Exhibit 10.2
***Text Omitted and Filed
Separately
with the Securities and Exchange
Commission.
Confidential Treatment Requested
Under 17 C.F.R. Sections
200.80(b)(4)
and 240.24b-2.
RATE SCHEDULE
THIS RATE SCHEDULE IS MADE THIS 19th DAY OF
APRIL 2005
Between:
HSBC Holdings plc whose registered office is 8
Canada Square, London, E14 5HQ (Registered Number 617987) which
shall hereinafter be referred to as “HSBC”;
and:
Kanbay Europe Ltd. of Compass House, Vision
Park, Histon Cambridge, CB4 9AD UK (Registered Number 3282049)
which shall hereinafter be referred to as
“Consultant”.
WHEREAS
This Rate Schedule establishes the rates
applicable to the Services to be delivered by Consultant and/or
Consultant Affiliates to HSBC and/or HSBC Group Members during the
Term hereof.
1
Introduction
1.1
Unless otherwise mutually agreed by
the parties in writing, the Services affected by this Rate
Schedule shall be delivered under the Consultancy Services
Global Supply Agreement dated April 19th, 2005 between the
parties (the “Terms and Conditions”). Unless
otherwise stated herein, all capitalized terms appearing in this
Rate Schedule shall have the meanings ascribed to them in the
Terms and Conditions.
1.2
For the on-going management of this
Rate Schedule, Consultant shall procure that Kanbay Incorporated
Inc. (“Kanbay”) will undertake the responsibilities
assigned to Kanbay hereunder.
1.3
The interpretation and construction
of this Rate Schedule shall be subject to the
following:
(a)
reference to:
(i)
a document or agreement, or a
provision of a document or agreement, is to that document,
agreement or provision as amended, supplemented, replaced or
novated; and
(ii)
a party to this Rate
Schedule or to any other document or agreement includes a
permitted substitute or a permitted assign of that
party;
(b)
a singular word includes the plural,
and vice versa;
(c)
if an example is given of anything
(including a right, obligation or concept), such as by saying it
includes something else, the example does not limit the scope of
that thing; and
(d)
the headings to clauses are for
reference purposes only and shall not affect the interpretation or
construction of the clauses.
2
Term
2.1
The term of this Rate
Schedule (the “Term”) shall commence on
April 1, 2005 (the “Effective Date”) and expire on
December 31, 2007 (the “Expiration
Date”).
2.2
HSBC and Kanbay shall commence good
faith negotiations regarding the renewal or replacement of this
Rate Schedule no later than six months before the Expiration
Date. Consultant shall procure that Kanbay will commence such
negotiations.
3
Commercial Terms
3.1
All Charges shall be as specified in
the applicable SoW. Unless otherwise mutually agreed the
Charges for any Services to be performed by Consultant Personnel on
a time and materials basis shall be determined using the rates and
terms specified in this Rate Schedule and in particular, those
rates and terms set out in Exhibit A to this Rate
Schedule.
3.2
HSBC and Consultant shall procure
that when HSBC and/or HSBC Group Members and Consultant and/or
Consultant Affiliates enter into SoWs, such SoWs shall be made in
accordance with the rates and terms specified in this Rate
Schedule.
4
Confidentiality
4.1
The signatories of this Rate
Schedule shall and shall procure that their employees, agents
and contractors and in the case of Consultant, the Consultant
Affiliates and in the case of HSBC, the HSBC Group Members to, at
all times, maintain strict confidentiality of the provisions of
this Rate Schedule except (a) where required by law or
regulation (including by the Financial Services Authority) to
disclose such information; or (b) with the prior written
consent of the other party. If a party should be required by
law or regulation to make a disclosure of this Rate
Schedule as referred to in clause 4.1(a), the disclosing party
shall so far as lawful promptly inform the other party in writing
of such a requirement and provide reasonable assistance if that
other party wishes to challenge the requirement to make the
disclosure.
4.2 HSBC and Consultant shall be
permitted to disclose this Rate Schedule to HSBC Group Members
and Consultant Affiliates provided such disclosure is strictly
necessary for the purposes of or in connection with this Rate
Schedule and/or the Terms and Conditions and/or a SoW and
provided that HSBC and Consultant shall each ensure that HSBC Group
Members and Consultant Affiliates respectively comply with the
confidentiality requirements of this Rate Schedule as if they
were parties to it.
