Exhibit 10.1
***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.
HSBC HOLDINGS plc
AND
KANBAY EUROPE LTD.
APRIL 2005
CONSULTANCY
SERVICES
GLOBAL SUPPLY
AGREEMENT
MASTER SERVICES AGREEMENT
STATEMENT OF WORK
1
CONTENTS
2
THIS AGREEMENT IS MADE THIS 19 TH 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
A.
Consultant has developed skill and
expertise in various types of consulting services of interest to
HSBC and to any one or more of the HSBC Group Members (as defined
below).
B.
HSBC and any one or more of the HSBC
Group Members wish to engage the Consultant to provide certain
services and the parties have agreed that the Consultant will
supply or procure the supply of such services to HSBC and the
relevant HSBC Group Members on the terms of this
Agreement.
1
DEFINITIONS AND
INTERPRETATION
1.1
Interpretation
The interpretation and construction
of the Agreement shall be subject to the following:
Headings are for convenience only,
and do not affect interpretation. The following
rules also apply in interpreting this Agreement, except where
the context makes it clear that a rule is not intended to
apply:
(a)
reference to:
(i)
subject to Clause 4.1.9, legislation
(including subordinate legislation) is to that English legislation
as amended, re-enacted or replaced, and includes any subordinate
legislation issued under it;
(ii)
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;
(iii)
a party to this Agreement or to any
other document or agreement includes a permitted substitute or a
permitted assign of that party; and
3
(iv)
a person includes any type of entity
or body of persons, whether or not it is incorporated or has a
separate legal identity, and any executor, administrator or
successor in law of the person;
(b)
a singular word includes the plural,
and vice versa;
(c)
a word which suggests one gender
includes the other genders;
(d)
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;
(e)
the words “subsidiary”
and “holding company” have the same meaning set out at
section 736 of the Companies Act 1985, and “management
control” shall be demonstrated by the ability to exercise
significant influence over an entity or its management;
(f)
the headings to clauses are for
reference purposes only and shall not affect the interpretation or
construction of the clauses;
(g)
subject to clauses 1.1(h) and
1.1(i), in the event of conflict, the provisions of this Agreement
are to be read in the following order of precedence in relation to
that conflict:
(i)
the Terms and Conditions;
(ii)
the Attachments;
(iii)
the SoWs (and their Appendices);
and
(iv)
any document incorporated by
reference;
if a conflict occurs between the
documents listed above then the document higher in the order of
precedence will prevail to resolve that conflict;
(h)
subject to clause 1.1(i), in the
event of conflict between a provision in the Terms and Conditions
and a provision in a SoW, the provisions in clause
1.1(g) shall not apply and the provision in the SoW shall take
precedence over the conflicting provision in the Terms and
Conditions to the extent of the conflict, provided that the SoW
expressly makes reference to the specific conflicting provision in
the Terms and Conditions and expressly states that the provision in
the SoW shall take precedence;
(i)
nothing in a SoW shall be read to
take precedence over clauses 4, 13 and 14 in the Terms and
Conditions and clause 1.1(h) shall not apply to such
provisions, except where HSBC and the Consultant have expressly
agreed otherwise in a specific SoW
4
between HSBC or a HSBC Group Member
and the Consultant or a Consultant Affiliate; and
(j)
capitalised terms in this Agreement
shall have the meanings set out in clause 1.2.
1.2
Definitions
“ Acceptance ”
means the time at which the Deliverables pass the Acceptance Tests
and HSBC or the relevant HSBC Group Member signs a certificate to
that effect in accordance with clause 6 (Acceptance);
“ Acceptance Tests
” means the tests for acceptance of the Deliverables set out
in the relevant SoW (and “Acceptance Testing”
shall be construed accordingly);
“ Agreement ”
means these Terms and Conditions together with the Attachments and
all the SoWs (whether executed between HSBC or a HSBC Group Member
and Consultant or a Consultant Affiliate), together with their
Appendices, and any document incorporated by reference, as amended
from time to time in writing and agreed by HSBC and the Consultant.
For the avoidance of doubt, any such terms and conditions submitted
by the Consultant or any Consultant Affiliate in the course of
ordering and/or supplying the Services shall not replace, alter or
amend these Terms and Conditions unless HSBC shall have agreed to
the contrary in writing;
“ Best Endeavours
” means to take every step necessary to achieve the desired
result including taking such action and making available such
resources to the extent necessary to achieve the desired
objective;
“Business
Day” means any day
on which banks are ordinarily open for business in the country in
which the Services are being provided and if such matter cannot be
determined for any reason, then any day on which banks are
ordinarily open for business in London;
“ Charges ” means
the fees set out in the relevant SoW;
“ Commencement Date(s)
” means as the context permits the date on which the
provision of the Services shall commence under the relevant
SoW;
“ Confidential
Information ” means (1) in relation to HSBC or any
HSBC Group Member, any information or know how of HSBC or any HSBC
Group Member (including information relating to their facilities,
premises, systems, security, procedures, products, business
strategy (including the existence of, the terms of and its position
in any dispute in relation to this Agreement), employees, officers,
contractors and agents, customers and contacts, and any other
information of HSBC or any HSBC Group Member) that is supplied
during any audit or is marked confidential or that the recipient
ought reasonably to have known was confidential, imparted to
Consultant or any Consultant
5
Affiliate or its employees, agents
or contractors pursuant to this Agreement and (2) in relation
to Consultant or any Consultant Affiliate, any information relating
to its systems and security procedures, its business strategy
(including the existence of, the terms of and its position in any
dispute in relation to this Agreement), and any other information
of Consultant that is marked confidential or that the recipient
ought reasonably to have known was confidential, imparted to HSBC
or any HSBC Group Member pursuant to this Agreement.
