acquire or market competitive products or services. Buyer will independently establish prices for resale of Deliverables or Services and is not obligated to announce or market any Deliverables or Services and does not guarantee the success of its marketing efforts, if any.


16.9     Additional Personal Data requirements for Supplier


1.  Supplier shall put in place with any third party to whom it transfers or discloses Personal Data an agreement sufficient to ensure that such third party treats Personal Data in accordance with the provisions of this Agreement. Supplier shall ensure that any third party to whom it transfers or discloses Personal Data has implemented a data privacy incident reporting process for the immediate reporting to Buyer of any potential or actual privacy and/or security breaches.  Supplier shall conduct an ongoing (annual or when changes occur) privacy assessment and security validation of those third parties to whom it has transferred Personal Data.



Form Title" Technical Services Agreement (TSA)        Revision: 11/08


Technical Services Agreement
Agreement # 4998CC0044-003


2.  Supplier shall make available to Buyer, upon request of Buyer, its internal practices, books and records relating to use, processing, disclosure, copying, modification, disposal and destruction of Personal Data. Buyer may, upon reasonable advance notice, audit (including, without limitation, site visits to Supplier's locations by Buyer) and verify Supplier's compliance with this Section.


3.  For as long as Supplier has access to Personal Data, Supplier will ensure that the individuals concerned are provided with the same rights of access, correction, blocking, suppression or deletion available to those individuals under the laws of the country (ies) from which the Personal Data at issue was originally collected. Supplier and Buyer will cooperate as is necessary to enable Buyer to respond to requests and inquiries from individuals concerning processing of their Personal Data. Supplier will ensure that its Personnel are continuously made aware of its Personal Data responsibilities.


4. Supplier shall promptly return to Buyer all Personal Data which is not necessary to fulfill the purpose(s) for which Personal Data was transferred to Supplier. Upon request by Buyer, Supplier shall provide a copy of all relevant Personal Data in tangible form in connection with any Buyer request for access to, correction of or destruction of Personal Data in Supplier's possession. Except as otherwise instructed by Buyer in writing, Supplier shall dispose of Personal Data by shredding or using some other means which renders the Personal Data unreadable and unable to be reassembled or reconstructed and shall certify to Buyer in writing, at Buyer's request, that it has done so.


5.  Supplier shall maintain in effect an insurance policy, which shall cover all Supplier costs, including damages it is obligated to pay Buyer or any third party, which are associated with any Security Breach (as hereinafter defined) or loss of Personal Data, regardless of cause (including, without limitation, Supplier negligence or gross negligence and unlawful third party acts).  Costs to be covered by this insurance policy shall include without limitation: (a) costs to notify individuals whose Personal Data was lost or compromised; (b) costs to provide credit monitoring and credit restoration services to individuals whose Personal Data was lost or compromised; (c) costs associated with third party claims arising from the Security Breach or loss of Personal Data, including litigation costs and settlement costs; and (d) any investigation, enforcement or similar miscellaneous costs.  Such insurance shall provide coverage for up to $10,000,000.00 (ten million dollars).  For the purposes of this Section, "Security Breach" means (1) the failure by the Supplier to properly handle, manage, store, destroy or otherwise control, or the unauthorized disclosure by the Supplier of: (a) Personal Data in any format or (b) third party corporate information in any format specifically identified as confidential and protected under a confidentiality agreement or similar contract; (2) an unintentional violation of the Insured's privacy policy or
misappropriation  that results in the violation of any applicable data privacy laws or regulations; or (3) any other act, error, or omission by Supplier in its capacity as such which is reasonably likely to result in the unauthorized disclosure of Personal Data.




		
	16.10
	Force Majeure


Neither party will be in default or liable for any delay or failure to comply with this Agreement due to any act beyond the control of the affected party, excluding labor disputes, provided such party immediately notifies the other.


		
	16.11
	Obligations of Affiliates


Affiliates will acknowledge acceptance of the terms of this Agreement through the signing of a PA before conducting any transaction under this Agreement.


		
	16.12
	Prior Communications and Order of Precedence


This Agreement replaces any prior oral or written agreements or other communication between the parties with respect to the subject matter of this Agreement, excluding any confidential disclosure agreements. In the event of any conflict in these documents, the order of precedence will be:
1. the quantity, payment and delivery terms of the relevant WA;
2. the relevant SOW;
3. this Base Agreement; and
4. the remaining terms of the relevant WA.


		
	16.13 
	Record Keeping and Audit Rights


Supplier will maintain (and provide to Buyer upon request) relevant business and accounting records to support invoices under this Agreement and proof of required permits and professional licenses, for a period of time as required by local law, but not for less than three (3) years following completion or termination of the relevant SOW and/or WA. All accounting records will be maintained in accordance with generally accepted accounting principles.


		
	16.14
	Severability


If any term in this Agreement is found by competent judicial authority to be unenforceable in any respect, the validity of the remainder of this Agreement will be unaffected, provided that such unenforceability does not materially affect the parties' rights under this Agreement.



Form Title" Technical Services Agreement (TSA)        Revision: 11/08


Technical Services Agreement
Agreement # 4998CC0044-003


		
	16.15
	Survival


The provisions set forth in the following Sections and Subsections of this Base Agreement will survive after termination or expiration of this Agreement and will remain in effect until fulfilled: "Taxes",  "Ongoing Warranties", "Intellectual Property", "Supplier Liability for Third Party Claims", "Limitation of Liability between Supplier and Buyer", "Record Keeping and Audit Rights", "Choice of Law; Waiver of Jury Trial; Limitation of Action", "Exchange of Information", and "Prior Communications  and Order of Precedence".


16.16     Waiver
An effective waiver under this Agreement must be in writing signed by the party waiving its right. A waiver by either party of any instance of the other party's noncompliance with any obligation or responsibility under this Agreement will not be deemed a waiver of subsequent instances.


ACCEPTED AND AGREED TO:        ACCEPTED AND AGREED TO:
International Business Machines Corporation    CDI Corporation
By:        By:
 /s/ Dan Schaefer                  8/6/09             /s/ Dirk A. Dent                    7/31/09    
Buyer Signature    Date            Supplier Signature    Date
    
Dan Schaefer            Dirk A. Dent    
Printed Name            Printed Name
    
U.S. Sourcing Manager, Technical Services        EVP, CDI Corporation    
Title & Organization            Title & Organization


                    
Buyer Address:            Supplier Address:
3039 Cornwallis Road            17177 Preston Road
Bldg 002 / Office B215            Suite 300
Research Triangle Park, NC  27709            Dallas, TX  75248



Form Title" Technical Services Agreement (TSA)        Revision: 11/08