4.3
Each party acknowledges that damages
will not be an adequate remedy for any breach of Clause 4 and shall
not seek to resist an application for an injunction in respect of
any breach or threatened breach of Clause 4 on the grounds that
there is an alternative adequate remedy in damages.
5
Termination
5.1 This Rate
Schedule shall terminate:
5.1.1 immediately on the
exercise by HSBC of any right in Clause 18.1 of the Terms
and
2
Conditions;
5.1.2 subject to Clause
5.1.3, immediately on written notice by HSBC to Consultant if
Consultant fails to cure any material or persistent default of any
provision of this Rate Schedule within thirty (30) days of
written notice requiring the default to be remedied;
5.1.3 immediately on
written notice by HSBC to Consultant if Consultant commits a breach
of Clauses 4, 6 or 8 of this Rate Schedule; or
5.1.4 upon HSBC
providing to Consultant at least one hundred and eighty days (180)
prior written notice of the termination of this Rate
Schedule for any reason whatsoever (including for HSBC’s
convenience).
5.2
For the avoidance of doubt,
termination of this Rate Schedule shall subject to Clause
11.3, terminate the obligations in this Rate Schedule of
Consultant and HSBC respectively. Notwithstanding the
foregoing, in the event that HSBC terminates this Rate
Schedule pursuant to Clause 5.1.4 above, HSBC’s payment
obligations (if any) under Attachment 1 shall survive such
termination, and HSBC shall make any such payments as described
therein.
6
Publicity
6.1
Consultant shall not and shall
procure that all Consultant Affiliates and Consultant Personnel do
not, disclose the making of this Rate Schedule in any journal
magazine or publication or any other medium or otherwise use
HSBC’s or the HSBC Group Members’ names or logos
(including any trade marks) in any of its advertising or publicity
material without HSBC’s prior written consent which may be
withheld or given in HSBC’s absolute discretion.
6.2
Notwithstanding Clause 6.1 however,
Consultant and Consultant Affiliates may include a reference to the
name of HSBC Holdings plc and/or the specific legal entity name of
any HSBC Group Member which uses their Services (and not, for the
avoidance of doubt, any of HSBC’s logos or trade marks or any
reference to other HSBC Group Members) on their lists of
clients.
7
Disputes
7.1
If at any time a dispute arises out
of or in connection with this Rate Schedule, HSBC and the
Consultant shall in the first instance meet in good faith with a
view to resolving the dispute within a period of ten
(10) Business Days from the day the dispute first
arises.
7.2
Should the parties not be able to
resolve the dispute within the ten (10) Business Days, then
both parties shall refer the matter to their own appropriate level
of senior management respectively for resolution.
7.3
If the relevant senior management
are unable to resolve the dispute within a further ten
(10) Business Days, then the parties will attempt to settle
the dispute by mediation in accordance with the Centre for Dispute
Resolution (CEDR) Model Mediation Procedure. To initiate mediation
the initiating party must give notice in writing to the other party
and send a copy of the notice to CEDR. The mediation will
start not later than ten (10) Business Days after
the
3
notice. Subject to clause 7.5,
the parties agree not to commence any court proceedings in relation
to the dispute until they have attempted to settle the dispute by
mediation and that mediation has either terminated or
failed.
7.4
Unless otherwise agreed in writing,
the costs of any mediation carried out pursuant to this clause 7
shall be shared equally between the parties.
7.5
Nothing in this Rate
Schedule shall prevent either party from taking such action as
it deems appropriate (including any application to a relevant
court) for injunctive or other emergency or interim
relief.
8
Assignment
8.1
Consultant shall not without the
prior written consent of HSBC assign, sub-contract, transfer or
part with any right or obligation under this Rate Schedule nor
any part thereof nor delegate any of its responsibilities or
obligations hereunder.
8.2
HSBC may assign, transfer, part with
or sub-contract any of its rights, responsibilities or obligations
under this Rate Schedule without the prior consent of the
Consultant.
9
Variation
No variation to this Rate
Schedule shall be effective unless in writing and signed by a
duly authorised officer of each of HSBC and Consultant.
10
Counterparts
This Rate Schedule may be
executed in any number of counterparts, each of which, when
executed and delivered, shall be an original, and all the
counterparts together shall constitute one and the same
instrument.
11
General
11.1
Entire Rate Schedule
The provisions of this Rate
Schedule, as amended, shall constitute the entire agreement and
understanding between the parties with respect to its subject
matter and, unless otherwise expressly provided, supersede all
prior agreements, representations, statements, negotiations and
undertakings (other than representat