Confidential Information shall exclude information (1) that is
or comes into the public domain or is publicly known or available,
or (2) is disclosed by a third party (except where such third
party discloses such information in breach of obligations of
confidence), or (3) that is independently developed by a party
without recourse to the Confidential Information of the other (or
HSBC Group Members or Consultant Affiliates (as
applicable));
“Consultant
Affiliate” means
all world wide companies that are controlled by or under the common
control of Kanbay and including for the avoidance of doubt,
Kanbay. A company is controlled by Kanbay if Kanbay owns at
least fifty percent (50%) or more of the shares or over which it
(or one of its holding or subsidiary companies) exercises
management control, even though it may own less than fifty percent
(50%) of the shares and is prevented by law from owning a greater
shareholding;
“ Consultant Personnel
” means all personnel, Key Personnel or other representatives
of Consultant and/or relevant Consultant Affiliates involved in the
provision of the Services;
“Consultant
Properties” shall have the meaning as
defined in clause 13.3;
“Deliverable(s)”
means any information, data,
document, report, software, design, plan, strategy, graphics,
artworks or other product or material developed by the Consultant
or any Consultant Affiliate and delivered to HSBC or any HSBC Group
Member in the performance of this Agreement including any
deliverable set out in the SoW;
“Event of Force
Majeure” means any
of the following circumstances which occur which are beyond the
reasonable control of a party and directly prevent that party from
performing its obligation(s) under this Agreement, being war, civil
commotion, armed conflict, riot, act of terrorism, fire, flood or
other act of God (excluding for the avoidance of doubt any labour
dispute, labour shortages, strikes or lock-outs) or as otherwise
referred to in this Agreement;
“Fixed-price
Engagement” means
any engagement where all of the Services relating to that
engagement will be provided by the Consultant or the relevant
Consultant Affiliate at a fixed and agreed price as set out in the
relevant SoW;
“ HSBC Group Member
” means a legal entity from time to time (1) in which
HSBC (or one or more of its holding or subsidiary companies, or
subsequent holding or subsidiary companies of such entity) owns at
least fifty percent (50%) or more of the voting shares or
(2) over which HSBC (or one of its holding or subsidiary
companies, or a subsequent holding or subsidiary company of such
entity) either directly or indirectly exercises management control,
even though it may own less than fifty percent (50%) of the shares
and is prevented
6
by law from owning a greater
shareholding or (3) the additional parties listed in
Attachment B or otherwise notified by HSBC from time to
time;
“ Implementation Plan
” means the plan and timetable for the provision of the
Services and delivery and Acceptance of the Deliverables, all of
which are set out in the relevant SoW;
“ Intellectual Property
Rights ” means all present and future rights conferred by
statute, common law or equity in any territory in or in relation to
copyright, trade marks, designs, patents, database rights, circuit
layouts, business and domain names, inventions and Confidential
Information, whether or not registrable, registered or patentable
and all applications therefor;
“ Invoice Date ”
means date(s) on which the invoice will be rendered, as specified
in the relevant SoW;
“ Kanbay ” means
the Consultant’s parent company, Kanbay
International, Inc.;
“ Key Personnel ”
shall mean the Consultant’s or the relevant Consultant
Affiliate’s personnel appointed to perform the Services
and/or any personnel of HSBC or the relevant HSBC Group Member who
are identified as key and named in the relevant SoW from time to
time;
“Lost
Time” shall have
the meaning as defined in clause 5.3;
“Not-to-exceed
Engagement” means
any engagement where the total price for the provision of the
Services relating to that engagement by the Consultant or the
relevant Consultant Affiliate shall not exceed an agreed capped
amount;
“Project Manager
” means the person identified
as the project manager of each relevant party in the relevant SoW
(or any other person notified by the party from time to
time);
“ Reasonable Endeavours
” means making every effort that the party concerned
reasonably can, consistent with the objective to be achieved (and
taking into account any timescale within which it is aimed to
achieve the objective concerned), including the
following:
(a)
the allocation and use of a
reasonable amount of resources (including manpower, financial and
other appropriate terms) to achieve the relevant objective within
any applicable timescale; and
(b)
obtaining any further information
necessary to enable the achievement of the objective;
and
(c)
co-operating with the other party or
with others to the extent necessary to achieve the
objective;
“Replacement
Personnel” shall
have the meaning as set out in Clause 18.6;
7
“Residuals” shall have the meaning as defined in clause
13.4;
“Services”
means the services to be provided by
the Consultant or the relevant Consultant Affiliate as set out in
this Agreement;
“ Signature Date
” means the date of execution of these Terms and Conditions,
as set out at the beginning of this Agreement;
“ Specification ”
of any Services or Deliverable means the specification agreed in
writing by the Consultant or any Consultant Affiliate and HSBC or
any HSBC Group Member and set out in the SoW;
“ Statement of
Work(s)” or “SoW(s)” means a statement
of work based on the pro forma set out in Attachment C and signed
by Consultant (or any Consultant Affiliate) and HSBC (or any HSBC
Group Member) and which incorporates these Terms and Conditions as
set out in the SoW, or any statement of work that has been agreed
in writing between Consultant (or any Consultant Affiliate) and
HSBC (or any HSBC Group Member) which are to be construed in
accordance with these Terms and Conditions. Each SoW relates to a
particular engagement for the provision of Services and constitutes
a separate and independent agreement regarding such Services
between Consultant (or the Consultant Affiliate that signed the
SoW) and HSBC (or the HSBC Group Member that signed the
SoW);
“ Term ” means in
relation to a SoW or these Terms and Conditions, the period from
the commencement until expiry or termination of that SoW or these
Terms and Conditions (as applicable);
“ Terms and Conditions
” means the terms and conditions set out in clauses 1 to 32
(inclusive) and Attachments A, B and D herein.
1.3
Statement of Work
Consultant hereby agrees
that:
1.3.1
in relation to any SoW executed by
HSBC or a HSBC Group Member and a Consultant Affiliate whether on
or after the Signature Date, the Consultant shall be jointly and
severally liable with that Consultant Affiliate to perform the
obligations under that SoW; and
1.3.2
the provisions in this Agreement
shall apply to the Services set out in each SoW:
(a) executed by HSBC or a HSBC
Group Member and the Consultant; and
(b) executed by HSBC or a HSBC
Group Member and a Consultant Affiliate, notwithstanding that the
Consultant is not a party to that SoW.
8
1.3.3
it shall procure the agreement of
and compliance by each Consultant Affiliate (who is a party to a
SoW) to these Terms and Conditions, as if they were a party to
these Terms and Conditions.
2
ENGAGEMENT
2.1
Consultant agrees and shall procure
that HSBC or any HSBC Group Member may order Services or
Deliverables from Consultant or Consultant Affiliates pursuant to
these Terms and Conditions by executing a Statement of Work. The
pre-printed terms appearing on any purchase order form and any
documentation which:
2.1.1
Consultant or Consultant Affiliates
(as applicable) generally issue to its customers for the supply of
services or deliverables; or
2.1.2
HSBC or the relevant HSBC Group
Member generally issues to its suppliers for the supply of services
or deliverables,
shall not apply and shall not add to
or vary the terms of this Agreement or the relevant SoW.
2.2
These Terms and Conditions shall
commence on the date of execution of such Terms and Conditions by
the parties and shall continue until terminated in accordance with
clause 18 (Breach and Termination).
2.3
Each SoW shall commence on the
Commencement Date of such SoW and shall continue until terminated
in accordance with clause 18 (Breach and Termination) or until the
Services are completed, whichever is the earlier.
3
THE CONSULTANT’S
OBLIGATIONS
3.1
The Consultant or the relevant
Consultant Affiliate will supply their Key Personnel (or other
Consultant Personnel who shall have appropriate qualifications in
accordance with clause 3.3) to perform and complete the Services in
accordance with this Agreement.
3.2
The Consultant or the relevant
Consultant Affiliate shall use Reasonable Endeavours to ensure the
Consultant’s or the relevant Consultant Affiliate’s Key
Personnel engaged to provide Services under a SoW continue to
provide such Services for the full Term of the SoW. If (despite the
use of such Reasonable Endeavours) it becomes necessary to remove
one of the Consultant’s or the relevant Consultant
Affiliate’s Key Personnel, the Consultant or the relevant
Consultant Affiliate shall notify HSBC or the relevant HSBC Group
Member as soon as reasonably practicable and shall substitute such
personnel with other personnel of at least equal calibre,
qualification and experience, and the relevant SoW should be
amended accordingly.
3.3
The engagement of all Consultant
Personnel to provide Services shall be subject to the approval of
HSBC or the relevant HSBC
9
Group Member. HSBC or the
relevant HSBC Group Member is entitled to withhold its approval or
require the replacement of such Consultant Personnel if in the
reasonable opinion of HSBC or the relevant HSBC Group Member such
Consultant Personnel in question has failed or is likely to fail to
meet the requirements set out in this Agreement or is otherwise
inappropriate. HSBC may terminate this Agreement or the Terms
and Conditions and HSBC or the relevant HSBC Group Member may
terminate a SoW if the Consultant or the relevant Consultant
Affiliate persistently provides Key Personnel who in the reasonable
opinion of HSBC or the relevant HSBC Group Member fail or are
likely to fail to meet the requirements set out in these Terms and
Conditions or the SoW or are otherwise inappropriate.
3.4
Unless otherwise agreed, the
replacement of any Consultant Personnel shall be at no additional
charge to HSBC (or the relevant HSBC Group Member) other than the
agreed Charges for provision of the relevant Consultant Personnel,
and the Consultant or Consultant Affiliate (as applicable) shall
bear the cost of any time required by the replacement Consultant
Personnel to familiarise themselves with the relevant Services and
requirements of HSBC or the relevant HSBC Group Member. The
Consultant or Consultant Affiliate (as applicable) shall ensure or
procure that any transition arrangements to replace Consultant
Personnel shall be without disruption to HSBC or the relevant HSBC
Group Member and shall not delay the performance of the Services,
or completion date of any SoW.
3.5
All Consultant Personnel shall
remain under the direct control of the Consultant or the relevant
Consultant Affiliate, but whilst such Consultant Personnel are on
any HSBC’s or any HSBC Group Member’s premises or the
premises of any other party as necessary for the provision of the
Services, the Consultant or Consultant Affiliate (as applicable)
will use its Best Endeavours to ensure or procure that the
Consultant Personnel:
3.5.1
comply with the security and health
and safety regulations, and other policies in force at the site
from time to time; and
3.5.2
obey the reasonable instructions and
requirements of HSBC or the relevant HSBC Group Member and other
party (as applicable).
3.6
The Consultant or Consultant
Affiliate (as applicable) shall procure that none of the Consultant
Personnel makes or purports to make any representation, warranty or
undertaking or otherwise acts or purports to act in any manner that
might be interpreted as binding or committing HSBC or any HSBC
Group Member to any obligation to any third party.
3.7
Time shall be of the essence in
relation to all obligations of the Consultant (and relevant
Consultant Affiliates) to perform the Services and supply the
Deliverables pursuant to this Agreement except that this clause 3.7
shall not apply in the case of timeframes or timescales which are
expressly stated in a SoW to be estimates only.
4
WARRANTIES
4.1
The Consultant warrants, represents
and undertakes to HSBC and the HSBC Group Members that it will, and
will ensure that the Consultant Affiliates and all Consultant
Personnel will:
10
4.1.1
have for the Term of this Agreement,
full authority (1) to enter this Agreement and perform all
obligations under this Agreement and (2) to procure that all
Consultant Affiliates perform the relevant obligations as set out
in this Agreement; A
4.1.2
unless otherwise agreed between the
Consultant Affiliate and the relevant HSBC Group Member in writing,
procure on behalf of HSBC and the HSBC Group Members all rights,
licences, consents and permits necessary to provide the Services
and supply the Deliverables in accordance with this
Agreement;
4.1.3
ensure that the Services are
performed with due diligence, reasonable skill and care and in
accordance with best industry practice at all times;
4.1.4
ensure the Services are provided in
accordance with the Specification to the reasonable satisfaction of
the relevant HSBC Group Member and in accordance with the
Implementation Plan and this Agreement;
4.1.5
ensure that no software data or
other materials, other than those provided or approved by the
relevant HSBC Group Member are to be loaded or used on any HSBC
Group Member’s computer system by the Consultant
Personnel;
4.1.6
ensure that all Consultant Personnel
will, when present at an HSBC’s or a HSBC Group
Member’s site, comply with the applicable site security,
health and safety and other procedures in force from time to time
and will at all times behave in a courteous, professional and
appropriate manner;
4.1.7
ensure that no Consultant Personnel
will act or make any statement or otherwise behave in any manner
that is reasonably likely to result in any prejudice to HSBC or any
HSBC Group Member (including to its reputation);
4.1.8
ensure that any Deliverable will
fulfil the requirements set out in the SoW, Specification or
otherwise specified in writing by Consultant or a Consultant
Affiliate and HSBC or an HSBC Group Member;
4.1.9
for the Term of this Agreement,
comply with all applicable laws and other governmental, statutory
or regulatory requirements which may from time to time be
applicable to the Consultant or Consultant Affiliates (as
applicable) in providing the Services and Deliverables to HSBC and
HSBC Group Members; and
4.1.10
ensure that the Services and
Deliverables, will where required and acknowledged in the
applicable SoW, recognise and (where applicable) process any
applicable currency (including any currency of any member state of
the European Union).
4.2
Consultant shall indemnify and keep
indemnified HSBC and HSBC Group Members against any loss suffered
as a result of any breach of any warranty in clause 4.1
above.
11
4.3
Without prejudice to its obligations
under clause 4.1 or to any rights or remedies of HSBC or HSBC Group
Members, in the event of breach of any warranty, Consultant
undertakes, promptly to remedy the breach without charge. Any claim
for breach of the warranties hereunder must be made, by written
notice to the Consultant within, one hundred and eighty (180) days
after delivery of the Deliverable to HSBC or the relevant HSBC
Group Member or ninety (90) days following the date that the
Deliverable to which the claim relates is used in a live production
environment, whichever is the earlier. However, if the SoW
expressly states that the Deliverable will not be used in a live
production environment then any claim for breach of the warranties
hereunder for that Deliverable must be made within ninety (90) days
after delivery of such Deliverable.
4.4
Consultant shall, where permitted by
applicable law, deliver prior written notice to HSBC of any change
of control (as defined in clause 1.1(e) above) of Consultant
or any Consultant Affiliate performing Services, in favour of a
third party that is not a Consultant Affiliate.
4.5
EXCEPT AS PROVIDED IN THIS CLAUSE 4,
CONSULTANT AND CONSULTANT AFFILIATES MAKE NO OTHER REPRESENTATIONS
OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FROM A
COURSE OF PERFORMANCE OR DEALING, TRADE USAGE, OR OF UNINTERRUPTED
OPERATION WITHOUT ERROR, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. EXCEPT AS MAY BE EXPRESSLY STATED IN A SoW,
CONSULTANT AND CONSULTANT AFFILIATES MAKE NO WARRANTIES REGARDING
THE BUSINESS BENEFITS OR RESULTS THAT ARE TO BE OBTAINED BY HSBC OR
THE HSBC GROUP MEMBER (AS APPLICABLE) FROM USE OF THE SERVICES OR
DELIVERABLES. THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT
ARE MADE FOR THE BENEFIT OF HSBC AND/OR THE RELEVANT HSBC GROUP
MEMBER ONLY.
5
HSBC’S
OBLIGATIONS
5.1
HSBC or the relevant HSBC Group
Member shall:
5.1.1
on reasonable notice provide the
Consultant or the relevant Consultant Affiliate with such
information, data, documents and co-operation as is reasonably
required by the Consultant or the relevant Consultant Affiliate to
perform the Services and supply the Deliverables;
5.1.2
ensure the reasonable availability
and stability of the relevant computing environment to support the
Services and acceptance testing set forth in this Agreement, if and
to the extent required in connection with any SoW;
5.1.3
provide such reasonable access to
HSBC’s or the relevant HSBC Group Member’s premises,
personnel, equipment, databases, software, and other resources at
pre-agreed times as is reasonably necessary for the Consultant or
the relevant Consultant Affiliate to perform its obligations under
this Agreement.
12
5.2
The Consultant and the relevant
Consultant Affiliate shall not be liable for any failure in
performing any obligations under this Agreement to the extent that
such failure is due to the failure by HSBC or the relevant HSBC
Group Member to perform an obligation under this
Agreement.
5.3
With respect to Fixed-price
Engagements and Not-to-exceed Engagements only, in the event that
HSBC or the relevant HSBC Group Member fails to meet its
obligations as stated in this Agreement (and the Consultant or the
relevant Consultant Affiliate has previously notified HSBC or the
relevant HSBC Group Member in writing of HSBC’s or the
relevant HSBC Group Member’s failure to perform such
obligations and the Consultant’s or the relevant Consultant
Affiliate’s entitlement to claim for Lost Time in accordance
with this clause 5.3 if HSBC’s or the relevant HSBC Group
Member’s failure to perform continues), and Consultant or the
relevant Consultant Affiliate incurs additional time, effort or
expense in the course of delivering the Services due solely to such
failure by HSBC or the relevant HSBC Group Member (“
Lost Time ”), then Consultant or the relevant
Consultant Affiliate shall inform HSBC or the relevant HSBC Group
Member in writing of the amount of the Lost Time and provide
sufficient evidence to justify its claim under this clause 5.3 and
any further evidence requested by HSBC or the relevant HSBC Group
Member, and on HSBC’s or the relevant HSBC Group
Member’s satisfaction of Consultant’s or the relevant
Consultant Affiliate’s entitlement to claim for the amount of
Lost Time under this clause 5.3, HSBC or the relevant HSBC Group
Member shall reimburse Consultant or the relevant Consultant
Affiliate an equitable amount at the standard rates which apply to
the relevant SoW for such Lost Time.
5.4
HSBC hereby represents and warrants
that it or the relevant HSBC Group Member has (i) all rights,
titles, or interests in the software, hardware, systems,
facilities, and other resources supplied to Consultant or the
relevant Consultant Affiliate or required for the performance of
HSBC’s or the relevant HSBC Group Member’s obligations
hereunder, and (ii) the authority and the legal right to
permit Consultant or the relevant Consultant Affiliate to perform
the Services.
6
ACCEPTANCE
6.1
HSBC or the relevant HSBC Group
Member shall be entitled to subject any Deliverable to Acceptance
Testing. HSBC or the relevant HSBC Group Member shall conduct
the Acceptance Tests, where applicable, in accordance with the
Implementation Plan, with the support of the relevant resources of
the Consultant and/or Consultant Affiliate as reasonably required
by HSBC or the relevant HSBC Group Member.
6.2
As soon as reasonably possible after
the satisfactory completion of the Acceptance Tests, HSBC or the
relevant HSBC Group Member shall issue a written certificate (where
applicable in the form specified in the Implementation Plan)
certifying that the Deliverable has passed the Acceptance
Tests. Satisfactory completion of the Acceptance Tests shall
occur when the Deliverable achieves the results specified in the
Acceptance Tests. If HSBC or the relevant HSBC Group Member
does not issue the written acceptance certificate (or a notice of
rejection pursuant to clause 6.3 below) to Consultant or the
relevant Consultant
13
Affiliate within fifteen (15)
Business Days following completion of the period specified for
Acceptance Testing, then the Deliverable shall be deemed to have
passed the Acceptance Tests.
6.3
If any Deliverable fails to satisfy
the Acceptance Tests, HSBC or the relevant HSBC Group Member shall
give the Consultant or the relevant Consultant Affiliate prompt
written details of the failure, and if it does:
6.3.1
the Consultant or the relevant
Consultant Affiliate must, at its own cost, and within two
(2) days, commence use of Best Endeavours to correct the
Deliverable so that the Acceptance Tests can be repeated and shall
complete such correction within seven (7) days or otherwise
within such reasonable period agreed between the
parties;
6.3.2
the Consultant or the relevant
Consultant Affiliate must promptly give HSBC or the relevant HSBC
Group Member written notice when it has corrected the Deliverable
and the Acceptance Tests can be repeated; and
6.3.3
the parties must conduct the
repeated Acceptance Tests as soon as reasonably practicable, or, if
applicable, in accordance with the Implementation Plan for repeated
Acceptance Tests.
6.4
If the repeated Acceptance Tests are
not successfully completed within a reasonable time, or, if
applicable, the period specified in the Implementation Plan (other
than directly and solely because of any act or omission of HSBC or
the relevant HSBC Group Member) HSBC or the relevant HSBC Group
Member may elect:
6.4.1
to reject the Deliverable and
terminate the relevant SoW (in full or in part) on notice with
immediate effect, in which case the Consultant or the relevant
Consultant Affiliate shall refund to HSBC or the relevant HSBC
Group Member all Charges paid by HSBC or the relevant HSBC Group
Member in relation to such Deliverable and HSBC or the relevant
HSBC Group Member shall return to Consultant or the relevant
Consultant Affiliate the applicable Deliverable and all related
materials supplied by Consultant or the relevant Consultant
Affiliate; or
6.4.2
to accept the Deliverable subject to
a reasonable deduction of Charges (which amount of deduction has
been agreed between the parties) to reflect the delays caused by
its failure to meet the Acceptance Tests, and/or the reduced level
of functionality and performance (or other aspects) of the
Deliverable; or
6.4.3
to require the Consultant or the
relevant Consultant Affiliate to continue to use Best Endeavours to
remedy the defect and re-present the Deliverable for further
Acceptance Testing.
6.5
If any Acceptance Test is repeated
because a Deliverable failed to pass the Acceptance Test when
previously tested and to the extent that such failure arose due to
the Consultant’s or the
14
relevant Consultant
Affiliate’s default in not developing the Deliverable to
fulfil the requirements set out in the relevant SoW and/or
Specification, the Consultant or the relevant Consultant Affiliate
shall promptly pay on demand HSBC’s or the relevant HSBC
Group Member’s additional expenses (including any internal
expenses relating to wasted time, as well as third party expenses)
in repeating the Acceptance Tests.
6.6
Nothing in this clause 6 shall
affect any rights or remedies of HSBC or any HSBC Group Member
under clause 4.
7
CHARGES
7.1
Charges for the provision of
Services are either set out in the relevant SoW or will be
calculated on a time and materials basis at the rates specified in
the applicable SoW. If HSBC or the relevant HSBC Group Member
agrees in a SoW to reimburse the Consultant or the relevant
Consultant Affiliate for any expenses reasonably incurred in the
provision of the Services, reimbursement will be made on the basis
set out in the relevant SoW. Subject to clause 7.2, no other
or additional sums shall be payable by HSBC or any HSBC Group
Member to the Consultant or any Consultant Affiliate in relation to
the relevant Services or any Deliverables.
7.2
If the Consultant or the relevant
Consultant Affiliate is asked by the Project Manager of HSBC or the
relevant HSBC Group Member to perform any services which it
reasonably considers are outside the scope of the Services, then
the Consultant or the relevant Consultant Affiliate shall notify
HSBC or the relevant HSBC Group Member and provide a quote for any
additional Charges for the performance of the additional
services. If HSBC or the relevant HSBC Group Member wishes
the Consultant or the relevant Consultant Affiliate to proceed to
provide the additional Services, it shall notify the Consultant or
the relevant Consultant Affiliate in writing and the relevant SoW
shall be amended accordingly. For the avoidance of doubt,
HSBC or the relevant HSBC Group Member shall not be liable to make
any payment to the Consultant or the relevant Consultant Affiliate
in relation to such additional services unless the Project Manager
of HSBC or the relevant HSBC Group Member has agreed to receive
such additional services detailed in a signed SoW. Unless the
parties agree otherwise, the provisions of these Terms and
Conditions shall apply to those additional services (which shall
become Services for the purposes of this Agreement) and if neither
a Fixed-price Engagement nor a Not-to-exceed Engagement has been
agreed in writing for such Services, then the Consultant or the
relevant Consultant Affiliate shall be paid on a time and materials
basis at the rates specified in the applicable SoW.
7.3
Invoices which contain sufficient
detail concerning the Services to which it relates, shall be
rendered to HSBC or at its option to any one or more HSBC Group
Members on the Invoice Date(s) specified in the relevant SoW and
subject to clause 7.4, if correct and undisputed shall fall due and
payable to Consultant (or where agreed Consultant Affiliate(s)) no
later than forty-two (42) days thereafter or such other period as
specified in the SoW . All Charges payable
under this Agreement shall be expressed, invoiced and payable in
the currency(ies) and on the date(s) specified in the relevant SoW.
Invoices shall be in a form specified by HSBC.
15
7.4
In the event of disputed items in
the invoice rendered by the Consultant or the relevant Consultant
Affiliate, HSBC or the relevant HSBC Group Member shall be entitled
to withhold payment on any such disputed items. Complete
details concerning any disputed items will be provided by HSBC or
the relevant HSBC Group Member to the Consultant or the relevant
Consultant Affiliate. Notwithstanding the foregoing, the
Consultant agrees that HSBC or the relevant HSBC Group Member shall
have no liability in respect of any Charges due hereunder which are
not invoiced to HSBC or the relevant HSBC Group Member within
twelve (12) months of the date when such invoice had properly
become presentable in accordance with clause 7.3.
7.5
In the event of late payment by HSBC
or an HSBC Group Member (as applicable) of any undisputed sums due
and payable under this Agreement (and provided HSBC or the relevant
HSBC Group Member has been given at least fifteen (15) days written
notice to cure such late payment), the Consultant reserves the
right to charge HSBC or the relevant HSBC Group Members interest in
respect of the undisputed late payment at the rate of one percent
(1%) per annum above the base rate from time to time of the
relevant HSBC Group Member making payment (or if that entity does
not have a base rate then the base rate of the central bank in the
territory in which that HSBC Group Member is located) from the due
date thereof until judgement (or if no judgement the date on which
payment is received by Consultant). In relation to HSBC, the
base rate of the central bank in the territory in which HSBC is
located, shall prevail.
7.6
In addition, HSBC or the relevant
HSBC Group Member shall be responsible for paying any applicable
sales, use, excise, value added, or similar taxes, duties, or
assessments imposed upon the Services rendered or Deliverables
provided hereunder by any federal, state, local, or foreign
government authority, exclusive of any taxes based upon
Consultant’s income or payroll.
7.7
The Consultant shall and shall
procure the Consultant Affiliates who provide any Services, upon
request and reasonable prior notice, provide to HSBC or the
relevant HSBC Group Member, or internal or external auditors or
examiners of HSBC or the relevant HSBC Group Member, copies of
their respective books and records including but not limited to
their annual audited, unconsolidated financial statements,
timesheets, project plans, expense reports, and related billing
justifications pertaining to the Services provided and Charges
invoiced under any SoW.
8
HSBC GROUP CHANGES
8.1
In the event of any new entity
becoming an HSBC Group Member after the Signature Date, the new
entity shall be entitled (at HSBC’s option) to all rights
conferred on HSBC Group Members under this Agreement. In no
event shall such new entity be obliged by reason of its becoming an
HSBC Group Member to purchase any Services from the Consultant or
any Consultant Affiliate.
8.2
If the Consultant acquires a
company, business or division or any entity otherwise becomes a (or
part of a) Consultant Affiliate, then HSBC and the HSBC Group
Members shall be
16
entitled to order Services or
Deliverables from that entity, business or division pursuant to
this Agreement.
8.3
In the event that any part of the
Services is planned by Consultant to be withdrawn from general
availability for any reason whatsoever, Consultant must use
Reasonable Endeavours to give at least twelve (12) months’
written notice to HSBC and must use Best Endeavours to procure the
supply of appropriate alternative services at no additional cost to
HSBC or any HSBC Group Members.
8.4
A “Divestment Unit”
shall mean any subsidiary, division or department of HSBC or an
HSBC Group Member, which was immediately prior to a particular date
(the “Divestment Date”), properly entitled to receive
Services or Deliverable(s), and would not, on or after the
Divestment Date, be a (or part of a) HSBC Group Member and
therefore not entitled (other than by virtue of this provision) to
receive Services or Deliverable(s).
8.5
Any SoW relating to a Divestment
Unit shall terminate on the Divestment Date unless the Consultant
shall be required by HSBC to continue to supply or procure that a
Consultant Affiliate provides any Services which it would otherwise
be required to provide or procure that a Consultant Affiliate
provides to the Divestment Unit under that SoW. For the avoidance
of doubt neither HSBC nor any HSBC Group Member shall be
responsible for the acts or omissions of the Divestment Unit nor
its compliance with requirements under this Agreement.
8.6
For the avoidance of doubt, nothing
in this clause 8 (HSBC Group Changes) shall prejudice HSBC’s
or any HSBC Group Member’s right of termination or any right
to claim damages in relation to the failure of the Consultant to
provide or procure that a Consultant Affiliate provides Services or
Deliverables under this Agreement.
8.7
For the avoidance of doubt, in the
event of any dispute and during any termination notice period
hereunder Consultant will continue to provide or procure the
Services fully in accordance with its obligations
hereunder.
9
CONSULTANT’S IT
OBLIGATIONS
9.1
The Consultant or the relevant
Consultant Affiliate shall, where applicable, test any Deliverable
prior to delivery to prevent the introduction of a computer virus
onto HSBC’s and/or HSBC Group Members’ computer
equipment or systems. Consultant and the relevant Consultant
Affiliate shall use Best Endeavours to ensure that no computer
virus is introduced on to HSBC’s or HSBC Group Members’
computer equipment or systems by any act, omission or negligence of
Consultant, any Consultant Affiliates or either of their employees
agents or contractors.
9.2
Without prejudice to HSBC’s or
HSBC Group Members’ other rights, in the event that a
computer virus is introduced on to HSBC’s or HSBC Group
Members’ computer systems caused by any act, omission or
negligence of Consultant, any Consultant Affiliates or either of
their employees, agents or contractors, Consultant and the relevant
Consultant Affiliate
17
shall use all Reasonable Endeavours
at HSBC’s or the relevant HSBC Group Member’s request
promptly to restore HSBC’s or the relevant HSBC Group
Members’ system to normal operational readiness.
9.3
HSBC shall use all Reasonable
Endeavours to ensure that appropriate anti virus measures relating
to the computer environment are implemented within HSBC and HSBC
Group Members.
9.4
Consultant and the relevant
Consultant Affiliate warrants, represents and undertakes to HSBC
and HSBC Group Members that any Deliverables constituting software
or data will upon delivery, be free from any code or function
designed to or having the effect of inhibiting the operation of the
relevant Deliverable.
10
CHANGE CONTROL
10.1
If HSBC or the relevant HSBC Group
Member wishes to change any Service or Deliverable provided
hereunder it shall notify the Consultant or the relevant Consultant
Affiliate in writing. If the parties agree that the proposed
change is minor, they shall agree an appropriate amendment to the
relevant SoW. If the change is not agreed to be minor, the
remainder of this clause 10 (Change Control) shall
apply.
10.2
HSBC’s or the relevant HSBC
Group Member’s Project Manager (the “Initiator”)
shall submit to the Consultant’s or the relevant Consultant
Affiliate’s Project Manager a written request for such
change, together with particulars thereof and such further
information as the Consultant or the relevant Consultant Affiliate
may reasonably require (“Change Request”).
10.3
Until such time as (if at all) the
Change Request is finalised pursuant to clause 10.5, the Consultant
or the relevant Consultant Affiliate shall, unless otherwise agreed
in writing, continue to perform the Services notwithstanding the
Change Request. A
10.4
The Consultant’s or the
relevant Consultant Affiliate’s Project Manager shall respond
in writing to the Change Request within a reasonable period (and in
any event within ten (10) Business Days) specifying the likely
resource, time and cost required to implement the change. The
Consultant’s or the relevant Consultant Affiliate’s
Project Manager shall provide the Initiator with such other
reasonable information as is reasonably requested relating to the
Consultant’s or the relevant Consultant Affiliate’s
response.
10.5
The Initiator shall advise
Consultant’s or the relevant Consultant Affiliate’s
Project Manager in writing of their decision either to progress or
not with the Change Request. No change shall be made to the
Services or Deliverables unless HSBC or the relevant HSBC Group
Member and Consultant or the relevant Consultant Affiliate have
agreed to the change in writing signed by the Initiator or other
authorized representative.
18
11
NON SOLICITATION
While a SoW is in force, and for a
period of twelve (12) months from its termination for any reason,
neither party will (and the Consultant will ensure no Consultant
Affiliates will) whether alone or jointly, directly or indirectly
employ or offer employment the same or similar to or substantially
relating to the Services to any employee of the other if that
employee was directly and actively involved with the performance or
receipt of Services under that SoW, other than as may be agreed by
the parties in writing. This clause 11 (Non Solicitation)
shall not prevent HSBC or any HSBC Group Member soliciting or
offering employment to any employee of the Consultant or any
Consultant Affiliate if this Agreement has terminated (or notice to
terminate is served) pursuant to clause 18.2(b) or 18.1
(a). For the avoidance of doubt, the restrictions set out in
this clause 11 (Non Solicitation) shall not prevent either party
from considering or employing the other’s personnel pursuant
to a response to a publicly advertised vacancy. For purposes
of this clause 11, the terms “employment” and
“employee” shall include any form of employment,
consulting, contract relationship, or other arrangement pursuant to
which such individual will, directly or indirectly, perform
services for the new employer.
12
TRAINING
12.1
Unless the applicable SoW
specifically requires the Consultant or Consultant Affiliate to
provide training as a Service under that SoW in consideration of
the Charges listed in that SoW, the Consultant shall or shall
procure that Consultant Affiliates shall provide at no extra charge
to HSBC and/or the HSBC Group Members, such initial training and a
reasonable number (as requested by HSBC and/or the HSBC Group
Member) of copies of a set of operating manuals containing
sufficient information to allow the correct installation and use of
any Deliverable and as is specified in the relevant SoW. Such
manuals shall be supplied in the language requested by HSBC or the
relevant HSBC Group Member. If the personnel of the
Consultant or the Consultant Affiliates who have provided the
Services are unable due to their lack of skills in the requested
language, to perform the translation, then the Consultant shall
obtain or shall procure the Consultant Affiliate to obtain, and
provide to HSBC a quote for the cost of the translation. HSBC may
elect for the Consultant or Consultant Affiliate (as applicable) to
perform the translation and shall provide notice of its acceptance
of the quoted cost for such translation. Upon HSBC’s
receipt of such translation, HSBC shall pay the quoted cost for
such translation.
12.2
If specified in the applicable SoW,
the Consultant shall or shall procure that Consultant Affiliates
shall provide HSBC and/or the HSBC Group Members with such
supplementary training as is required by HSBC and/or HSBC Group
Members on reasonable prior written notice from time to time at the
daily rate or other Charge specified in such SoW.
13
INTELLECTUAL PROPERTY
RIGHTS
13.1
Unless the parties otherwise specify
in
